What is Whistleblowing? Guide To Whistleblowing in Canada

Whistleblowing is when an employee reveals corporate wrongdoing to law enforcement.

Whistleblowing was defined in 1972 by Ralph Nader as “an act of a man or a woman who, believing in the public interest overrides the interest of the organization he serves, publicly blows the whistle if the organization is involved in corrupt, illegal, fraudulent or harmful activity.”

What Legal Protections Can Whistleblowers in Canada Expect?

While there are increasing incentives from governments and regulators for whistleblowers to go public about corporate misconduct, protections for whistleblowers are still very limited. Few Canadian laws pertain directly to whistleblowing and therefore whistleblowers are mostly unprotected by statute.

There is, however, a patchwork of protection provisions for whistleblowers under the Canadian Criminal Code, Public Servants Disclosure Protection Act (PSDPA), the Public Service of Ontario Act, 2006 as well as the Securities Act.

Section 425.1 of the Criminal Code, for example, states that employers may not threaten or take disciplinary action against, demote or terminate an employee in order to deter him or her from reporting information regarding an offence he or she believes has or is being committed by his or her employer to the relevant law enforcement authorities.

In short, an employer cannot threaten an employee with negative repercussions to deter them from contacting law enforcement with information about their employer’s offence. Punishment for employers who make such threats or reprisals can include up to five years imprisonment and/or fines.

Whistleblowing in the Federal Public Sector

Employees in the federal public sector are protected by the PSDPA. This act demands that employers establish a code of conduct with civil protections for whistleblowers. Ontario’s Public Service of Ontario Act, 2006 has similar protections to the federal PSDPA.

Additionally, Ontario’s Securities Act established a new whistleblower program in July of 2016. This consisted of amendments to the Securities Act that give extra protection to individuals who report a potential violation of Ontario securities law.

It is important to note, however, that you are only covered by these protections if you bring your information forward to a law-enforcement body. You are not protected if you leak your information to the media.

Employees Have a Duty of Fidelity

As an employee, you have a legal duty of confidentiality and fidelity to your employer. If you become aware that a superior in your company has committed a serious misdeed, this must usually be reported first to the employer, not the police or a regulatory body. After you have reported the misconduct to the appropriate internal body, your employer doesn’t have to disclose to you what they do with this information. This means that you may never know the results of their inquiry into the reported transgression.

You’re Not A Whistleblower If…

Lastly, not every misstep or misdeed warrants whistleblowing. You are not a whistle-blower if the issue you are reporting:

  • pertains to personal or personnel issues (i.e. workplace bullying and harassment);
  • is regarding a dispute between the you and the organization (i.e. a dispute regarding vacation time); or
  • involves simple mismanagement (i.e. poor supervision) as opposed to gross mismanagement that poses a risk to the organization or public.

The above issues can usually be addressed internally through Human Resources.

Legal Experts in Canadian Whistleblowing

If you are concerned with the legal implications of corporate or managerial misconduct at your workplace, be sure to speak with an experienced employment lawyer. KCY at LAW can help.

Call us at 905-639-0999 or click here to book your consultation.

Ontario Employees’ rights to time off from work

Breaks and time off from work, what are your rights?

Everybody loves time off work. Whether it’s a quick 15 to enjoy a cup of joe or a nice long weekend away at a cottage, you may notice that you are extra productive at work after you’ve had a proper break.

When it comes to the workplace, rest is important for health, happiness, and ultimately, productivity. A well-rested employee is able to give their best. Research has even shown that down time is key to boosting motivation, creativity, concentration and innovation. It helps you to problem solve and process new information. It even improves your immune system.

In short, a well-rested employee is a productive employee. This applies to workers whose labour is physical, mental or emotional.

In Ontario, employees’ rights to time off from work – such as breaks for lunch – are set out in the Employment Standards Act (ESA).

Meal Breaks in Canada

According to the ESA, all employees (with some exceptions) are entitled to one 30-minute break within the first five hours of work. That is, no employee should work more than five hours in a row without a break. Workers also have the option to split this 30-minute break into two 15-minute breaks with the oral agreement of their employer.

Regardless of how an employee chooses to allot their break time, this time must be uninterrupted. They must be completely free from their work duties during their break time.

This 30-minute break time is unpaid. It does not count towards hours of work, overtime or vacation pay. This means that most employees’ work days are actually 8.5 hours in order to achieve a 40-hour work week: eight hours working plus half an hour break each day.

