On November 20, the Alberta Securities Commission (ASC) announced the creation of a whistleblower program (Program) and Office of the Whistleblower (OWB), underpinned by amendments to the Securities Act (Alberta) (Act) and ASC Policy 15-602 Whistleblower Program. Key features of the Program, which took effect on November 19, include the following:
- Who’s Covered: The Program applies to any employee. The term is broadly defined to include full-time or part-time employees of the person/company, any of its directors, any independent contractor for that person/company or a full-time or part-time employee or director of that independent contractor, and any full-time or party-time employee or director of an affiliate of that person/company who engages in activity that meets the definition of “whistleblower”.
- Protection of whistleblowers’ identity: The identity of whistleblowers and information that could reasonably be expected to reveal their identity will remain confidential, even in ASC hearings or court trials, unless the whistleblower and the ASC’s Executive Director consent to such disclosure or it is necessary for respondents to prove that they did not commit the alleged misconduct. However, although individuals will have their identity as whistleblowers protected, they still may be required to provide documents, other information or testimony as witnesses if an investigation or hearing proceeds.
- Obstruction and reprisals prohibited: The Act prohibits anyone from taking a reprisal against an employee for acting as a whistleblower, for seeking or providing advice about acting as a whistleblower, or because a relative of the employee has acted as or sought or given advice about acting as a whistleblower. Violation of this prohibition could lead to administrative penalties, imprisonment or fines of up to $5 million. The Act also gives employees who suffer a reprisal a statutory claim for damages and prohibits anti-whistleblower provisions in contracts.
- No whistleblower awards: Unlike the Ontario whistleblower regime, the Alberta regime does not provide any financial incentive (such as a whistleblower award) to employees who report potential breaches of Alberta securities law.