B.C. court rejects challenge to regulator’s summons

Prospective witnesses in an investigation by the British Columbia Securities Commission (BCSC) have lost yet another judicial challenge to summonses issued against them.

In 2022, the BCSC brought contempt proceedings against a couple of proposed witnesses —Ranvir Brar and Harjit Gahunia — who repeatedly refused to attend interviews and answer questions as part of a regulatory investigation.

Before the contempt proceeding was heard, the witnesses petitioned the court seeking a judicial review of the regulator’s decision to issue summonses, alleging that they didn’t have enough information about the investigation.

The Supreme Court of B.C. rejected their petition, ruling that it was barred by provisions of securities law, and that even if a review was allowed, the duty of fairness owed to the witnesses had been met.

They appealed that decision, and the Court of Appeal for B.C. has now rejected that effort too.

The appeal court did agree with Brar and Gahunia that the lower court judge erred in finding that securities law prevented a judicial review of the decision to issue summonses. However, it agreed with the lower court that the duty of fairness had been met.

“To require the commission to produce a record of the basis for issuance of the summonses at a preliminary stage would compromise the investigative process,” the appeal court said — noting that the witnesses are not even the targets of the investigation.

Ultimately, the appeal court concluded that while an alleged breach of the duty of fairness by an investigator can be subject to a judicial review, the duty is minimal, and in this case has been met.

“The witnesses have been given prior notice of the hearing at which they were to be questioned; they have been informed of the identity of the subjects of the investigation; and they have the right to counsel before and at the hearing,” it said — requiring the regulator to provide more information could “bog down” or compromise the investigation, and raise privacy concerns, it said.

“I am persuaded that no breach of procedural fairness occurred in this instance and that neither [the BCSC, nor its investigator] was required to disclose the ‘basis for the issuance’ of the summonses or their relevance to the ‘subject and scope’ of the investigation,” it concluded, in unanimously dismissing the appeal.