Securities Act

Overview

The Securities Act (RSO 1990, c. S.5) protects employees from retaliation for disclosing a contravention to the Act or other regulatory instruments, including self-regulatory organizations. The contravention can be ongoing, foreseen, or occurred in the past, and must be disclosed to the Ontario Securities Commission (OSC). Additionally, any provisions and confidentiality agreements that prevent disclosures from being made are considered void.

The OSC has introduced a Whistleblower Program meant to encourage people to provide quality information about potential infractions of the Act; a monetary award is offered for original information that has helped an investigation. This program encourages employees to use internal mechanisms as much as possible, however, it is not required. This program excludes Information that must be given due to an existing legal obligation.

What kind of disclosure is protected?

This Act protects any employee who reasonably believes that the act being disclosed is contrary to Ontario securities law or a by-law or other regulatory instrument of a recognized self-regulatory organization. The Act protects employees who have sought advice about providing information, expressed an intention to provide information, or provided information to the person or company, the Commission, a recognized self-regulatory organization or a law enforcement agency s. 121.5(1)(a).

Who is eligible for protection?

The Act doesn’t restrict the protection to specific categories of persons. Potential whistleblowers may include employees, former employees, suppliers, contractors, clients and others. Individuals or groups of individuals who have been involved in the misconduct can still be whistleblowers.

 The Ontario Security Commission considers a whistleblower to be an individual, or a group of individuals acting jointly, who:

  • are aware of, or suspect, a violation of Ontario securities law; and
  • voluntarily come forward and report that information using the Whistleblower Submission Form (online or by mail).

A provision in any agreement, including a confidentiality agreement, is void if it prevents or appears to prevent s.121.5(3):

  • providing information to the Commission, a recognized self-regulatory organization or law enforcement agency; or
  • cooperating, testifying, assisting, or expressing intent for such in an investigation or proceeding.

How are whistleblowers protected?

The Act prohibits any person, company or person acting on behalf of a company from committing any kind of reprisal against an employee who has sought advice about making a disclosure, who has made a disclosure or who has cooperated in an investigation regarding a disclosure s.121.5. Additionally, a provision in any agreement is considered void to the extent that it precludes or purports to preclude the employee from the terms outlined in s. 121.5(3).

Any person who knowingly takes any kind reprisal against a person who has disclosed information related to a wrongdoing is guilty of an offence under Ontario securities law and is liable of a fine no more than $5 000 000 and/or to a term of imprisonment no more than five years less one day s.122.

Under the Act, a reprisal s.121.5(2) includes but is not limited to the following acts :  

  • ending or threatening to end employment;
  • demoting, disciplining, suspending, or threatening for such;
  • imposing or threatening to impose a penalty; or
  • intimidating or coercing an employee in relation to their employment.

How should disclosures be made?

Be careful! Despite presenting some challenges for follow ups, one of the best protections for whistleblowers is their anonymity. Be cautious when providing any information through electronic means, especially emails! Read the security tips section.

To submit a report, an employee (or their lawyer, if acting anonymously) must first complete a Whistleblower Submission Form and submit it to the OSC's Office of the Whistleblower, either online or by mail.

The OSC encourages employees to submit their report online and attach any supporting documents or materials. It can take 45-60 minutes to complete the online report, which must be completed in one sitting, as progress cannot be saved along the way. Up to five whistleblowers may jointly make one online submission.

If an employee chooses to submit by mail, they  must download, print and complete the Whistleblower Submission Form and include supporting documents or materials, if any, when mailing. Supporting documents can include physical documents and electronic files saved on a storage device, such as a USB drive. The mailing must include:

  • a description of the items provided
  • a description of how the items were obtained
  • if the whistleblower’s identity is likely to be revealed through any of the items

Please note that mailed submissions will take longer for the OSC to receive and process than online report submissions. If there are a group of whistleblowers, please ensure each individual in the group completes a separate form.

Forms can be sent using the following Mailing Address:

Office of the Whistleblower – Confidential
Ontario Securities Commission
20 Queen Street West
22nd Floor
Toronto, ON M5H 3S8

If an employee prefers to report anonymously, they must be represented by a lawyer.

For more information on how to disclose information, please visit the following links: 

For additional contact information visit: https://www.osc.gov.on.ca/en/contact-whistleblower.htm 

For supplementary information on the Whistleblower Program visit: https://www.osc.gov.on.ca/en/submit-whistleblower-report.htm#section4