|OFFICE OF THE SECRETARY
ONTARIO SECURITIES COMMISSION
NOTICE FROM THE OFFICE OF THE SECRETARY
Re: Interim Orders, Pre-Hearing Conferences and Interlocutory Motions
Tuesday, July 28, 2009
On July 21, 2009, the Ontario Securities Commission (the “Commission”) approved the adoption of changes to the Commission’s current case management procedures. The Commission’s case load and adjudicative sitting days have considerably increased over the years, with much of the increase being attributable to the substantial rise in the number and complexity of procedural and other interlocutory matters. The Commission, therefore, has determined that its current case management procedures should be amended in order to ensure that the Commission can continue to resolve matters fairly, cost-effectively and expeditiously.
The new case management procedures, as outlined in this Notice, are intended to enhance the early identification and resolution of preliminary matters to: (i) ensure that adjudicative proceedings can be brought on for final resolution more rapidly and more cost effectively; (ii) enhance the flexibility of the hearings schedule; and (iii) reduce the demands on the time and resources of both the parties and the Commission.
Effective as of the date of this Notice, the Commission will implement a practice of assigning a single commissioner (the “designated commissioner”), where practicable, to each adjudicative matter at its commencement to preside over and to hear and determine all matters other than the hearing on the merits and approval of any settlement agreement. The designated commissioner will be authorized to hear and make orders on any case management and interlocutory matters such as applications for interim orders1 and motions pursuant to the Ontario Securities Commission Rules of Procedure (the “Rules”)2 or the Ontario Securities Commission Rules of Practice (the “Rules of Practice”)3.
The designated commissioner will be selected from the list of commissioners named in the Commission’s Authorization Order pursuant to subsection 3.5(3) of the Act4.
The designated commissioner will be assigned to a matter once a Notice of Hearing has been issued5, or when an interim order has been issued by the Commission pursuant to subsections 127(1)1, 127(1)2, 127(1)3, 127(1)(5)ii, and/or 127(5) of the Act prior to the issuance of a Notice of Hearing, as deemed appropriate in the circumstances.
Although it is anticipated that a designated commissioner will normally preside alone to hear and determine matters in order to effectively manage the hearing process until the commencement of the hearing on the merits, the designated commissioner will retain his or her discretion to request that another commissioner or, as the case may be, two other commissioners, sit with him or her as a full panel of the Commission to assist in hearing and determining any issue.
Although it is intended that the designated commissioner will be a panel member on the hearing on the merits, there may be circumstances when the designated commissioner may decide not to do so, for reasons of availability or otherwise.
The designated commissioner will not participate in any panel on a hearing to approve a settlement agreement in connection with any matter in which he or she has acted as the designated commissioner. The designated commissioner may, however, in the context of managing the case, assist parties in exploring the resolution of any or all matters, including, on consent of the parties, referring the parties to another commissioner to assist in settlement discussions. The Commission is currently reviewing its procedures and Rules governing hearings to approve settlement agreements and will engage in a consultation process later this year prior to proposing any changes.
Issues that may be heard and determined by a designated commissioner include, but are not limited to, the following:
- Interim cease trade orders issued pursuant sections 127(1)1, 127(1)2, 127(1)3, 127(1)(5)ii, and/or 127(5) of the Act;
- Extension of a cease trade order pursuant to sections 127(7) and/or 127(8) of the Act;
- Interlocutory issues arising at any hearing conducted following the filing of a Statement of Allegations by Staff and issuance of a Notice of Hearing by the Office of the Secretary pursuant to section 6 of the SPPA (e.g. appearances);
- Issues raised at a Pre-hearing Conference conducted pursuant to Rules 6 of Rules or Rule 2 of the Rules of Practice;
- Motion(s) brought pursuant to Rule 3 of the Rules or Rule 6 of the Rules of Practice.
For more information, please contact:
John P. Stevenson
Secretary to the Commission
1 Interim orders include temporary cease trade orders issued by the Commission pursuant to subsections 127(1)1,127(1)2, 127(1)3,127(1)5ii, and/or 127(5) of the Ontario Securities Act, R.S.O. 1990, c. S.5, as amended (the “Act”) prior to the issuance of a Notice of Hearing but exclude matters heard under Part VI of the Act.
2 The Ontario Securities Commission Rules of Procedure (2009), 32 O.S.C.B. 1991, made under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) are available at www.osc.gov.on.ca. The Rules apply to all proceedings before the Commission where the Commission is required under the Act, the Commodity Futures Act, R.S.O. 1990, c. C.20 or otherwise by law to hold a hearing or to afford to the parties to the proceeding an opportunity for a hearing before making a decision. The Rules apply to all proceedings before the Commission commenced on or after April 1, 2009.
3 (1997), 20 O.S.C.B. 1947 effective July 1, 1997. The Commission's Rules of Practice will, however, continue to apply to all proceedings commenced on or prior to March 31, 2009.
4 Subsection 3.5(3) of the Act authorizes one member of the Commission to exercise any of the powers and perform any of the duties of the Commission, except the power to conduct contested hearings on the merits.
5 Once a Notice of hearing has been issued, hearings of the Ontario Securities Commission are conducted under the authority SPPA.