Landmark whistleblower award: Ontario Superior Court clarifies anti-reprisal protections under the Securities Act

Does it pay to be a whistleblower?

If your company fires you for reporting securities law non-compliance, the Court’s recent answer is a resounding yes.

In McPherson v. Global Growth Assets Inc., 2025 ONSC 5226, the Ontario Superior Court of Justice has delivered the first comprehensive interpretation of the anti-reprisal provisions in Part XXI.2 of the Ontario Securities Act. The Court found that Global Growth Assets Inc. and Global RESP Corporation unlawfully terminated their CEO and Ultimate Designated Person (UDP), Ian McPherson, in reprisal for raising and intending to raise concerns about securities law non-compliance.

The decision articulated a purposive reading of s. 121.5 of the Securities Act, adopted a “motivating factor” standard for causation, confirmed a reverse onus on employers, and awarded Mr. McPherson a significant statutory remedy: two times the remuneration he would have received from the date of the reprisal to judgment, without mitigation.

The ruling is a watershed for Ontario Securities Act registrants, boards, and compliance leaders, with immediate implications for governance, whistleblowing, and the role of the UDP.

The Securities Act anti-reprisal provisions

The protection-from-reprisal provisions found in Part XXI.2 of the Ontario Securities Act were enacted as part of the Jobs for Today and Tomorrow Act (Budget Measures), 2016, which received Royal Assent on April 19, 2016. They came into force on July 1, 2016.

Among other things, subsection 121.5(1) of the Securities Act prohibits companies from taking a reprisal against an employee because the employee engaged in protected activities, including providing information to the company about an act that the employee reasonably believes is contrary to Ontario securities law. Subsection 121.5(2) declares a non-exhaustive list of adverse employment consequences that constitute reprisals—including, of course, ending or threatening to terminate employment—and subsection 121.5(4) creates a statutory cause of action for employees who receive reprisals contrary to these provisions.

Under this statutory cause of action, Mr. McPherson sued Global Growth Assets Inc. and Global RESP Corporation.

Key holdings

Some of the Court’s key conclusions that will shape how these new anti-reprisal provisions are applied include the following:

• Protected activity and causation: The Court interpreted “because” in s. 121.5(1) to mean that an employer commits a prohibited reprisal if the employee’s protected activity was any part of its motivation. The legislature could have required “solely because,” but did not. In line with Ontario’s analogous anti-reprisal regimes under the Employment Standards Act and the Occupational Health and Safety Act, even legitimate performance concerns do not immunize a termination if the protected activity was a motivating factor.


• Reasonable belief standard: The Court adopted a low threshold for “reasonably believes” in s. 121.5(1)(a): the employee must have a subjective belief, supported by some objective evidence available at the time, that the employer’s act is contrary to Ontario securities law. A belief is more than suspicion and less than knowledge. On the record, Mr. McPherson reasonably believed that removing a senior executive (who held compliance-related operational responsibilities) from the UDP’s supervision interfered with his statutory obligations and contravened Ontario securities law.


• Reverse onus: Under what was then s. 121.5(5) (now s. 121.5(6)), the burden lies squarely on the employer to prove it did not engage in a reprisal in contravention of s. 121.5(1). The Court rejected a two-step, burden-shifting model drawn from U.S. Sarbanes-Oxley jurisprudence and emphasized coherence with Ontario’s statutory framework and civil procedure.


• Remedy and mitigation: The Court awarded Mr. McPherson two times the remuneration he would have earned from the date of contravention (February 28, 2019) to the date of judgment, totalling $5,379,808.22, plus prejudgment interest. “Remuneration” includes discretionary bonuses. Unlike a traditional wrongful dismissal claim, there is no statutory requirement to mitigate, and the award is not reduced for subsequent earnings or amounts paid on termination. The Court declined additional wrongful dismissal, aggravated, or punitive damages, finding the statutory award adequate punishment and deterrence.

Facts and credibility findings

The central facts supporting the Court’s findings and multi-million-dollar award include:

• Regulatory backdrop: Global’s operations were subject to extensive Ontario Securities Commission (OSC) scrutiny and sanctions, including restrictions on the involvement of its indirect owner, Issam (Sam) El‑Bouji, and repeated findings of significant and recurring compliance deficiencies. Mr. McPherson was hired as CEO and UDP in August 2018 to lead remediation and restore compliance.


