Ontario Securities Commission

Ontario Securities Commission

Commission des valeurs mobilières de l’Ontario

22nd Floor 20 Queen Street West Toronto ON M5H 3S8

22e étage 20, rue Queen Ouest Toronto ON M5H 3S8

Citation: A. and al., 2007 ONSEC 13

Date: 2007-07-26

IN THE MATTER OF THE SECURITIES ACT, R.S.O. 1990, c. S.5, AS AMENDED

• AND-

IN THE MATTER OF A, B, C, D, E, F, G and H

REDACTED REASONS AND DECISION MADE PURSUANT TO THE CONFIDENTIAL REASONS AND DECISION REGARDING THE REQUEST FOR REDACTION

In Camera Hearing: April 12, 2007

Panel: Lawrence E. Ritchie

• Vice-Chair (Chair of the Panel)

James E. A. Turner

• Vice-Chair

Wendell S. Wigle, Q.C.

• Commissioner

Counsel: Anne C. Sonnen Sean Horgan

• For Staff of the Ontario Securities Commission

Peter Copeland

• For D and E

Fred Platt

• For F, G, and H

Steven Sofer James Camp

• For C

David Hausman

• For the Liquidation Trustee of A

NOTE

Following a cross-motion brought by Staff in response to Constitutional Motions brought by X and Y, an in camera hearing was held on April 12, 2007.

The Commission issued its Reasons and Decision on a confidential basis on May 18, 2007.

By letter dated June 14, 2007, the Secretary to the Commission requested, on behalf of the Panel, that the parties file submissions regarding confidentiality and the need for redaction of the Confidential Reasons and Decision of May 18, 2007.

The parties filed written submissions on June 21 and 22, 2007.

We issued Confidential Reasons and Decision Regarding the Request for Redaction on July 18, 2007. Based on these reasons, we have issued these Redacted Reasons and Decision Made Pursuant to the Confidential Reasons and Decision Regarding the Request for Redaction on July 18, 2007.

The unredacted versions of both the Confidential Reasons and Decision, dated May 18, 2007 and the Confidential Reasons and Decision Regarding the Request for Redaction, will be available to the public on the day scheduled for the commencement of the Hearing.

REDACTED REASONS AND DECISION MADE PURSUANT TO THE CONFIDENTIAL REASONS AND DECISION REGARDING THE REQUEST FOR REDACTION

I. Introduction

1On [...], the Commission issued a Notice of Hearing pursuant to section 127 of the Securities Act, R.S.O. 1990, c. S.5, as amended (the "Act") in connection with a Statement of Allegations delivered by Staff of the Commission ("Staff") on that day. The Notice names the following as Respondents: A, B, C, D, E, F, G and H (collectively, "the Respondents"). Staff alleges that the Respondents violated sections 25, 38 and 53 of the Act. An Amended Notice of Hearing was issued by the Commission on [...].

2By Order dated [...], on consent of all parties, the Commission ordered the hearing on the merits to commence on [...], to proceed over the following six weeks.

3According to Staff's Statement of Allegations, the substantive proceeding relates to activities alleged to have taken place from [...].

II. Status of Pending Motions

4At this stage of the proceedings, there are a number of motions pending:

(a) a motion filed by Staff, as well as one by the Trustee of A (the "Trustee"), relating to the use of evidence obtained pursuant to an investigation order in A's U.S. bankruptcy proceedings (the "Disclosure Motions");

(b) a motion for particulars (the "Particulars Motion") filed by F, G and H (collectively, "Y"); and

(c) two motions, one brought by D and E (collectively "X"), and one brought by Y (collectively X and Y are referred to as the "Moving Respondents"), relating to the propriety and legality of certain statutory investigation provisions contained in the Act, and their use in this case (collectively the "Constitutional Motions").

5None of these motions have been scheduled. With respect to the Disclosure Motions, we were advised by counsel for both Staff and the Trustee that these motions will not be pursued in advance of the resolution of the Constitutional Motions.

6By the Particulars Motion, Y seeks particulars of alleged facts and positions asserted in the Statement of Allegations. The Particulars Motion has been adjourned sine die.

7As described below, the Constitutional Motions challenge both the constitutionality of section 11 of the Act, as well as the manner and basis upon which an investigation order issued pursuant to that section (the "Investigation Order") was obtained and used in the circumstances of this Proceeding. While they are described as the "Constitutional Motions", the Moving Respondents also rely on principles of "fundamental and/or natural justice", in addition to Charter protections (Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the "Charter")) as described below.

8In response to these Constitutional Motions, Staff filed a "cross-motion" on [...], to adjourn the hearing of the Moving Respondents' motions until the commencement of the hearing in this matter on [...] (the "Hearing"), so that the Constitutional Motions would be dealt with at the discretion of the Hearing Panel ("Staff's Motion"). Staff's Motion is described as a motion to adjourn the Constitutional Motions. However, we agree with counsel for X that Staff's Motion is more in the nature of a motion for directions with respect to the scheduling and hearing of the Constitutional Motions.

9It is Staff's Motion that is before us.

III. The Constitutional Motions and the Relief Sought

(a) Motion by X

10By Notice of Motion dated [...], X brought its Constitutional Motion. A Notice of Constitutional Question was also filed, with proof that it was served on the Attorney General for Ontario.

11In its Constitutional Motion, X submits, among other things, that section 11 of the Act is void for vagueness. It seeks declaratory relief under section 52 of the Constitution Act, 1982 that section 11 of the Act is of no force and effect. X also seeks a declaration that, in the circumstances of this case, the Investigation Order was issued in a manner that infringed its sections 7 and 8 Charter rights on the basis that it was granted:

(1) without sufficient foundation;

(2) without full and frank disclosure; and

(3) was sought and obtained for an oblique and improper purpose.

12As well, X takes issue with, and seeks relief as a result of, the manner in which the Investigation Order was utilized by Staff. X alleges, among other things, that:

(a) the Investigation Order and the execution thereof, including the subsequent examinations of them and the other persons compelled to give evidence, violated its sections 7 and 8 Charter rights and the rules of fundamental and/or natural justice;

(b) the efficacy of the Investigation Order was spent prior to the commencement of the examinations by Staff of X and all persons compelled to give evidence; and

(c) the disclosure and dissemination by Staff of certain materials violated its Charter and statutory rights.

