Sep 23, 2020

Can a person who is under investigation insist upon having someone with them during an interview? That was the issue raised in British Columbia (Securities Commission) v. Clozza, 2017 BCSC 419. Mr. Clozza wanted a director from his company present with him during his investigative interview. It just so happened that the director was a former employee of the regulator. The regulator declined to proceed with the colleague present and insisted that Mr. Clozza answer the questions on his own. Mr. Clozza refused, arguing that his colleague would act as his “counsel”.

The Court held that Mr. Clozza could not insist on having his colleague present. His colleague was not a lawyer and thus did not fit within the exception for having “counsel” present. Having the colleague present could compromise the confidentiality of the investigation. In addition, in the circumstances of this case, the colleague might be a potential witness or perhaps even a party in any subsequent proceedings. The Court ordered Mr. Clozza to attend the interview and answer questions without his colleague present.

This case does not address the issue of whether the regulator could permit a witness or subject of the investigation to have a “support person” present in the interview in appropriate circumstances.