Capital Markets Tribunal Rules of Procedure

The objective of these rules is to ensure that proceedings before the Tribunal are conducted justly, expeditiously and cost-effectively.

In these rules:

1. (a) “Act” means the Securities Act, RSO 1990, c S.5;
2. (b) “adjudicative record” includes all of the following documents, unless the document is filed in connection with a settlement conference or confidential conference, or it relates to an attempt to resolve all or part of a proceeding:
   1. (i) an application, motion or notice of withdrawal;
   2. (ii) a notice of hearing;
   3. (iii) a written submission filed in a proceeding;
   4. (iv) a document that has been admitted as evidence at a hearing or otherwise relied upon by the Tribunal in making a decision;
   5. (v) a transcript of a hearing;
   6. (vi) a decision; and
   7. (vii) any other record that relates to a proceeding and that is prescribed by the regulations made under the Tribunal Adjudicative Records Act, 2019, SO 2019, c 7, Sch 60;
3. (c) “adjudicator” means an individual appointed as an adjudicator to the Tribunal under the Securities Commission Act, 2021, SO 2021, c 8, Sch 9;
4. (d) “Commission” means the Ontario Securities Commission;
5. (e) “holiday” means:
   1. (i) every Saturday and Sunday;
   2. (ii) New Year’s Day, Family Day, Good Friday, Victoria Day, Canada Day, Civic Holiday, Labour Day, Thanksgiving Day, Christmas Day and Boxing Day;
   3. (iii) any special holiday proclaimed by the Governor General or the Lieutenant Governor; and
   4. (iv) if:
      1. i. New Year’s Day or Canada Day falls on a Saturday or Sunday, the following Monday;
      2. ii. Christmas Day falls on a Saturday or Sunday, the following Monday and Tuesday; and
      3. iii. Christmas Day falls on a Friday, the following Monday;
6. (f) “party” includes, in a proceeding, all applicants and respondents (either of which may include the Commission), and any person or company granted status under rule 24(4);  
7. (g) “proceeding” means any matter commenced under these rules by the issuance of a notice of hearing, and includes all hearings and other steps in the matter;
8. (h) “representative” means an individual who represents a person or company in a proceeding before the Tribunal, and “represented” has the corresponding meaning; and
9. (i) “Tribunal” means the Capital Markets Tribunal, established as a division of the Commission under section 25 of the Securities Commission Act, 2021.

The Tribunal may waive or modify the application of a rule, prospectively or retroactively, on such terms as it considers appropriate. 

When making any order under these rules, the Tribunal may do so on such terms as it considers appropriate.

A time requirement in these rules or that the Tribunal orders shall be calculated as follows: 

1. (a) if the number of days between two events is stated:
   1. i. the date of the first event is not counted; and
   2. ii. the date of the second event is counted;
2. (b) if the time is less than seven days, holidays are not counted; and
3. (c) if the day by which an act shall be done, or is effective, falls on a holiday, the act shall instead be done by, or effective on, the next day that is not a holiday.

(1) Service on representatives

Anything these rules require to be served on any represented party shall be served on the representative. 

Where the Commission has no representative of record in the proceeding, anything these rules require to be served on the Commission shall be served by email to originalservice@osc.gov.on.ca.

(2) Service on unrepresented persons or companies

Anything these rules require to be served on an unrepresented person or company shall be served by one of the following methods:

1. (a) if on an individual, by electronic or personal delivery;
2. (b) if the person or company has an officer, director, agent or business partner, by electronic or personal delivery to the officer, director, agent or business partner;
3. (c) if the person or company has a place of business, by leaving a copy with an individual who appears to be in control of the place of business;
4. (d) by courier or mail to the person or company’s last known address; or
5. (e) by any other means the Tribunal authorizes.

(3) Effective date of service

Service is effective, when delivered:

1. (a) electronically, on the day of delivery;
2. (b) by personal delivery, on the day of delivery;
3. (c) by leaving a copy with an officer, director, agent or business partner of a person or company or an individual in control of a place of business of the person or the company, on the day of delivery;
4. (d) by mail, on the fifth day after the day of mailing;
5. (e) by courier, on the earlier of the date on the delivery receipt or the fifth day after sending;
6. (f) after 4:30 p.m., on the day following the day specified in this rule for the applicable method of service; and
7. (g) by any other means the Tribunal authorizes, on the date the Tribunal specifies.

(4) Service of summons

A summons shall be served by personal delivery to the person summonsed.

(1) Method and format of filing

Anything required by these rules to be filed shall be filed in PDF by sending it electronically to the Registrar (registrar@capitalmarketstribunal.ca), copying all parties. If the document is filed after a proceeding has been commenced, it shall identify the proceeding’s file number.

For the following documents, a Microsoft Word version must be filed at the same time that the PDF is filed: applications (i.e., a Word version of the application document only, not the entire application record), motions (i.e., a Word version of the motion document only, not the entire motion record), notices of withdrawal, and settlement agreements (including amended versions of any of those).

(2) Filing after 4:30 p.m.

