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A glimmer of hope for Ontario whistleblowers?

whistleblower retaliation

Businessman blowing whistle

Recently enacted changes to the Ontario’s Securities Act and the Commodity Futures Act regarding whistleblower retaliation contain some promising signs that whistleblower protection is not a lost cause in Canada. The changes to these two laws now allow whistleblowers who have suffered retaliation to file a civil claim in the Superior Court of Justice or to seek redress through arbitration. Other important elements include

  1. A broad definition of whistleblower actions including simply expressing an intention to blow the whistle, or seeking advice about doing so;
  2. A broad definition of retaliation;
  3. A “reasonable belief” of wrongdoing requirement for the whistleblower;
  4. A reversal of the burden of proof onto the retaliating person or organization; and
  5. Reinstatement at the same seniority and repayment of up to two times any lost pay with interest for the whistleblower.

Although the amendments in the new section are restricted by the scope of the respective acts and the sectors they serve, they mark an important change in thinking regarding whistleblower retaliation and protection in Canada. In particular, several clauses represent best practices from other countries, something that has been sorely lacking here to date.

The amendments, which are the same in both acts, prohibit reprisal against an employee who has; provided information, sought advice about doing so, or even expressed an intention to provide information. Importantly, the new section defines retaliation broadly including termination, demotion, discipline, suspension, demotion, penalties, intimidation or coercion or threats to do any of these, adding that it is not limited to these acts.

Another important issue in the world of whistleblowing relates to the basis on which a whistleblower is justified in making a complaint. Once again the new section uses helpful language stating that the whistleblower must “reasonably believe” that a prohibited act by a person or company has occurred, is ongoing or is about to occur. Many whistleblower doubters fixate on their motives, and this language is the key to good practices. All the whistleblower requires is a “reasonable belief” that they are reporting wrongdoing.

The final and most important new elements relate to the burden of proof and the potential remedies for whistleblowers. Crucially, the burden of proof is now reversed to lie on the person or company accused of retaliation i.e. they have to prove that their acts were not retaliation. The opposite has been true until now and it has often proven beyond the means of impecunious whistleblowers to take on large organizations and prove the retaliation.

The remedies that are outlined in the new section are also refreshing in their recognition of the financial damage wrought by retaliation. In addition to enabling the whistleblowers’ reinstatement, it specifies giving the same seniority status that they would have had, absent the retaliation. It also allows for payment to the whistleblower of two times the amount of remuneration they would have received from the date of the contravention to the date of the order, and with interest.

These changes are refreshing for Canada where whistleblower legislation remains fragmentary, and geographically erratic. Most employees have no real protection and the laws that do exist fail to meet international standards. It would appear then that pockets of change are appearing, this should prompt Canadian organizations of all types to adopt effective whistleblower systems and policies, including detailed practices to prohibit and prevent retaliation. Those that do are sure to reap the benefits, and can avoid falling foul of this new legislation.

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Sandy Boucher, Senior Investigator at Grant Thornton LLP

Senior Investigator at Grant Thornton LLP
Sandy Boucher is a seasoned investigator with 35 years of experience in both the public and private sectors.Starting his career with the Royal Hong Kong Police, where he worked for 12 ½years attaining the rank of Superintendent, Sandyspecialized in Asian organized crime, narcotics and money laundering investigations.During his time with the force, Sandy received both Commissioners and Commanding Officer’s commendations for his work, as well as commendations from eight overseas police forces.He managed and conducted a broad range of high level investigations including a number which involved corruption during this period.Read more here.
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