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NATURE OF BODY - Types - Boards, tribunals and commissions - Powers or function - Types - Judicial or quasi-judicial powers or function - Discretionary powers - Practice and procedure

Monday, June 26, 2017 @ 11:52 AM  


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Appeal by the Financial and Consumer Services Commission from a decision by the Financial and Consumer Services Tribunal staying proceedings involving the respondents, Emond and Drapeau. In June 2010, the Commission alleged the respondents promoted or participated in the sale of illegal investments contrary to the Securities Act. In December 2010, the Commission issued a notice of hearing for April 2011. However, six years elapsed between the date on which the allegations were filed and the scheduled date of the hearing before the Tribunal in May 2016. Following submissions on the preliminary issue of delay, the Tribunal ordered a stay of proceedings. The Tribunal ruled that it had lost jurisdiction by reason of delay. The Commission appealed.

HELD: Appeal allowed. The Tribunal's decision to hear argument on the issue of delay before proceeding to a hearing on the merits was a reasonable approach within the Tribunal’s discretionary authority to control its own process. However, the Tribunal erred in law when it granted a stay of proceedings for reason of delay, substantial prejudice and abuse of process. There was no evidence supporting the fading of witnesses' memories with the passage of time. There was evidence suggesting other sources were available for the evidence of deceased witnesses. This was a straightforward matter delayed as a result of numerous adjournments obtained by the respondents and Drapeau's litigious approach to the proceedings. There was insufficient evidence supporting the Tribunal's conclusion regarding prejudice arising from the delay. There was no consideration of the effect of the stay on the public's confidence in the administration of justice. The failure by the Tribunal to consider all of the relevant criteria resulted in an incorrect decision that was set aside. The matter was remitted to the Tribunal for determination on the merits.

New Brunswick (Financial and Consumer Services Commission) v. Emond, [2017] N.B.J. No. 135, New Brunswick Court of Appeal, M.E.L. Larlee, J.C.M. Richard and B.L. Baird JJ.A., June 15, 2017. Digest No. TLD-June262017002