A document filed after 4:30 p.m. shall be considered filed on the next day that is not a holiday.

(3) Filing is not service

Filing a document with the Registrar does not constitute service on any party, including the Commission.

No party shall communicate with the Tribunal, including any of its adjudicators, about a proceeding, other than in a hearing or in writing through the Registrar (registrar@capitalmarketstribunal.ca) with a copy to all other parties.

(1) Public hearings

A hearing shall be open to the public, unless the Tribunal orders otherwise.

(2) Confidential hearings

The Tribunal may hold a hearing or part of a hearing in the absence of the public if it appears that:

1. (a) matters involving public security may be disclosed;
2. (b) the public interest, or the interests of a person or company, that would be served by avoiding disclosure of intimate financial or personal matters or other matters outweigh adherence to the principle that hearings should be open to the public; or
3. (c) a confidential hearing is required by law. 

(3) Public access to adjudicative records

Unless the Tribunal orders otherwise, or has not yet decided a pending request for confidentiality, the Tribunal will publish applications, notices of hearing, motions, notices of withdrawal, decisions and approved settlement agreements on the Tribunal’s website. Other adjudicative records are available to the public, if practicable, on request to record@osc.gov.on.ca. 

(4) Confidentiality orders

The Tribunal may order that all or part of an adjudicative record be confidential and not available to the public if it appears that any of the circumstances described in subrule 8(2) apply to the adjudicative record. 

The following may request a confidentiality order:

1. (a) a party; and
2. (b) a person or company who would be affected by the disclosure of the information contained in all or part of an adjudicative record.

The request shall be made by filing:

1. (c) a motion, if the request is made in an existing proceeding, and the person or company making the request shall comply with rule 32; or
2. (d) an application, if the request is not made in an existing proceeding, and the person or company making the request shall comply with rule 20.

The motion or application and related materials will be available to the public and not confidential unless a request for confidentiality is made when they are filed.  

A request that parts of a document be confidential and not available to the public shall be accompanied by:

1. (e) the original unredacted document if it has not already been filed, and
2. (f) a copy of the original document, redacted to mask the parts that are the subject of the confidentiality request.

(5) Recordings   

Recordings of hearings, confidential conferences and settlement conferences, whether audio or visual, are prohibited unless the Tribunal grants permission or the purpose of the recording is note-taking, in which case the recording may be made but may not be transmitted for any other purpose.

A request for permission to make a visual or audio recording shall be in writing and sent to the Registrar and all parties at least five days before a hearing. A person who obtains permission to make a visual or audio recording shall be subject to the directions of the Tribunal and shall not engage in any behaviour that detracts from the hearing.

(1) Modes

Hearings may proceed orally or in writing or both. Hearings and parts of hearings that proceed orally may be conducted in one or more of the following modes: 

1. (a) with some or all participants participating electronically (i.e., by videoconference, with or without video capability for all participants); or 
2. (b) with some or all participants physically present in the hearing room.

For any part of a hearing where some or all of the participants are physically present in the hearing room, the chair of the panel (but not necessarily all members of the panel) will be physically present in the hearing room.

(2) Oral hearings or oral parts of hearings – Tribunal’s authority

The Tribunal may determine the mode of an oral hearing or oral part of a hearing, including with respect to participants’ physical presence in the hearing room. In exercising that discretion, the Tribunal will consider subrules 9(3) and 9(4) below.

(3) Oral hearings or oral parts of hearings – default mode

Unless the Tribunal orders otherwise:  

1. (a) a witness giving oral testimony, and any person (whether party or representative) examining or cross-examining the witness will be physically present in the hearing room, and other participants in the hearing may also be physically present in the hearing room or may participate electronically; and
2. (b) all other oral hearings, or oral parts of hearings, will proceed electronically.   

(4) Oral hearings or oral parts of hearings – factors to be considered

In determining the appropriate mode of an oral hearing or oral part of a hearing, the Tribunal will consider, among other things:  

1. (a) the objective set out in rule 1, of conducting proceedings justly, expeditiously and cost-effectively;
2. (b) the type of hearing (e.g., case management, merits);
3. (c) the matters in dispute, and the issues to be addressed at the hearing;
4. (d) any delay that might be caused by proceeding electronically or in a hearing room;
5. (e) accessibility of the hearing to participants and the public;
6. (f) the efficacy of examination or cross-examination of witnesses;
7. (g) cost to the participants;
8. (h)facilitation of participation by vulnerable or disadvantaged individuals; and
9. (i) health and safety considerations, and measures that may be taken to mitigate related risks.    

(5) Oral hearings or oral parts of hearings – change of mode

Where the Tribunal has ordered that an oral hearing or oral part of a hearing proceed with some or all participants physically present in the hearing room, all participants must be prepared for the mode of any part of the hearing to change, including on short notice.

(6) Written hearings

A hearing shall be conducted as a written hearing if all parties consent, unless the Tribunal orders otherwise.