13X also seeks a stay of the section 127 proceedings. In the alternative, X seeks: (1) an Order for the pre-hearing examination of a member of Staff or other persons by X; and (ii) an Order prohibiting Staff from using evidence obtained pursuant to the Investigation Order or derived therefrom, and an order that such evidence be destroyed.

(b) Y's Motion

14Y's Notice of Motion, dated [...] challenges the constitutionality of section 11 of the Act on grounds similar to that relied upon by X. Y also alleges that there were violations of section 9 (right against arbitrary detention or imprisonment), section 11 (right to a fair trial) and section 13 (right against self-incrimination) of the Charter.

15In particular, in its Constitutional Motion, Y challenges Staff's conduct, the propriety and validity of the Investigation Order, and their compelled examinations under section 13 of the Act, among others, on the following grounds:

(a) Section 11 of the Act violates the Charter on the basis or ground that the word 'expedient" is unconstitutionally vague and undefined;

(b) the Commission granted the Investigation Order, without notice to it:

(i) in circumstances that violated the Charter and the statutory rights of Y under the Charter; and

(ii) without proper or sufficient information or grounds, and without sufficient foundation and without Staff making proper or sufficient disclosure;

(c) Staff failed to make full, fair and frank disclosure when Staff sought and obtained the Investigation Order;

(d) Staff sought and obtained the Investigation Order for a collateral and/or improper purpose; and

(e) the Investigation Order and its execution, including Staff's compelled evidence examinations of Y under section 13 of the Act, violated Y's Charter and statutory rights to fundamental and natural justice.

16Y requests relief similar to that requested by X.

(c) Additional Relief Sought

17In its factum and oral submissions, X requests that an order be made providing directions with respect to the following matters:

(i) The date upon which Staff would provide its response to the Constitutional Motion;

(ii) The procedure to be adopted for the development of the evidentiary record for their Constitutional Motion; and

(iii) A schedule for the hearing of the Constitutional Motions.

IV. The Issue

18The major issue before us is whether the Constitutional Motions brought by the Moving Respondents ought to be heard at the Hearing, to be dealt with at the discretion of the Hearing Panel, rather than in advance of the Hearing.

V. The Submissions of the Parties

(a) Position of Staff

19Staff submits that the Constitutional Motions should not be heard as a pre-hearing matter. Instead it should be heard and determined in the context of the Hearing, by the Hearing Panel. Their argument is summarized as below.

20Staff submits that the courts in the criminal, civil and administrative law contexts (including securities regulation) have overwhelmingly held that motions such as the Constitutional Motions ought to be heard in the course of the substantive hearing/trial. The jurisprudence enunciates the following principles:

(i) A complete factual foundation is essential for a proper determination in such circumstances. This requirement is particularly acute in a regulatory setting where the expertise of a specialized tribunal is invaluable in ensuring a complete evidentiary record for any review by the Courts. Staff submits that in this case:

(a) the Commission must hear and weigh all the evidence of Staff, other witnesses and documentary evidence to make findings and fashion remedies in response to allegations of Charter breaches, abuse of process, improper or oblique purposes;

(b) The Moving Respondents "seek to attack and invalidate a core provision of the Act and, in essence, to disable Staff's investigation and enforcement powers." The challenges are made both to the statutory provision itself, as well as to how it was utilized in the circumstances of this case;

(c) The case law states that Charter challenges should not be made in a factual vacuum, but rather in the context of a full factual matrix and record; the factual foundation for Charter challenges should be complete and not solely based on affidavit evidence where there is likely to be a dispute over the facts;

(d) The general principle that Charter challenges require a full factual record is accentuated in the context of an administrative tribunal applying a regulatory scheme. In particular, there is a general duty for administrative tribunals to establish a cogent and complete record. An administrative tribunal does not have the authority to make a general declaration of invalidity under section 52 of the Constitution Act, 1982, since only superior courts can make general declarations of invalidity applicable to all Canadians. Accordingly, a decision by a tribunal that a law is unconstitutional is only applicable to the parties over which it has jurisdiction and has no precedential value;

(e) Analogous cases in the securities context support Staff's position; and

(f) Charter analysis requires a complex balancing of interests of the individual and society. In assessing a Charter challenge, the Commission must decide first, whether there was an infringement of Charter rights and second, if there was an infringement, whether it can be justified under section 1 of the Charter and, if not, the Commission must consider what is the appropriate Charter remedy under section 24. Each step requires the consideration of supporting facts.

(ii) The Charter breaches alleged are speculative at this time. A tribunal cannot assess the extent of any prejudice alleged until it crystallizes and the effects are known:

(a) It is unknown whether and to what extent any impugned evidence will be tendered and/or ruled admissible at the Hearing;

(b) It is unknown whether and for what purpose any compelled/ derivative evidence may be used; and

(c) It is unknown how any impugned evidence will fit within the context of Staff's evidence as a whole.

(iii) The remedy sought, being a stay of proceedings, is granted in extremely rare circumstances where an applicant has demonstrated prejudice that will be manifested, perpetuated or aggravated by the continuation of proceedings and no other remedies are capable of removing that prejudice. The Commission must defer the decision to assess the degree and extent of alleged prejudice in the context of the evidence as a whole, particularly where there are significant material facts in dispute.

(b) Y

21In support of their Constitutional Motion, Y filed a 47 page affidavit with 37 exhibits.

22Y submits that the factual basis for the relief it seeks is grounded in the filed affidavit materials and that there are no facts that will be the subject of the section 127 hearing, that are relevant to the issues on their Constitutional Motion. They note that Staff has filed no material responding to the Constitutional Motions (apart from bringing Staff's Motion). Y submits therefore that Staff cannot demonstrate that any evidence that may be tendered during the section 127 hearing is necessary for a proper record on their Constitutional Motion.

23Further, Y submits that the facts and related issues raised in their Constitutional Motion are distinct from the facts and issues that are the subject of the section 127 hearing. The facts and issues underlying the Constitutional Motions relate to Staff's conduct prior to the commencement of this section 127 proceeding, and distinct from the following events that are the subject of the section 127 Hearing.

