Decision in brief: Cormark Securities Inc, Enforcement Proceeding, Motion for disclosure, November 29, 2023

In this enforcement proceeding, OSC staff alleges that Cormark Securities Inc., Marc Judah Bistricer, William Jeffrey Kennedy and Saline Investments Ltd. carried out a series of transactions related to shares of Canopy Growth Corporation that were abusive and not in line with the principles of the Securities Act. Canopy is not a respondent named by staff and is not a party in this proceeding.

To help them defend themselves, Cormark and Kennedy want the Tribunal to require Canopy to give them documents. Canopy agrees that the Tribunal has the authority to require Canopy to provide documents even though it is not a party to this proceeding. However, Canopy says these documents contain advice from their lawyer to them and are privileged (known as “solicitor client privilege”). The Tribunal cannot require them to provide privileged documents. Canopy agrees that the Tribunal has the authority to review the documents to determine whether they are privileged.

The Tribunal decided that the documents Cormark and Kennedy want appear to be relevant. They may help Cormark and Kennedy defend themselves. Canopy must provide the documents to a referee who will review them and determine whether they contain advice from Canopy’s lawyer and are privileged. Using a referee will save Tribunal time and resources. If the referee decides that any of the documents are not privileged, then Canopy must provide those documents to the parties in this proceeding.