Even without the consent of all parties, the Tribunal may order that a hearing be conducted as a written hearing, unless:

1. (a) the hearing deals with something other than procedural matters; and
2. (b) a party satisfies the Tribunal that there is good reason not to conduct the hearing in writing.

(1) English or French or both

A proceeding shall be conducted in English or in French or both, as the parties request.

A party may request that the Tribunal conduct a hearing wholly or partly in French by serving and filing a written notice as soon as possible and, in any event, at least 60 days before the hearing.

(2) Language of documents

If a party requests that a proceeding be conducted wholly or partly in French, the Tribunal shall ensure any notice of hearing is translated into French.

Parties, witnesses and representatives participating in a hearing may submit documentary evidence or written submissions in English or in French.

The Tribunal has no obligation to translate documentary evidence or written submissions. A party may bring a motion requesting translation into English or French of documentary evidence and/or written submissions that is necessary for a fair hearing.  

The Tribunal has no obligation to translate hearing transcripts.

(3) Interpreters for English and French

The Tribunal shall, upon request, provide an interpreter to translate to English from French, or French to English, during a hearing.

(4) Request for interpreter  

If a party or a party’s witness requires an interpreter to translate to or from any language other than English or French, the party shall notify the Registrar and the other parties of its request at least 30 days before the hearing.

(5) Tribunal correspondence

The Tribunal will communicate all its correspondence and decisions in the language of the proceeding as requested by the parties. Where at least one party uses French and at least one party uses English, Tribunal correspondence will be provided in both languages.

(1) Definition

“Personal information” means recorded information about an identifiable individual, including but not limited to an individual’s:

1. (a) social insurance number, driver’s license number, passport number, license plate number, and Ontario Health Insurance Plan number (or other similar health plan number);
2. (b) date of birth;
3. (c) municipal address, including street name, street number and postal code (but not city or province);
4. (d) telephone number; and
5. (e) bank account number and trading account number (including a joint account);

but does not include:

1. (f) the name of an individual who is not a child; or
2. (g) the title, contact information or designation of the individual in a business, professional or official capacity. 

(2) Disclosure of personal information

Each party shall use reasonable efforts to limit disclosure of personal information to that which is relevant to the disposition of a matter and shall redact documents that the party intends to file or enter into evidence accordingly.

The obligation to limit disclosure of personal information extends to documents the party intends to enter into evidence, as well as to applications, motions, written submissions and affidavits.

If a party, representative or witness has an accessibility need that may affect the individual’s ability to participate in a hearing, the individual shall notify the Registrar at least 30 days before the hearing. 

(1) Commencement of proceeding

A proceeding is commenced by the Tribunal issuing a notice of hearing after an application is filed.

Before filing an application, the applicant must make reasonable efforts to consult the other parties and propose one or more dates to the Registrar for the first hearing in the proceeding.

(2) Title of proceeding

Every application shall contain a title of proceeding setting out the names of all the parties. The title of proceeding shall name the party or parties commencing the application as the applicant(s) and the opposite party or parties as the respondent(s). Where the Commission is not the applicant, the Commission shall be named as a respondent.

The Commission:

1. (a) shall be so named in the title of proceeding as the party before the Tribunal; and
2. (b) may be referred to throughout documents (other than in the title of proceeding) as “the Commission”.

(3) First hearing

Unless the Tribunal orders otherwise, the first hearing in a proceeding will be for case management purposes. For enforcement proceedings and reviews of decisions, the matters to be addressed at the first hearing are set out in rules 14(4) and 17(6), respectively. For all other proceedings, at the first hearing the Tribunal will impose a timeline for some or all of the following:

1. (a) disclosure of documents and things;
2. (b) disclosure of witness lists and summaries of anticipated evidence;
3. (c) notice of intention to call an expert witness;
4. (d) any other interlocutory matter, including motions;
5. (e) subsequent case management hearings;
6. (f) filing deadlines for written submissions; and
7. (g) hearing the application.  

(4) Scheduling of subsequent hearings

Before attending a hearing at which dates will be set for further steps in the proceeding, parties must make reasonable efforts to consult amongst themselves and agree on a schedule. If parties are unable to agree, they must come to the hearing prepared to present competing schedules for discussion with the Tribunal.

(5) Decision not to process commencement of a proceeding

When a party files a document that relates to commencing a proceeding, the Tribunal or Registrar may decide not to process the document if it is incomplete or defective.

If the Tribunal or Registrar decides not to process the document, the Tribunal or Registrar shall, in writing, tell the party who filed the document why the document is not being processed and what steps must be taken for the document to be processed.  

(1) Form of application

A request by the Commission for an order under s.127(1) of the Act shall be made by filing an application using the form in Appendix A.

(2) Service

The Commission shall serve the notice of hearing and application on all parties and file without delay an affidavit regarding service.

(3) Enforcement proceeding to which ss.127(4.0.1), 127(4.0.2) or 127(4.0.3) applies

If the Commission requests that the order under s.127(1) be made without providing the person or company that is to be the subject of the order an opportunity to be heard, in reliance on ss.127(4.0.1) (prior conviction), 127(4.0.2) (prior order) or 127(4.0.3) (prior settlement agreement) of the Act, the Commission shall:

1. (a) make that request in the application;
2. (b) file its book of documents and any written submissions in support of its application at the same time as its application; and
3. (c) as soon as is practicable after the Tribunal issues its order, provide a copy of that order to the person or company that is the subject of the order.

