In a recent case from the Ontario Superior Court, McPherson v. Global Growth Assets Inc., 2025 ONSC 5226, the former CEO of Global Growth Assets (“Global”) was awarded $5.4 million in damages resulting from his termination after raising concerns about the company’s compliance with Ontario securities law. The Ontario Superior Court of Justice concluded that the termination of his employment was at least in part motivated by the CEO engaging in a protected activity under the Ontario Securities Act (“OSA”). This decision is the first to interpret and apply the anti-reprisal provisions of the OSA.
Background
Global had a long-standing history with the Ontario Securities Commission (“OSC”) for non-compliance with Ontario securities law and its then CEO, Mr. Issam El-Bouji had been sanctioned several times. The OSC ultimately ordered that Global replace Mr. Bouji, to ensure compliance. The Company subsequently tried to appoint Mr. Bouji’s daughter, Ms. Hanane Bouji, but the OSC refused to approve the change. Mr. Ian McPherson was then hired as CEO and Ultimate Designated Person (“UDP”), and he was directed by the OSC to bring the company into compliance with the OSA.
While Ms. Bouji was prevented from becoming the CEO of Global, she continued to serve as Chair of the Board of Directors (the “Board”). A few months into Mr. McPherson’s tenure as CEO, the Board decided that Ms. Bouji would no longer report to Mr. McPherson, based on belief that Mr. Bouji was attempting to re-insert himself into the company through his daughter, contrary to the direction of the OSC.
Having learned this, Mr. McPherson tried to raise his concerns independently with each member of the board and sought a confidential meeting to discuss those concerns. In response to Mr. McPherson’s attempts to provide Global with information that their decision to remove Ms. Bouji from his oversight interfered with his obligations as UDP, an independent director warned him not to do anything that he would regret. There was also evidence that the directors were concerned about how Mr. McPherson’s conduct could threaten their roles as directors. Shortly after, Mr. McPherson made these attempts and terminated him without cause, shortly after.
The Law
The Plaintiff alleged that Global’s decision to terminate his employment amounted to an unlawful reprisal under the OSA. Section 121.5(1) (now, section 121.6(2)) of the OSA states that “No person or company, or person acting on behalf of a person or company, shall take a reprisal against an employee of the person or company because the employee” has engaged in a list of protected activities. An example of a protected action is providing information to the company about an act that the employee reasonably believes is contrary to Ontario securities law.
Similar to the reprisal provisions of other statutes such as the Ontario Employment Standards Act, 2000 (“ESA”) or the Occupational Health and Safety Act (“OHSA”), a reprisal is defined as any measure taken against an employee that adversely affects their employment, including but not limited to,
(a) ending or threatening to end the employee’s employment;
(b) demoting, disciplining or suspending, or threatening to demote, discipline or suspend an employee;
(c) imposing or threatening to impose a penalty related to the employment of the employee; or
(d) intimidating or coercing an employee in relation to his or her employment.
The burden rests on the employer to prove that it did not commit a reprisal.
The Court’s Decision
Global argued that the Court should interpret the word “because” to mean that a company does not engage in a prohibited reprisal if it can articulate a legitimate, non-retaliatory purpose for the reprisal. The Court disagreed, emphasizing that the protected activity did not have to be the sole reason for termination. In other words, an employer may have other valid reasons for terminating an employee, but if any part of that consideration included engaging in conduct protected under the Act, the termination would be a reprisal for the purposes of s. 121.5(1).3
The Court noted that the ESA, OHSA and the OSA achieve a similar purpose which is to protect employees from employer reprisals who engage in statutory-protected activities. Accordingly, the Court held that s. 121.5(1) of the OSA was to be interpreted to mean “No company shall take a reprisal against an employee if any part of the motivation for reprisal was the fact that the employee engaged in protected activity,” consistent with interpretation of the anti-reprisal provisions in other statutes.
Given the suspicious timing of Mr. McPherson’s dismissal, the Court concluded that his termination was at least in part motivated by him engaging in a protected activity under the OSA and that as such, Global retaliated against him, contrary to the anti-reprisal provisions of the OSA.
The Court awarded the Plaintiff two times the amount of remuneration he would have received from the date of termination to the date of judgment, totaling over $5 million plus prejudgment interest. The Court declined to award additional damages for wrongful dismissal, aggravated damages or punitive damages, finding the statutory remedy to be sufficient and determinative.
The Court also held that as the statutory provisions of the OSA do not require a terminated employee to mitigate their damages, no deduction from the award should be made for any mitigation efforts.
Takeaways
This landmark decision marks the first judicial interpretation of the OSA’s anti-reprisal provisions and demonstrates the significant consequences employers may face when acting against whistleblowers. The Court confirmed that a reprisal will be found where a protected activity forms any part of the motivation for termination or other adverse action, even if legitimate performance concerns also existed. With the Act’s reverse onus and its powerful statutory remedy requiring employers to pay twice the employee’s lost remuneration without any mitigation deduction, the resulting award exceeded $5 million, far surpassing typical wrongful dismissal damages.
The decision underscores the broad forms reprisal can take, including termination, demotion, discipline, penalties, intimidation, or coercion, and highlights the heightened legal risk exposure for employers, as well as an employee’s rights in such cases, not just under the OHSA and ESA, but under the OSA as well.
Contact JPAK Employment Lawyers for more information.
Authors: Ava Clarke and Jonquille Pak
Date: Dec 5, 2025
