Corporate Litigation a journal devoted to litigation involving corporations and their shareholders Volum e XIV, No. 1 2015 WHISTLERBLOWER REGIMES Larry P. Lowenstein Editor-in-Chief considering the proposed OSC regime Osler, Hoskin & In the past several years, a proliferation of whistleblower regimes has emerged, Harcourt LLP particularly in the securities arena. High-profile scandals such as the one John J. Adair involving Bernie Madoff and difficulties proving insider trading cases based Adair Barristers LLP upon circumstantial evidence may explain why securities regulators are looking W.E. Brett Code, QC for new hammers in the enforcement toolbox. It is easy to understand why Tingle Merrett LLP whistleblowing regimes are attractive to such bodies. Information provided John Fabello by whistleblowers may permit police or regulatory agencies to stop the Torys LLP commission of a serious securities offence in its tracks, or may materially Linda L. Fuerst increase the likelihood of a successful prosecution. Although increasingly Lenczner Slaght Royce common, not all whistleblower programs are made the same. As Linda Fuerst Smith Griffin LLP explains, the proposed Ontario Securities Commission regime differs from the Geoffrey B. Gomery, QC whistleblower program of the U.S. Securities and Exchange Commission Nathanson, Schachter & (“SEC”) in significant ways and may not go far enough to encourage or protect Thompson LLP would-be whistleblowers. The author guides readers through a helpful review Joseph Groia of the current SEC regime while highlighting key differences with the program Groia & Company Professional Corporation proposed in Ontario. 810 Paul H. Le Vay Stockwoods LLP PRINCIPLES OF FUNDAMENTAL JUSTICE Louis-Martin O’Neill constitutional protection for a client’s cause Davies Ward Phillips & When in 2001 the Proceeds of Crime (Money Laundering) and Terrorist Vineberg LLP Financing Act and the Proceeds of Crime (Money Laundering) and Terrorist Becky Seidler Financing Regulations came into force requiring lawyers as well as notaries in KPMG Forensic Inc. Quebec to report suspicious transactions to the Financial Transaction and Robert W. Staley Reports Analysis Centre of Canada, the Federation of Law Societies served Bennett Jones LLP notice that it intended to challenge the regime on the basis that the legislation Steve Tenai violated Canada’s core constitutional principles. In the time that followed, Norton Rose Canada LLP interlocutory injunctions and exemptions were granted for lawyers, and Kent E. Thomson law societies across the country implemented their own rules for client Davies Ward Phillips identification and verification. Now, after nearly 15 years of litigation, the & Vineberg LLP Supreme Court of Canada has recognized a new principle of fundamental James C. Tory justice: a lawyer’s commitment to his or her client’s cause. Bonnie Jones and Torys LLP Claudia Cappuccitti provide a detailed summary of Federation of Law Societies James A. Woods of Canada v. Canada (Attorney General) and review the decision’s important Woods LLP consequences for the bar and public at large. The authors applaud the Supreme Court’s ruling, declaring it a victory for the profession. 815 CORPORATE LITIGATION Other whistleblower programs, such as the WHISTLERBLOWER REGIMES Dodd-Frank Whistleblower Program adminis- tered by the United States Securities and Exchange Commission (“SEC”) go further by Big Brother paying financial rewards to eligible whistle- blowers. The SEC pays individuals who Is Watching: volunteer “original information” relating to a possible violation of federal securities law that Responding results in successful enforcement action, either in the U.S. federal court or in an adminis- to Regulatory trative action in which the SEC recovers an amount exceeding $1 million. The whistle- Whistleblower blower is eligible to receive an award rep- Regimes resenting 10% to 30% of the recovered amount, at the discretion of the SEC.2 Other key aspects of the SEC program Linda L. Fuerst include the following: Lenczner Slaght Royce Smith Griffin LLP • Anti-retaliation protection for the whistle- Introduction blower including SEC enforcement action In the past several years, a proliferation of against firms that retaliate against em- whistleblower regimes has emerged, particu- ployees who whistleblow. As well, the larly in the securities arena. High-profile Dodd-Frank Wall Street Reform and Con- scandals such as the one involving Bernie sumer Protection Act allows individuals who have experienced retaliation to pursue Madoff and difficulties proving insider trading 3 cases based upon circumstantial evidence may a private cause of action. explain why securities regulators are looking • Action to impede an individual from