Employees may have additional breaks (often 15-minute ‘coffee breaks’) written into their employment contract. If extra breaks are outlined in your contract then this allotment is binding. However, if the employee must remain at their place of work for these additional breaks, the breaks must be paid.

Ontario Shift Workers

What about employees doing shift work? These employees must have eight hours off work between shifts whose combined time exceeds 13 hours. For example, if you worked at a restaurant, you may work a split shift from 6:00-10:00 am and then 12:00-4:00 pm because the total number of hours worked is only eight. You could not, on the other hand, work a 6:00-10:00 am and then a 12:00-8:00 pm split shift as you would have worked 14 hours with only two hours break in between.

Daily and Weekly Rest

Breaks from work are about more than eating. Employees are also entitled to 11 consecutive hours off work each day. This is referred to as ‘daily rest’. This means an employee who finishes work at 11:00 pm, cannot return to work any earlier than 10:00 am the next morning.

In addition to this 11-hour break between work days, employees are entitled to 24 consecutive hours off work every week or 48 consecutive hours off work in every consecutive two-week period.

Employees cannot opt out of these rights to daily and weekly rest. However, there is an exception for employees who are on call or called in under exceptional circumstances.

Exceptional Circumstances

According to the ESA exceptional circumstances under which an employee may be asked to forgo the above break entitlements apply “only so far as is necessary to avoid serious interference with the ordinary working of the employer’s establishment or operations.”

Examples of exceptional circumstances include emergencies that may arise from or an accident, natural disaster or serious equipment failure.

Unforeseen situations that would compromise the provision of essential public services (such as transit or hospitals) and the unexpected interruption of seasonal operation (such as a harvest) or continuous processes (such as an assembly line) would be considered exceptional circumstances. The need to fill a rush order, meet the demands of busy holiday periods or cover an employee who calls in sick are not.

Well-rested employees are good for business

As an employer you may relish the idea of your employees working as long and as often as possible, in reality, they are far more likely to work effectively if they are given adequate breaks from work.

If you are curious about your rights as an employee or obligations as an employer, consult the employment law experts at KCY at LAW today! Call us at 905-639-0999 or book your consultation today!

Should Training be Paid?

So you’ve just landed a new job. Congratulations! Everything is new and exciting and there is plenty of learning and adapting ahead of you. Often, starting a new position means learning the ins and outs of your specific role and your place of employment as a whole. Your employer may require you to receive training to get yourself up to speed with specific workplace protocols and procedures or skills that you will need to safely operate equipment or engage with clients. All of which may all lead you to wonder: will I be paid for training?

If the answer isn’t ‘yes’, you may have a problem.

According to the ministry of labour, “time spent by an employee in training that is required by the employer or by law is counted as work time.”

This means that any mandatory training that you must undertake as part of your employment – be it instruction on how to use a new point of sale system, Plan to Protect training, or even a general systems orientation – must be paid.

While some employers may insist that they do not have to pay you for training or working a trial shift (as is often required of restaurant workers) this is incorrect. The Employment Standards Act is abundantly clear that employees have the right to be paid for doing work and that this includes training time and trial shifts.

Training looks different from one workplace and one role to the next. It may involve learning how to operate equipment, understanding lockdown procedures, or receiving instruction on anti-oppressive practices.

While employers can reasonably expect a qualified new employee to be prepared and adaptable to their new role, they should also ensure that all employees are equipped with the necessary training to perform their job safely and effectively. Sometimes, this means that training may be occasionally necessary throughout an employee’s career. As technologies, laws, policies and procedures are updated, employees may need periodic training throughout their employment. If an employer deems any training mandatory throughout an employee’s tenure, they must pay this employee for their time spent in said training.

One limited exception to workers’ right to be paid for their work is internships. However, there are limited circumstances under which an internship does not need to be paid. You can learn more about what constitutes an internship and your entitlements as an intern here.

Takeaway for Employees

Whether you are starting a new job or making mandatory updates to your skills, you are entitled to be paid your regular hourly wage while you are being trained. If your employer refuses to pay you for training or trial shifts, you should speak with an employment lawyer. They can advise you of your rights and advocate on your behalf. Call KCY at LAW today 905-639-0999 or connect with us online by filling out a consultation request form.