The Ontario Securities Commission (OSC) announced on Wednesday that it is formally proposing the adoption of a new whistleblower program that will pay up to $5 million for tips that generate significant enforcement action.
Under the proposed policy, the OSC could pay significant rewards to tipsters that bring it original, high-quality information about misconduct. Those rewards would range between 5% and 15% of the sanctions ordered in cases that generate at least $1 million in monetary penalties or voluntary payments to the commission.
However, in response to comments on the initial consultation, Wednesday’s proposal wouldn’t necessarily cap payouts at $1.5 million, as the OSC originally proposed. Now, in cases in which the sanctions actually collected by the commission exceed $10 million, tipsters would be eligible to collect between 5% and 15% of that amount, up to a limit of $5 million.
The higher potential payout responds to concerns that the original proposed cap of $1.5 million was too low. By comparison, the U.S. Securities and Exchange Commission’s (SEC) whistleblower program — on which the OSC proposal is modelled — pays out between 10% and 30% of sanctions collected, with no upper limit. The SEC’s highest payout to date to a single whistleblower is more than US$30 million.
The OSC is adopting its own whistleblower program as a way to bolster enforcement by providing an incentive to industry insiders to report misconduct to the regulators.
“The OSC recognizes that whistleblowers are an incredibly valuable source of information,” says Howard Wetston, chairman and CEO of the OSC, in a statement. “We are providing strong incentives for them to come forward. Our whistleblower program is well-considered, and we believe it will result in real-time tips on complex securities-law matters that may otherwise be difficult for us to detect. This is a game changer for the OSC and our ability to achieve stronger outcomes for investors and the capital markets.”
In a notice outlining its proposal, the OSC says it expects the program to help prevent harm to investors and to increase the effectiveness of its enforcement efforts, thereby also increasing deterrence. It also expects the initiative to entice companies to self-report wrongdoing to the OSC.
“[Whistleblowers] could be a valuable source of specific, timely and credible information for enforcement actions concerning a wide variety of market misconduct, particularly in the areas of accounting and financial reporting, insider trading, market manipulation and general misrepresentation in corporate disclosure,” the notice says.
In addition to upping the maximum payout available under the program, other changes from the initial whistleblower proposal include: expanding it to cover violations of derivatives laws as well as securities laws; modifying the eligibility requirements to expand the list of potential eligible whistleblowers to include corporate directors and officers, chief compliance officers, in-house legal counsel and even those with some culpability for misconduct (subject to certain additional criteria); and changes to the proposed confidentiality provisions in the policy.
The proposal is out for comment until Jan. 12, 2016, and the OSC hopes to launch the program next spring.