Oct 19, 2020

When a tribunal makes an erroneous factual finding a court will review the significance of the error in determining whether to set aside the decision. In Berger v Saskatchewan (Financial and Consumer Affairs Authority), 2019 SKCA 89, http://canlii.ca/t/j2fgr, a hearing panel found that Mr. Berger had traded in securities in Saskatchewan even though at all times he was in Costa Rica. One of the issues was Mr. Berger’s relationship with another player in the transactions, Latin Clearing. The hearing panel found that Mr. Berger had, at first, denied knowing who Latin Clearing was but there was no evidence to support that finding. The hearing panel’s conclusion that Mr. Berger was not credible was based in large part on that finding. The Court concluded that the error had a potentially significant impact on the finding and set aside the panel’s decision.

The Court also made the following additional findings:

  • There had been no procedural error in denying an adjournment where the request was made late, the basis for the adjournment request was inconsistent (i.e., need to obtain legal counsel, a major family event) and where Mr. Berger indicated at the hearing that he could not afford legal counsel and offered no plan on how to retain legal counsel.
  • There was also no procedural error by the hearing panel for providing allegedly insufficient support during the hearing as to the scope of the allegations as the allegations were sufficiently clear from the notice and disclosure and the discussions during the hearing itself.
  • The Court was concerned that the hearing panel did not squarely address the issue of whether there was a sufficient connection between Mr. Berger and the allegations to Saskatchewan. The Court indicated that the new hearing panel should properly address that issue.

This case shows that even findings of credibility will be set aside when they are not based on facts led in evidence.