Many regulators routinely publish allegations in discipline and enforcement proceedings before their final determination. Doing so facilitates transparency and arguably permits members of the public to make informed choices. Further, publication enables the public to choose whether to observe the hearing.
Ontario’s Divisional Court commented on this practice in Harold the Mortgage Closer Inc. v. Ontario (Financial Services Regulatory Authority, Chief Executive Officer), 2024 ONSC 4464 (CanLII). The regulator published on its website a notice of proposal to revoke and refuse to renew the registrant’s licence. It did so under a transparency guideline that, with some exceptions, called for automatic publication. The registrant, who was requiring a hearing on the matter before an independent tribunal, challenged both the policy and the publication and, in the alternative, requested that the regulator be mandated to publish their responding document. The regulator agreed to offer the responding document to anyone who requested it, but it refused to publish the document. The registrant asserted that the published notice of proposal was unfair and defamatory. The registrant also argued that true transparency would involve publishing the registrant’s responding document in the same manner as the notice of proposal.
The Court viewed the publication of the notice of proposal to be an administrative action by the regulator that did not involve a statutory power. Publication did not “affect the legal rights, interests, property, privileges, or liberty” of the registrant. As such, judicial review of the publication actions was not available to the registrant.
The Court also found that the decisions about publication were not unreasonable. They were “consistent with the practice of many other regulators which also publish their enforcement actions before an adjudication of the merits by a disciplinary tribunal.” The notice of proposal indicated that the document contained allegations that were still subject to proof. There was a statutory remedy, namely a hearing before an independent tribunal, in which the allegations could be disputed. It was not reasonable to publish the registrant’s responding document that could “contain inaccurate information or otherwise objectionable material.” The decisions did not affect the registrant’s right to procedural fairness in the hearing before the tribunal. The registrant also had a right of appeal from the tribunal’s decision to the Court.
This decision supports the current practice of regulators publishing notices of upcoming discipline or enforcement proceedings, including the allegations, even though they have not yet been proved.