CEF/DIL: ASC vs LCC et al

Last August 2018 the ASC held a meeting to determine the date for the hearing to consider the case against the various respondents. In Jan 2019 counsel for the respondents and some non-party people defending against a representative action tried to delay the case and were turned down. A little while later counsel for the respondents appealed the decision to the Court of Queen’s Bench of Alberta. Following is an excerpt from the original document.

Tue, Apr 30
E.A. Hughes JA
Calgary Courtroom 2 9:30 a.m.
Single Judge (Chambers) Hearing List
1901-0083AC Lutheran Church – Canada (A) and others v. Alberta Securities Commission (R)

Parties/Rep.
J.R. Singleton, Q.C. (A)
R.C. Penner (R) T.G. McCartney (R) V.S.C. Rossos (A)

Time Estimate:

---

E.A. Hughes JA
Calgary Courtroom 2 9:30 a.m.
Single Judge (Chambers) Hearing List
1901-0082AC Encharis Community Housing and Service (A) and others v. Alberta Securities Commission (R)

Parties/Rep.
A.S. Rudakoff, QC (A)
N.P. Tichkowsky (A) R.C. Penner (R) T.G. McCartney (R)

Time Estimate:

One small note – at the Aug 2018 “set the date” hearing counsel for the respondents argued for a Nov 2019 start date while counsel for the ASC asked for a Feb 2019 start date.  The hearing panel split the difference and set a May 2019 start date.

After the respondents appealed to the Queen’s Bench the ASC moved the hearing date to Sept 2019. That this date is only 2 months removed from the originally requested start date of Nov 2019 date may be “just a coincidence.”

---

Thinking out loud now – reading the ASC’s Feb 2019 decision I was left with the impression the panel felt the respondent’s case was a weakly-supported long-shot hail-mary at best. Now that the hearing date’s been moved closer to the date the respondents originally asked for I can’t help but wonder if counsel for the respondents cared about getting a favorable decision as long as they got the delay.

Getting the delay may confer some advantage to the respondents in preparing their defense and might give them an opportunity to settle the Representative Action before the ASC rules on the charges at hand. (Whether the Representative Action Counsel would go along with this is another matter.)

On the other hand, if the respondents lose their case before the ASC and the ASC panel feels this was an abuse of process and an end-run of their Aug 2018 decision I’d expect them to “throw the book” at the respondents. Though, truth be told, the nature of the offence is so odious and egregious that there’s a good chance respondents will be convicted and the ASC panel will hand down the maximum penalty regardless. If counsel for the respondents came to the same conclusion, this part of the proceeding may be a matter of counsel for the respondents believing they have nothing to lose either way so why not go for the delay.

We’ll see what happens. When the Court of the Queens’ Bench hands down its decision I’ll report it here.