Cheng (Re), 2019 ONSEC 35

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: Cheng (Re), 2019 ONSEC 35

Date: 2019-10-21

File No. 2019-37

IN THE MATTER OF BENEDICT CHENG, FRANK SOAVE, JOHN DAVID ROTHSTEIN AND ERIC TREMBLAY

REASONS AND DECISION (Section 144 of the Securities Act, RSO 1990, c S.5)

Hearing:

In writing

Decision:

October 21, 2019

Panel:

Lawrence P. Haber

Commissioner and Chair of the Panel

Submissions by:

Katrina Gustafson Matthew Britton

For Staff of the Commission

Shara N. Roy Brian Kolenda

For Benedict Cheng

REASONS AND DECISION

I. The Application

1This is an application made by Staff of the Ontario Securities Commission (Staff of the Commission), pursuant to s. 144 of the Securities Act¹ (the Act), to revoke an oral decision made by the Commission on December 19, 2017 (the Confidentiality Order).

2Staff also requested that its application be heard in writing. As Benedict Cheng (Mr. Cheng) did not oppose, pursuant to Rule 23 of the Commission’s Rules of Procedure and Forms² the application was heard in writing.

II. background

3The Confidentiality Order was made in the context of the motion regarding privilege brought by Mr. Cheng which was heard on December 18-22, 2017 (the Privilege Motion). On December 19, 2017, the panel ordered that the evidence and submissions on the Privilege Motion be heard in camera on the basis that solicitor-client privilege was at issue.

4The Panel later dismissed the Privilege Motion in a decision issued on January 10, 2018 (the Privilege Motion Decision)³ and found that solicitor-client privilege did not apply.

III. The Issue

5The issue before me is to determine whether the Confidentiality Order should be revoked.

IV. Analysis

6Under s. 144 of the Act, the Commission is authorized to revoke or vary a decision of the Commission on the application of, among others, a person affected by such decision if, in the opinion of the Commission, the order would not be prejudicial to the public interest.

7I find that it would not be prejudicial to the public interest to grant the relief requested by Staff. Given that the Privilege Motion Decision found that solicitor-client privilege did not apply, and that solicitor-client privilege was the only basis for the Confidentiality Order, I agree with Staff’s position that there is no longer any basis for confidentiality to continue.

8The Privilege Motion Decision is final, Mr. Cheng sought judicial review and his application was quashed by the Ontario Divisional Court⁴ and the Cheng proceeding before the Commission has concluded against all respondents.

9There are no special circumstances present which would support continuing the Confidentiality Order.

10Furthermore, Mr. Cheng, who brought the Privilege Motion and requested the Confidentiality Order, does not oppose the order sought by Staff.

V. CONCLUSION

11For the reasons above, I order that:

1. pursuant to s. 5.1 of the Statutory Powers Procedure Act, RSO 1990, c S.22 and Rule 23 of the Commission’s Rules of Procedure and Forms, (2019) 42 OSCB 6528 this application is heard in writing; and

2. pursuant to s. 144 of the Act, the Confidentiality Order is revoked and the following are made public:

(a) all exhibits marked and all submissions filed at the Privilege Motion; and

(b) the confidential transcripts dated December 19-22, 2017.

Footnotes

1. 1RSO 1990, c S.5
2. 2(2019) 42 OSCB 6528
3. 3Cheng (Re), 2018 ONSEC 2, (2018) 41 OSCB 819
4. 4Cheng v Ontario Securities Commission, 2018 ONSC 2502 (Div Ct)