(4) All other enforcement proceedings

This subrule does not apply to proceedings to which subrule 14(3) applies.

The Tribunal will impose a timeline for hearings and other steps in enforcement proceedings. Subject to the discretion of the Tribunal, the expected hearings and other steps in an enforcement proceeding, and the timelines for those hearings and steps, are as follows:

(1) Form of application

A request for an order under s.17 of the Act authorizing disclosure of information about an investigation or examination under Part VI of the Act shall be made by filing an application using the form in Appendix C.

(2) Form of hearing    

The hearing shall be held as a written hearing if the Tribunal is satisfied that the application may proceed under s.17(2.1) of the Act, or if the conditions set out in rule 9(6) are met, for which purpose “party” in that rule includes those persons and companies identified in s.17(2) of the Act. Otherwise, the hearing shall be held as an oral hearing.

(3) Service   

Unless the Tribunal is satisfied that the application may proceed under s.17(2.1) of the Act, the applicant shall serve the application without delay on every person or company mentioned in s.17(2) of the Act, and if the Commission is not an applicant, then also on the Commission. If necessary, the applicant may seek directions from the Tribunal with respect to service on persons or companies in accordance with s.17(2)(a) of the Act.

(4) Application record

The applicant shall file an application record that conforms to the requirements in rule 21.

(1) Request for a temporary order – s.127(5)

A request for a temporary order shall be made by filing:

1. (a) if the request is not made in an existing proceeding, an application using the form in Appendix D; or
2. (b) if the request is made in an existing proceeding, a motion using the form in Appendix B.

(2) Request for an extension of a temporary order – ss.127(7) or (8)

A request to extend a temporary order shall be made by filing:

1. (a) if the request is made to extend a temporary order that was not made by the Tribunal, an application using the form in Appendix D and the temporary order; or
2. (b) if the request is made to extend a temporary order that was made by the Tribunal in an existing proceeding, a motion using the form in Appendix B and the temporary order.  

(3) Service          

If the request is made by application, the applicant shall serve without delay the application and the notice of hearing on any person or company directly affected by the temporary order and shall file without delay an affidavit regarding service.

If the request is made by motion, the moving party shall comply with rule 32 and the motion shall constitute a notice of hearing under s.127(9) of the Act.

(4) Timing

If the request is made by motion, the motion shall be filed at least 10 days before the requested motion date.

(5) Application record

The applicant shall file an application record that conforms to the requirements in rule 21.

(1) Review of a decision of the Director, or a recognized exchange, self‑regulatory organization, quotation and trade reporting system or clearing agency, or a designated trade repository or information processor – ss.8 and 21.7

A request for a review of a Director’s decision under s.8 of the Act or for a review of a direction, decision, order or ruling of a recognized exchange, self-regulatory organization, quotation and trade reporting system or clearing agency, or a designated trade repository or information processor under s.21.7 of the Act shall be made by filing an application using the form in Appendix E.

(2) Service

The applicant shall serve without delay the application and notice of hearing on:

1. (a) the Commission;
2. (b) the entity mentioned in subrule 17(1) from which the direction, decision, order or ruling was made;
3. (c) if the direction, decision, order or ruling to be reviewed emanated from a proceeding, then on every other party to the original proceeding; and
4. (d) if there was no original proceeding, then on every person or company that made submissions leading to the direction, decision, order or ruling.

(3) Stay of decision   

The applicant may, under s.8(4) of the Act, request a stay of the original direction, decision, order or ruling until the proceeding is concluded by filing and serving a motion using the form in Appendix B.

(4) Record of original proceeding

The “record of the original proceeding” referred to in subrules 17(5) and 17(6) includes the following from the original proceeding or matter:

1. (a) the application or other document by which the original proceeding or matter was commenced or initiated;
2. (b) any notice of hearing;
3. (c) any interim orders;
4. (d) documentary evidence filed;
5. (e) any transcript of the hearing, including oral testimony; and
6. (f) the decision, order or ruling that is the subject of the request for a review, including any reasons for it.

(5) New evidence

A party may seek permission to rely on witness testimony, or on documents or things not included in the record of the original proceeding, by filing a motion using the form in Appendix B.

(6) Scheduling

At the first hearing in a review proceeding, the Tribunal will impose a timeline for subsequent hearings and, if applicable, for the following:

1. (a) service and filing by the applicant, Director, regulatory exchange, self-regulatory organization, quotation and trade reporting system or clearing agency, or designated trade repository or information processor, of the record of the original proceeding;
2. (b) any other interlocutory matter, including motions;
3. (c) subsequent hearings for case management;
4. (d) filing of written submissions; and
5. (e) hearing of the merits of the review.

