Mediation Program - Pilot (May 1, 2015 to March 31, 2016)
The Ontario Securities Commission (Commission), as the regulatory body responsible for overseeing the capital markets in Ontario, administers and enforces the Securities Act (Ontario) and the Commodity Futures Act (Ontario) and certain provisions of the Business Corporations Act (Ontario). The mandate of the Commission is to provide protection to investors from unfair, improper or fraudulent practices and to foster fair and efficient capital markets and confidence in capital markets.
Commencing on May 1, 2015, the Enforcement Branch of the Commission will officially launch a pilot Mediation Program (the “Program”). The Program will provide respondents who are involved in enforcement proceedings before the Commission and staff with the option of participating in a mediation with a third party mediator independent of the Commission for the purpose of resolving the proceeding or any outstanding issues. Mediations will only occur with the consent of staff and the participating respondents, who must be represented by counsel.
Enforcement Staff of the OSC recognize the importance to all parties in an enforcement matter of early resolution of issues arising in enforcement investigations and proceedings. As a result, Staff are prepared to participate with respondents in a confidential and privileged mediation at any time following the delivery of an Enforcement Notice or the issuance of a Notice of Hearing, so long as the dispute resolution process does not delay the fulfilment by the parties of their respective obligations nor the hearing of the matter. In the event of agreement by the parties to mediate, the parties shall enter into a mediation agreement.
This process is not part of the existing tribunal process set out in the Commission’s Rules of Procedure,(2014), 37 O.S.C.B. 4168. A settlement agreement arising from a mediation will have no force or effect unless and until it is approved by the Commission at a settlement approval hearing.
Agreement to Mediate
Each mediation will take place according to the standard terms of a mediation agreement which includes confidentiality clauses signed by all the parties and the mediator. Each party must provide the mediator with documents/brief which will be discussed between the parties and mediator. Either party may withdraw from and terminate the mediation at any time. The mediator may also withdraw from the mediation at any time. The costs of the mediation will be divided equally between the parties.
There is a requirement for legal representation at the mediation. All unrepresented respondents interested in participating in the Mediation Program may apply to the Litigation Assistance Program (LAP).
To learn more, see the Agreement to Mediate Form for further details.
Roster of Mediators
The retainer of a mediator to facilitate settlement between parties to a dispute must be approved by all participating parties. Should staff and the counsel on behalf of the respondent agree to mediate, they may select a third party mediator listed on the roster to mediate the matter. Commissioners cannot be appointed as mediators and are not included in the Roster. Should counsel for staff and the respondents agree, a mediator can be added to the existing roster list.
All mediators on the roster will mediate for the duration of the Pilot Project.
For the purposes of the Pilot Project, three individuals have been chosen to be on the Roster. At the conclusion of the Pilot Project, there will be an assessment and a recommendation as to whether the Mediation Pilot Project should be continued. Should Enforcement recommend the continuation of a Mediation Program, an application process will be implemented to solicit names to be added to the Roster, including a discussion of the qualifications for a proposed mediator.
The qualifications that Staff are applying when considering a proposed mediator (recognizing that these may be different than those applied by respondents to a regulatory enforcement proceeding, and their counsel) are as follows:
- general knowledge of securities laws and the capital markets;
- securities regulatory enforcement experience, whether as a litigation counsel, former Staff, adjudicator or mediator;
- mediation experience generally; and,
- be free of conflicts of interest, both direct and indirect, at the time of the mediation; in other words, not to represent parties to OSC investigations and proceedings, not to be retained on other matters by the OSC, and not to be associated as an employee, partner or ‘as counsel’ with a law firm or other entity that has dealings with the OSC, either directly or indirectly.
To learn more, see the Roster for further details.
More detailed information on the Program can be found in the FAQs.