Conflict of Interest Policy

PURPOSE

The purpose of this policy is threefold: (1) to provide assistance to Tribunal Members in the determination of whether they can sit on a particular panel, (2) to provide guidance to the Tribunal Chair in the assignment of hearing panels, and (3) to outline the course of action to follow should a conflict arise before or during a proceeding.

SCOPE

This policy applies to all current and future Tribunal members.

DEFINITIONS

“Tribunal Chair” means the chair of the Tribunal appointed pursuant to subsection 31(1) of the Financial and Consumer Services Commission Act; and

“Tribunal Member” means a Member of the Tribunal appointed pursuant to subsection 31(1) of the Financial and Consumer Services Commission Act and, except where specifically stated, includes the Tribunal Chair.

POLICY STATEMENTS

The Tribunal, as an independent adjudicative body, is judged by the highest standards of ethical conduct. Members of the Tribunal discharge important public duties and accordingly are expected to comport themselves in a professional and ethical manner and in accordance with the principles of administrative law governing administrative tribunals. Tribunal Members should strive to ensure that their conduct maintains and enhances confidence in their impartiality.

The purpose of this Policy is to outline the Tribunal’s approach to avoiding, uncovering, and dealing with potential conflicts of interest that may disqualify a Member of the Tribunal from sitting on a panel to hear a particular matter.

Tribunal Members should as reasonably as possible conduct their personal and business affairs so as to minimize the occasions on which is will be necessary to be disqualified from hearing matters.

Tribunal Members are encouraged to consult with the Tribunal chair on any matter related to the exercise of this Policy.

I – Determining if a Conflict of Interest Exists

It is the responsibility of each Tribunal Member to consider any circumstance that might suggest a possible conflict of interest or bias in respect of any of the Tribunal Member’s responsibilities. It may be that only the Tribunal Member is in a position to recognize a possible conflict or issue of bias.

A conflict of interest is any interest, relationship, association or activity that is incompatible with a Tribunal Member’s obligations to the Tribunal. A conflict of interest can compromise a Tribunal Member’s impartiality. Conflicts of interest may be actual or perceived and may be pecuniary or non-pecuniary in nature.

A pecuniary conflict of interest will arise where a Tribunal Member (or a relative or other person with whom the Tribunal Member has a relationship) has a financial interest that may be affected by the outcome of the matter before the Tribunal.

A non-pecuniary conflict of interest will arise where a Tribunal Member (or relative or associate) has a non-financial interest, relationship, or association, or is involved in an activity, that is incompatible with a Tribunal Member’s responsibilities as an impartial decision-maker.

A conflict of interest creates the potential for intentional or unintentional bias, thus attacking the Tribunal Member’s impartiality. Bias is a condition of mind which sways judgment and renders a decision-maker unable of exercising his or her adjudicative functions neutrally and impartially in a particular case.^[1] A reasonable apprehension of bias arising from a Tribunal Member’s conduct or conflict of interest may be as detrimental to the public interest as actual bias.

Conflicts of interest and bias, actual or perceived, are incompatible with neutral adjudication. Tribunal Members should not adjudicate in any matter in which they have a conflict of interest.

The following circumstances provide guidance for determining if a conflict of interest exists:

Tribunal Members must consider and inquire into any circumstances that might give rise to bias or affect their ability to impartially hear a matter.
The test for determining whether the Member should sit on a panel, or if already involved in a matter, recuse themselves is whether the circumstances give rise to actual bias or a reasonable apprehension of bias in the mind of a reasonable and informed person.
The following circumstances, while not an exhaustive list, would normally be indicative of a conflict of interest on the part of a Member:

a) the Member has a significant professional relationship with a party. Examples of significant professional relationships include the following relationships:

i.employee/employer;

ii.solicitor/client;

iii.partnership/association;

iv.employee, associate or partner in a firm.

b) in the 12 months preceding the commencement of the proceeding, the Member had a significant professional relationship with a party or the party's representative. In some circumstances, it may never be appropriate for the Member to conduct a proceeding involving the party. When evaluating whether the Member's participation in the proceeding would give rise to a reasonable apprehension of bias, the position of all parties, although not determinative, and the circumstances of the relationship should be carefully considered;

c) the Member has a significant professional relationship with an individual who represents a party in connection with the proceeding or is, or has been, engaged on behalf of a party in the preparation of a report or an opinion that is relevant to the factual context or issues in the proceeding; or

d) a party to the proceeding is a client or former client of an entity of which the Member is, or was, a partner, director, officer or employee; e)the Member has volunteer or charitable activities with an organization that is before the Tribunal; or

f) the Member has a personal relationship with a party before the Tribunal. Examples of personal relationships include friendship or spousal or family relationship.

4. A Tribunal Member who is a Member of a hearing panel must not communicate in any manner prior to or during a proceeding with any party to the proceeding (including staff of the Financial and Consumer Services Commission), witness, representative, interested person or legal counsel, with respect to any matter that is likely to be raised or is at issue in the proceeding, except in the presence of all parties to the proceeding, their legal counsel, if any, and the other Members of the hearing panel. Any communication between a Tribunal Member who is a Member of a hearing panel and any of the above-mentioned individuals may give rise to a perceived lack of impartiality and a disqualifying conflict of interest.Tribunal Members should disqualify themselves in the following circumstances:

1. in any matter in which they believe they will be unable to decide impartially; or

2. in any matter in which they believe that a reasonable, fair minded, and informed person would have a reasoned suspicion of conflict between a Tribunal Member’s personal interest (or that of a Member’s immediate family or close friends or associates) and the Member’s duty.

