Decision in brief: Hamlin, Application for Authorization to Disclose, Merits, January 30, 2023
At the request of a U.S. regulator (the Commodity Futures Trading Commission, or the CFTC), OSC staff investigated possible violations of U.S. laws by Christophe Rivoire. The investigators, who included CFTC staff, sent a summons to Mark Hamlin, an Ontario resident, requiring him to answer their questions about Rivoire’s possible violations.
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 an earlier decision, the Tribunal decided that it could give Hamlin permission. In this second decision, the Tribunal decided that it should give that permission.
The Tribunal said that it would be in the public interest to give Hamlin the permission he asked for, as co-operating in the U.S. lawsuit might involve disclosure of the confidential material to people who weren’t already aware of it. His purpose in asking for the permission is consistent with the public interest. His participation in the U.S. lawsuit would advance the regulatory interest that gave rise to the investigation in the first place, and would respond to the U.S. court’s desire to have Hamlin participate.