It may seem that critics are increasingly bemoaning the Ontario Securities Commission for failing in its efforts to prosecute cases in the courts.
The OSC has lost some high-profile court prosecutions, two of them earlier this year. But some lawyers – while offering critical thought for improvements – are commending the OSC for making strides in its regulatory role.
John Fabello agrees that the OSC "is doing better than they were 10 years ago. There's evidence of recent improvement, despite setbacks."John points to the OSC's response to CP Ships, which was accommodated with "credit for cooperation" after coming forward with a failure of disclosure admission. "The commission could have taken a run at them, but it didn’t," he says. "For all the complaining we do for not getting any credit for cooperation, CP Ships is an example where the commission is giving some substance to the concept and trying to be reasonable."
However, the OSC needs to improve timelines and use greater discretion in choosing which cases to prosecute, says John. "My important criteria would be on the basis where alleged conduct was truly harmful of the capital markets and, in particular, harmful to investors. In other words, focus on the scams and the alleged conduct that is truly egregious."