The Ontario Securities Commission (“OSC” or the “Commission”) launched a whistleblower program in July 2016. This was the first program of its kind developed by a Canadian securities regulator. Much like its American cousin, the SEC whistleblower reward program, the OSC’s program accepts tips on possible violations of Ontario securities law, and offers rewards of up to $5 million to whistleblowers who provide tips that lead to an enforcement action. Some examples of the types of conduct that a whistleblower could report include:
- illegal insider trading and/or tipping;
- misleading corporate disclosure and/or financial statements;
- illegal distribution and/or unregistered trading;
- registrant misconduct;
- market manipulation; and
- other trading-related misconduct.
The OSC’s 2016-2022 report, discussed below, specifically notes that the Commission would like to see “more tips related to market manipulation and illegal insider trading,” as well as “novel and emerging issues,” such as “greenwashing, improper tied selling, misuse of algorithms and artificial intelligence, and misconduct by public accounting firms that conduct audits of Ontario reporting issuers.”
Whistleblowers are eligible for a reward if they meet three key criteria:
First, the information the whistleblower provides must lead to an administrative proceeding in which over $1 million in total monetary sanctions are ordered or voluntary payments are made to the OSC.
Second, the information provided must meet “information eligibility criteria.” This means that the information must be original—that is, derived from the Whistleblower’s independent knowledge or independent analysis and not already known to the OSC—and it must be voluntarily provided to the OSC.
Third, the prospective whistleblower must meet “individual eligibility criteria.” The rules of the OSC program set out 15 categories of ineligibility. These exclusion categories include, for example, individuals who refuse requests for additional information by OSC; individuals who obtained their information in the course of provision of legal services to the subject of the whistleblower submission; directors and officers of the subject; and those who have been convicted of a criminal offense related to the subject matter. Each of the exclusion categories are subject to three exceptions, which may allow otherwise-excluded whistleblowers to participate in the program. Notably, the program allows anonymous whistleblowers to make submissions through counsel, and also permits multiple whistleblowers to make a single joint submission.
The award calculation under the OSC program differs from the various US programs, insofar as the award calculation takes into consideration the amount of sanctions collected by the OSC, rather than focusing solely on the sanctions.
As a baseline, eligible whistleblowers are paid between 5 and 15% of the total monetary sanctions imposed and/or voluntary payments made in the relevant proceeding(s). If the total monetary sanctions imposed and/or voluntary payments are equal to or greater than $10 million, the whistleblower’s award is capped at $1.5 million. However, if the total monetary sanctions received and/or voluntary made exceeds $10 million, then the cap on the whistleblower’s award is raised to $5 million.
The OSC considers various factors which may increase or decrease the amount of an award. The positive factors include the timing of the report, the significance of the information, the degree of information provided, the impact of the information on the investigation or proceeding, efforts at remediation and recovery, participation in internal compliance and reporting systems, unique hardships experienced by the whistleblower, and contributions to the Commission’s mandate and priorities. Potentially negative factors include the provision of erroneous or incomplete information, the whistleblower’s culpability in the violations, delays in reporting, refusal to provide assistance to the Commission, and interference in the Commission’s investigation or with internal compliance and reporting mechanisms.
In addition to incentivizing whistleblower reporting through the use of awards, the OSC program has implemented a number of protections against disclosure and reprisal. As mentioned above, whistleblowers are permitted to file anonymously. More generally, the OSC is committed to the confidentiality of a whistleblower’s identity, and—with the exception of where disclosure is required by law—the Commission will not share a whistleblower’s identity, or information that could reveal the whistleblower’s identity, to any other regulator or law enforcement without the whistleblower’s consent.
Ontario also has statutory anti-reprisal provisions that make it unlawful for employers to retaliate against employees for reporting breaches of the Ontario securities law, and both the Ontario Securities Act and the Commodities Futures Act allow the OSC to take enforcement action against employers who take reprisals against whistleblowers. Reprisals are measures taken against employees that “adversely affects” their employment, and can include termination, demotion, discipline, and intimidation. These rules apply whether the report is made to the OSC, to law enforcement, to a recognized self-regulatory agency, or internally to their employer. Under the OSC whistleblower program, possible protections include the employee’s reinstatement, and the payment of up to two times the amount of lost pay.
As compared to the various US programs, the OSC’s program may appear limited, particularly when one considers the award caps. Despite some limitations, the program’s first five years of operation have been very successful. In March of 2023, the OSC published a report on the program’s 2016-2022 operations. In those five years, the OSC reports the following statistics:
- 626 calls to the OSC’s confidential hotline;
- 797 tips received from more than 840 whistleblowers;
- Tips received from more than 30 countries: 63% of tips originating in Ontario, 17% from the rest of Canada; 20% from international sources
- 89% increase in tips from 2018 to 2022;
- $48 million in monetary sanctions and voluntary payments against 19 respondents; and
- $9.33 million in awards paid to 11 whistleblowers.
The update report also looks at the ways that the Commission hopes to improve the programs in the coming years. The number one item on this list is “exploring changes to the Program,” including policy amendments aimed at “enhancing [the OSC’s] recognition of whistleblower contributions, such as by issuing awards and more cases and awarding potentially larger amounts.” Other potential updates include building on outreach efforts to target tips about specific types of misconduct, including emerging issues that are of interest to the OSC, as well as supporting the development of an Ontario whistleblower bar: the Commission sees “key benefits deriving from lawyers who understand the Program and who want to represent whistleblowers.”
As lawyers supporting whistleblowers, we are glad to see that the OSC recognizing the contributions knowledge counsel can make! If you think you may have a tip to submit, or just have additional questions about the OSC’s program, reach out to Alexandra Douglas at [email protected].