Adjournments and Compelled Testimony

A recurring issue at hearings is whether to grant adjournments, particularly to retain legal counsel. In Evgueni Todorov and Sophia Nikolov v. Ontario Securities Commission, 2018 ONSC 4503, http://canlii.ca/t/ht4qv, a request for an adjournment was made by counsel who indicated that he anticipated being retained in a few days. The tribunal refused the adjournment because it had been clear over many months that the defendants had to retain legal counsel for the specified hearing date, the parties had indicated an intention to retain counsel by then, no request for an adjournment was made in advance, no explanation was offered as to why legal counsel was not retained on time, and the defendants themselves failed to attend the scheduled hearing date. The Court upheld the decision. The Court indicated that while the standard of review for procedural fairness issues was correctness, since the granting of adjournments is discretionary, the Court will look to see if the refusal of the adjournment was reasonable. In these circumstances it was reasonable given the conduct of the defendants.

A second issue was whether it was appropriate for the Securities Commission to prove its case through the admissions of the defendants obtained from them under compulsion during the course of the investigation. The Court indicated that, since these were administrative and regulatory proceedings designed to protect the public, and not criminal or penal proceedings, it was consistent with the protections in legislation and the Canadian Charter of Rights and Freedoms to rely on this compelled evidence. The use of this evidence did not amount to prohibited self-incrimination.

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