An Ontario court has rejected an application for a judicial review of an Ontario Securities Commission (OSC) decision last month, which will allow an enforcement hearing to proceed against a pair of advisors in an insider trading case.
Last month, the OSC denied a motion from a pair of advisors seeking to adjourn their enforcement hearing after a consultant who was working on their defence apparently lost all of her work. They sought an adjournment of the hearing to give her more time to recover as much of that work as possible. The commission denied the request, although it did push back the hearing’s start date a bit, from September 18 to September 29. (See OSC hearing into insider trading allegations to proceed, investmentexecutive.com, August 11, 2014.)
Now, in its decision for Paul Azeff v. Ontario Securities Commission, the Ontario Superior Court of Justice, Divisional Court, has declined to undertake a judicial review of that decision, saying that it is premature.
“As a general rule, this court will not entertain reviews of procedural decisions of an administrative tribunal prior to the final determination of the proceeding before it,” the court said in its decision, noting that this is a long-standing practice that’s intended to prevent excessive delays in these sorts of hearings.
“The court has consistently followed a well-established line of authority against a piecemeal approach to the judicial review of administrative action. In the absence of exceptional circumstances, it is preferable to allow administrative proceedings to run their full course before a tribunal and to consider the legal issues arising from the proceeding, including procedural matters, against the backdrop of a full record and a reasoned decision of the tribunal,” the decision says. Although it notes there may be exceptions in cases where allowing the proceeding to go ahead would violate the principles of justice.
In this case, the court found that the OSC considered all of the issues raised by the adjournment application, including that the delays that have already occurred in the case. “The Commission, after hearing from the expert herself, concluded that the applicants’ expert would be sufficiently prepared to perform her role by the time of the hearing. That is a conclusion that was reasonably open to the Commission to reach on the evidence,” it says.
As a result, it concluded that the application is premature. “The applicants have failed to establish that the Commission’s refusal to grant an adjournment of the hearing, in these circumstances, was so manifestly unfair as to amount to a breach of natural justice,” it said. “Whether the refusal of the adjournment has unfairly compromised the applicants’ ability to respond to these accusations can only be properly evaluated once the hearing has been held, the witnesses heard and a decision reached.”
“The simple reality is that, until the proceeding is completed, there is no basis to conclude either that the applicants’ concerns will actually materialize or that their impact will be as fundamental as the applicants contend,” it says in dismissing their application for judicial review.