24Y submits that Staff's response to the Constitutional Motion and argument on their cross-motion is hypothetical as it is devoid of any facts which address to the Constitutional Motions. Y submits that since Staff has not filed any responding material, Staff has not addressed the specific facts nor the specific grounds on which the Constitutional Motion is based.

25Y further submits that its Constitutional Motion is not speculative as Y's rights under the Charter, and natural justice, have actually been violated.

26Y argues that adjourning (or deferring) the Constitutional Motion, without a factual foundation to base this decision, would result in a loss of jurisdiction and a further denial of justice, and in particular, a decision that renders substantial aspects of the Constitutional Motion moot.

(c) X

27X opposes Staff's Motion on the grounds that it seeks to proceed with their Constitutional Motion in a timely and efficient manner that will not interfere with the dates already scheduled for the section 127 hearing.

28Further, X submits that the evidence relating to the issues raised in its Constitutional Motion is distinct from the evidence that would be adduced at the Hearing. X submits that, unlike some of the cases referred to by Staff, X is not raising constitutional issues in relation to the very provisions at issue in the main proceeding (which, in this case, include sections 25, 38 and 53 of the Act). X acknowledges that if it were challenging the constitutionality of sections 25, 38 and/or 53 of the Act, there could, be substantial overlap between the evidence relating to the constitutional issues and the allegations at the hearing proper, depending upon the nature of the challenge. X submits that while it could be of assistance to the Panel to hear the evidence regarding the allegations in order to consider the constitutional issues in that circumstance, and in some other cases, such as where the evidence on the motion is interrelated with that anticipated to be heard at the hearing on its merits; this is not such a case.

29X argues that the violations of its rights are neither speculative nor prospective. Rather, they are based upon events that have already occurred in the course of the investigation. X seeks remedies for these past violations of its rights to avoid the compounding of the violations during the course of the proceeding.

30X also submits that Staff's approach would create a real risk that the Hearing would not be completed during the scheduled dates. These Hearing dates were set almost a year in advance and had to accommodate the schedule of the Commission and counsel involved.

VI. Analysis

(a) Preliminary Motions in Commission Hearings

(1) General Observations

31At the outset, we find it helpful to make some general observations about the nature and propriety of preliminary, pre-hearing motions made in the context of section 127 proceedings. While proceedings before a specialized administrative tribunal are intended to be more streamlined and less formal than those in the court system, Commission proceedings must be conducted with caution to ensure fairness to the parties before it, and efficiency in the conduct of such proceedings. It is not uncommon for parties to bring pre-hearing motions to a Commission panel in the context of a section 127 proceeding. In our view, some of these motions should be heard and determined as pre-hearing motions, in advance of the hearing on the merits, so as to promote and advance the goals of fairness and efficiency. On the other hand, often such motions do not sufficiently advance those goals to warrant being heard in advance of the substantive hearing, and are best addressed by the panel hearing the merits of the case, at the time of the substantive hearing.

32In reviewing prior Commission decisions, decisions of other administrative regulatory tribunals, as well as subsequent appeals and judicial reviews of such decisions, we note the following:

(1) There is a wide variety in the nature, scope and breadth of Commission proceedings, and a great diversity in the outcomes sought and the impacts on the parties. When proceedings are brought to a Commission Hearing Panel, Staff could be seeking a range of protective orders and relief that can affect the ability of the parties to participate in the capital markets. The relatively recent legislative amendments which gave the Commission the power to impose monetary sanctions and cost orders have increased the severity of possible outcomes to persons named as respondents in section 127 proceedings.

(2) The Commission must ensure its proceedings are fair and that all procedural rights to which respondents are entitled are properly and effectively provided. The manner in which that goal is achieved may depend on the context of each individual proceeding, including the sanctions and outcomes sought, and what is ultimately at stake for the respondents before the Commission.

(3) The Commission is responsible for administering the Act, which has an over-arching mandate and obligation:

(a) to provide protection to investors from unfair, improper or fraudulent practices; and

(b) to foster fair and efficient capital markets and confidence in capital markets.

(4) Commission proceedings ought to be transparent, fair, effective and efficient, in furtherance of and in light of fulfilling its statutory mandate and obligations.

(5) As an administrative tribunal, the Commission, and each hearing panel in particular, are "masters of their own procedure". (See Prassad v. Canada (Minister of Employment & Immigration), 1989 CanLII 131 (SCC), [1989] 1 S.C.R. 560 at para. 16; and Robert W. Macaulay, Q. C., & James L. H. Sprague, Hearings Before Administrative Tribunals, 2nd ed. (Scarborough: Carswell, 2002) at § 9.1. See also section 25.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which enables administrative tribunals in Ontario, such as the Commission, to adopt their own procedures.) The Commission has broad discretion in such matters, which must be exercised with due regard to all of the circumstances, interests and rights of the parties. All such elements need to be carefully balanced.

(2) The Exercise of Discretion

33The essence of Staff's argument is that it is premature, for a number of reasons, to have the Constitutional Motions heard and determined as a preliminary matter, in advance of the Hearing.

34In our view, in exercising its discretion as "master of its procedure", the Commission ought to have due regard for all of the circumstances described above, as well as concern for not unduly "judicializing" its processes. While fairness and the procedural rights of the Respondents and affected persons must be ensured, as stated above, administrative proceedings are intended to be less formal and more procedurally flexible than those of the courts. In considering the stage at which motions such as these should be heard and determined by a Commission panel, we believe that it is useful to ask the following questions:

(a) Can the issues raised in the motions be fairly, properly or completely resolved without regard to contested facts and the anticipated evidence that will be presented at the hearing on the merits? In other words, will the evidence relied upon on the motions likely be distinct from, and unique of, the evidence to be tendered at the hearing on the merits?

(b) Is it necessary for a fair hearing that the relief sought in the motions be granted prior to the proceeding on its merits?

(c) Will the resolution of the issues raised in the motions materially advance the resolution of the matter, or materially narrow the issues to be resolved at the hearing on the merits such that it will be efficient and effective to have them resolved in advance of the commencement of the hearing on the merits?

