On April 9, 2018, the Ontario Securities Commission (OSC) announced that its Mediation Program, which began as a pilot program in May 2015, will be continuing on a permanent basis.
The Mediation Program provides respondents represented by counsel, as well as enforcement staff, with the option to seek resolution through an independent third party mediator. Mediations will only occur with the consent of Staff and participating respondents, who must be represented by counsel. The ultimate aim of the program is to resolve outstanding enforcement matters in an efficient and cost-effective way. With respect to costs, each party is to pay an equal portion of the total costs of the mediation.
Jeff Kehoe, Director of Enforcement at the OSC, delivered the following statement expressing optimism about eh continuing role of the mediation program: “Our Mediation Program has proven to be successful in fostering fast and fair resolutions in appropriate cases. We’re pleased to permanently add this valuable resource to our growing enforcement toolkit.”
While a full discussion on the procedure under the mediation program may be accessed through the OSC’s website, some key considerations are set out below:
- Mediators can assist with multiple action items, such as facilitating the negotiation of settlement terms, determining an agreed statement of facts, and resolving other enforcement issues.
- Mediators are mutually selected from a list of candidates produced by the OSC. Mediators serve on the Program’s roster for a three-year term.
- Mediation takes place according to standard terms of a mediation agreement.
- Each party is required to provide the mediator with a briefing document.
- Both the parties and the mediator are free to withdraw from and terminate the mediation at any time.
The OSC encourages the use of mediation in order to facilitate the expedient resolution of outstanding enforcement-related issues. However, the OSC is also clear that mediation will not be permitted to negatively impact or delay any investigation or proceeding, and should not be used to delay any parties’ disclosure or other pre-hearing obligations or the hearing of the matter.
The author would like to thank Justine Smith, articling student, for her contribution to this article.