A patchwork of laws across Canada protect employees who raise an alarm about alleged wrongdoing in their workplaces. There is new whistleblower protection in Ontario regarding registered pension plans.
Current protections for whistleblowers in the Canadian workplace
Are Canadian employees who report improper actions by their employer protected from reprisals by their employers? Can they keep their identity confidential? Could they collect a financial award for shining light on illegal employer actions? The answers depend on the workplace and the type of alleged misconduct.
If the employee works for the federal government, they may be protected from reprisals due to whistleblowing by the Public Servants Disclosure Protection Act. Occupational health and safety legislation across the country provides a variety of whistleblower protections. The Ontario securities regulator launched a whistleblower program in 2016 which offers protections as well as financial awards (up to CA$5 million) to individuals who come forward to the securities regulator with tips on possible violations of Ontario securities law. Moreover, some employers have voluntarily adopted policies promising to keep confidential and protect employees who raise concerns about employer conduct.
These are just few examples of workplace whistleblower protection in Canada. One area that has not had legislative protection for whistleblowers is the area of pension plans.
Ontario government fills a pension gap
In December 2021 the Ontario government proclaimed into force a new whistleblower-protection law: there are now legislative protections in place for anyone who complains to the Ontario pension regulator about an alleged breach of the pension benefits legislation of Ontario.
The new protection applies to any person or entity who:
- In good faith, discloses a concern to the Chief Executive Officer of the Financial Services Regulatory Authority of Ontario (the pension regulator) about an alleged or intended contravention of the Ontario Pension Benefits Act;
- Requests that their identity as a whistleblower be kept confidential; and
- Is provided with an assurance of confidentiality by the pension regulator.
There is no financial reward under the new legislation, but there is substantive protection to those who come forward with good faith concerns about correct pension plan administration. In summary, the new legislation prohibits the identity of, and reprisals against, a whistleblower. The whistleblower cannot be penalized, intimidated or coerced in relation to their employment or contract. Anyone who imposes an illegal reprisal could be fined. The penalty provisions are detailed. One notable detail is that regulatory penalty applies to any director or officer of the corporation who failed to take reasonable care to prevent the corporation from committing the offence.
Takeaway for employers
If an employer already has an internal policy in place that describes a process for pension plan members to complain about how the pension plan is being managed, that policy could be improved to refer to and align with the new Ontario pension whistleblower law.
If an employer does not have such a policy, they may want to consider adopting one now, to describe for pension plan members what they should do if they want to escalate concerns about their pension plan. The Ontario pension regulator has had a policy in place for more than a decade, encouraging pension plan administrators to have written policy regarding the management of inquiries and complaints .
This is a good news story: the sooner any non-compliance issues regarding a pension plan are brought to light, the better for all stakeholders. The new Ontario pension whistleblower law gives employers an opportunity to revise and adopt new policies, and to demonstrate that they are sincerely committed to ensuring their pension plan complies with applicable law.
Do you have any questions about Ontario’s new whistleblower-protection law? Reach out to any member of Dentons’ Pensions, Benefits and Executive Compensation team.