35If the answer to any of these questions is "yes", in our view, the Commission should hear the Constitutional Motions as pre-hearing motions, in advance of the Hearing, absent strong reasons to the contrary.

36In contrast, if the answer to all of these questions is "no", the Commission should be reluctant to address the motions as pre-hearing motions, absent strong reasons to the contrary.

37To take an example, motions relating to Staff's disclosure obligations and motions for particulars, are the types of motions that should be brought and heard well in advance of the substantive hearing on the merits: they raise issues which can be fairly, properly and completely resolved without regard to contested facts and anticipated evidence that will be the subject matter of the hearing. Further, if the relief sought is to be granted at all, it is necessary for fairness to the affected Respondents that the relief be granted prior to the commencement of the hearing on its merits. There may be other motions that, if heard in advance, could materially advance the matter or narrow the issues to be resolved on the hearing on the merits.

38Of course, we recognize that there can be no "hard and fast" rules that govern the exercise of a Commission panel's discretion. Each case is unique, and a Commission panel's discretion should not be encumbered by generalities. We do, however, suggest this framework may assist the task of balancing the interests of fairness and administrative efficiencies in the face of pre-hearing motions.

(b) Charter and Similar Challenges as Preliminary Motions

(1) A Complete Factual Foundation is Generally Desirable

39The case law referred to us by Staff supports the view that in a civil law context there is a strong trend in favour of hearing constitutional motions at the trial itself, rather than in advance, because a proper factual foundation is required for the assessment of the constitutionality of a statutory provision.

40The Supreme Court has held that Charter challenges should be decided within the context of a full factual matrix and record: "Charter challenges should not and must not be made in a factual vacuum" (MacKay v. Manitoba, 1989 CanLII 26 (SCC), [1989] 2 S.C.R. 357, ("MacKay") at para. 9).

41In MacKay, the Supreme Court listed a number of reasons to support hearing a Charter challenge in the context of a full factual record. First, Charter challenges will frequently involve concepts and principles that are of fundamental importance to Canadian society (MacKay, supra at para. 8). Since a Charter challenge can raise important issues that have an impact on Canadian society as a whole, the Supreme Court emphasized that, "courts have every right to expect and indeed to insist upon the careful preparation and presentation of a factual basis in most Charter cases" (MacKay, supra at para. 8).

42These observations have been followed and applied by the Ontario Court of Appeal, which stated in Danson v. Ontario (1987), 1987 CanLII 4068 (ON CA), 41 D.L.R. (4th) 129 (Ont. C.A.) ("Danson CA") that if a constitutional challenge:

[...] should fail for lack of a factual underpinning, the loss may not be his alone, but could well prejudice the rights of those who follow [...] the court might on this sketchy record, feel constrained to make some sweeping generality which would later appear unwise. (Danson CA, supra at 138)

43Due to the potential impact of the resolution of a constitutional issue, courts have found it to be desirable to hear a constitutional challenge in the context of all relevant facts and circumstances.

44When a Charter challenge relates to the effect of a statutory provision, courts have observed that it is necessary to consider all the facts that give rise to an alleged violation of the Charter before rendering a decision. The Supreme Court has stated:

A factual foundation is of fundamental importance on this appeal. It is not the purpose of the legislation which is said to infringe the Charter but its effects. If the deleterious effects are not established there can be no Charter violation and no case has been made out. Thus the absence of a factual base is not just a technicality that could be overlooked, but rather it is a flaw that is fatal to the appellants' position [Emphasis added] (MacKay, supra at para. 20).

45The importance of a factual basis is, in our view, self-evident from the analysis required by the Charter. A Charter analysis involves following multiple steps and each step requires proof with the appropriate factual underpinning. As indicated in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103 ("Oakes"), a Charter analysis starts with a determination whether a right guaranteed by the Charter has been violated. Then, if it is found that a Charter right has indeed been infringed, a section 1 Charter analysis is carried out to determine whether the Charter violation is justified.

46Section 1 of the Charter has two functions: (1) it promotes and reiterates the constitutional guarantees of the rights and freedoms listed in the Charter's provisions; and (2) it may be relied on to justify limitations to Charter rights and freedoms (Oakes, supra at para. 66). In determining whether a breach of the Charter is justified, decision makers must be "guided by the values and principles essential to a free and democratic society" (Oakes, supra at para. 67). This requires balancing competing interests. In this balancing process, evidence is required to demonstrate whether a Charter violation can be justified in a free and democratic society. Specifically, the Supreme Court has said that:

[...] evidence is required in order to prove the constituent elements of a s. 1 inquiry and [...] it should be cogent and persuasive and make clear to the court the consequences of imposing or not imposing a limit [to Charter rights] [Emphasis added] (Oakes, supra at para. 72).

47A complete record of evidence is needed in the context of a section 1 Charter analysis. Moreover, in order to properly assess a Charter challenge and balance competing interests, the Charter analysis must be considered within the context in which the claim arises. Accordingly, the challenged provisions of the Act must be considered within the Act's regulatory scheme, and the specific facts of the case in which the challenge has arisen. The Supreme Court has emphasized that:

It is now clear that the Charter is to be interpreted in light of the context in which the claim arises. Context is relevant both with respect to the delineation of the meaning and scope of Charter rights, as well as to the determination of the balance to be struck between individual rights and the interests of society.

A contextual approach is particularly appropriate in the present case to take account of the regulatory nature of the offence and its place within a larger scheme of public welfare legislation. This approach requires that the rights asserted by the appellant be considered in light of the regulatory context in which the claim is situated, acknowledging that a Charter right may have different scope and implications in a regulatory context than in a truly criminal one (R. v. Wholesale Travel Group Inc., 1991 CanLII 39 (SCC), [1991] 3 S.C.R. 154 at paras. 149 and 150).

48Further, in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 CanLII 57 (SCC), [1991] 2 S.C.R. 5 ("Cuddy Chicks"), the Supreme Court affirmed that "in the case of Charter matters which arise in a particular regulatory context, the ability of the decision maker to analyze competing policy concerns is critical" (Cuddy Chicks, supra at para. 16). A well informed assessment of Charter rights in a particular regulatory context is best accomplished based on a complete factual record. Therefore, Charter rights need to be evaluated in light of the factual circumstances and this can be most effectively done during the hearing on the merits.

