Saskatchewan’s Court of Appeal has dismissed a bid to overturn a Saskatchewan Financial Services Commission enforcement decision on the grounds that the defendants’ counsel withdrew just before a hearing took place.
In the case, Tri-Link Consultants Inc. and Klaus Link appealed an SFSC decision against them, arguing that the commission erred by proceeding with a hearing immediately after their counsel dropped out of the case; and, that it acted contrary to the rules of natural justice by proceeding when they did not have legal counsel.
The court dismissed the arguments, finding that the process followed by the commission did not deny Link and the firm procedural fairness and natural justice. It dismissed the appeal with costs to the SFSC.
In the case, when they did have counsel, Link and Tri-Link agreed to a statement indicating that they had violated the Securities Act; and also said they would not question the accuracy of amounts owing to wronged investors. However, three days prior to an SFSC hearing, their counsel withdrew and Link represented them at the hearing instead.
Ultimately, following the hearing, the commission ordered that they be permanently prevented from trading in securities in Saskatchewan; to pay administrative penalties and costs; and, that they pay more than $1.2 million in compensation to investors.
The court ruled that the lack of legal representation at the SFSC hearing was not unfair or unjust. It notes that Link never complained that he did not understand the procedure; nor did he say that he required legal counsel, or ask for an adjournment. He didn’t dispute his previous counsel’s actions in the proceedings, or attempt to retract his admissions in the case, it says.
“In my view, it appears obvious from the record that Mr. Link was willing to proceed without representation,” the decision says. “Mr. Link prepared his case with the assistance of his former lawyer and fully participated in the hearing before the commission. Based upon these observations, I am confident that Mr. Link did not request an adjournment to obtain counsel as he had intended to proceed without representation. Furthermore, it is not a denial of procedural fairness to proceed with a hearing if an adjournment is not requested.”
Additionally, the court says that the appearance of counsel likely wouldn’t have changed the outcome in the case. “It is difficult to see how the presence of counsel for the appellants would have affected the result. By this time, the appellants had admitted to contraventions of provisions of the Act and also to amounts owing to the investors affected by the contraventions. The result would have been the same with or without counsel,” it says.