(1) Further decision or revocation or variation of a decision – ss.10(7) or 144.1

A request for a further decision under s.10(7) of the Act or a request for revocation or variation of a decision under s.144.1 of the Act shall be made by filing an application using the form in Appendix F.

(2) Service

The applicant shall serve without delay the application and notice of hearing on every party to the original proceeding.

(3) Application record

The applicant shall file an application record that conforms to the requirements in rule 21.

(1) Transactional proceeding – ss.104 or 127(1)

A request for an order under s.104 or s.127(1) of the Act relating to a matter that could be the subject of the Commission’s rule-making authority under paragraphs 26, 26.1, 27 or 28 of s.143(1) of the Act, including a take-over bid, issuer bid, amalgamation, statutory arrangement, other form of merger or acquisition however structured, related party transaction or meeting of security holders, shall be made by filing an application using the form in Appendix G.

(2) Service

The applicant shall serve without delay the application and notice of hearing on every other party, including the Commission.

(3) Application record

The applicant shall file an application record that conforms to the requirements in rule 21.

(1) Other applications

A request for an order not specified in these rules shall be made by filing an application that states:

1. (a) the order sought;
2. (b) the grounds for the order sought; and
3. (c) the evidence the applicant(s) intend(s) to use.

(2) Service  

The Applicant shall serve without delay the application and notice of hearing on every other party, including the Commission.

(3) Application record

The applicant shall file an application record that conforms to the requirements in rule 21.

(1) Generally

For all applications, other than an application for an enforcement proceeding or review proceeding, the applicant(s) shall, as soon as practicable, serve and file an application record.

For all motions, the moving party(ies) shall, as soon as practicable, serve and file a motion record.

The application or motion record shall be a single, bookmarked PDF that includes:

1. (a) the application or motion;
2. (b) any affidavits and accompanying exhibits submitted in support of the application or motion;
3. (c) other documents (other than written submissions) that the applicant(s) and/or moving party(ies) intend(s) to rely on;
4. (d) a table of contents that briefly describes each component of the record, including each exhibit; and
5. (e) bookmarks to each part of the record, including each exhibit, and all such bookmarks shall identify and describe the item (e.g., “Exhibit A – Call logs”).

The filename of the record shall indicate the document type (e.g., “Application Record”), the name of the party filing the document, and the date on which the document is filed.

(2) Division of large PDFs

Where the size of a single PDF exceeds 500 pages, the party shall separate the PDF into two or more volumes, titled accordingly (e.g., Application Record Volume 1 of X, Motion Record Volume 2 of X).

(3) Exception

Where possible, documents must be filed in PDF. A document may also be filed in its native format, e.g., Microsoft Excel, or audio or video recording.

(1) Amendment of application  

An applicant may amend an application at any time with consent of the parties or with permission from the Tribunal granted on a motion using the form in Appendix B. The motion record shall include an amended version of the application that clearly indicates the amendments by underlining any new text and striking through any removed text. The Tribunal shall grant permission unless the amendment would be unfairly prejudicial to a party.

(2) Particularization of application

At any stage in a proceeding, the Tribunal may order an applicant to provide particulars necessary for a satisfactory understanding of the subject of the proceeding, including:

1. (a) the grounds on which a remedy or order is being sought; and
2. (b) a general statement of the facts being relied on.

(1) Notice of withdrawal

A party may withdraw, against one or more parties, an application or a motion at any time before a final determination by the Tribunal, by filing and serving every party with a notice of withdrawal using the form in Appendix H, and, in the case of withdrawal against some but not all parties, an amended application that clearly indicates the amendments that effect the withdrawal by underlining any new text and striking through any removed text.

(2) Title of proceeding

If an application is withdrawn against some but not all parties, the title of proceeding on all subsequent documents shall be as the Tribunal directs.

(1) Change in representation

A party who is represented may:

1. (a) change their representative by serving every other party with, and filing, notice of the change, including the name, address, telephone number and email address of the new representative; or
2. (b) elect to appear on their own behalf by serving every other party with, and filing, notice of the change, including the party’s address, telephone number and email address. 

(2) Removal of representative of record

On a motion by a representative or party, the Tribunal may order the removal of a representative as the representative of record.

(3) Failure to attend or participate

If notice of a hearing has been given to a party and the party does not attend or participate in the hearing, the hearing may proceed in the party’s absence and the party is not entitled to any further notice in the proceeding.

(4) Intervenors

On motion, the Tribunal may grant a person or company who is not a party to a proceeding intervenor status to participate in all or part of the proceeding. Subject to terms imposed by the Tribunal, the intervenor shall be a party.

(1) Joint hearings with other securities administrators

The Tribunal may hold a hearing in or outside Ontario jointly with another body that is authorized by statute to administer or regulate trading in securities, commodities or derivatives.

(2) Request for a joint hearing

A request for a joint hearing shall be made either by including that request in the application, or if the proceeding has already been commenced, then by motion using the form in Appendix B.

