The Mediation Program provides respondents involved in Ontario Securities Commission (OSC) enforcement proceedings and OSC Enforcement Branch staff with an option to seek a resolution through a neutral third-party mediator. This mediator can facilitate the negotiation of settlement terms, assist in reaching an Agreed Statement of Facts, and help the parties in resolving other enforcement matters in a timely, efficient and cost-effective way.
The Mediation Program is generally available to any respondent, potential respondent or OSC Enforcement Branch staff member. The following is a list of the key elements of the Mediation Program:
- participation is voluntary; however, if a respondent or an OSC staff member wishes to avail themselves of the program, they should do so at the earliest opportunity during an investigation
- mediations are confidential and privileged and will only occur with the consent of OSC staff and participating parties
- respondents must be represented by counsel and each party shall pay an equal portion of the total costs of the mediation
- mediation should not negatively impact or delay any OSC investigation or proceeding and should not be used to delay any parties' disclosure or other pre-hearing obligations, or the hearing of the matter
Once OSC staff and counsel, on behalf of respondent(s), indicate that they wish to engage in the Mediation Program, a mediator is jointly selected from a roster published by the OSC.
Mediation will take place according to the standard terms of a mediation agreement which includes confidentiality clauses signed by all the parties and the mediator. Each party must provide the mediator with briefing documents which will be discussed between the parties and mediator.
Either party may withdraw from and terminate the mediation at any time, as can the mediator.
Mediation of a securities enforcement matter is not part of the existing tribunal process set out in the Commission’s Rules of Procedure and Forms. A settlement agreement arising from a mediation will have no force or effect unless and until it is approved by the Commission at a settlement hearing. Once approved by a panel at the settlement hearing, the settlement agreement will become public.
Mediators are neutral third parties, who are independent of the Commission and are available to serve on the Program’s roster for a three-year term. They:
- have general knowledge of securities law and capital markets
- have securities regulatory enforcement experience as litigation counsel, adjudicator, mediator or judge
- have mediation experience generally
- are free of conflicts of interest, both direct and indirect, at the time of the mediation such that they may not:
- represent parties to OSC investigations and proceedings
- be retained on other matters by the OSC
- be associated as an employee, partner or ‘as counsel’ with a law firm or other entity that has dealings with the OSC, either directly or indirectly