Legislative Amendments Give OSC Broader Disclosure Rights During Investigations

Amendments to Ontario’s Securities Act (the “Act”) significantly strengthen the ability of the Ontario Securities Commission (OSC) to disclose information obtained during investigations to other government or regulatory authorities.

The amendments, which came into force on June 21, 2013, allow the OSC to disclose information without notice to the affected persons or an opportunity to be heard, if it considers the disclosure to be in the public interest.

Authority to Investigate and Examine under the Act

The Act empowers the OSC to conduct investigations for the due administration of securities or derivative laws or the regulation of the capital markets.  The appointed OSC investigator is authorized to examine documents and other information sources, summon and enforce a person’s attendance, and compel a person to testify under oath.

All reports, testimony and documents obtained through OSC investigations or examinations are for the exclusive use of the OSC or such other regulator specified by the OSC, unless otherwise permitted under the Act.

The OSC can make an order, in the interests of the public, authorizing the disclosure of, among other things:

• the nature or content of investigation or examination orders;
• any names, testimony, or other information compelled pursuant to an investigation or examination; or
• any report of an investigation or examination.

Before the amendments, the OSC was required, where practicable, to give reasonable notice and an opportunity to be heard to affected persons before making such an order.

Summary of Amendments

Notwithstanding the notice requirement in the Act, if the OSC considers it in the public interest, it has discretion to circumvent the notice requirement and order disclosure of information without notice or the opportunity to be heard to the person or company affected by the disclosure.  The information may be disclosed to other securities, derivatives or financial regulatory authorities, self-regulatory bodies or organizations, law enforcement agencies or any other governmental or regulatory authorities, both in Canada and elsewhere.  The only exception is that written consent continues to be required from a testifying person if the information will be provided to any police force, member of a police force or person responsible for the enforcement of criminal law in Canada or any other jurisdiction.

The amendments represent a marked departure from privacy and confidentiality considerations in favour of the effectiveness of the investigative process.

The OSC stated that it will exercise its discretion regarding the “public interest” factor in a manner that ensures fair and effective investigations with appropriate safeguards in place for the protection of private information.

This statement is consistent with the Supreme Court of Canada’s urging in Deloitte & Touche LLP v Ontario Securities Commission¹ that the OSC balance the interests of disclosure with confidentiality expectations and order disclosure only to the extent necessary to carry out its mandate under the Act.

Conclusion

Since the OSC can now disclose information obtained in investigations and examinations without informing affected persons or companies the ability to challenge the OSC’s discretion has been effectively removed.  The OSC has not indicated in which circumstances it might begin to exercise this new authority.

Companies and individuals participating in OSC investigations should be mindful that any information provided to the OSC could be shared with other
regulatory authorities.

¹  [2003] 2 S.C.R. 713