An appeal from the decision of the Alberta Securities Commission (“ASC”) which allowed the Investment Dealers Association (“IDA”) to appeal the dismissal of charges against Bahcheli was allowed. The Court held that absent express statutory provision, a decision maker cannot appeal its own decision and that the IDA was not a person or company ‘directly affected’, such that it may appeal its own decision.

Administrative law – Decisions of administrative tribunals – Securities Commission – Jurisdiction – Judicial review – Appeals – Parties – Procedural requirements and fairness – Standard of review – Correctness

Bahcheli v. Alberta Securities Commission, [2007] A.J. No. 520, Alberta Court of Appeal, May 18, 2007, C. Conrad, R. Berger, and C. O’Brien, JJ.A.

The Appellant, a registered representative with a securities dealer, was charged with breaching an IDA bylaw. A Hearing Panel dismissed the charge against the Appellant. IDA appealed the dismissal of the charges. The Appellant brought an application before the ASC alleging that, as a decision maker in the matter, the IDA was not entitled to appeal the decision of the hearing panel, and further that the time limit for filing a Notice of Appeal had expired.

The ASC concluded that there was a distinct separation between the investigative and prosecutorial rules of the IDA and the adjudicative role of the District Council Hearing Panels. This finding of “separate roles” distinguished legal authorities that precluded a decision maker from appealing its own decision absent an expressed statutory provision allowing it to do so. The ASC also found that the IDA was a person “directly affected” by the decision and was therefore entitled to appeal the decision of the District Council.

The Court of Appeal held that the applicable standard of review was “correctness”. After examining the enabling legislation of the IDA, the Court concluded that the IDA did not have a right to appeal the decision of the District Council hearing panel. The phrase “directly affected” requires a proposed Appellant to demonstrate a direct effect of the decision and not merely dissatisfaction with the decision and the reasons for arriving at that decision. The Court held that the IDA had not demonstrated that it was directly affected by the decision.

In response to the Respondent’s argument about a separation of roles between the IDA and the District Council, the Court held that the decision of the District Council was a decision of the IDA itself. Therefore, the IDA did not have a right of appeal, as it would be appealing its own decision. The Court reasoned that if the appellant were to appeal the decision of the District Council, the Statute specifically granted the respondent a right to be present and make representations at the appeal. However, if the Statute were construed to provide the IDA a right of appeal, then there was no provision to ensure that Bahcheli would have the right to be present and make representations. The Court found that normally a right of appearance is granted to both parties where it is contemplated that both parties have a right to appeal.

In the result, the Court of Appeal allowed the appeal, and held that the IDA was not entitled to proceed with an appeal from the decision of the Alberta District Council.

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