A party who intends to question the constitutional validity or applicability of any legislation, regulation, bylaw, or rule of common law shall file notice of the constitutional question in accordance with s.109(2.1) of the Courts of Justice Act, RSO 1990, c C.43, and shall serve the notice on the Attorneys General of Canada and Ontario and on the other parties. The party must effect service and filing as soon as the circumstances requiring the notice are known and, in any event, shall file proof of service at least 15 days before the day on which the question is to be argued.

At the request of a party, the Tribunal may issue a summons using the form in Appendix I to require a person resident in Ontario to:

1. (a) give evidence under oath or affirmation at an oral hearing; and
2. (b) to produce any document or thing specified in the summons at an oral hearing.

(1) Initial disclosure by the Commission in an enforcement proceeding

In an enforcement proceeding under s.127(1) of the Act, other than a proceeding to which ss.127(4.0.1), (4.0.2) or (4.0.3) applies, the Commission shall:

1. (a) provide to every other party copies of all non-privileged documents in the Commission’s possession that are relevant to the Commission’s allegations, including documents that have a reasonable possibility of being relevant to the respondents’ ability to make full answer and defence to the Commission’s allegations;
2. (b) identify to every other party all other things in the Commission’s possession that are relevant to the Commission’s allegations, including those that have a reasonable possibility of being relevant to the respondents’ ability to make full answer and defence to the Commission’s allegations; and
3. (c) where inspection of an original document or thing identified in (a) or (b) of this rule is requested by a party, make the document or thing available for inspection.

(2) Disclosure of book of documents

In any proceeding, a party shall serve on every other party to the proceeding a book of documents containing a copy of the documents, and identifying the other things, that the party intends to rely on or enter as evidence at a hearing.

(3) Witness lists and summaries

In any proceeding, a party shall file, and serve on every other party, a list of the witnesses (including witnesses that are parties) that the party intends to call. The party shall serve on every other party a summary of the testimony that each witness is expected to give, which summary shall include, unless previously disclosed:

1. (a) the witness’s name and address, or if the address is not provided, the name and address of a person through whom the witness can be contacted;
2. (b) the substance of the witness’s expected testimony; and
3. (c) the identification of any document or thing to which the witness is expected to refer.

Witness lists and witness summaries are not adjudicative records and are not available to the public.

(4) Failure to disclose

A party who fails to comply with a disclosure obligation in these rules or in an order of the Tribunal may not, without the Tribunal’s permission, rely on material or testimony that was not properly disclosed. 

(1) Affidavits – form

An affidavit that is filed separately, and not as part of an application record or motion record, shall be in a bookmarked PDF that includes all exhibits referred to in the affidavit, and a table of contents that identifies each exhibit (e.g., “Exhibit A”) and briefly describes the exhibit (e.g., “Call logs”) .

The file name of the affidavit shall contain:

• (a) “Affidavit”;
• (b) the name of the affiant; and
• (c) the date the affidavit was sworn or affirmed, or the word “Draft” if the affidavit has not yet been sworn or affirmed.

Unless all parties consent and the Tribunal permits, any witness who provides affidavit evidence must be available for cross-examination at the hearing at which the affidavit evidence will be tendered.

(2) Exception

Where possible, documents must be filed in PDF. A document may also be filed in its native format, e.g., Microsoft Excel, or audio or video recording.

(3) Affidavit – required by the Tribunal

The Tribunal may order that part or all of the evidence of a witness be provided by affidavit and may set timelines for the affidavit evidence to be served on every other party and filed with the Tribunal.

(4) Statement of agreed facts and joint book of documents

Before a hearing at which evidence will be tendered, parties are encouraged to agree on the evidence that is not in dispute. Parties are encouraged to file a statement of agreed facts, and to file a joint book of documents containing a copy of the documents that any of the parties intends to adduce as evidence, where authenticity and admissibility are not in dispute.

A joint book of documents must include a table of contents identifying each document by its name and date, where applicable. The joint book shall be a bookmarked PDF, with each bookmark including the title of the bookmarked item.

The filename of the joint book shall include:

• (a) “Joint book of documents”;
• (b) the names of the parties filing the joint book (e.g., “Commission and [respondent name]”), unless all parties are filing the book jointly, in which case this is not necessary; and
• (c) the date on which the joint book is filed.

(5) Documentary aids prepared by a party for the hearing

If a party intends to rely on a summary chart or other aid, which purports to distill or analyze other evidence (such as a source and use of funds analysis or a chronology), the party shall, no later than ten days before the hearing, serve on every other party:

• (a) the chart or other aid; and
• (b) an affidavit from the witness the party intends to call to testify about how the chart or other aid was prepared.

If there is no dispute as to whether the chart or other aid fairly distills or analyzes the underlying evidence, then the party may file the documents at the hearing. The witness’s affidavit is sufficient, and the witness need not testify orally as to how the document was prepared. The opposing parties are not precluded from cross-examining the witness on the witness’s affidavit, and the party calling the witness may re-examine.

This subrule does not apply to expert evidence (see rule 30).

(6) Division of large PDFs

Where the size of a single PDF exceeds 500 pages, the party shall separate the PDF into two or more volumes, titled accordingly (e.g., Affidavit of A.B. Volume 1 of X, Affidavit of A.B. Volume 2 of X).

