Justice scales and gavel by books

Ontario’s Capital Markets Tribunal has ruled that it can, and should, allow a potential witness to testify in a U.S. court proceeding that arose in the wake of an Ontario Securities Commission (OSC) investigation.

Back on Oct. 31, the tribunal granted relief to Mark Hamlin, who sought permission to testify in response to a request from a U.S. court. The case involves a former trader at a major bank who has been accused of manipulating an interest rate swap.

Today, the tribunal issued its reasons for granting that application, which was opposed by staff of the OSC.

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According to the tribunal’s decision, the OSC argued that the tribunal didn’t have jurisdiction to grant relief to Hamlin — which it said should fall under the purview of the courts in Ontario — and that Hamlin didn’t require its authorization.

The tribunal disagreed with the regulator, ruling that not only did it have the jurisdiction to grant relief, but that it’s in the public interest to provide that relief.

According to the tribunal’s decision, Hamlin had previously been compelled to testify into the same events by the OSC, and he sought authorization from the tribunal to provide testimony in the U.S. case without putting himself at risk of breaching securities law in Ontario.

In its decision, the tribunal said that Hamlin’s proposed disclosure to a U.S. court is “consistent with the public interest.”

“The only reasons that OSC staff offers for resisting the application are because of the Ontario court’s involvement in issuing the order recognizing and enforcing the [Southern District of New York] court’s letter of request and because Hamlin allegedly does not require a [disclosure] order in the circumstances,” it said.

According to the decision, the OSC argued that if the tribunal grants an order authorizing disclosure, it “will risk undermining the Ontario court’s authority to issue binding orders recognizing letters of request, thereby usurping the Ontario court’s function to consider issues and other matters raised by Hamlin’s concerns.”

This could, in turn, also disrupt the Ontario court’s ability to receive similar help from foreign courts, it warned.

However, the tribunal disagreed, ruling that granting its order wouldn’t conflict with the court’s jurisdiction, or interfere with its ability to adjudicate future requests from foreign courts.

“We conclude that it is in the public interest to grant Hamlin a [disclosure] order,” it said. “We do not agree with OSC staff’s submission that the Ontario court’s order and involvement in this matter is a reason to deny Hamlin relief, nor do we agree with OSC staff that Hamlin does not require the relief sought.”