49In Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110 ("Metropolitan Stores"), the Supreme Court has also recognized that there are disadvantages to hearing a constitutional challenge during the interlocutory stage of a proceeding. In particular, the Supreme Court emphasized that:

Most of the difficulties encountered by a trial judge at the interlocutory stage, which are raised above, apply not only in Charter cases but also in other constitutional challenges of a law. I therefore fully agree with what Professor R. J. Sharpe wrote in Injunctions and Specific Performance, at p. 177, in particular with respect to constitutional cases that "the courts have sensibly paid heed to the fact that at the interlocutory stage they cannot fully explore the merits of the plaintiff's case". At this stage, even in cases where the plaintiff has a serious question to be tried or even a prima facie case, the court is generally much too uncertain as to the facts and the law to be in a position to decide the merits [Emphasis added] (Metropolitan Stores, supra at para. 50).

50We agree with Staff that the case law supports the recognition of a "[...] general rule that Charter issues should be decided only after a proper record is put before the decision maker" (DeVries v. British Columbia (Attorney General), [2006] B.C.J. No. 3226 (B.C.C.A.) (QL) ("DeVries") at para. 7).

(2) Charter Challenges in Administrative Law Proceedings

(i) General Observations

51Staff also referred us to relevant case law that describes the appropriate process for a Charter challenge in an administrative law context. In particular, Staff asserts that administrative tribunals have a general duty to establish a cogent and complete record of proceedings, which is of invaluable assistance to an appeal court in Charter disputes.

52Indeed, there are a number of reasons to support this submission. In an administrative law context, the informed view of a specialized tribunal possessing knowledge of relevant facts and an ability to compile a cogent record is extremely helpful in Charter disputes. For example:

In the case of Charter matters which arise in a particular regulatory context, the ability of the decision maker to analyze competing policy concerns is critical. [...] The informed view of the [administrative tribunal], as manifested in a sensitivity to relevant facts and an ability to compile a cogent record, is also of invaluable assistance [Emphasis added] (Cuddy Chicks, supra at para. 16).

53Furthermore, in the context of an appeal of a Charter challenge heard before an administrative tribunal, it is important to have a complete record including all the relevant facts, in case the decision is appealed. As explained by the Supreme Court in Nova Scotia (Worker's Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504:

[...] the factual findings and record compiled by an administrative tribunal, as well as its informed and expert view of the various issues raised by a constitutional challenge, will often be invaluable to a reviewing court [Emphasis added] (Nova Scotia (Worker's Compensation Board) v. Martin, supra at para. 30).

(ii) Specific Cases in a Securities Law Context

54Staff also referred us to decisions in a securities law context, supporting the proposition that Charter challenges are best heard during the hearing on the merits in order to ensure that a complete factual record is available. This was the case in Smolensky v. British Columbia Securities Commission (2004), 2004 BCCA 81, 236 D.L.R. (4th) 262 (B.C.C.A.) ("Smolensky BCCA"); leave to appeal to the S.C.C. refused: [2004] S.C.C.A. No. 274.

55In Smolensky BCCA, the respondent challenged the constitutionality of section 148 of the British Columbia Securities Act, R.S.B.C. 1996, c. 418 (the "BCSA"). In particular, the respondent alleged that section 148 of the BCSA violated sections 2(b), 7, 8 and 11(d) of the Charter. The British Columbia Court of Appeal held that it was too premature to assess whether section 148 of the BCSA violated the Charter (Smolensky BCCA, supra at para. 26). According to the British Columbia Court of Appeal:

Before this Court states a definitive opinion on Charter issues, the Commission should have the opportunity to address those issues on the facts of this case, including any specific restrictions of access to information and disclosure asserted by the appellant. I have concluded that the other grounds of relief raised by the appellant are issues that also should be dismissed as not timely. They are not appropriate for judicial review in the absence of a complete record of facts and deliberation before the Commission [...] [Emphasis added] (Smolensky BCCA, supra at para. 6).

56Thus, the British Columbia Court of Appeal declined to consider the constitutional question until the British Columbia Securities Commission had the opportunity to address the question and have the opportunity to create a full record for an appeal, if one was taken (Smolensky BCCA, supra at para. 26). The British Columbia Court of Appeal took the position that without a full record of the relevant facts, the effect of section 148 of the BCSA was unknown and the constitutional question was premature (Smolensky BCCA, supra at para. 24). As a result, the British Columbia Securities Commission had initial jurisdiction over the constitutional issue and was best suited to create a full and cogent record to deal with that issue.

57After the decision was rendered in Smolensky BCCA, the matter came before the British Columbia Securities Commission in Re Smolensky (2006), BCSECCOM 45 ("Smolensky BCSC"). Smolensky brought an application before the British Columbia Securities Commission to challenge the constitutionality of subsection 148(1) of the BCSA before the hearing on the merits of the matter. The British Columbia Securities Commission panel cited MacKay as authority to require a full factual record for the determination of a constitutional challenge, and the panel found that they were in the same position as the British Columbia Court of Appeal in Smolensky BCCA because no factual context was presented (Smolensky BCSC, supra at para. 72). The panel of the British Columbia Securities Commission explained that:

Until a hearing is held on the merits, the Commission will have no factual background upon which to assess the Charter issues. For example, at this point we do not know:

• the disclosure that the Executive Director has made to Smolensky

• the evidence, including witnesses, that the Executive Director intends to use to try to prove the allegations in the notice of hearing

• the evidence, including witnesses, that Smolensky might reasonably require to try to refute the evidence of the Executive Director

• Smolensky's actual access to witnesses

Only with this information, and doubtless other information as well, will the Hearing Panel be in a position to determine whether, on the facts of this case (as required by MacKay) Smolensky's Charter rights have been violated.

In our opinion it is premature to make a ruling on the Charter-based grounds of Smolensky's application, and we therefore dismiss them (Smolensky BCSC, supra at paras. 73 to 75).

(c) The Application of These Principles to the Constitutional Motions

58The Moving Respondents contend that the Constitutional Motions can be heard prior to the hearing on the merits and that the evidence contained in the affidavit materials filed is sufficient to enable the Commission to resolve their motions.