(1) Notice of intention to call expert

A party who intends to call an expert to give opinion evidence at a hearing shall provide every other party to the proceeding with notice of the party’s intention to call an expert, including a summary of the issues on which the expert will be testifying.

(2) Service of expert report

A party who intends to introduce expert testimony shall serve the expert’s report and qualifications on every other party.

3) Expert reports in response and reply

A party who is served with an expert’s report may serve an expert’s report in response, and the party who served the initial expert’s report may serve an expert’s report in reply.  

(4) Notice of objection to expert testimony

A party that objects to the admissibility of the expert’s testimony must notify every other party, identifying the grounds for objection.

(5) Notice of intention to cross-examine expert

A party who intends to cross-examine an expert must notify every other party.

(6) Expert reports as evidence

The Tribunal may set a timeline for:

1. (a) the above steps;
2. (b) the filing of expert reports before the hearing; and
3. (c) parties’ submissions, before or at the hearing, about whether the Tribunal should admit a report as evidence, and if so, the weight the Tribunal should give to that evidence.

After receiving submissions from the parties, the Tribunal may admit the report and may direct that the expert need not attend the hearing to give oral testimony.

(1) Generally

Citations of authorities in written submissions shall, where applicable, identify the particular passages on which the party relies, and shall, where possible, include a hyperlink to a free, publicly available online source(e.g., CanLII, Ontario e-Laws). The hyperlink shall, where applicable, link to the specific paragraph(s) or statutory provision(s) on which the party intends to rely.

Written submissions shall be in a bookmarked PDF that includes:

1. (a) the submissions themselves;
2. (b) the cover or first page of, and relevant excerpts of, any cited authorities that are not available from a free, publicly available online source; and
3. (c) a table of contents that briefly describes each item contained in the PDF.

Each bookmark entry shall identify and describe the bookmarked item.

(2) Format

Where the size of a single PDF would exceed 500 pages, the party shall separate the PDF into two or more volumes, titled accordingly (e.g., Written Submissions Volume 1 of X, Written Submissions Volume 2 of X).

The filename of the submissions shall include the document type, i.e., “Submissions”, the name of the party filing the document, and the date on which the submissions are filed.

(3) Condensed Book to supplement oral closing submissions

Each party who will be making oral closing submissions is encouraged to file a condensed book in advance, to supplement those submissions. 

The condensed book shall be a bookmarked PDF that contains:

• (a) a table of contents describing each document by its nature and date, and
• (b) any of the following to which the party intends to refer during oral submissions:
  • (i) any PowerPoint or similar presentation;
  • (ii) any excerpts from hearing transcripts; and
  • (iii) the first page, and other relevant pages, of any authorities, exhibits or other documents.

Each bookmark shall identify and describe the bookmarked item.

The filename of the condensed book shall include:

• (a) “Condensed book”;
• (b) the name of the party(ies) filing the condensed book; and
• (c) the date on which the condensed book is filed.

(4) Draft orders

Any party seeking an order from the Tribunal shall provide a draft of the terms of the order sought, as part of their closing submissions. The draft order must identify the statutory or other provision that gives the Tribunal jurisdiction to make the order sought.

(1) Obligations of moving party

A party who intends to bring a motion shall, where practical:

1. (a) canvass the responding parties for the following, prior to the hearing of the motion:
   1. (i) potential hearing dates for a case management hearing;
   2. (ii) responding parties’ preliminary position(s) on the motion; and
   3. (iii) an agreed-upon schedule for the exchange of materials for the motion, to be presented to the Tribunal for consideration;
2. (b) arrange with the Registrar a date for a case management hearing; and
3. (c) file the motion using the form in Appendix B and serve the motion on every other party.

(2) Motion materials

The schedule for the exchange of materials for a motion shall be as agreed to by the parties or ordered by the Tribunal. The schedule shall anticipate the filing of:

1. (a) affidavit(s) setting out the facts relied on by the moving party, if any;
2. (b) affidavit(s) in response to the motion, if any;
3. (c) affidavit(s) from the moving party in reply, if any; and
4. (d) written submissions.

(3) Examination of affiant(s)

A party who files an affidavit shall make the affiant reasonably available for cross‑examination by any adverse party before the motion hearing. 

Before or at a motion hearing, the Tribunal may order or permit oral testimony and cross‑examination of an affiant at that hearing.

(4) Motion without notice

The Tribunal may permit a party to make a motion without notice if:

1. (a) the nature of the motion or the circumstances make service of the motion impractical or unnecessary; or
2. (b) the delay necessary to effect service would be likely to have serious consequences.

(5) Motion record

The moving party shall file a motion record that conforms to the requirements in rule 21.

(1) Confidential conferences

At any stage of a proceeding, a party may request or the Tribunal may direct that the parties participate in a confidential conference to consider:

1. (a) the settlement of any or all of the issues;
2. (b) the simplification of the issues;
3. (c) facts that may be agreed upon; and
4. (d) any other matter that may further a just, expeditious and cost-effective disposition of the proceeding.

