Given the complexity of today’s economy, enforcement of various laws is becoming increasingly challenging. As a result, enforcement agencies have begun looking to people who may have direct knowledge of noncompliance with specific laws by an organization to come forward and notify the authorities. Recognizing that this could tarnish the individual’s relationship with the organization, the Canadian legislature has begun implementing laws to protect whistle-blowers.
Much of the information that whistle- blowers would be reporting is individually legislated by each of Canada’s provinces and territories. The federal government legislates only matters that are deemed “federal undertakings.” While there are nuances among jurisdictions, some of the high-level elements discussed below are applicable.
Federal whistle-blower protections
The following are some of the most common federally regulated subjects of reported information for which whistle-blowers have protections against reprisal from the reported organization:
- An offense that is (or that the employee thinks is) being committed by the employer contrary to any federal or provincial act or regulation (Criminal Code)
- Noncompliance with health and safety standards (Canada Labour Code)
- Prohibited anti-competition offenses under the Competition Act
- The release of certain toxic substances (Canadian Environmental Protection Act)
- Instances of prohibited discrimination (Canadian Human Rights Act)
Provincial whistle-blower protections
The following are some of the most common provincially regulated subjects of reported information for which whistle- blowers have protections against reprisal
from the reported organization (the degree of protection varies by province):
- Noncompliance with employment standards
- Noncompliance with health and safety standards
- Instances of prohibited discrimination
- Violation of environmental protection legislation
- Violation of securities laws (this can result in rewards to the whistle-blower in certain circumstances)
Can whistle-blowers be anonymous?
While some whistle-blower regimes focus on restricting organizations from carrying out reprisals against whistle- blowers, others also aim to protect whistle-blowers’ confidentiality. However, in some cases, it is impractical to maintain the confidentiality of the whistle-blower because of the nature of the information being provided to the enforcement agency.
How should organizations handle whistle-blowers?
Many organizations view whistle- blowers as a hindrance to their ongoing operations. However, it is recommended that organizations comply with all laws and regulations to which they are subject. Practically, this can sometimes be difficult; noncompliance can sometimes creep up, given the number of laws that will apply to any given organization. As a result, organizations should consider implementing internal whistle-blowing processes to promote internal reports of noncompliance with a view to improving the organization’s compliance and minimizing the risk of penalties, fines and damages.
Country-by-country and EU whistle-blowing rules need to be taken into account in setting the best practices and policies in this growing area of risk, including what an employer must do when faced with a whistle-blower claim, such as whether an investigation is required, protections of the employee who complained of company practices and litigation issues.
Best practice requires companies to take action in advance by creating a hotline and training its employees in ethical behavior.