On November 19, 2018, the Alberta Securities Commission (ASC) implemented its first whistleblower program (the Program) through the release of ASC Policy 15-602 Whistleblower Program (the Policy) and simultaneous amendments to the Alberta Securities Act (the Act).
The Program is effective as of November 19, 2018. Its protections apply retroactively to securities misconduct but only in relation to tips communicated to the ASC on or after November 19, 2018.
According to the ASC, the highlights of the Program include the following:
- the facilitation of simple reporting by providing a dedicated telephone “tip” line and access to forms for submission by email, mail or in-person
- whistleblower access to trained, knowledgeable ASC staff
- rigorous protection of the confidentiality of the identity of whistleblowers
- prohibition of obstruction and reprisal
- protection of whistleblowers from the application of contractual clauses that directly or indirectly attempt to prevent whistleblowing.
No Whistleblower Awards
Unlike certain whistleblower programs in other jurisdictions (such as Ontario), the Program does not provide for the payment of awards to whistleblowers. It only goes so far as to provide for possible credit for cooperation in the case of whistleblowers who are themselves involved in securities misconduct.
Under the Ontario Securities Commission Whistleblower Program, for example, individuals who meet certain eligibility criteria and who voluntarily submit information regarding breaches of Ontario securities laws may be paid a whistleblower award if there is an “award eligible outcome” and the Commission, in its discretion, determines it appropriate to order an award.
Efficacy of Whistleblower Programs
It remains to be seen whether the Program will be an effective tool in connection with the ASC’s enforcement of Alberta’s securities laws, particularly in that whistleblowers will not be eligible to receive any financial awards.
According to an OSC press release issued in June 2018, the OSC Whistleblower Program has been very effective in “shining a light on information that previously would have remained in the shadows”. To that date, the OSC Program had generated approximately 200 tips, of which 45 were under review, 19 had been referred for enforcement, and 68 were or are in the process of being shared with another OSC operating branch or another regulator for further action.
To date no awards have been announced by the OSC.
In its fiscal year ending September 30, 2018, the United States Securities and Exchange Commission (SEC) received over 5,000 tips, including over 200 FCPA-related complaints. The tips originated from over 70 different countries, and awards of almost US $170 million were paid out to 13 individuals.
The authors would like to thank Sunny Mann, articling student, for his contribution to this article.