Oct 23, 2020

Generally the fact that a practitioner is under investigation is not made public. Only if a referral to discipline is made or significant remedial action is taken does the matter become public. This places the practitioner in a bit of bind if the practitioner seeks to challenge an investigation in court, because court proceedings are almost always public.

In Party A v British Columbia (Securities Commission), 2020 BCCA 88 (http://canlii.ca/t/j5srk) a party was appealing an aspect of the investigation conducted by the regulator. At the request of the party, the Court restricted public access to the court file and anonymized the publicly-available documents. In doing, so the Court said:

There is always concern on the part of this court when orders are sought that would seal a file. The principle of the open court is important and we do not lightly seal a file, the act of which has the effect of foreclosing public knowledge of the contents of the file.

However, the Court was satisfied by the evidence that there would be significant harm to the party and, indeed, to the public, if the fact that the investigation was occurring became known. It noted:

I am satisfied that there is potential harm to the appellants, who are the applicants today, should the fact of the investigation become broadly known. I am also satisfied that there is potential harm to the public at large from knowledge of the fact of the investigation without information as to the content of the investigation or where it is likely to lead. For example, the public at large may respond in the capital markets to information that turns out to have little impact.

Despite this finding, the Court insisted that an anonymous version of the key documents, including the decision, be made public so that the matter was not completely out of public view.

This case suggests that while it will be rare for courts to restrict public access to court files relating to regulatory investigations, courts may do so to avoid significant harm.