Decision in brief: Bridging Finance Inc, Application, Application to vary disclosure decision, May 29, 2023

The Sharpes want the Tribunal to stay (permanently end) the enforcement proceeding against them because of what they say was an abuse of process. To help them make that argument, the Sharpes asked the Tribunal to order OSC staff to turn over certain additional documents. Earlier in 2023, the Tribunal decided not to do so.

The Sharpes applied to the Divisional Court for “judicial review” of the Tribunal’s decision. A judicial review is like an appeal, but with some legal differences. The Divisional Court decided not to hear the judicial review.

This decision of the Tribunal deals with the Sharpes’ request that the Tribunal vary (reverse) its earlier decision. They said that a recent decision from the Supreme Court of Canada has changed the legal test that should be applied by the Tribunal.

The Tribunal decided not to vary its decision. The legal test set out by the Supreme Court of Canada does not apply for three reasons. First, the test applies to criminal proceedings and not administrative proceedings like this one. Second, it applies to a request to dismiss an application for a stay of the proceeding and not a request for documents. Third, the onus (responsibility for making the case) is different in the stay context compared to a request for documents.