Decision in brief: Bridging Finance, Enforcement Proceeding, Motion for disclosure, February 21, 2023
In this enforcement proceeding, OSC staff alleges that David and Natasha Sharpe and the other respondents committed fraud. The Sharpes want the Tribunal to stay (permanently end) this proceeding because of what they say was an abuse of process. They say that the abuse of process arises from OSC staff providing confidential documents in a court application to appoint a receiver over Bridging’s assets without first obtaining the required order from the Tribunal. See the March 30, 2022 reasons for the Tribunal’s earlier decision.
To help them make that argument, the Sharpes want the Tribunal to require OSC staff to turn over certain documents, in addition to the documents that OSC staff has already disclosed to the respondents in this proceeding, including the Sharpes. In this decision, the Tribunal is deciding whether to grant the Sharpes’ request for documents. The hearing of the Sharpes’ request for a stay has not yet occurred.
The Tribunal decided not to order OSC staff to turn over any additional documents. The legal test is that someone in the Sharpes’ position must show a “tenable case” for their request for a stay. In other words, to get the documents they asked for, the Sharpes must have some reasonable basis for thinking that there has been an abuse of process. They must also have some reasonable chance of convincing the Tribunal at the future hearing that the Tribunal should end the proceeding.
The Tribunal decided that the Sharpes did not show a “tenable case” of abuse in this proceeding. What the Sharpes are concerned about happened in the court application and not in this proceeding. The possibility that witnesses may see the confidential documents, before testifying in this proceeding, would not cause an unfairness significant enough to justify ending this proceeding.
Finally, there is no evidence that the OSC or its staff acted in bad faith toward the Sharpes.
The Sharpes asked the court to review the Tribunal’s decision. The court declined to do so.