Ontario Introduces Legislation to Protect Pension Plan Whistle-blowers
Date: November 11, 2021
On November 4, 2021, the Ontario government introduced Bill 43, Build Ontario Act (Budget Measures), 2021 (Bill 43) for first reading. Among other things, Bill 43 includes proposed amendments to the Financial Services Regulatory Authority of Ontario Act, 2016 (FSRA Act) to include protections for whistle-blowers in the pension sector and the other sectors regulated by the Financial Services Regulatory Authority of Ontario (FSRA).
In this FTR Now, we highlight the key details of the proposed amendments to the FSRA Act as it relates to whistle-blowers.
A whistle-blower is defined in the proposed amendments as:
- a person who, or entity that, discloses to the Chief Executive Officer (CEO) of FSRA, in good faith, an alleged or intended contravention of a statute listed in or prescribed under the definition of “regulated sector” in the FSRA Act,
- the person or entity requests that their identity as a whistle-blower be kept confidential, and
- the CEO provides the person or entity with an assurance of confidentiality, subject to exceptions.
A “regulated sector” includes the sector that is subject to the Ontario Pension Benefits Act and would therefore apply to pension plan administrators and employers who are required to contribute to pension plans.
In addition to various confidentiality protections, the proposed amendments prohibit reprisals, whether direct or indirect, against whistle-blowers. Reprisals include terminating the whistle-blower’s employment, demoting or suspending the whistle-blower, or withholding a benefit, intimidation and coercion. Threatening any of these is also prohibited.
A whistle-blower alleging a reprisal may make a complaint under a collective agreement (or any other agreement which provides for final and binding arbitration) or bring a civil proceeding in the Superior Court of Justice. The person or entity alleged to have taken the reprisal has the burden of proving they did not.
- payment to the whistle-blower of two times the amount of compensation the whistle-blower would have been paid in connection with their employment, contract, position or office between the date of the reprisal and the date of the order if the reprisal had not taken place, with interest, and
- payment to the whistle-blower of compensation, in the amount an arbitrator or court considers just, having regard to the reprisal and any loss attributable to it.
Those who contravene the prohibition against reprisals are guilty under the FSRA Act of an offence, and if convicted, penalties include:
- For an individual: a fine of not more than $100,000 or imprisonment of not more than one year or both a fine and imprisonment,
- For a corporation: a fine of not more than $200,000.
Bill 43 also contains provisions to increase these fines to $500,000 and $1,000,000 at a later date.
Attempts in confidentiality agreements or the like to prevent a whistle-blower from making a disclosure, co-operating with investigations, or giving evidence will be void.
Whistle-blowers cannot be held liable in a civil proceeding for making a good faith disclosure to the CEO or for bringing a reprisal complaint.
Should you have questions or require assistance ensuring your organization’s existing whistle-blower policies, confidentiality agreements and related documents align with these proposed amendments, please contact any member of our Pension, Benefits and Executive Compensation Group.
Editor’s Note: On April 29, 2022, amendments to the FSRA Act as it relates to whistle blowers came into force. This is also the date on which fines for individuals and corporations have increased to the amounts listed above. For information about FSRA’s Whistle-blower Program, please see its website.
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