In its recent decision of McPherson v. Global Growth Assets Inc. (McPherson), the Ontario Superior Court of Justice awarded a fired CEO over C$5-million in compensation under the whistleblower protections in the Ontario Securities Act, which prohibit issuers from retaliating against employees who raise concerns about potential violations of securities laws.
McPherson is the first judicial decision to apply and interpret these provisions and, in doing so, provides useful guidance for issuers.
Whistleblower Protections at Issue
In 2016, the Ontario Securities Commission (OSC) launched a whistleblower program to encourage reporting of securities law violations, offering confidentiality, monetary awards of up to C$5-million and other protections for those who come forward. Around the same time, the Securities Act was amended to include anti-reprisal provisions in respect of whistleblower complaints by employees (Reprisal Provisions). In short, these provisions:
- Prohibit reprisals by issuers against employees for raising reasonable compliance concerns both within and outside the company, including to the OSC and other regulators
- Allow employees to sue issuers directly for such reprisals
- Provide a statutory damages formula entitling employees to double their compensation from the date of the reprisal to judgment (Compensation Formula)
- Allow employees’ reinstatement at the level of seniority they would have had if the reprisal had not occurred
Background to the McPherson Decision
Global Growth Assets Inc. and Global RESP Corporation (Global) sold education savings plans and were regulated by the OSC. Global was indirectly owned by Issam El-Bouji. In its decision, the Court detailed Global’s history with the Bouji family; Mr. Bouji had been barred from serving as Global’s CEO and ultimate designated person (UDP) due to compliance issues (note: Under Ontario securities law, a UDP is responsible for supervising and promoting a company’s compliance with securities law). His daughter, Hanane Bouji, remained active in the business despite the OSC’s concerns that she would be unable to limit her father’s involvement.
In 2018, Global hired Mr. McPherson as CEO and UDP, with a mandate to improve compliance. However, Ms. Bouji continued to oversee compliance functions and, as the Superior Court later found, resisted reporting to Mr. McPherson.
In early 2019, the Global Board (Board) curtailed Mr. McPherson’s oversight of Ms. Bouji. The Court found that Mr. McPherson warned the Board that their directive prevented him from discharging his compliance duties, and that he repeatedly requested meetings with Global’s independent board members to address his concerns. The Board denied his requests and instead terminated him “for cause.”
Mr. McPherson then sued Global and its Board, alleging reprisal for raising compliance concerns, contrary to the Reprisal Provisions in the Securities Act.
The Court’s Decision
Mr. McPherson’s claim went to trial in April 2025. In a decision rendered on September 12, 2025, the Court held that Mr. McPherson’s dismissal was prohibited under the Reprisal Provisions and awarded him C$5.38-million in damages under the statute’s Compensation Formula. The Court made three key findings in interpreting and applying the statute:
- Mr. McPherson had a reasonable belief that Global was breaching Ontario securities law
- Mr. McPherson expressed his intention to bring this to Global’s attention
- Global fired Mr. McPherson at least partly because he raised these compliance concerns
The Court rejected the defendants’ claim that Mr. McPherson was terminated for poor performance, stating bluntly that it “d[id] not believe them.” Instead, it emphasized the suspicious timing of the dismissal, which followed closely on the heels of the Board’s decisions to limit Mr. McPherson’s compliance authority and dismiss his attempts to meet with independent directors. The Court found that the events strongly supported the inference that retaliation played at least some role in the termination, thereby engaging the Reprisal Provisions. In reaching this conclusion, the Court drew on analogous protections prohibiting reprisals against employees in the Employment Standards Act, the Occupational Health and Safety Act and the Human Rights Code. Adopting reasoning from prior cases applying these statutes, the Court concluded that a termination may breach the Reprisal Provisions even where retaliation is only a partial motivating factor.
In calculating damages, the Court held that Mr. McPherson was entitled to an amount twice his base salary and his significant discretionary bonuses that he would have earned from the date of the reprisal to the date of judgment. Importantly, the Court declined to deduct Mr. McPherson’s post-termination earnings, stressing that the Reprisal Provisions do not impose a duty on whistleblowers to mitigate their damages. The Court, in turn, emphasized that the large award reflected an appropriate “punishment” for Global and would serve to deter others from breaching the Reprisal Provisions in a similar manner. The Court declined, however, to award Mr. McPherson any damages for wrongful dismissal, emphasizing that Mr. McPherson was awarded more under the Reprisal Provisions than he would have been awarded for wrongful dismissal, meaning he did not suffer any relevant incremental damages under the latter category.
Implications
Although the OSC’s whistleblower program and protections are relatively new, their impacts are increasingly difficult to ignore. The whistleblower program has paid out millions of dollars to whistleblowers since its inception. Now, the McPherson case shows that issuers choosing to take or condone retaliatory action against whistleblowers can face meaningful exposure under the Reprisal Provisions. Indeed, the Court noted in McPherson that it was obliged to interpret the Reprisal Provisions purposively in accordance with the Securities Act’s broader goals of protecting investors and fostering confidence in the capital markets, suggesting future decisions applying the statute will adopt a similar whistleblower-friendly approach.
From a preventative lens, McPherson highlights the need for organizations to take compliance concerns seriously and foster, rather than hinder, a culture of transparency and accountability. Overlooking these obligations may expose companies to significant risk and can erode confidence and trust among regulators, employees and investors.
For more information, please contact the authors or any other member of our Securities Litigation, Capital Markets or Employment & Labour groups.
