James Camp

Staff of the Ontario Securities Commission brought a motion to defer the hearing of Constitutional Motions brought by the respondents until the hearing on the merits.

The respondents sought to challenge the constitutionality of the investigation provisions of the Securities Act and the manner in which Staff obtained and used an investigation order.

The Commission granted Staff's motion, finding that Charter challenges should generally be decided on a complete factual record rather than in a factual vacuum.

The Commission concluded that the constitutional issues could not be fairly or completely resolved without regard to the contested facts and anticipated evidence that would be presented at the hearing on the merits.

The respondents requested that the Commission's Confidential Reasons and Decision dated May 18, 2007 be redacted to remove their names and identifying information prior to public release, relying on the confidentiality provisions in section 16 of the Securities Act.

Staff argued that subsection 17(6) permitted disclosure in connection with a proceeding and opposed a broad sealing order, but did not object to anonymizing the parties.

The Commission held that while it had the authority to release the reasons unredacted, it would exercise its discretion to release a redacted version until the commencement of the hearing on the merits.

Staff of the Ontario Securities Commission brought a motion to adjourn the respondents' Constitutional Motions until the hearing on the merits.

The respondents had filed motions challenging the constitutionality of section 11 of the Securities Act and the manner in which an investigation order was obtained and used, alleging violations of their Charter rights.

The Commission held that the Constitutional Motions should be dealt with in the course of the hearing on the merits because a determination in advance would deprive the Commission of the complete factual basis necessary for a proper consideration of the alleged Charter violations.

Staff's motion was granted and the Constitutional Motions were deferred to the hearing panel.

Counsel for two respondents brought a motion to be removed as counsel of record, citing the respondents' failure to cooperate and provide information necessary for their representation.

The respondents did not respond to communications or the notice of motion, and did not attend the hearing.

The Commission granted the motion, noting that counsel cannot properly represent clients without their cooperation and information.

The Commission also warned that future requests for adjournments by the respondents based on a lack of counsel would not be viewed favourably, as they had sufficient time to retain new counsel before the scheduled hearing.