Janet A. Leiper

The respondent requested that the Commission's reasons dismissing his motion on solicitor-client privilege be kept confidential from the public, arguing that publication would render the claimed privilege moot in the event of an appeal.

The Commission dismissed the request, finding that the open court principle applies and the respondent failed to establish any prejudice, as the reasons did not describe evidence that could fairly be considered legal advice.

Staff of the Ontario Securities Commission issued a Statement of Allegations against the respondents.

Prior to the hearing on the merits, the respondent brought a motion asserting solicitor-client privilege over certain evidence.

Staff brought a cross-motion to defer the privilege issue to the merits hearing, arguing prematurity and questioning whether a non-merits panel had jurisdiction to make pre-hearing evidentiary rulings.

The Commission held that it has jurisdiction to determine pre-hearing evidentiary issues, including privilege, and that doing so promotes efficiency.

Applying the Mega-C factors, the Commission concluded the privilege motion was discrete, necessary for a fair hearing, and not premature.

Staff's cross-motion was dismissed and the privilege motion was ordered to proceed.

The respondent, Benedict Cheng, brought a motion claiming solicitor-client privilege over certain evidence, including memos written by the company's Chief Operating Officer (COO), who was also a licensed lawyer.

The respondent argued that the COO acted as the company's Chief Legal Officer and provided personal legal advice.

The Ontario Securities Commission dismissed the motion, finding that the COO's role was operational, not legal, and that no solicitor-client relationship existed between the COO and the respondent or the company.

Consequently, the communications were not protected by solicitor-client privilege.