Can the sanction (or order) in a discipline hearing be determined by a panel that is different from the panel that made the finding of misconduct? The Ontario Court of Appeal has concluded that this is a reasonable interpretation of the securities legislation and the Statutory Powers Procedure Act (“SPPA”). While acknowledging that there was certainly another reasonable interpretation, the Court concluded that this interpretation was open to the tribunal. The sanctions hearing could be viewed as a separate proceeding under the SPPA such that the composition of the panel could be different. In addition, there was no procedural unfairness in adopting this procedure as both parties could introduce all relevant evidence on the sanctioning hearing, including relevant transcripts, from the proceeding on the merits. The Court also acknowledged that this approach was helpful to tribunals with a small pool of panel members to draw from: Ontario Securities Commission v. MRS Sciences Inc., 2017 ONCA 279. It will be interesting to see if other regulators take a similar interpretation and whether the courts see this concept as applying to other regulatory statutes.
Interpreting Legislation vs Making Legislation
Regulators cannot enact legislation through policy. However, regulators frequently publish policies interpreting or applying their legislation. The line between those two activities is sometimes fine.