Proceedings

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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 Pane

Submissions by:

Katrina Gustafson

For Staff of the Commission

Matthew Britton

Shara N. Roy

For Benedict Cheng

Brian Kolenda

REASONS AND DECISION

I. THE APPLICATION

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

[2] Staff 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 Forms{2} the application was heard in writing.

II. BACKGROUND

[3] The 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.

[4] The 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

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

IV. ANALYSIS

[6] Under 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.

[7] I 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.

[8] The Privilege Motion Decision is final, Mr. Cheng sought judicial review and his application was quashed by the Ontario Divisional Court{4} and the Cheng proceeding before the Commission has concluded against all respondents.

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

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

V. CONCLUSION

[11] For 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.

Dated at Toronto this 21st day of October, 2019.

"Lawrence P. Haber"

{1} RSO 1990, c S.5

{2} (2019) 42 OSCB 6528

{3} Cheng (Re), 2018 ONSEC 2, (2018) 41 OSCB 819

{4} Cheng v Ontario Securities Commission, 2018 ONSC 2502 (Div Ct)