What kind of disclosure is protected?
The Act protects whistleblowers who, while acting on the basis of reasonable belief, have voluntarily disclosed information to a Securities Commission regarding a past or potential wrongdoing in relation to the securities laws of Alberta 57.4(2).
Under the Act, whistleblower means an employee who voluntarily discloses information respecting alleged wrongdoing by or in connection with the person or company, or an employee of the person or company s. 57.1.
The Act also offers remedies for employees who sought or provided advice about voluntary disclosures, or expressed an intention to voluntarily disclose to the Securities Commission, information respecting the alleged wrongdoing by or in connection with the person or company or an employee of the person or company. Additionally, there are remedies for employees who voluntarily co-operated, testified or otherwise assisted in, or expressed an intention to voluntarily cooperate, testify or otherwise assist in, an investigation by a Commission staff member, or a proceeding under this Act. s. 211.096.
Who is eligible for protection?
In order to be protected under the Act, the person making the disclosure must be an employee of a person or company, including a corporation, incorporated association, incorporated syndicate or other incorporated organization, who has disclosed information regarding wrongdoing s. 57.1(f).
Moreover, the disclosure must be made to a staff member of the Alberta Securities Commission s. 54.1(a), either the Executive Director, the Secretary or any individual appointed as staff by or seconded to the Commission s. 57.1.
Under the Act, employee s. 57.1 means, in respect of a person or company, an individual who is or was at the relevant time
- a full‑time employee, a part‑time employee or a director of that person or company;
- an independent contractor for that person or company, or a full‑time employee, part‑time employee or director of that independent contractor; or
- a full‑time employee, part‑time employee or director of an affiliate of that person or company.
The Act doesn’t protect individuals who only disclosed, or has already disclosed, the information in response to an order or a summons issued under a law of Canada or who is required to report or otherwise provide the information to the Commission as a result of a pre‑existing legal duty s. 57.1 s. 211.096.
How are whistleblowers protected?
If a disclosure regarding wrongdoing has been made in good faith and on the basis of reasonable belief, to a Commission staff member, the Act prohibits any persons, companies or employees from making any type of reprisal against them. This includes whether the discloser has cooperated, testified or assisted in an investigation or proceeding under this Act s.57.4(1).
A person will not be protected if they or a relative of theirs, including parents, spouse, adult interdependent partner, siblings and children did not reasonably believe the information at the time or if they or their relatives engaged in the conduct themselves s. 57.4.
Under the Act, reprisal means, in respect of an employee, any measure or conduct that adversely and materially affects employment or working conditions, including but not limited to dismissal, layoff, suspension, demotion, transfer, discontinuation or elimination of a position, termination of a contract, change of workplace, reduction in remuneration, changes in work schedule, including number of working hours, reprimand, harassment, denial of a benefit and any threat of any measure or conduct that would adversely and materially affect employment or working conditions s. 57.1(e).
No provision or term in any contract, agreement or policy shall prohibit or restrict employees from disclosing information regarding a wrongdoing under the Securities Act s.57.5.
This applies to any wrongdoing whether it occurred before, on or after 19th November 2018. However:
- the identity of a whistleblower being kept confidential s. 57.2 only applies to whistleblowers who disclosed on or after the effective date;
- any information obtained being kept confidential s. 57.3 only applied to information or records received on or after the effective date;
- no reprisals s. 57.4 applies only to reprisals taken or directed against an employee on or after the effective date;
- prohibitions against whistleblowing s. 57.5 applies to any provision or term in any contract, agreement or policy that is in effect or takes effect on or after the effective date, but only with respect to a matter that occurs on or after the effective date;
- no obstruction s. 57.6 applies only to any act that constitutes obstruction, or advising, requesting or directing obstruction, that occurs or continues to occur on or after the effective date;
- no false disclosure s. 57.7 applies only to a statement made by a person or company on or after the effective date; and
- limited immunity s. 57.8 applies only to an employee of a person or company who on or after the effective date, disclosed, sought or provided advice about disclosing, or expressed an intention to disclose to a Commission staff member the information.
In general, the identity of the whistleblower must be kept confidential by the Commissioner s.57.2. However, there are some exceptions as they pertain to orders by a judge or the Executive Director s. 57.2(1) .
Right of Action
Should a whistleblower be subject to a reprisal, they have a right of action against the person, and their employer, who took or directed a reprisal against them s. 211.096(1).
If an action under s. 211.096(1) is resolved at trial in favour of the whistleblower, the court shall order remedies to the whistleblower.
If employment was terminated or suspended, remuneration was reduced, or they were denied a benefit that had a monetary value attached to it, they are entitled to up to 2 times the amount that would have been received by or would have, in remuneration between the date of the occurrence of the measure or conduct for which the employer has been found liable and the date of the determination of damages, having regard to the circumstances.
If the whistleblower was subject to a transfer, change of workplace, change in hours of work, reprimand, denial of a benefit or any other measure or conduct that adversely and materially affected the plaintiff’s employment or work conditions, it should be reversed.
The whistleblower is entitled to an amount that does not exceed the amount received by or accrued to them, in remuneration between the date of the occurrence of the measure or conduct for which the employer has been found liable and the date of the determination of damages, having regard to the circumstances s.211.096(3).
How should disclosures be made?
Disclosure can be made :
- by phone, call 1-833-295-4387
- By email: firstname.lastname@example.org
- By mail:
OWB – Confidential
Alberta Securities Commission
Suite 600, 250 – 5th Street
Calgary, Alberta, T2P 0R4
For disclosure by writing, complete the Whistleblower Submission Form (Form A). This form can be downloaded and saved or printed. Email or mail your completed form and any supporting material to the ASC’s Office of the Whistleblower.
Anonymous disclosure: The ASC accepts anonymous whistleblower disclosure: leave blank all contact information in the Whistleblower Submission Form.
As it may be necessary to obtain additional information from a whistleblower, the ASC also allows anonymous disclosure to be submitted by a lawyer on your behalf. This allows the ASC to contact your lawyer if additional information is required. In this case:
- print the Whistleblower Submission Form (Form A), and provide a completed and signed copy to your lawyer to retain; and
- your lawyer should then complete and submit the Whistleblower Counsel Submission Form (Form B) by email or mail on your behalf, omitting any information that may identify you, their client.
For additional ASC contact information, click here.