for new hammers in the enforcement toolbox. communicating directly with SEC staff It is easy to understand why whistleblowing about a possible securities law violation is regimes are attractive to such bodies. Infor- prohibited.4 mation provided by whistleblowers may per- mit police or regulatory agencies to stop the • Information obtained by attorneys and commission of a serious securities offence in others through legal representation of a its tracks, or may materially increase the like- client or a communication that was subject lihood of a successful prosecution. to attorney-client privilege is ineligible.5 Securities Whistleblower Regimes • Information obtained by employees of Some agencies, such as the Financial In- public accounting firms relating to a fed- dustry Regulatory Authority (“FINRA”) in the eral securities violation by a client through the performance of an engagement for the United States, the Investment Industry Regu- 6 latory Organization of Canada (“IIROC”), and client is also ineligible. the Canadian Mutual Fund Dealers Associ- • Compliance and audit personnel are gen- ation (“MFDA”) have established whistle- erally ineligible to receive an award, blower offices or programs that encourage reporting of systemic wrongdoing, dishonest or unethical behaviour by persons in the Whistleblower Service;” MFDA News Release: “MFDA Launches Whistleblower Program.” investment industry and expedite review of 2 reported information.1 See U.S. Securities and Exchange Commission 2014 Annual Report to Congress on the Dodd-Frank Whistle- blower Program; SEC Office of the Whistleblower Frequently Asked Questions, http://www.sec.gov/about/ 1 March 5, 2009 FINRA News Release: “FINRA offices/owb/owb-faq.shtml. announces creation of ‘Office of the Whistleblower’,” 3 Ibid.; 17 C.F.R. §. 240.21F-2. https://www.finra.org/newsroom/finra-announces- 4 17 C.F.R. §. 240.21F-17. creation-office-whistleblower; IIROC Notice 09-0157 – 5 17 C.F.R. §. 240.21F-4. Administrative – “IIROC Announces Creation of 6 Ibid. 810 CORPORATE LITIGATION although there are exceptions. For ex- a total of 3,620 tips, representing a 20% ample, compliance or audit personnel who increase over the prior year. That included tips have a reasonable basis for believing that from residents in 60 foreign countries, in- disclosure is necessary to prevent conduct cluding Canada. The largest award was more that is likely to cause substantial injury to than $30 million and was made to a foreign the property or financial interests of the resident, demonstrating the program’s inter- company or its investors may qualify for national reach.12 an award. Additionally, such an individual may be eligible if more than 120 days An interesting cottage industry has sprung have passed since the date upon which the up as a result of the requirement that anony- information was reported by that indivi- mous whistleblowers submit their information dual internally to his or her employer.7 to the SEC through an attorney. Various law firms now hold themselves out as experts • Prior or contemporaneous reporting by the in navigating the “complicated landscape of whistleblower to his or her employer is not whistleblower law,”13 offering to “advocate a prerequisite. However, a whistleblower’s for the highest potential monetary award,”14 voluntary participation in an employer’s presumably for a percentage of any award. internal compliance system is a factor considered by the SEC in deciding the size The Ontario Securities Commission of the award. The making of an internal (“OSC”) has taken note of these developments report is a factor that may increase the size in the United States and recently proposed its of the award.8 own whistleblower regime as one of a number of initiatives designed to resolve enforcement • Subject to certain exceptions, including matters more quickly and effectively.15 Like the SEC’s obligation to make disclosure to the SEC regime, the OSC program would a respondent or defendant in a proceeding, include payment of monetary incentives for the SEC is prohibited from disclosing information relating to a possible serious information that could reasonably be ex- violation of securities law, mechanisms to pected to reveal the identity of the protect the confidentiality of the informant, whistleblower. However, if the SEC deter- and anti-retaliation prohibitions allowing for a mines that it is necessary to accomplish private right of action by the whistleblower or the purposes of the Exchange Act9 and to enforcement proceedings by OSC Staff under protect investors, it may provide the section 127 of the Securities Act.16 information to others including the U.S. Department of Justice, an appropriate reg- There are, however, a number of important ulatory authority, a