Decision in brief: Hamlin, Application for Authorization to Disclose, Jurisdiction question, January 6, 2023

At the request of a U.S. regulator, OSC staff investigated whether Christophe Rivoire had violated U.S. laws.  As part of that investigation, they interviewed Mark Hamlin, an Ontario resident, and required him to answer their questions about Rivoire’s possible violations. The U.S. regulator sued Rivoire in a U.S. court. Rivoire wanted to have Hamlin available to testify in the U.S. lawsuit and asked the U.S. court to ask an Ontario court to order Hamlin to be available to answer questions.

Hamlin was willing to co-operate, but he was concerned about s. 16 of the Ontario Securities Act, which says that certain parts of investigations are confidential and can’t be disclosed to anyone, unless certain exceptions apply, or unless the Tribunal allows the disclosure. The transcript of Hamlin’s answers to the investigators’ questions is one of the things that is confidential. Hamlin wanted to be sure that if he answered questions in the U.S. lawsuit, he would not violate s. 16, so he asked this Tribunal for permission to answer the questions.

OSC staff said that this Tribunal does not have the power to give Hamlin the permission he was asking for. OSC staff said that because the Ontario court was involved, this Tribunal must let the Ontario court manage the situation.

In this decision, the Tribunal disagreed with OSC staff. The Tribunal said that it had the power to give Hamlin the permission he asked for. The Tribunal decided that its normal power to give that kind of permission was not affected by the involvement of the Ontario court.

As a result of this decision that the Tribunal could give Hamlin permission, the Tribunal would next have to decide whether it should give that permission.