Canadian Employment Law Today

io, Manitoba, Nova Scotia, Saskatchewan, New Brunswick, and Alberta. e remain- ing four provinces and three territories have no whistleblower legislation for pro- vincial public servants. Provincial private sector employees In most provinces, there are currently no free-standing whistleblower laws appli- cable to the private sector, and no legal ob- ligation to report wrongdoing. Almost all provinces have employment standards and health and safety legislation that prohibit private sector employers from engaging in reprisals, but those protections apply only to employees who, among other things, seek enforcement of or file complaints under those pieces of legislation. e anti- reprisal provisions in the New Brunswick Employment Standards Act and the Sas- katchewan Labour Standards Act, hosw- ever, extend anti-reprisal protection to employees who provide information to au- thorities about violations of other pieces of provincial and federal legislation. e OSC Whistleblower Program On Oct. 28, 2015, the OSC — the securi- ties regulator of Canada's largest and most populous province — published OSC Pol- icy 15-601, Whistleblower Program, for public comment. e program is now in effect and intended to encourage reporting of securities misconduct by, among other things, providing individuals who submit information about securities violations may be eligible for a financial award. e program contains a draft procedure for individuals to submit information con- fidentially to the OSC. Once information is submitted, the OSC may request additional information, but whistleblowers are gen- erally not expected to obtain other docu- ments or information that is not already in their possession. OSC staff will take reasonable efforts to protect the identity of whistleblowers, and the OSC plans to rec- ommend specific legislative amendments to provide reprisal protections to employ- ees who report a securities violation. e OSC does not grant immunity from prose- cution; however, if a whistleblower reports a violation law in which she is complicit, the OSC has discretion to not prosecute. In order to qualify for a financial award, information must be original, high qual- ity, and contain timely, specific and cred- ible facts pertaining to serious securities violations that would render meaningful assistance to investigators in obtaining the imposition of monetary sanctions or voluntary payments of $1 million or more. Further, the appeal period in relation to the sanctions must have expired or any appeal must have been concluded. Best practices for establishing and managing whistleblowing systems Employers, both public and private, have an interest in encouraging early and in- ternal reporting of wrongdoing through a whistleblower system. is allows organi- zations to investigate alleged wrongdoing, take appropriate corrective action in cases of proven wrongdoing, and implement strategies to control the legal and repu- tational risks. A clear, effective internal whistleblowing system is essential for early and internal reporting. e following best practices may assist to achieve that end: Establish a clear code of conduct that applies to all employees, agents and rep- resentatives of the organization. Ensure knowledge and agreement through docu- ment training and verification initiatives. Make compliance and internal report- ing a priority. e senior levels of any or- ganization should explicitly and publicly support compliance and internal reporting procedures. A policy statement, signed by senior offices, outlining the organization's commitment to internal procedures is a simple step that can go far to creating a compliance culture that encourages early and internal whistleblowing. Simple and independent reporting processes. Whistleblowing procedures should be clear, user-friendly and indepen- dent from the business line. Whistleblow- ers may be discouraged if the reporting mechanism is not perceived to be indepen- dent or is too confusing. Prescribe the scope of reportable conduct. Organizations may choose to limit the subject matter of reports to those required by applicable law, or they may choose to allow reports about a wider scope of matters. e latter may require a larger and better resourced whistleblowing struc- ture but can help organizations to identify and manage a broader range of risks. e appropriateness of anonym- ity. Anonymous reporting can encourage whistleblowing, but it may also make it more difficult to investigate, particularly if the original complaint does not have much information. Requiring a whistleblower to identify herself can provide an opportunity to follow up for more information. Note that certain jurisdictions require organiza- tions to allow anonymous reporting. Communicate whistleblowing pro- cedures. Organizations should train em- ployees on the whistleblowing procedures. ird parties,= who are eligible to make reports, should also be made aware of the whistleblowing procedures. Incentivize reporting. While internal reporting is preferable, in some jurisdic- tions organizations must compete with external regulators offering financial in- centives to whistleblowers. While orga- nizations may not be able to match those incentives, consider offering incentives to facilitate internal compliance, such as larg- er bonuses. Explicitly prohibit reprisal and en- force anti-reprisal protections. Appli- cable law may prohibit reprisals against whistleblowers, but whistleblowers may be unaware of those protections and, as a result, may be reluctant to make a report. An explicit statement that reprisals are pro- hibited can encourage reporting, but it will only be effective if anti-reprisal protections are consistently enforced. Accept, investigate and act on credible reports. All whistleblowing reports should be accepted and screened to eliminate those that are frivolous, vexatious or out- side the scope of the whistleblowing pro- cedures. Screening can also ensure there is sufficient information to investigate. Cred- ible reports should be promptly and fully investigated by qualified individuals and appropriate corrective action taken. Maintain confidentiality and secu- rity. Organizations should implement safe- guards to ensure the security and confiden- tiality of reports and prohibit disclosure except in accordance with the whistleblow- ing system and as required by law. Monitor and audit the whistleblowing system. Regular internal monitoring, an independent audit of the system, and a se- lection of closed whistleblowing cases are crucial to ensuring the procedure is effec- tive. Where deficiencies are noted, correc- tive action should be promptly taken. Consider the role of solicitor-client privilege. It may be appropriate for an in- vestigation to be conducted under attorney solicitor-client privilege. In such cases, the organization's external lawyers may direct an investigation for the purposes of provid- ing legal advice to the organization. e investigation and disclosure of the report must be carefully and closely managed to maintain legal privilege. For more information see: • World Bank Group v. Wallace, 2016 Car- swellOnt 6580 (S.C.C.). • Transparency International Canada Re- port on Whistleblower Protections in Canada: http://www.transparencycanada. ca/wp-content/uploads/2015/06/TI-Can- ada_Whistleblower-Report_Final1.pdf. Canadian HR Reporter, a Thomson Reuters business 2017 March 15, 2017 | Canadian Employment Law Today ABOUT THE AUTHOR NORM KEITH Norm Keith is a senior partner at Fasken Martineau in Toronto, practicing regulatory, employment and white collar defence advisory, compliance, and litigation. He can be reached at nkeith@fasken.com or 1-800-268-8424 Ext. 47824. The assistance of Harry Skinner, summer student, in the preparation of this article is gratefully acknowledged.

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