Canadian Lawyer InHouse

MARCH 2018 6 INHOUSE News Roundup OSC and province proposed changes to protect whistleblowers O ntario is seeking further comment on aspects of its Whistleblower Program, including a proposed revision to clarify that in-house counsel who report misconduct in breach of law so - ciety rules won't be entitled to cash awards. Two potential amendments to Ontario's Whistleblower Program were introduced by the province and the Ontario Securities Commission in January. The government said it intends to intro - duce a civil cause of action for whistleblow- ers who experience reprisal for co-operat- ing with the commission. The introduction of a civil cause of action for reprisal is a welcome change to Ontario's Whistleblower Program, says Nadia Campi- on, partner at Polley Faith LLP in Toronto. "It gives teeth to the prohibition on em- ployers from taking action that would ad- versely affect an employee who co-operates with the OSC," she says. It also brings Ontario's Whistleblower Program in line with protections available to whistleblowers in the United States un - der the Dodd-Frank Act and the Sarbanes- Oxley Act 2002. "As we know, the American Whistle- blower Program has been relatively suc- cessful in ensuring that whistleblowers feel protected from reprisal and, therefore, are more inclined to report or disclose miscon- duct," she says. The change will also incentivize employ- ers to ensure that they have strong whistle- blower policies in place and that supervisors and managers are trained with respect to dealing with whistleblowers. "It also serves to raise awareness for em- ployees that they should not be fearful of doing the right thing, which is to report misconduct first through internal channels and then, if necessary, to the OSC. Indeed, I think that the change will encourage em - ployees to first use internal reporting sys- tems before going direct to the OSC. This, in my view, is advantageous to organiza- tions," she says. The OSC also proposed on Jan. 18 re- visions to the Whistleblower Program to clarify that in-house counsel who report misconduct in breach of applicable law so- ciety rules would not be eligible for a whis- tleblower award. It is seeking comments on the proposal from now until March 20. "To the extent the law society raised con- cerns, it's not entirely surprising there would be a push to clarify it," says Rebecca Wise, lawyer with Torys LLP in Toronto. "My sense is, and I think the OSC's request for comment made it clear, that the intention was never that individuals acting in their legal capacity could be eligible for whistleblower awards. This is really just clarification of that, simply because the starting proposal was that lawyers acting in a legal capacity wouldn't have been eligible in any event." The changes highlight the fact that in- house counsel have to "walk a very fine line" between reporting misconduct and ensuring that they are complying with their duties as lawyers, such as maintaining solic - itor-client privilege, says Campion. She adds that by making in-house coun- sel ineligible for a whistleblower award in circumstances where their disclosure or re- porting to the OSC would otherwise violate applicable law society rules, the OSC is en- suring that in-house counsel undertake "a careful analysis of, and reflect on, their role within the organization and whether they are acting in a legal capacity with respect to matters they are contemplating reporting." "This represents a positive step towards ensuring that clients can continue to con - sult with and seek advice from their in- house counsel without fear that in doing so, they are subjecting themselves to a possible whistleblower report," she says. "It also pro - tects against the possibility that individuals may be motivated to report in order to se- cure a financial gain notwithstanding the duties they owe as lawyers to their clients." The OSC launched its Whistleblower Program in July 2016 and many companies revised policies and came out with their own programs. Wise says she frequently advises clients on internal whistleblower investigations and that since the adoption of the OSC's program, she's noticed a spike in the num - ber of whistleblower-type investigations. "I think there is more of a whistleblower culture in some companies where employ- ees are being encouraged to come forward and companies are taking complaints they receive very seriously and conducting good investigations into them," she says. IH Toronto lawyer serves claim with Instagram W hen Toronto lawyer Tara Vasdani could not track down a defendant she was looking to serve, she turned to Instagram. Vasdani recently obtained an order in Ontario Superior Court to serve a statement of claim using the social media app, which allows users to share photos and videos. She says the order is likely the first of its kind in the province, and by allowing the service of a claim through Instagram, it signals a shift in how lawyers interact with technology. "[I]n order to avoid becoming obsolete, it is our duty to evolve with society — and one of the concrete and surefire ways society is evolving is through technology," she says. Vasdani, who is an associate at Mason Caplan Roti LLP, issued the claim, in which she represents an insurance company, at the end of August. She first attempted to serve the defendant on Sept. 1, 2017, using a physical address, and her process servers were told the defendant had moved away. She then tried using email, with a read receipt, but her messages were either ignored or never read. Vasdani then looked up the defendant on LinkedIn and contacted her last listed employer, who told her the person never worked there. When Vasdani could not find the defendant on other social media sites, she turned to Instagram, which the lawyer says she uses much more than Facebook or other apps.

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