Background
On June 29, 2018, the Ontario Securities Commission (“OSC”) released an update detailing the progress of its Whistleblower Program. As we have previously discussed, the Whistleblower Program was established two years ago and is the first of its kind by a Canadian securities regulator. The Program accepts tips on possible violations of Ontario securities law, offers protections for individuals who come forward, as well as compensation of up to $5 million for tips that lead to enforcement action. While no payouts to whistleblowers under the fledgling Program have been reported, the OSC’s update demonstrates that people are aware of the Program and have begun to take the OSC up on its promise of potential rewards.
Whistleblower Program gains momentum
There have been no cases of which we are aware that have resulted in the successful conclusion to a tip-originated proceeding. This notwithstanding, the OSC advises that in the two years since its launch in July 2016, the OSC Whistleblower Program has generated approximately 200 tips, at an average of about two tips per week. Notably, all tips undergo a review process to determine the appropriate course of action.
The OSC highlights the following figures from the Whistleblower Program:
- 22% of the total number of tips received are under currently review;
- 10% of the tips have been referred to Enforcement and 7% of those are associated with active investigations;
- 35% of the tips were or are in the process of being shared with another OSC operating branch or another regulator for further action.
According to the policy, awards are paid to whistleblowers only after cases are concluded and all appeal rights have expired. Given the time required for OSC Staff to conduct an investigation and pursue an enforcement proceeding through to a decision, this process can take several years to complete. The Commission has not yet announced any payments to whistleblowers under the Program.
Implications
The OSC is emphasizing that the Program is working. The clear message from this update is “be patient, cases are coming” and they are motivated to bring them.
The $5-million cap imposed under Ontario’s Program precludes astronomical awards as seen on the scale paid to whistleblowers in the U.S. under bounty-based regimes like the SEC’s. The potential nevertheless exists for considerable payments to be made to whistleblowers in Canada. Given the increasing momentum of the OSC’s Whistleblower Program, it is critical for companies to have in place a robust controls system in order to detect potential problems as early as possible. It is also important to have mechanisms in place to protect employees who come forward to report those problems internally.
A prudent approach to internal compliance is the best defence against the increasingly real risk that boards and management will first hear about serious misconduct within their organizations from the OSC as a result of a whistleblower tip. The high level of interest generated by the Program accentuates the need for companies to take proactive steps to identify and manage internal problems before they become the subject of a tip reported by a whistleblower.
