Tribunal rejects bid to make Bridging evidence confidential

Ontario’s Capital Markets Tribunal has rejected a motion from former Bridging Finance Inc. CEO David Sharpe, which sought to stay an earlier decision rejecting his motion that certain evidence in the case be made confidential.

Earlier this year, the tribunal dismissed a motion brought by Sharpe to quash the Ontario Securities Commission’s (OSC) investigation order on the basis that compelled evidence was improperly disclosed. The tribunal also rejected a request that certain evidence be made confidential.

In that ruling, the tribunal agreed with Sharpe that the OSC should have obtained an order authorizing it to disclose compelled evidence filed in court when the regulator sought to appoint a receiver over BFI and its funds amid concerns about misconduct.

However, the tribunal also concluded that revoking the investigation order in the case was not a remedy that could be applied in the circumstances, and it dismissed a request that the evidence now be made confidential.

Sharpe is appealing that decision on confidentiality in court — a hearing is expected on Feb. 16, 2023. In the meantime, he sought a stay of the tribunal’s decision, which the tribunal has rejected.

In its ruling, the tribunal said it doesn’t have the jurisdiction to stay its earlier decision, but that it wouldn’t grant the stay anyway.

“While Sharpe’s request raises a serious issue to be tried, Sharpe has not demonstrated that if we decline his request he will suffer irreparable harm of a nature that would justify a stay,” the tribunal said.

Among other things, the tribunal noted that Sharpe has not taken action to have the disputed material made confidential by the court.

“It was open to Sharpe, from the moment he became aware in May 2021 that the compelled evidence was in the court file and posted on the receiver’s website, to take steps in court to have that portion of the record sealed and information removed from the website. It is still open to him to take those steps,” the tribunal said in its latest decision.

“We pressed Sharpe’s counsel on this point, asking why we should grant a stay when Sharpe has consistently chosen not to seek relief from the court, when it is the court that controls the contents of the court file and the information the receiver posts on its website. Sharpe’s counsel offered no satisfactory answer,” the tribunal added.

Additionally, the tribunal concluded there’s no evidence that the lack of a stay will inflict incremental harm, given that the evidence in question was already publicly available and has been widely reported.

James Langton

James is a senior reporter for Advisor.ca and its sister publication, Investment Executive. He has been reporting on regulation, securities law, industry news and more since 1994.