Re OSC decision In the Matter of Issam El-Bouji, et al.

After a proceeding has ended, does the Ontario Securities Commission retain jurisdiction to give directions to the parties or grant other relief? That is the question that was recently before the Commission in In the Matter of Issam El-Bouji. In answering the question in the negative, the Commission confirmed that it does not have inherent jurisdiction.

In 2014, the Commission made an order prohibiting Mr. El-Bouji from acting as the Ultimate Designated Person (“UDP”) of the moving parties, Global RESP Corporation and Global Growth Assets Inc. (the “Order”).  After the Order was handed down, Mr. El-Bouji’s daughter applied to have her registration amended in order to take over the role of UDP.  Staff took the position that the Order requires any newly appointed UDP to be independent of Mr. El-Bouji and any entities owned or control by Mr. El-Bouji, which Ms. El-Bouji was not.  The moving parties disagreed and sought direction from the Commission with respect to the interpretation of the Order, as well an order requiring the Commission Director to amend Ms. El-Bouji’s registration to allow her to take over as UDP.

The Commission concluded that once a proceeding has ended, the tribunal becomes functus officio and retains no jurisdiction regarding that proceeding, except in limited circumstances.  In coming to this conclusion, the Commission considered that, as a creature of statute, it has no inherent jurisdiction, and any authority to retain jurisdiction must be derived from statute.  Here, the moving parties did not raise section 144 of the Securities Act, which empowers the Commission to revoke or vary a previous decision.

In the absence of a statutory basis, the Commission was left to consider whether there existed any other circumstances that would allow it to retain jurisdiction. Such exceptional circumstances typically include an error in the original order that requires a remedy, or a provision in the original order that expressly allows the Commission to reserve jurisdiction. Neither circumstances was present in this case.

Ultimately, while the Commission sympathized with the moving parties’ position, that was not sufficient to clothe the Commission with jurisdiction it did not have. The Commission dismissed the motion, holding that the proper venue for the moving parties to raise these issues was before the Commission Director on Ms. El-Bouji’s application to amend her registration.

The author would like to thank Erika Anschuetz, student at law, for her contribution to this article.