59As stated by the Supreme Court of Canada:

[there] may be rare cases where the question of constitutionality will present itself as a simple question of law alone which can be finally settled by a motion judge (Metropolitan Stores, supra at para. 49).

60In this case, we are not convinced that the Constitutional Motions are based on a simple question of law alone. Here, as discussed above, the Moving Respondents challenge not only the constitutionality of the relevant provision, but the actions of Staff acting pursuant to it, and their effects.

61We find that the Moving Respondents need to demonstrate if and how the Investigation Order actually violated their Charter rights. We doubt that this can be accomplished in a factual vacuum, and therefore, the Constitutional Motions should be assessed and determined in the whole context of this matter.

62As established in Danson v. Ontario (Attorney General), 1990 CanLII 93 (SCC), [1990] 2 S.C.R. 1086 ("Danson SCC"):

[...] any Charter challenge based upon allegations of the unconstitutional effects of impugned legislation must be accompanied by admissible evidence of the alleged facts. In the absence of such evidence, the courts are left to proceed in a vacuum, which, in constitutional cases as in nature, has always been abhorred (Danson SCC, supra at para. 31).

63We are of the view that, in order to determine the allegations made in the Constitutional Motions, there must be a full factual record in order to assess whether and how rights have been violated. This reasoning was also followed by the British Columbia Court of Appeal in DeVries. In that case, it was argued that section 2(b) of the Charter was violated by the nature of the allegations in the Notice of Hearing of the British Columbia Securities Commission. The British Columbia Court of Appeal held that there is a "[...] general rule that Charter issues should be decided only after a proper record is put before the decision-maker" (DeVries, supra at para. 7). The British Columbia Court of Appeal also reiterated that a factual basis was required to conduct the requisite Charter analysis, and as a result, adjourned the application so that the constitutional issues could be heard at the hearing in the presence of relevant facts (DeVries, supra at para. 12). Y has failed to demonstrate a strong case justifying departure from this general rule.

64Staff asserts that the constitutional violations alleged by the Moving Respondents in this case are not novel, and thus, we are not in an exceptional situation which justifies that a Charter challenge should be heard outside of a full factual basis. We agree with this submission and we note that Charter violations concerning the investigatory provisions of the Act have previously been considered and the constitutionality of such provisions have been upheld by the Courts (In particular, see British Columbia (Securities Commission) v. Stallwood et al., (1995), 1995 CanLII 1515 (BC SC), 126 D.L.R. (4th) 89 (B.C.S.C.); BCSC v. Branch, (1990), 1990 CanLII 996 (BC SC), 68 D.L.R. (4th) 347 (B.C.S.C.); Barry v. Alberta Securities Commission, (1986), 1986 ABCA 34, 25 D.L.R. (4th) 730 (Alta. C.A.); Re Malartic Hygrade Gold Mines and Ontario Securities Commission, (1986), 1986 CanLII 2653 (ON HCJ), 27 D.L.R. (4th) 112 (Ont. Div. Ct.), leave to appeal refused (1986), 27 D.L.R. (4th) 112; and Gatti v. Ontario Securities Commission, (March 27, 2001: unreported) Ontario Securities Commission).

65Further, the answer to the question of the appropriate remedy in the event that a Charter violation is found, also requires a proper factual context which, in our view, can only be grounded in the specific facts of this case.

66In their written and oral submissions, the Moving Respondents seek remedies under section 24 of the Charter. Section 24 of the Charter provides:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

67Apart from the question of whether this section is applicable to the Commission, it is clear from the language of subsection 24(1) of the Charter that in order for a remedy under section 24 to be available, a Charter breach must be found. In other words, section 24 of the Charter cannot apply in the absence of a Charter violation. Remedies under section 24 of the Charter are not available where the deprivation of the Charter right is merely speculative.

68While courts have held that it is possible to get relief for a prospective Charter violation in circumstances where the claimant can establish that there is a "sufficiently serious risk" or a "high degree of probability" that an alleged Charter violation will occur, these types of situations are rare. In such a case, the onus of proving a prospective Charter breach is a high one; the decision maker must be satisfied that if relief under section 24 of the Charter is not granted, an individual's Charter rights will be prejudiced (Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mines Tragedy), 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97 ("Phillips") at para. 110).

69The question of whether an individual's Charter rights have been, or will be violated cannot be made in the abstract. This must be demonstrated by the factual circumstances. In particular, all the surrounding circumstances need to be taken into account "including, for example, the nature of the right said to be threatened and the extent to which the anticipated harm is susceptible of proof" (Phillips, supra at para. 110). Again, this demonstrates that Charter issues are best dealt with in the presence of all the relevant facts in the context of a hearing on the merits.

70At this time, we view the Constitutional Motions as premature, since we have no evidence before us as to what use has been made by Staff of the impugned evidence.

71Further, at this point, based on the materials before us, it is unclear whether the impugned evidence will be sought to be used during the Hearing, and it is also unclear exactly how this evidence will be used. Since the use and relevance of the impugned evidence will only be known at a later stage, during the Hearing, it is premature to assess whether the Charter rights have been or will be engaged. We find that we are in a similar situation as in British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3 ("Branch SCC"), where the "true purpose of the evidence will [...] not be apparent until the latter stage" (Branch SCC, supra at para. 10). Therefore, in our view, the Charter violations alleged by the Moving Respondents have not yet have crystallized.

(d) Other Good Reasons to Defer the Motions to the Hearing

72A further factor which points toward deferring the motions until the Hearing, is the type of remedy sought by the Moving Respondents. In this case, the Moving Respondents seek a stay of proceedings as primary relief.

73Staff contends that a stay is only granted in extremely rare circumstances and a stay is not appropriate in this case. In support of their position, Staff referred us to the case law dealing with the criteria for granting a stay.