• Protected activity: In January and February 2019, after the board—without consulting Mr. McPherson—directed that senior executive Hanane Bouji no longer report to the CEO/UDP, Mr. McPherson repeatedly sought in camera access to independent directors to convey his concern that the board’s restructuring interfered with his NI 31‑103 UDP responsibilities and violated securities law. He expressly referenced his UDP obligations and warned of regulatory consequences if the governance changes persisted. The Court found these communications fell squarely within the protected activity in s. 121.5(1)(a)—providing or expressing an intention to provide information to the employer about acts reasonably believed to contravene securities law.


• Termination and post-termination conduct: The board terminated Mr. McPherson on February 28, 2019, without cause. The Court rejected the directors’ testimony that the decision had been made on February 8, relying on the absence of minutes, resolutions, or contemporaneous documentation and the presence of a “termination plan” email dated February 20 setting out initial next steps. Credibility was a central theme: the Court found defence evidence inconsistent, exaggerated, and contradicted by documents, and preferred the plaintiff’s testimony and contemporaneous records. Notably, immediately after the termination, Mr. El‑Bouji resumed providing direction to staff, in contravention of OSC orders, further undermining the board’s asserted compliance priority.

Statutory interpretation

In interpreting Part XXI.2 of the Ontario Securities Act as a matter of first impression, the Court determined the following:

• Text, context, and purpose: Applying modern principles, the Court anchored its analysis in the text of s. 121.5, read harmoniously with the purposes of the Securities Act (investor protection, market confidence, and systemic stability). The purpose of the anti‑reprisal regime is to allow employees to raise or attempt to raise securities law concerns internally without fear of retaliation; it does not require reporting to the OSC to engage the protection. The Court eschewed reliance on OSC staff consultation papers and U.S. authorities, emphasizing the Ontario legislature’s choices and coherence with the anti‑reprisal regimes under the Employment Standards Act and the Occupational Health and Safety Act.


• UDP supervision: The Court underscored that a UDP must supervise activities directed toward compliance at both firm and individual levels. No employee with compliance‑touching duties can evade UDP supervision; corporate interference with the UDP’s discharge of duties breaches Ontario securities law. The board’s decision to remove Ms. Bouji from the UDP’s oversight, in the context of identified deficiencies within her areas of responsibility, was central to finding protected activity and reasonable belief.

Practical implications

The Court’s decision presents a number of practical considerations for companies governed under the Securities Act. These include:

• Boards and governance: Boards of registrants must ensure the UDP’s unimpeded supervision of compliance-sensitive functions. Removing senior executives from the UDP’s reporting lines—or otherwise constraining the UDP’s ability to supervise—creates acute legal risk. In camera deliberations and decisions must be accurately documented; failure to keep minutes and resolutions will be viewed adversely when credibility is at issue.


• Anti‑reprisal compliance: Employers should treat internal reports or attempted reports of securities law concerns—including those addressed to management or the board—as protected activity. Adverse actions taken after such reports will be scrutinized for retaliatory motive; mixed-motive terminations are actionable. Independent directors should avoid conflating performance feedback with protected activity, and should respond to UDP‑anchored compliance concerns through documented governance processes.


• Remedies and exposure: The statutory double‑remuneration remedy is substantial, includes bonuses, and does not require mitigation. Since damages will accrue until judgment, the time horizons can be lengthy. Organizations should account for these liability implications for internal complaints and terminations. Further, given the other potential remedies set out in the Securities Act, organizations should also consider whether the whistleblower may seek reinstatement.


• Regulatory relations: Communication with the OSC must reflect genuine remediation progress. The Court’s criticism of post‑termination conduct—including the re‑engagement of a prohibited individual—illustrates how governance failures can compound exposure under the Securities Act.

Takeaways for companies and whistleblowers

The Court’s decision in McPherson v. Global Growth Assets Inc. is a landmark in Ontario’s securities law landscape. It empowers employees and compliance leaders to raise concerns internally and obliges boards to ensure the UDP’s role is real, respected, and documented.

Employers operating in regulated capital markets should revisit governance arrangements, reporting lines, and anti‑reprisal policies and ensure strict compliance with the Securities Act. As Mr. McPherson’s employer learned the hard way, failure to do so—and, in particular, engaging in reprisals against whistleblowers—can be a multi-million-dollar mistake.