Decision in brief: Katanga Mining Limited v Ontario Securities Commission, Application for Authorization to Disclose Information, March 3, 2025

Katanga Mining Limited asked the Tribunal for permission to disclose certain documents received during a confidential investigation by the OSC to the lawyers of its parent companies, Glencore International AG and Glencore plc. Section 16 of the Securities Act says that the documents cannot be made public without an order of the Tribunal.

Katanga and several of its officers and directors were previously subject to a confidential investigation by the Commission which resulted in a settlement agreement that the Tribunal approved on December 18, 2018. Glencore is currently a defendant in a civil claim in England and Wales (UK Court) alleging misleading statements by Katanga in its public disclosure. The UK Court ordered that the documents provided by the Commission to Katanga during the investigation that are relevant to the civil claim, must be disclosed in the UK Court proceeding.

Katanga asked the Tribunal for permission to provide the documents to Glencore’s lawyers so they can determine if they are relevant to the UK Court proceeding. Katanga said they would come back to the Tribunal for further permission if the lawyers said that any of the documents needed to be disclosed in the UK Court proceeding.

The Tribunal decided that it is in the public interest to allow Katanga to provide the documents to Glencore’s lawyers on the condition that the lawyers agree to not disclose the documents to anyone else. The request was narrow enough to preserve the confidentiality requirements of the Securities Act and the witnesses who provided the testimony included in the documents did not oppose Katanga’s request. Also, there is no concern about the disclosure impacting the OSC’s investigation because it ended in 2018. The Tribunal made no decision about whether the documents may be disclosed in the UK Court proceeding.