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SECURITIES COMMISSIONS - Powers - Investigations and examinations - Disclosure by Commission

Monday, December 07, 2020 @ 9:25 AM  

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Appeal by the defendants from a decision of the British Columbia Securities Commission that released documents obtained during a securities investigation to a firm of solicitors. The executive director of the Commission issued a temporary cease-trading order. The Commission determined to hold a public hearing before extending the order. The respondent law firm applied for access to nine exhibits, including two news releases and seven affidavits, filed at the hearing. It intended to use the documents to advance a class action against the subjects of the investigation.

HELD: Appeal dismissed. The Commission did not err in law in concluding that once it elected to hold a hearing, its enabling statutory framework gave rise to a public duty to make that hearing open to the public and it was bound to conduct itself in a manner consistent with the open court principle. Permitting the public to have access to the record unless doing so would be unduly prejudicial to a party or a witness was consistent with the open court principle. The Commission engaged in the balancing of private and public interests by soliciting submissions from the parties and addressing those submissions in its reasons. The Commission did not occupy a position analogous to a litigant. The use it could make of documents obtained with its powers to compel production was limited by statute, not convention. The Commission did not misdirect itself or fail to give insufficient weight to any relevant consideration in concluding there was no public interest reason to deny public access to the evidence filed at the hearing. The Commission was not required to weigh the specific use for which the firm sought the evidence.

British Columbia (Securities Commission) v. BridgeMark Financial Corp., [2020] B.C.J. No. 1727, British Columbia Court of Appeal, P.M. Willcock, P. Abrioux and J. DeWitt-Van Oosten JJ.A., November 2, 2020. Digest No. TLD-December72020002