The hearing process before the British Columbia Securities
Commission (Securities Commission) will be influenced by two
important decisions: one from the Securities Commission itself,
relating to televised hearings; and another from the Office of the
Information and Privacy Commissioner for British Columbia (Privacy
Commissioner) regarding the Securities Commission's disclosure
obligations. Both decisions show that practice before the
Securities Commission continues to evolve, making it important for
capital markets participants to stay apprised of recent
On April 29, 2015, the Securities Commission issued a ruling in
Re Williams and others, 2015, permitting
CTV's application to televise portions of an upcoming
enforcement hearing. Certain conditions and restrictions were
imposed, including the ability for any witness, counsel or other
participant in the hearing to refuse to be recorded. A delay of at
least two hours between the conclusion of the session and broadcast
of the session recording is also required.
The presence of a TV news crew at a Securities Commission
hearing is a novel event. It remains to be seen whether recording
proceedings will become a regular occurrence and what impact it
will have on the hearing itself.
PRIVACY COMMISSIONER DECISION
The Privacy Commissioner's decision in Re BC Securities Commission, Order F15-08 is
expected to impact pre-hearing procedures. The decision also serves as a reminder
of the often overlooked but powerful tool of freedom of information
(FOI) requests for persons dealing with the Securities Commission,
as well as other government authorities.
The target of an investigation by the Securities Commission
requested information relating to himself and companies associated
The request was initially denied by the Securities Commission,
which availed itself of section 15(1)(a) of British Columbia's
Freedom of Information and Protection of Privacy Act
(Privacy Act) on the basis that disclosure would harm a law
Initially, the Securities Commission made certain applications
to the Privacy Commissioner including:
Requesting that the Privacy Commissioner exercise its discretion
to refuse to hold an inquiry under section 56 of the Privacy
Seeking authorization to disregard the respondent's request
for records on the basis that the request was frivolous or
vexatious for the purposes of subsection 43(b) of the Privacy Act,
claiming that the request interfered with the purposes of the B.C.
Securities Act to establish the Securities Commission as
an independent tribunal
Claiming that the FOI process was an attempt to delay
enforcement proceedings against the respondent.
The Privacy Commissioner rejected that application holding that
the legislature intended that the Privacy Act prevail over other
legislation and remitted the matter to inquiry: Re BC Securities Commission, Order
Following such applications, the Securities Commission disclosed
some of the previously withheld information but asserted a new
basis to refuse disclosure: solicitor-client privilege as set out
in section 14 of the Privacy Act, which includes litigation
The Privacy Commissioner rejected the Securities
Commission's argument that documents relating to cooperation
with Ontario Securities Commission investigators were protected by
solicitor-client privilege. Furthermore, the litigation privilege
claim was not sustained for the majority of documents because the
Securities Commission failed to establish that such documents were
mainly created for litigation purposes.
A total of 567 records were in dispute. Only 23 of those records
were held to have been appropriately withheld. The 544 documents
that were ordered disclosed included email communication between
Securities Commission investigators and investigators of other
regulatory bodies and financial institutions.
The possibility of televised hearings before the Securities
Commission has implications for market participants. It is too
early to assess the impact this new development will have on
Regarding FOI requests, individuals or corporations involved
with public bodies should consider such requests in appropriate
circumstances, including when facing inquiries from or
investigations by regulatory authorities. Following a written
request, the head of a public body must "make every reasonable
effort to assist" an applicant and "respond without
delay" to such application "openly, accurately and
completely." Practically speaking, however, there are numerous
bases for a public body to delay disclosure. Accordingly, early
information requests are critical to ensure the viability of FOI
requests as a litigation strategy.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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