74According to the case law:

[...] a stay of proceedings will only be appropriate when two criteria are met:

(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

(2) no other remedy is reasonably capable of removing that prejudice. (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 at para. 54)

75In the case before us, we cannot determine whether this test is satisfied at this time, in the absence of a full record. We agree with Staff that the extent of any prejudice arising from the use of the compelled evidence can only be assessed within the context of the evidence as a whole as it relates to each respondent. Secondly, the Moving Respondents have not convinced us that there are no other appropriate remedies available. The Hearing Panel will need to assess Staff's submission that there exist other remedies less drastic than a stay which are capable of removing any prejudice, for example, the exclusion of evidence.

76In addition, before a stay can be granted, it is necessary to balance the interests of granting a stay against the interest that society has in holding a hearing to have a final decision on the merits (R. v. Regan, supra at para. 57; and Regina v. E.D. (1990) 1990 CanLII 6911 (ON CA), 57 C.C.C. (3d) 151 at para. 23). As previously discussed, balancing interests requires a complete factual record and this can be best accomplished in the context of a hearing on the merits. This is also relevant when balancing interests in the context of an application for a stay. The Ontario Court of Appeal emphasized that a motion for a stay should normally be decided after the trial is completed once all the relevant evidence has been adduced (R. v. Dikah, (1994) 1994 CanLII 8782 (ON CA), 18 O.R. (3d) 302 (C.A.) at para. 34. See also Regina v. Frangois, (1993), 1993 CanLII 8582 (ON CA), 15 O.R. (3d) 627 (C.A.) at 629).

77Staff submits that the decision to rule on a stay application or to reserve until the end of a case is discretionary and should be exercised having regard to two policy considerations:

(1) Proceedings on the merits should not be fragmented by interlocutory proceedings; and

(2) Adjudication of constitutional challenges without a factual foundation should be discouraged (R. v. DeSousa, 1992 CanLII 80 (SCC), [1992] 2 S.C.R. 944 at para. 17).

78The appropriateness of a stay of proceedings depends on the effect of the conduct amounting to abuse of process or other prejudice on the fairness of the trial. We accept Staff's submission that this is best assessed in the context of a hearing and as a result, it is preferable to reserve a decision regarding a stay until the hearing on the merits. This is because the measurement of the extent of the prejudice often cannot be done without considering all the relevant evidence. As explained by the Supreme Court of Canada in R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680:

The appropriateness of a stay of proceedings depends upon the effect of the conduct amounting to an abuse of process or other prejudice on the fairness of the trial. This is often best assessed in the context of the trial as it unfolds. Accordingly, the trial judge has a discretion as to whether to rule on the application for a stay immediately or after hearing some or all of the evidence. Unless it is clear that no other course of action will cure the prejudice that is occasioned by the conduct giving rise to the abuse, it will usually be preferable to reserve on the application. This will enable the judge to assess the degree of prejudice and as well to determine whether measures to minimize the prejudice have borne fruit (R. v. La, supra at para. 27).

79Counsel for X argues that in some cases, it is not desirable to put off a decision regarding a stay until the trial stage of a proceeding. In support of its position, counsel for X relies on a passage from R. v. DeSousa which states:

In some cases the interests of justice necessitate an immediate decision. Examples of such necessitous circumstances include cases in which the trial court itself is implicated in a constitutional violation as in R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, or where substantial on-going constitutional violations require immediate attention [page 955] as in R. v. Gamble, 1988 CanLII 15 (SCC), [1988] 2 S.C.R. 595. Moreover, in some cases it will save time to decide constitutional questions before proceeding to trial on the evidence. An apparently meritorious Charter challenge of the law under which the accused is charged which is not dependent on facts to be elicited during the trial may come within this exception to the general rule. (See Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, at p. 133.) This applies with added force when the trial is expected to be of considerable duration. See, for example, R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606 (R. v. DeSousa, supra at para. 17).

80We accept that exceptions exist to the rule that it is preferable to reserve a decision regarding a stay until the hearing stage; however, we find that the Moving Respondents have failed to demonstrate that this exception applies in this case. First, we are not dealing with a situation in which the Commission itself or any member of the Hearing Panel is implicated in a constitutional violation. At this point in time, the Charter violations, or at least the effects of the impugned actions, are speculative. Secondly, in our opinion, deciding the Constitutional Motions in advance of the hearing on the merits in this matter will not save time. Deciding the constitutional issues in advance of the hearing on the merits can exacerbate the time it will take to complete a proceeding. As observed in Re Belteco Holdings Inc. (1997), 20 O.S.C.B. 2921, at paragraph 1.10: often "preliminary motions can take on a life of their own", especially when the parties seek to challenge these motion decisions in the courts, the hearing on the merits cannot continue until the interlocutory matters run their course. The result can be a substantial delay in having a Commission matter heard on the merits. In our view, that result is inconsistent with the ability of the Commission to satisfy its public interest mandate in a timely manner. For these reasons, we do not accept the submissions of X. The Commission has generally taken the position in the past that stays are an extraordinary remedy and a Panel should wait until the end of the hearing to make a determination regarding a stay (See Re Belteco Holdings Inc., supra and Re Glendale Securities Inc. (1996), 19 O.S.C.B. 3874).

81In conclusion, we find that the Constitutional Motions should be dealt with in the course of the hearing on the merits because a determination of the constitutional challenges in advance of the Hearing would deprive the Commission of the complete factual basis that is necessary for a proper consideration of the alleged Charter violations.

(e) Other Issues

(1) Staff’s Recommendations of a "Voir Dire"

82Staff takes the position that it is inappropriate to rely on affidavit evidence on the Constitutional Motions, and submits that only viva voce evidence be used. We do not necessarily agree. While we agree that affidavit evidence filed in advance of and in isolation from the evidence tendered at the substantive hearing is unduly limiting, the Hearing Panel has discretion to address how best to deal with the Constitutional Motions within the context of the substantive hearing; these reasons should in no way be seen as limiting or influencing the exercise of that discretion.

(2) The Request for Disclosure of Staff's Position

83The Moving Respondents, both in their written submissions and in their oral presentations, express concerns that they have not received a response from Staff to the Constitutional Motions. In light of Staff's Motion, by which Staff requested that the Constitutional Motions be deferred until the Hearing, a lack of response is not surprising. Further, Staff asserts that Staff is not obliged to provide the Respondents with a "road map" of their case on the merits. They suggest that this includes their argument in response to the Constitutional Motions, which they see as a defence to the substantive allegations and therefore as premature.

