Trends in workplace whistleblowing — An HR primer

The patchwork of legal protection for employee whistleblowers across Canada is getting denser
By Norm Keith
|Canadian Employment Law Today|Last Updated: 03/15/2017

Human resources professionals are being called upon to deal with a complex legal and ethical challenge in the 21st century — the employee whistleblower. Whistleblower protection is a growing employment law right that exists locally and internationally. In Ontario, for example, the Ontario Securities Commission (OSC) introduced a whistleblower program and hotline in August 2016 — administered by “The Office of the Whistleblower.” The OSC has also stated that any terms of employment contracts that prohibit or discourage reporting could be a violation of the Ontario Securities Act (OSA). In addition, it is quasi-criminal offense under the OSA to take reprisal action against an employee who reports or plans to report potential violations of securities law.

The OSC policy is similar to that in the United States and around the globe. Governments and regulators are providing more incentives for whistleblowers to “go public” about all types of corporate misconduct. For example, many of the health and safety complaints made to regulators across Canada every year are from anonymous whistleblowers. Therein lies a dilemma — does the employer encourage its own internal whistleblowing to achieve regulatory compliance, or does it risk individuals going behind its back for fear of reprisal and becoming anonymous government whistleblowers?

Canadians are close neighbours and trading partners with the United States and therefore are highly influenced by American legislative and enforcement initiatives relating to whistleblowing. Canadian courts have also been called upon to deal with various issues arising from whistleblowers from foreign countries. For example, the Supreme Court of Canada is the first national high court in the world to recognize and protect the role of whistleblowers from disclosure and criminal prosecution. In its decision World Bank Group v. Wallace, it addressed the subject of whistleblower immunity in an international corruption case.