Ontario's Capital Markets Tribunal turns down husband-and-wife executive tandem's appeal alleging abuse of process
The Capital Markets Tribunal, an independent division of the Ontario Securities Commission, has dismissed a motion by David and Natasha Sharpe, the executive team that ran Bridging Finance until it went into receivership in 2021, to stay a proceeding against them.
According to the tribunal’s reasons for decision dated June 21, the Sharpes argued the OSC committed an abuse of process in 2021 when it filed their compelled testimony in court in applying for the appointment of a receiver without first obtaining an order authorizing disclosure of the testimony.
Among other concerns, the Sharpes said that witnesses called against them might have tailored their testimony based on the compelled testimony.
A stay of proceedings, the tribunal said, would be justified if they could show their right to a fair hearing or the integrity of the justice system would be affected significantly; that a stay would be the only way to remedy the prejudice they’d supposedly face; and that the interests in support of granting a stay outweighed the importance of having a decision on the case’s merits.
Ultimately, the tribunal denied the Sharpes’ motion, concluding that the issue of possible witness tainting did not significantly weigh on the Sharpe’s right to a fair hearing.
It also noted that the possibility of witness tainting could be addressed and explored during the hearing itself.
The tribunal also pointed out that the Sharpes could have sought redress from the OSC even during the receivership application, but did not take the opportunity.
While it found that the breach by OSC staff in filing compelled evidence without prior authorization was serious, the tribunal said it was not so egregious as to warrant a stay.
Given the allegations of fraud and misconduct levelled against the Sharpes, it added, the public interest in proceeding with the case more than offset the interest in granting a stay.