84We agree that Staff is not required to provide a "road map" of their argument on the merits (Re Belteco Holdings Inc. 20 O.S.C.B. 1333 at paras. 26 to 28). However, we note that the Respondents have the right to know the case that they have to meet and that Staff has an obligation to disclose all information and materials which are relevant to the matters at issue in this proceeding. We are of the view that the articulation and communication of Staff's position in response to the Constitutional Motions is certainly consistent with these general obligations and furthers the overarching principle that Commission proceedings be fair and efficient. While we are not, at this time, prepared to determine and direct the appropriate form or extent of that disclosure, we do request and expect that Staff consider and determine its position on the Constitutional Motions, what facts and evidence, if any, they intend to rely upon to support that position and what evidence compelled pursuant to section 11 it intends to rely upon at the Hearing. Staff should advise counsel for the Respondents accordingly.

85This information need not be formally presented – we think it could be sufficient that it be conveyed through informal correspondence, such as a letter, or even orally in a face-to-face meeting. But we expect Staff to take steps to advise counsel for the Respondents of these matters. Further, we ask Staff to advise counsel for the Respondents which Staff members they intend to call as witnesses at the Hearing.

86We are of the view that if this information is received by the Respondents' counsel well in advance of the Hearing, they will be able to assess what further evidence they feel is required in furtherance of the Constitutional Motions. We anticipate that, with the disclosure of this information, some of the issues raised in the Constitutional Motions will be less "hypothetical" and all parties can be better prepared for the Hearing.

87In the circumstances of this case, since the Hearing date is set to commence on [...], we feel that 90 days prior to that date (i.e. by [...]) is a reasonable time by which Staff should make such disclosure to the Respondents. We ask that Staff communicate its position on these matters to the parties by that date.

88We note that the Particulars Motion remains outstanding. We would expect, and request, that if the issues raised by the Particulars Motion, and the information described above, are not resolved amongst counsel, the Particulars Motion be scheduled and heard well in advice of the October hearing dates, and any matters arising from these reasons be addressed at that time.

(3) Scheduling Concerns

89Counsel for X emphasized the concern that a deferral of the Constitutional Motions would risk a loss in valuable hearing days, set so far in advance. We agree that when the Commission sets hearing dates for a hearing, (in this case six weeks), all parties are expected to make every effort to maintain those dates. To accommodate this concern, we offer to add three days in October to the outset of the Hearing, in order to proceed with any motions, or at least, for the Hearing Panel to receive submissions and consider the most effective means through which to deal with the Constitutional Motions and any other outstanding or contentious matter. We ask that this be coordinated through the Office of the Secretary, who will contact counsel.

(4) Confidentiality Issues

90The parties point out that some of the matters addressed in these reasons may raise confidentiality issues. As a result, these reasons are released at this stage on a confidential basis. This Commission Panel undertook to seek submissions from the parties prior to the public release of these Reasons, and we shall do so. We ask the parties to make arrangements with the Office of the Secretary of the Commission to address this issue.

VII. Conclusion

91For the reasons set out above, we are not satisfied that the Constitutional Motions should or can properly be resolved by this Panel, or any other Panel, in the absence of a complete and cogent factual record. We note the seriousness of the allegations made in the Constitutional Motions and the nature of the remedies sought.

92At the same time, we are sensitive to the rights of the Respondents to "have their day in court" and to assert whatever response to Staff's allegations that are available to them. Respondents should have the right to determine how best to pursue those defences, so long as they do not unduly interfere with the ability of the Commission to accomplish its mandate as set out in the Act.

93We believe that the Constitutional Motions are premature because:

(i) It is unknown at this stage whether and to what extent any impugned evidence will be sought to be tendered and/or ruled admissible at the hearing; and

(ii) It is unclear whether and for what purpose any impugned evidence will fit within the context of Staff's evidence as a whole.

94This is not an exceptional case justifying the hearing of the Constitutional Motions in advance of the Hearing. Similar constitutional challenges of analogous provisions of securities legislation have been denied by the courts. Indeed, the courts in criminal, civil and administrative law contexts (including securities regulation) have overwhelmingly held that such motions are to be heard within the context of the hearing/trial on the merits.

95We are also mindful that proceeding on the basis of affidavit evidence alone as proposed by the Moving Respondents, without a complete factual record, may lead to disputes and further interlocutory motions. To be clear, we do not say that it would be inappropriate to rely on affidavit evidence to determine the Constitutional Motions. However, we are neither prepared nor able, at this time, to find that it is sufficient as a sole basis of evidence, and we leave the ultimate determination of this issue to the Hearing Panel.

96For all of these reasons when we ask ourselves the three questions described at paragraph 34 above, we answer "no" to each of them. In our view:

(a) the issues raised in the Constitutional Motions cannot be fairly, properly or completely resolved without regard to contested facts and anticipated evidence that will be the subject of the hearing on the merits;

(b) it is not necessary for fairness to the Respondents that the relief sought in the Constitutional Motions be granted prior to the commencement of the hearing on the merits; and

(c) the resolution of the issues raised by the Constitutional Motions will not materially advance the resolution of this matter, or narrow the issues to be resolved at the hearing on the merits.

97We conclude that a determination of the Constitutional Motions in advance of the hearing on the merits would be inappropriate in these circumstances.

98Accordingly, we order that the Constitutional Motions shall be heard as part of the hearing on the merits, to be dealt with at the discretion of the Hearing Panel.

99In light of the particular circumstances of this motion, we request that no later than 90 days prior to the proposed commencement of the Hearing (i.e. no later than [...]), Staff counsel advise the Respondents' counsel of its position on the Constitutional Motions, as well as what evidence it intends to rely upon to support that position, the evidence compelled pursuant to section 11 that it intends to rely upon at the Hearing, and a list of Staff members that it intends to call as witnesses. Further we ask Staff to advise the Respondents within that time frame.

100We also request that Y (or any other Respondent) take steps to schedule the Particulars Motions, if unresolved, and any other motion deemed necessary to address issues remaining unresolved from these reasons, no later than 60 days prior to the commencement of the Hearing (i.e. no later than [...]).