Tariffs-Free Regulatory Importing?
Asad Akhtar
the Commission should consider in drafting the final policy. While the analysis below is critical,
this should not be taken as an indication that the challenges outweigh the positives that may be
brought under the program.
Claim Amount Threshold
It is not clear why the $1 million threshold is an appropriate threshold for the capital
markets in Ontario. Dissimilarities between the capital market size and the average sanction
levied by the SEC in comparison to the OSC may suggest that a lower threshold may be
appropriate. In consideration, the CRA’s incentivized whistleblower program eligibility
threshold is placed at $100,000 whereas under the IRS’ framework, the initial threshold is $2
million. 89
Contingent on Recovery
The two-tiered rewards system may, in practice, become heavily contingent on the OSC’s
ability to successfully collect on penalties. The OSC has indicated that a factor determining the
percentage awarded to a successful whistle blower will include the ability to collect the
sanctions.90 If the OSC is unable to improve its collection rate of penalties, it may result in
claimants consistently receiving a reward towards the lower portion of the eligibility scale.
Transparency & Accountability
To the credit of the OSC, the Proposed Policy closes many ambiguities that existed in the
CP. For example, the Proposed Policy explicitly indicates factors that will positively or
negatively impact the total reward payable. However, especially in light of the challenges faced
south of the border, more progress should be made in ensuring accountability and transparency
in the administration of the program. The lack of disclosed reasons by the Commission or OSC
IRS, “Whistleblower – Informant Award” (accessed Nov 12, 2015) online: IRS . See the
information provided under “What are the rules for getting an award?” heading.
90
Supra note 82 at 14.
89
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