The following instances do not constitute a disqualifying conflict of interest:

1.The matter giving rise to the perception of a conflict is trifling or would not support a plausible argument in favour of disqualification;

2.No other panel can be constituted to deal with the matter; or

3.Because of urgent circumstances, failure to act could lead to a miscarriage of justice.

If the Tribunal chair has a conflict of interest with respect to a matter, he or she should delegate the following responsibilities to a non-conflicted Tribunal Member:

1.assign Tribunal members to a hearing panel;

2.appoint the hearing panel Chair; and

3.serve in place of the Tribunal chair for the purposes of any consultation required with respect to this Policy.

II – Conduct of Tribunal Members

a) Political Activity

Given the quasi-judicial nature of their duties, Tribunal Members should refrain from conduct which, in the mind of a reasonable, fair minded and informed person would undermine confidence in a Tribunal Member’s impartiality with respect to matters that could come before the Tribunal. Examples of such conduct include Membership in certain groups or organizations or participation in public discussion.

Upon appointment to the Tribunal, the new Tribunal Member must cease any ongoing political activity as soon as is practical. So long as that Tribunal Member has not ceased such political activity, that Tribunal Member shall not sit as a Member of the Tribunal hearing any matter.

During the term of a Member, that Member shall not participate in any political activity except as set out below.

For added clarity, Tribunal Members should refrain from:

1.Active membership in any political party;

2.Political fund raising;

3.Attendance at any public political gathering;

4.Attending political fund raising events;

5.Taking part in political discussions except in respect of matters directly affecting the operation or independence of the Tribunal, or fundamental aspects of the administration of justice; and

6.Signing of petitions or other communications to influence a political decision.

Tribunal Members may contribute financially to a political party and may be a member of such political party as a result of such contribution but shall not take an active role in the activities of that party.

b) Civic and Charitable Activity

Tribunal Members may participate in civic, charitable and religious activities, subject to the following considerations:

1.Tribunal Members should avoid any activity or association that could reflect adversely on their impartiality or interfere with the performance of their adjudicative duties; and

2.Tribunal Members should avoid involvement in causes, organizations or sectors that are regulated by the Financial and Consumer Services Commission.

III – Dealing With Potential Conflicts of Interest

As soon as grounds for a potential conflict of interest or allegation of bias are identified, a Tribunal Member should take appropriate steps as outlined in this Policy. The particular procedure to follow will depend on whether the potential conflict of interest or bias is identified before accepting an appointment to a panel, after accepting an appointment to a panel but prior to hearing the matter, or during a proceeding.

An adjudicator who is uncertain about the appropriate action to take should consult with the Chair of the hearing panel or the Tribunal Chair.

a) Prior to Being Assigned to a Panel

Prior to a Tribunal Member being assigned to a panel, the following should be done:

1.The Tribunal Member should advise the Tribunal Chair if they have any personal or professional interest in the matter that is being brought before the Tribunal; and

2.The Registrar must provide the Tribunal Chair and Members with some basic information as to the facts of the new matter, the parties to the matter, and the parties’ legal counsel (if any), and ask about potential conflicts of interest.

b) After Accepting an Appointment to a Panel but Prior to Hearing the Matter

Where a Tribunal Member becomes aware of circumstances that suggest a possible conflict of interest or bias on the part of the Member after being assigned to a hearing panel, but prior to the commencement of the hearing, the Tribunal Member should immediately inform the Registrar. The Tribunal Member should indicate to the Registrar that,

1.the Member wishes to withdraw from the panel; or

2.the Member is aware of circumstances that suggest a possible conflict of interest or bias but, having given the circumstances careful consideration, has determined that he or she is able to proceed with hearing the matter objectively, and will advise the parties on the record at the hearing; and

3.the Member consents to the Registrar bringing the matter to the attention of the other panel Members.

c) Arising During a Proceeding

During a proceeding, the panel shall determine issues of conflict of interest or bias.

Where, during a proceeding, a Tribunal Member becomes aware of circumstances that suggest a possible conflict of interest or bias and the related circumstances may be unknown to the parties, the Tribunal Member should request the panel to recess the proceedings. The panel should then consider the seriousness of the possible conflict of interest or bias and determine whether:

1.the Tribunal Member should withdraw from the panel; or

2.the parties should be informed of the circumstances, submissions heard and a determination on the issue made.

Where an allegation of conflict of interest or bias is raised by a party regarding a Tribunal Member, the following procedure should be followed:

1.the Tribunal Member may immediately withdraw from the panel if appropriate, given the nature and the circumstances of the alleged conflict of interest or bias; or

2.the panel may hear submissions from the parties with respect to the alleged conflict of interest or bias and make a determination on the issue.

Where a panel hears submissions from the parties on the issue of conflict of interest or bias, the panel should make a determination of the issue before continuing with the proceeding. Where a party has made submissions challenging the neutrality of a Tribunal Member, the panel should provide reasons, in most cases in writing, for its decision on the issue.

RESPONSIBILITY

The Tribunal Chair is responsible for the administration of this policy.

AUTHORITY

Financial and Consumer Services Commission Act.

RESCINDS

TR1-102 Conflict of Interest Release 001 approved November 13, 2014.

HISTORY

Release 002 - Approved September 18, 2019. Complete revision of the Policy.

Release 001 – Approved November 13, 2014. This document is the original issue.

APPROVAL DATE

13 November 2014

REVIEW CYCLE

This Policy will be reviewed annually or as needed to ensure it is current and effective.

[1] Definition taken from Black’s Law Dictionary.