On March 19, 2024, the Capital Markets Tribunal (the
“Tribunal“) introduced substantial amendments to its
Rules of Procedure (the
“Rules“). The new Rules replace the former Rules of
Procedure and Forms and Practice Guideline to provide
a single source of guidance to improve the efficiency of Tribunal
proceedings, and apply to all Tribunal proceedings, including those
proceedings commenced prior to the implementation of the new
Rules.
This bulletin summarizes the key amendments to the Rules.
1. New Address for Service
Where anything in the Rules is required to be served upon the
Ontario Securities Commission (the
“Commission“) and the Commission has no
representative of record in the proceeding, the new Rules provide
that the Commission shall be served by email at originalservice@osc.gov.on.ca.1
The Rules also provide that where the Tribunal issues a summons
to require a person resident in Ontario to give evidence under oath
or produce any document or thing specified in the summons at an
oral hearing, service on the person summonsed must be effected by
personal delivery.2
2. New Address for Filing
Anything required to be filed with the Tribunal shall be sent by
email in PDF format to the Registrar at registrar@capitalmarketstribunal.ca, copying
all parties and identifying the proceeding’s file number, if
the proceeding has already been commenced.3 The
Registrar’s new address is intended to “better reflect the
Tribunal’s independence from the Ontario Securities
Commission.”
3. Commencement and Title of Proceedings
References to the filing of a Statement of Allegations being a
precursor to the issuance of a notice of hearing by the Tribunal
and the commencement of a proceeding have been removed. Now, a
proceeding is commenced by the Tribunal issuing a notice of hearing
after an application is filed. Before filing an application, an
applicant is required to make reasonable efforts to consult the
other parties and propose one or more dates to the Registrar for
the first hearing in the proceeding.4
The new Rules also impose an obligation on parties to consult
among themselves and agree on a schedule prior to attending at a
hearing at which dates will be set for further steps in the
proceeding or, at the very least, come to the hearing prepared to
present competing schedules to the Tribunal.5
The title of proceeding for every application shall set out the
names of all of the parties, with the part(ies) commencing the
application as “applicant(s)” and opposing part(ies) as
“respondent(s).” Where the Commission is not the
applicant, it shall be named as a respondent.6
4. Availability of Enforcement Proceedings Without Opportunity
to Be Heard
The former Rules prescribed an expedited procedure for
enforcement proceedings commenced by the Commission pursuant to s.
127(1) of the Securities Act, RSO 1990, c S.5. Pursuant to
s. 11(3) of the former Rules, the Commission was required to
provide notice of its election to proceed by way of expedited
procedure to all of the respondents.
Under the new rule 14, the Commission may, in certain
circumstances, request that an order under s. 127(1) of the
Securities Act be made without providing the person or
company that is subject to the order with an opportunity to be
heard.7 Specifically, in making such request, the
Commission may rely on ss.127(4.0.1) (prior conviction), 127(4.0.2)
(prior order) or 127(4.0.3) (prior settlement agreement) of the
Securities Act, and shall follow the following
procedure:
(a) make the request by
application;
(b) file its book of documents and
written submissions in support of the application at the same time
as its application; and
(c) as soon as is practicable after
the Tribunal issues the order, provide a copy of the order to the
person or company that is subject to the order.8
5. Mode of Hearing of Applications for Authorization to
Disclose
The former Rules were silent on the mode of hearing of an
application under s. 17 of the Securities Act for
disclosure of information about an investigation or examination.
The new Rules provide that such applications shall proceed by way
of a written hearing if the Tribunal is satisfied that it can
proceed without notice under s. 17(2.1) of the Securities
Act, or with the consent of the person and companies named by
the Tribunal and the person or company from which the information
was obtained. Otherwise, the hearing shall be held as an oral
hearing.9
6. Service Requirements for Requests for a Temporary Order or
Extension of a Temporary Order
A request for a temporary order pursuant to s. 127(5) of the
Securities Act or a request to extend a temporary order
pursuant to ss. 127(7) or (8) of the Securities Act may be
made by way of application (if the request is not made in an
existing proceeding) or a motion (if the request is made in an
existing proceeding).
