Introduction of Civil Cause of Action for Whistleblower Reprisal

The Ontario Securities Commission's Whistleblower Program—launched in July 2016—encourages individuals and companies to report on suspected violations of Ontario securities laws to the Commission. It prohibits reprisals against employees for providing information to the Commission pursuant to the program. Through amendments to the Securities Act and the Commodity Futures Act, the Ontario legislature has introduced a civil cause of action for whistleblowers who experience reprisal for cooperating with the Commission. These amendments will provide further protection to whistleblowers, and may enhance the success of the Whistleblower Program by encouraging otherwise hesitant individuals to come forward.

What You Need To Know

The Securities Act and the Commodity Futures Act have been amended to provide for a civil cause of action for whistleblowers. The amendments give teeth to the anti-reprisal provisions in both acts. Under both acts:

• the whistleblower may bring an action alleging reprisal in the Superior Court of Justice (or, in the context of a unionized workplace, make a complaint to be dealt with by arbitration under the collective agreement);
• the burden of proof that the person or company did not take a reprisal lies on that person or company;
• the court (or arbitrator) may order any of the following remedies:
  • reinstatement of the employee to the position he or she held prior to the reprisal; or
  • payment to the employee of two times the remuneration that would have been paid by the employer had the reprisal not taken place.

These amendments provide protection to whistleblowers that might not otherwise be available at common law, including a reversed onus in favour of the employee and specified reinstatement and monetary remedies. The legislative amendments do not specifically contemplate an order of special damages that may be sustained by the employee as a result of the reprisal.

Takeaways for Employers

In light of the new cause of action, which places a reverse burden on the employer to prove that it did not take a reprisal against an employee, it is particularly important that employers ensure all supervisors and other individuals with the power to discipline employees are aware of the prohibition against reprisals. Employers should also ensure that the reasons for any disciplinary decisions are well documented, so that a clear record exists in the event an employee later challenges the disciplinary action as retaliatory in nature.

To discuss these issues, please contact the author(s).

This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.

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