Guidelines to Develop Whistleblowing System

The CSA Group (formerly the Canadian Standards Association) with the assistance of the nationally based law firm Grant Thornton LLP has developed a free guide to help organizations develop and maintain a whistleblowing system with the goal to encourage workers to report ethical and safety issues within an established mechanism. Reported issues include suspected tax fraud, accounting fraud, corporate fraud, insider trading, health and safety issues and other serious offenses.

Whistleblowers are individuals who report suspected wrongdoing, mismanagement or unethical conduct happening in an organization. According to the CSA, these individuals who do whistle blow on their companies are an important resource for managing risk and responding to conduct that can harm companies, their stakeholders and the public at large.

Tamara Hunter of DLA Piper states, “Canada has comprehensive protection for whistleblowers in the public sector. While the Canadian Criminal Code provides some degree of protection from reprisal for all Canadian employees who engage in good faith whistleblowing, the most robust protection arises in the public sector employment context.” Criminal Code provision prohibits an employer from taking disciplinary measures against, or otherwise adversely affecting the employment of, an employee who has provided information to law enforcement regarding an offence the employee believes has been or is being committed. The subject area-specific protection (i.e., human rights, occupational health and safety, employment standards) for whistleblowers varies from province to province (source: Whistleblowing An employer’s guide to global compliance).

The Canadian based guide titled, Whistleblowing Systems — A Guide provides guidance for organizations of all sizes to design and implement an effective system to empower individuals to report potential problems and enable management to respond when concerns are raised.

The guide provides background about the existing landscape of whistleblower protection in Canada, as well as practical advice to help organizations determine what an effective system might be for its size and context. The Guideline discusses the benefits of whistleblowing systems, as well as key planning considerations, critical components, implementation recommendations and target outcomes for a successful system.

Although there are some cases that need to go directly to law enforcement, the point of the guide is to encourage individuals to report potential concerns internally so that companies have an early opportunity to address risk or potential misconduct, before the need to involve law enforcement; that employees of an organization have a safe and trustworthy mechanism to report information internally without any chance of reprisal.

The guide is available from CSA’s Communities web page. You need to create an account with the site and then login with a username and password to download and access the guidebook.

Other developments

The Ontario Securities Commission recently adopted Policy 15-601 – Whistleblower Program to encourage individuals to report information on serious securities- or derivatives-related misconduct to the Commission or, where appropriate in the circumstances, through an internal compliance and reporting mechanism to protect investors. The program is scheduled to come into force in the Spring of 2016.

A lot of stride in the area of whistleblowing have been made, but more still needs to be done, especially in the private sector. Transparency International Canada (TI-Canada, a non-governmental anti-corruption organization) is calling for the federal government to amend the Criminal Code and all levels of Canadian governments to introduce more robust legislative protection for whistleblowers in the private sector. While most provinces and territories have whistleblower protection for public sector employees, all provinces and territories should also have whistleblower protection statutes in place for the private sector employees. In addition, they believe ” Legislation should ensure that whistleblowing employees are protected whether they choose to take their information “up the ladder” or outside the organization and directly to law enforcement officials [in both public and private sectors].”

The Alberta Federation of Labour has also told a committee reviewing the Public Interest Disclosure Act (Alberta’s public sector whistleblower protection law) that the province’s whistleblower law should protect all workers regardless of whether they are in the public or private sector. Furthermore, that it should also be easier for employees to report wrongdoing. Amendments to the legislation are expected for the fall sitting of the legislature.

The Quebec government tabled Bill 87, An Act to facilitate the disclosure of wrongdoings within public bodies last December, to make the disclosure of wrongdoings easier and to establish a system for protecting against reprisals. It also proposes improvements aimed at making the process fully effective and sustainable. The Bill received second reading on February 8, 2016 and is now going through committee review.