The new Rules provide that if a request is made by motion, the
motion must be filed at least 10 days before the requested motion
date.10 If a request is made by application, the
application record must conform with the requirements in rule 21
regarding content and technical file specifications.
7. Additional Parties to Be Served With Applications for Review
of a Decision
Previously, an applicant requesting a review of a decision
pursuant to s. 8 of the Securities Act was only required
to serve the application and notice of hearing on “every other
party to the original proceeding” and “Enforcement
Staff.” The new Rules specify that the following parties must
be served:
(a) the Commission;
(b) the entity from which the
direction, decision, order or ruling was made;
(c) if the direction, decision,
order or ruling to be reviewed emanated from a proceeding, then on
every other party to the original proceeding; and
(d) if there was no original
proceeding, then on every person or company that made submissions
leading to the direction, decision, order or
ruling.11
A party may seek permission to rely on witness testimony, or on
documents or things not included in the record of the original
proceeding, by filing a motion.12
8. Rules Regarding Evidence
The new Rules (specifically, rules 29-31) set out the
requirements as to the form and content of written materials filed
with the Tribunal, including affidavits, statements of agreed
facts, joint books of documents, and documentary aids.
Most notably:
(a) unless all parties consent and
the Tribunal permits otherwise, any witness who provides affidavit
evidence must be available for cross-examination at the hearing in
which it will be tendered;13
(b) the Tribunal may order that all
or part of a witness’ evidence be provided by
affidavit;14
(c) documentary aids must be served
no later than 10 days before the hearing,15 unless there
is no dispute as to whether the chart or aid fairly distils or
analyzes the underlying evidence, in which case, it may be filed at
the hearing;16
(d) citations of authorities in
written submissions must identify the passage that the party relies
on and hyperlink to a free online source (i.e., CanLII or Ontario
e-Laws), where possible;17
(e) any written submissions
exceeding 500 pages must be separated into two or more volumes.
Each volume must include the main body of the
submissions;18
(f) any party seeking an order from
the Tribunal is required to provide a draft of the terms of the
order as a part of their closing submissions. The draft order must
identify the statutory or other provision giving the Tribunal
jurisdiction to make such order;19 and
(g) where a party objects to the
admissibility of an expert’s testimony, notice identifying the
grounds for the objection must be served on every other party to
the proceeding.20
9. Motions Procedure
A party who intends to bring a motion now has several
obligations, including:
(a) canvassing the responding
parties for:
(i) potential hearing dates for a
case management hearing;
(ii) the responding parties’
preliminary positions on the motion; and
(iii) an agreed-upon schedule for
the exchange of materials for the motion, to be presented to the
Tribunal for consideration;
(b) arranging with the Registrar a
date for a case management hearing; and
(c) filing the motion and serving
the motion on every other party.21
Previously, the timeline for the exchange of materials in a
motion was standardized in the Tribunal’s Practice
Guidelines. The new Rules provide that the schedule will,
instead, be as agreed to by the parties or ordered by the
Tribunal.22
The Rules now also provide a summary dismissal procedure for
applications or motions.23
Conclusion
The Tribunal’s updated Rules are intended to clarify and
streamline procedures for proceedings conducted before the
Tribunal, and evidence an increased focus on practicality and
efficiency.
Footnotes
1. Rules of Procedure as of March 19, 2024, made
under the Statutory Powers Procedure Act, RSO 1990, c
S.22, s 25.1, r. 5(1)
[“Rules“].
2. Rules, r. 5(4).
3. Rules, r. 6(1).
4. Rules, r. 13(1).
5. Rules, r. 13(4).
6. Rules, r. 13(2).
7. Rules, r. 14(3).
8. Rules, r. 14(3).
9. Rules, r. 15(2).
10. Rules, r.16(4).
11. Rules, r. 17(2).
12. Rules, r. 17(5).
13. Rules, r. 17(5).
14. Rules, r. 29(2).
15. Rules, r. 29(4).
16. Rules, r. 29(4).
17. Rules, r. 31(1).
18. Rules, r. 31(2).
19. Rules, r. 31(4).
20. Rules, r. 30(4).
21. Rules, r. 32 (1).
22. Rules, r. 32(2).
23. Rules, r. 36.
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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