Ontario Introduces Protections for Pension Whistle-Blowers

February 4, 2022

In its fall economic statement, Ontario introduced amendments to the Financial Services Regulatory Authority of Ontario Act, 2016 that would protect whistle-blowers. The bill, which also included amendments to numerous other statutes, came into force on December 9, 2021.

The new legislation defines whistle-blowers as persons or entities who, in good faith, disclose to the Chief Executive Officer an alleged or intended contravention of a statute listed or prescribed under the definition of “regulated sector” in the FSRA Act. Since that definition includes sectors subject to the Pension Benefits Act, whistle-blowers include those reporting misconduct by pension plan administrators and sponsors.

Further, to meet the definition of whistle-blower, the person or entity must request their identity be kept confidential, and the CEO must assure them of such confidentiality.

The amendments prohibit both direct and indirect reprisals against whistle-blowers, including but not limited to terminating their employment, disciplining or demoting them. If a whistle-blower is reprised against, they may make a complaint to be dealt with by arbitration under a collective agreement, or bring a civil proceeding. Available remedies include reinstating the whistle-blower to their former employment with the same seniority status, paying the whistle-blower twice the compensation they would have been paid between the date of the reprisal and the date of the order, or paying the whistle-blower for any losses attributable to the reprisal. The amendments also protect the whistle-blower from any civil liability relating to making a disclosure, or bringing a complaint or civil proceeding.

Persons who make reprisals over whistle-blowers will be guilty of an offence. A corporation’s directors and officers, and a partnership’s partners may also be guilty if they participated in or did not take reasonable care to prevent the reprisal.

Penalties for individuals may not exceed a fine of $100,000, imprisonment for not more than one year, or both a fine and imprisonment. Penalties for corporations may not exceed $200,000. The bill contains provisions to later increase these fines to $500,000 and $1,000,000 respectively. Courts may also order persons convicted of making reprisal against whistle-blowers to pay compensation in such an amount it deems just.

In terms of confidentiality, the amendments provide that the CEO will not disclose the whistle-blower’s identity or any identifiable information unless the whistle-blower consents to the disclosure or the CEO, believing the whistle-blower has committed an offence under the Criminal Code or an Act listed in or prescribed under the FSRA Act‘s definition of “regulated sector”, makes such a disclosure to a law enforcement agency.

Similarly, courts presiding over reprisal proceedings must keep confidential the whistle-blower’s identity unless it is necessary to reveal it to prove a person didn’t commit the offence with which they are charged. Witnesses in proceedings under an Act listed in or prescribed under the FSRA Act‘s definition of “regulated sector” may not be examined regarding the identity of a whistle-blower.

The amendments also void confidentiality provisions and other agreements that would preclude a person or entity from making such a disclosure, cooperating with an investigation or providing information regarding such a disclosure, or giving evidence in a related proceeding.

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