Many regulators have a high duty of confidentiality. A recent securities regulator case examined how that obligation fares when otherwise confidential information is made an exhibit at a public hearing: British Columbia (Securities Commission) v. BridgeMark Financial Corp., 2020 BCCA 301 (CanLII), <http://canlii.ca/t/jbc31>. In that case an interim cease trading order was issued related to concerns about improper private placement of securities. When the regulator considered whether the order should be extended, it did so through a public hearing. Various parties (e.g., media, a law firm acting against the parties under investigation) sought access to the exhibits.
The Court, in upholding the order providing access to the exhibits, made the following points:
- As a general principle, the public has the right to have access to exhibits from a public hearing unless they contain sensitive information that outweighs the principle of open hearings.
- This principle applies even when the public hearing is on a preliminary matter and not on the merits of the allegations.
- The duty of confidentiality upon the regulator ends when the information is received in a public hearing.
- The tribunal should not consider how the information will be used when deciding whether the information should be made public. For example, the fact that a person wishes to have access to the information in order to sue the party under investigation is irrelevant to the issue of whether the public should have access to the exhibit. If the person receiving access to the documents uses them improperly, that is an issue between the party being investigated and the person misusing the information.
The Court described the role of the tribunal as follows:
In my view, the Commission was correct to say that, once it decided to hold a hearing, the statutory provisions imposed upon it a duty to hold the hearing in public, to maintain a record of the hearing, and, consistent with the open court principle, to permit the public to have access to the record unless doing so would be unduly prejudicial to a party or a witness and withholding access would not be prejudicial to the public interest. It engaged in the balancing of private and public interests by soliciting submissions from the parties and addressing those submissions in its reasons.
This case enables tribunals to better focus on the substantive issue before them when faced with requests from the public to have access to exhibits.