A confidential conference is not a hearing.

(2) Disqualification of confidential conference Adjudicator

An adjudicator who presides at a confidential conference at which the parties attempt to settle issues shall not preside at a subsequent hearing in the proceeding unless the parties consent.

(3) Confidentiality

A confidential conference shall be confidential and no transcript shall be made.

(1) Exceptional circumstances

Any party that requests that a hearing be adjourned must satisfy the Tribunal that the adjournment furthers the objectives outlined in rule 1.

Every merits hearing, sanctions and costs hearing, and motion hearing shall proceed on the scheduled date unless a party satisfies the Tribunal that there are exceptional circumstances requiring an adjournment.

(2) How to request an adjournment

A party who requests that a merits hearing, sanctions and costs hearing, or motion hearing be adjourned shall file and serve a motion using the form in Appendix B. 

(1) Separate hearing for sanctions and costs

In an enforcement proceeding, if the Tribunal makes a finding that provides a basis for sanctions and costs, the Tribunal shall hold a separate hearing to consider sanctions and costs, unless the parties have agreed that all issues may be decided in one hearing.

The Tribunal shall set a schedule for the sanctions and costs hearing.

(2) Materials in support of a request for costs 

If the Commission requests costs, it shall file supporting materials that include:

1. (a) the amount of costs requested;
2. (b) the basis of the request for costs;
3. (c) a summary statement of hours and fees, supported by time records setting out relevant hourly rates;
4. (d) a summary statement of disbursements supported by invoices and receipts, or if those cannot be obtained, by a written record of disbursements and associated dates; and
5. (e) an affidavit declaring that the information contained in the time records and the summary statement of disbursements are true and accurate, and that the disbursements were incurred directly and necessarily as a result of the investigation and/or hearing of the proceeding.

(1) Grounds for dismissal

The Tribunal may dismiss an application or motion without a hearing on the following grounds:

1. (a) the application or motion is frivolous, vexatious, or commenced in bad faith;
2. (b) the application or motion relates to matters that are outside the Tribunal’s jurisdiction; or
3. (c) the statutory requirements for bringing the application or motion have not been met.

(2) Notice

Before dismissing an application or motion under this rule, the Tribunal shall:

1. (a) give the parties notice of its intention to dismiss the application or motion;
2. (b) provide the reasons for its intention to dismiss the application or motion;
3. (c) inform the parties of their right to make written submissions to the Tribunal within 30 days as laid out in the notice; and
4. (d) consider any written submissions provided.

(1) Settlement conference

The parties to a proposed settlement shall attend at least one settlement conference.

A settlement conference is not a hearing. A settlement conference and all materials filed in support of the proposed settlement shall be confidential. No transcript shall be made of the settlement conference.

(2) Request for a settlement conference

The parties to a proposed settlement shall file a joint request for the settlement conference no later than five days before the requested date for the settlement conference, which request shall include:

1. (a) a draft of the proposed settlement agreement or a joint memorandum setting out the terms of the proposed settlement; and
2. (b) any materials in support of the settlement. 

(3) Vacating scheduled hearing dates

If one or more hearing dates are scheduled in a proceeding in which a settlement conference is requested, the parties may request in their materials or at the settlement conference that the settlement conference panel vacate some or all of those hearing dates.

(4) Disqualification of settlement conference adjudicator

An adjudicator who presides at a settlement conference shall not preside at a subsequent hearing in the proceeding other than the public settlement hearing under rule 38, unless the parties consent. 

(1) Request for a settlement hearing

If the parties to a settlement request a hearing to approve the settlement, they shall file a joint request at least three days before the requested date for the settlement hearing, which request shall include:

1. (a) an application, if one has not previously been filed;
2. (b) a signed settlement agreement that includes a draft order, using the form in Appendix J, and each party’s consent to an order substantially in the form of the draft order; and
3. (c) any other materials in support of the settlement.

(2) Notice

The Tribunal shall issue a notice of hearing after a request that complies with subrule 38(1) has been filed.

(3) Settlement hearing panel

The adjudicators that preside at a hearing to consider a settlement shall include at least one adjudicator that presided at the settlement conference relating to the settlement.

The Registrar shall send a copy of the Tribunal’s written decision(s) to each party’s representative and to each unrepresented party.

• Appendix A - Application for Enforcement Proceeding
• Appendix B - Motion
• Appendix C - Application for Authorization to Disclose Information
• Appendix D - Application for Temporary Order or Extension of a Temporary Order
• Appendix E - Application for Review
• Appendix F - Application for Further Decision or Revocation or Variation of a Decision
• Appendix G - Application Relating to a Transaction
• Appendix H - Notice of Withdrawal
• Appendix I - Summons
• Appendix J - Order
• Appendix K - Protocol for Document Production in a Merits Hearing in an Enforcement Proceeding
• Appendix L - Hearing Participant Checklist
• Index File Template
• Using the Capital Markets Tribunal Forms Templates