Bill 141 Proposed amendments to the Act respecting the AMF with regard to whistleblowing

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Oct 05, 2017

On October 5, 2017, the Government of Quebec released a proposed amendments to the "Act respecting the Autorité des marchés financiers", which is intended to protect whistleblowers. The proposed amendments could have significant and potentially problematic consequences under certain circumstances.

The Bill states that it is forbidden to take a reprisal or to threaten to take a reprisal against a person who, in good faith, makes a disclosure to the Authority or who cooperates in an investigation. It specifies that the demotion, suspension or dismissal or transfer of the employee is presumed to be a reprisal.

The Bill also states that persons who make a disclosure may do so despite any disclosure constraints provided elsewhere in Quebec laws, such as the Act respecting the protection of personal information in the private sector (chapter P-39.1). The Bill goes further by providing that persons who make a disclosure may do so despite any provision of a contract or duty of loyalty or confidentiality that may be binding on them. The Bill specifies, however, that the authorized waiver of professional secrecy does not apply to professional secrecy between a lawyer or a notary and a client.

The waiver of professional secrecy, therefore, applies to all other professionals, such as accountants. If this provision is adopted as proposed, it may create significant challenges for auditors in establishing the relationship of trust with clients and their audit committees, in particular, because transparent communication of information between a client and an auditor is a key ingredient to audit quality.

Review the Bill and proposed amendments on the Government of Quebec's website and an article on McCarthy Tétrault LLP's website.

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