Ontario looking to boost whistleblower protection

Ontario is looking to provide protections for whistleblowers in sectors regulated by the Financial Services Regulatory Authority of Ontario (FSRA), including insurance, pensions and credit unions.

Bill 43, Build Ontario Act (Budget Measures), 2021, states there would be no direct or indirect penalty against a whistleblower for making a disclosure to the CEO. These include termination of employment; demotion, discipline or a suspension; threat of imposing a penalty or withholding a benefit; and intimidation or coercion.

In July, British Columbia announced it is bringing more public service employees and organizations under the scope of the Public Interest Disclosure Act (PIDA).

Ontario’s act defines a whistleblower as a person or entity that discloses to the CEO “an alleged or intended contravention” of a statute in the FSRA act and requests that their identity as a whistleblower be kept confidential. The CEO also must provide them with an assurance of confidentiality, subject to exceptions.

Bill 43 also prohibits the CEO from disclosing the identity of a whistleblower unless the whistleblower consents, or if the CEO has reasonable grounds to believe that the disclosure is illegal under related laws.

Also, a court hearing for an offence shall keep the whistleblower's identity confidential “unless the court determines that the disclosure is necessary to show that a person did not commit the offence with which they are charged,” says the government.

Many Canadians fear being “outed” as a whistleblower, while 39 per cent fear retaliation and 38 per cent fear losing their job, according to a 2019 survey.

Remedies for whistleblowers under Ontario’s act would include:

• reinstatement to their job
• payment of two times the amount of compensation they would have been paid in connection to their job
• compensation in an amount considered just by the arbitrator or court.

In addition, a whistleblower would not be liable in any civil proceeding for making a disclosure or complaint or brining a civil proceeding.

Any person convicted of an offence under the act would be liable to a fine up to $100,000 or imprisonment for a term for up to one year or both. If a corporation commits the offence, it could face a fine up to $200,000.

The bill went through First Reading on Nov. 4.

Almost all (94 per cent of) Canadian employees feel it is their responsibility to speak up when they see wrongdoing in the workplace, and 40 per cent have witnessed wrongdoing in the workplace, according to a 2019 report.