Acting in the Public Interests:Access, Innovation and Accountability

Usman M. SheikhPartner, LitigationGowling Lafleur Henderson LLP

November 5, 2015

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Overview of the Presentation

1. Ontario Securities Commission Litigation Assistance Program

a) Program Overview

b) Rationale

c) Benefits

2. Programs for Self-Represented Parties

a) Benefits

b) Concerns

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Ontario Securities Commission Litigation Assistance Program (“LAP”)

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OSC Litigation Assistance Program

Purpose:• The OSC Litigation Assistance Program (“LAP”) is designed to provide pro

bono litigation services to unrepresented Respondents appearing in enforcement proceedings before the OSC.

Eligible Services:• LAP counsel can assist in the following stages:

• pre-hearing conferences;

• settlement conferences / hearings;

• sanctions and costs hearings; and/or

• on an exceptional basis, motions.

Non-Eligible Services:

• Merits hearings

• Quasi-criminal and civil proceedings

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Key Participants

Eligible Respondents:• Open to any unrepresented Respondent who applies for representation. No

financial eligibility criteria. Representation is available on a first come, first served basis.

Volunteer Counsel (“LAP Counsel”):

• Must have 3 to 10 years of litigation experience.

• Must complete a training course offered by The Advocates’ Society Securities Litigation Practice Group on securities law and enforcement.

Mentors

• All LAP Counsel are assigned a mentor who provides guidance throughout the engagement as needed or required.

Steering Committee

• A committee consisting of private practitioners, OSC Staff, and representatives from the Secretary’s Office. Oversees the functioning of the program.

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Rationale for OSC LAP

Rise in Number of Self-Represented Parties• Significant increase in the number of self-represented Respondents appearing

before the OSC.

Significant Legal / Procedural Challenges for the Self-Rep Party:• Repeated adjournments requested by self-represented Respondents, including to

retain legal counsel.

• Lack of familiarity with procedural requirements.

• Lack of familiarity with substantive law (e.g., Re Khan (2013), 36 OSCB 10485 and (2014), 37 OSCB 1035 – a self-represented Respondent brought a motion to call 679 account holders as witnesses.)

Calls in Legal Profession to Respond to Access to Justice:

• Canadian Judicial Council releases "Statement of Principles on Self-Represented Litigants and Accused Persons" (September 2006):

• "Members of the Bar are expected to participate in designing and delivering legal aid and pro bono representation to [self-represented] persons…”

• “Government departments… should provide Legal Aid plans…"

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Application Procedure

Process to Obtain LAP Assistance:

• Step 1: Eligible Respondent applies to LAP. Respondent must read and accept a “Terms and Conditions” form which provides information about the Program and the terms of the engagement.

• Step 2: Once the form is completed and returned, a roster of LAP Counsel are requested to assist. Matter is assigned on a first-response basis.

• Step 3: Prior to accepting any engagement, LAP Counsel perform a conflict check and assess availability.

• “Cab Rank Rule” applies – LAP Counsel are expected to accept any brief except in cases where counsel is conflicted or otherwise unavailable.

• Step 4: Respondent is contacted by available LAP Counsel directly.

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Status

• Official Launch –

• LAP was launched on October 18, 2012, following a successful 1 year pilot project (Oct 2011 – Oct 2012) and approval of an assessment report by the OSC.

• Present Status –

• Currently 10 counsel / mentors on LAP Volunteer Roster.

• Rotational recruitment. Over 35 applications received this year for LAP Counsel positions.

• Strong participation from the private sector: Gowlings LLP, Davies, BLG, Stockwoods, Blakes, Babin Bessner Spry LLP, RBC, etc.

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Benefits of OSC LAP

Benefits to Self-Represented Parties• LAP Counsel have assisted over 18 Respondents, including by making multiple

appearances per matter in some cases.

Benefits to LAP Counsel:• Have obtained significant litigation experience and “time on their feet” – e.g., pre-

hearing conferences, settlement conferences/hearings, sanctions hearings, etc.

• Have received significant training in securities litigation (e.g., must attend a full day training course taught by mentors and hosted by The Advocates’ Society).

Benefits to the Commission:

• LAP Counsel have assisted the Commission by increasing the efficiency of the hearing process and ensuring fair representation of self-represented Respondents.

• The Commission has repeatedly noted the benefit it has received from LAP Counsel: “I want to thank counsel for their excellent submissions. I particularly want to thank [Individual A] for attending as LAP counsel. It is always helpful to the Commission to have that kind of assistance.” (Re Gold-Quest International et al (2014), 37 OSCB 8594).

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Media

Positive Commentary in the Media• The launch of LAP was praised in a number of news outlets, including:

• The Law Times – "As worries about the economy grow, let's hope we see more examples like these ones…" (Glenn Kauth, "Editorial: Bay Street steps up to the plate", October 24, 2011)

• The Lawyers Weekly – "Now, two pilot projects are breaking new legal ground in Canada by providing free legal services for the first time to unrepresented litigants..." (Donalee Moulton, "Projects are for taxpayers in trouble", January 27, 2012).

• The Financial Post (citing John Stevenson, Secretary to the Commission) – "The OSC believes that facilitating greater access to expert legal services will advance its objective of fostering fair, impartial and efficient operation...“ (Drew Hasselback, "OSC set up assistance program for unrepresented litigants in enforcement proceedings", October 18, 2011)

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General Commentary

Benefits of Assistance Programs:• Adjudicators have a basic obligation to ensure fair access, equal treatment and a

fair hearing for self-represented parties.

• Advocates have an ethical obligation to support or contribute to organizations, initiatives and other efforts to improve access to justice. Also have an ethical obligation to provide some basic assistance to self-represented parties, depending on the circumstances (e.g., refer to forms, self-help and educational resources, etc).

• See The Advocates’ Society Principles of Professionalism; The Canadian Judicial Council Statement of Principles on Self-Represented Litigants and Accused Persons; and Rule 7.2-9 of the Law Society of Upper Canada Rules of Professional Conduct.

Concerns with “Active Adjudication” Programs:

• Possible delays, adjournments, and/or unfairness to represented party.

• Creation of a reasonable apprehension of bias.

• Infringement of a party’s right to know the case to meet.

• Impair counsel’s right to be free to conduct their own case.

• Prejudice to represented party’s case as adjudicator does not know counsel’s brief and/or strategy.

Questions/Comments

montréal · ottawa · toronto · hamilton · waterloo region · calgary · vancouver · beijing · moscow · london

Usman M. SheikhPartner, Litigation

Gowling Lafleur Henderson LLP

(416) 862-3627usman.sheikh@gowlings.com