ASC Hearing Ruling: Balance of Convenience

In the ASC hearing one point of discussion was what was termed a “Balance of Convenience”.  The Encyclopedia of Canadian Law defines this term so:

Balance of Convenience meaning or description: a common law test; a court applying this test will balance the prejudice to one party of denying the relief asked for, against the prejudice to the opposing party if the relief is granted (Source of this concept of Balance of Convenience: emp.ca/books/392-5)

In more lay terms, if one party to a case asks for something, the court has to decide if granting that request will cause unjust injury to the opposing party vs the damage the asking party will suffer if they don’t get what they ask for. For example, a person charged with impaired driving asks for a court extension in order to take care of a sick relative, while the prosecution wants to move forward immediately. The balance test would be between what the defendant is asking for – an extension to take care of a relative – and the prejudice the state would suffer if justice was not fairly and efficient dispensed.

In the following citation, the ASC is discussing a request made by various people accused either directly or by implication for a stay of proceedings in order to prevent them from being harmed if the case was decided against the Respondents.

Here’s the text of the decision:

5. Balance of Convenience
[93] Given our conclusion with respect to irreparable harm, it was not necessary for us to consider the balance of convenience.

In other words – the ASC had already decided the various applicants would not suffer irreparable harm…

However, even if we had accepted the Applicants’ arguments on irreparable harm, we would have concluded that the balance of convenience weighed in favour of the public interest, and against a stay.

…but they’re going to address the balance of convenience question anyway.

[94] As mentioned, the Initial Applicants argued that the public interest at issue was the interest of the plaintiff investors seeking compensation for their losses in the Class Actions. We disagreed. It is trite that the ASC’s mandate is to protect investors and foster a fair and efficient capital market in which investors have confidence. This mandate involves the entire market, and extends beyond the interest of a single group – or even several groups – of specific investors, regardless of the size of the groups or the amounts invested.

The implications I’m reading here is that the applicants were arguing that the only public interest in the case was fiscal compensation to the depositors and nothing else. The ASC is responding that their obligation is to all investors in the market, not just the applicants and the people suing them to recover some of their funds.

In a church body, the people charged with enforcing the boundaries serve a similar role – to protect the innocent and to convict the guilty and hopefully bring them to repentance and a right walk within the community of faith. When the community fails to police it’s own ranks, that’s akin to treating the membership like illegitimate children.

[95] The ASC discharges its mandate by administering Alberta securities laws, an important part of which includes enforcement of those laws.

This is something the LCC Commission on Adjudication would do well to learn.

The resolution of an enforcement proceeding by way of sanction or settlement is meant not only to deter named respondents from repeating any misconduct in which they may be found to have engaged, but also to deter others from engaging in similar misconduct. Part of that involves providing timely notice to market participants as to “whether or how securities laws apply to particular fact circumstances” (Workum at para. 70).

[96] Effective enforcement is timely, efficient and final.

Compare this with the LCC COA’s report to the Oct 2017 Synod in Convention – they only had one case to try and they dismissed it because one of the parties had the audacity to avail themselves of the left-hand kingdom of God’s authority to file a legal claim against the other party.

This leads us straight into the next statement by the ASC panel –

Failure to deal with allegations of misconduct expeditiously can undermine public confidence in the securities regulatory system, and is inconsistent with the protective purposes of that system.

which is a complete repudiation of the ABC District’s actions to end the work of the ABC Task Force as well as District and Synod’s failure to exercise it’s ecclesiastical supervision’s  function and hold it’s members to account.

We agreed with the following statement from the Investment Industry Regulatory Organization of Canada (IIROC) disciplinary decision in Re Malley, 2014 LNIIROC 10 (at para. 22(b)):

A regulator’s ability to respond efficiently and effectively to non-compliance in a dynamic capital market is a fundamental requirement for a properly functioning industry. An appropriate level of procedural fairness must therefore be balanced against the need to ensure that the administrative efficiency of the system is not compromised.

In other words – the fairness of the enforcement process must be balanced against the need for an efficiently run system which dispenses justice in a timely manner.

It is in the public interest to maintain a system of securities regulatory enforcement that effectively and expeditiously deals with allegations of capital market misconduct to protect the public.

One can reasonably conclude that the flip side of this is also true – that the failure to effectively and expeditiously deal with allegations of misbehavior damages the public interest in that misbehavior is not curbed nor is it seen to be curbed thus giving license for more of the same misbehavior, if not more.

And what do you expect would happen if the ASC didn’t exist and there was no curb to participants in the investment market coloring outside the lines? Stories similar to the CEF debacle would balloon potentially to the extent that nobody would be willing to extend trust and funds to viable business ventures because there’d be no assurance they’d ever see their money back. And not only that, victims of affinity fraud wouldn’t even have the satisfaction of seeing justice done.

[97] There is unquestionably a public interest in protecting a litigant’s right to a fair trial in a parallel proceeding, as argued by the EnCharis Applicants. However, for the reasons given earlier, we were not convinced that the Applicants’ right to a fair trial in the Class Actions is in jeopardy. Moreover – and notwithstanding counsel’s assurances (as opposed to evidence) that the Respondents pose no ongoing market threat and that there is a probability the Class Actions will resolve at the certification stage –

To inject an observation here – what the panel is saying is that counsel for the various applicants imply that the defendants pose no threat to the financial markets and as such they should get a stay. This is much akin to a defendant asking for a delay in the court proceeding of a drunken driving case because they lost their license and their car was impounded. It’s also just as ludicrous.

we had significant concerns about suspending the ASC Proceedings indefinitely while complex Class Actions that have not yet proceeded beyond the filing of statements of claim are concluded. In this regard, we were mindful of the evidence in the Staff Affidavit concerning the age of Staff’s witnesses and the lack of available trial dates at the Alberta Court of Queen’s Bench for the foreseeable future.

[98] In sum, we were of the view that absent exceptional or extraordinary circumstances, the public interest in the timely conclusion of the ASC Proceedings outweighed the Applicants’ private  interest in a stay. Any potential prejudice the Applicants could face without a stay was too speculative to move the balance of convenience in their favour.

In essence, the panel is saying the applicants arguments were, for the most part, entirely speculative and had no substance to them. Without something solid to support delaying this case, the panel ruled the case would proceed as planned.

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One development I’ve noticed is that the hearing schedule has been shortened from the original six (6) weeks to only four (4) weeks. Given that the ASC staff expected to take three (3) weeks to present their case, that would only leave one week for the respondents to present their defense – unless an extension was asked for and granted.