|
Evidence - Wagg Orders. Gong v OSC
In Gong v OSC (Div Court, 2023) the Divisional Court considered (and granted as premature) the quashing of an appeal, here of the interlocutory denial of evidence-constraining orders [ie. 'Wagg process' orders] (by the Capital Markets Tribunal) which the appellant sought within OSC-brought s.127 Securities Act ['Orders in the public interest'] proceedings:[3] On June 13, 2022, the OSC commenced a proceeding before the Tribunal against the appellant under s. 127 of the Securities Act (the “Act”). A hearing on the merits of the allegations has not yet been scheduled. On November 10, 2022, the appellant brought a motion seeking an order that the OSC be constrained in the use of certain evidence until the process outlined by the Court of Appeal in D.P. v. Wagg (2004), 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229, CanLII 39048 (C.A.) had been complied with. The appellant argued that under the Wagg process, the OSC was required to obtain the consent of the Attorney General or a court order before materials included in the disclosure provided to him in the criminal matter could be used in the proceeding before the Tribunal.
[4] The OSC opposed the motion. The OSC argued that the Wagg process applies where a party in a civil action receives Crown disclosure and seeks to disclose or otherwise use that material in the civil action. The OSC further argued that the Wagg process is not applicable to the facts in this case because the OSC conducted the investigation, collected the documents, and gave them to the Crown for the criminal proceeding. Moreover, the OSC disclosed those documents in the proceeding before the Tribunal in accordance with its disclosure obligations.
The Decision
[5] In the decision dated February 3, 2023, the Tribunal concluded that the materials did not come to the OSC through disclosure to the OSC by the Crown. Rather, the uncontroverted evidence was that the OSC obtained the documents through its own investigation. The Tribunal held that the Wagg procedure was therefore inapplicable. The OSC could use the documents, which it had obtained, in accordance with the mechanisms set out in the Act. The Tribunal further found that in the circumstances of this case, the concerns underlying the Wagg process, namely, the privacy interests of third parties identified in the disclosure and the public interest, as promoted and defended by the Attorney General, did not arise.
|
