Enforcement Proceeding
An enforcement proceeding is an administrative proceeding initiated by the Financial and Consumer Services Commission alleging that a person has violated financial and consumer services legislation and requesting sanctions for those alleged violations. The Financial and Consumer Services Commission starts an enforcement proceeding by filing a Statement of Allegations (Form 2) or a Notice of Application (Form 3) with the Tribunal.
If the allegations set out in the Statement of Allegations or Notice of Application are proven, on a balance of probabilities, following a hearing, the Tribunal has the authority to impose a wide range of sanctions on individuals and companies ranging from market bans to significant monetary penalties. These sanctions can have serious financial and employment consequences.
Defend Yourself or Consider Settlement
Statement of Allegations
If you were served with a Statement of Allegations, you also received the evidence disclosed by the Financial and Consumer Services Commission, which includes all documents within the Commission’s possession that are relevant to the allegations against you. You should carefully review the Statement of Allegations and the disclosure.
You would also have received a blank Notice of Intent (Form 4), which you must complete indicating whether you will defend or accept the allegations and sanctions in the Statement of Allegations. You must file the Notice of Intent with the Registrar within 30 days from the date you received the Statement of Allegations if you were served in New Brunswick or within 60 days from the date you received the Statement of Allegations if you were served outside of New Brunswick.
If you admit the allegations or do not want to dispute them, consider contacting the lawyer for the Financial and Consumer Services Commission, whose name appears on the Statement of Allegations, to discuss a settlement.
Notice of Application
If you were served with a Notice of Application, determine whether you want to oppose the allegations and the order sought against you. If you do not want to oppose them, consider contacting the lawyer for the Financial and Consumer Services Commission.
If you want to oppose the application, you can respond to it by any or all of the following means:
a) by providing evidence in an Affidavit (Form 9),
b) by presenting written arguments in a Statement of Position (Form 13), and
c) by presenting oral arguments at the hearing, if any.
Attend the Case Management Conference
The purpose of a case management conference is to make sure that all parties are fully prepared and understand what will be expected of them at the hearing. It is also an opportunity to clarify any issues so that the hearing can proceed smoothly and efficiently.
A case management conference has many purposes. It can be used to:
- Make sure that the parties and the matter are ready for the hearing;
- Clarify and/or simplify the issues so that the hearing will proceed smoothly;
- Determine if there is agreement on any of the facts or issues;
- Determine the number of witnesses;
- Determine the filing deadlines for the matter;
- Set a date for the hearing; and
- Consider any other issues that will promote fairness and efficiency.
Prepare Your Evidence and Witnesses
Documents or Objects
You should review the Record of the Decision-Making Process to determine if it contains all the evidence necessary for the appeal or review. If it does, you will not need to present any additional documents or objects during the hearing.
If you intend to present documents or objects in addition to the Record of the Decision-Making Process, you must provide them to the Registrar of the Tribunal within the time set out in the Rules of Procedure or before the date established by the hearing panel. The Registrar will review the documents for privacy concerns and assign an identification number to each document. The Registrar will then return a copy of the numbered documents to all the parties.
If you do not provide your documents to the Registrar by the required date, you will not be able to present them at the hearing, unless you obtain permission from the hearing panel.
In addition, a document, object or report does not become evidence until it is accepted into evidence by the hearing panel at the hearing.
Witnesses
You may want to testify at the hearing to provide your version of the events. You may also call witnesses to testify at the hearing to support your version of the events.
If you intend to bring witnesses to testify at the hearing, you must complete a Notice of Witness (Form 14), in which you identify your witnesses and provide a short summary of the anticipated testimony of each witness. The Registrar will file it and provide a copy to all parties. The Registrar will advise you of the deadline for providing your Notice of Witness.
If you do not provide a Notice of Witness for a witness or fail to provide a summary of a witness’ anticipated testimony, you will not be able to call that person as a witness at the hearing, unless you obtain permission from the hearing panel.
If a person you intend to call as a witness is reluctant to attend the hearing, you can provide the Registrar with a completed Summons to Witness (Form 7). If it is adequate, the Registrar will return a signed copy to you. When you receive the signed Summons to Witness from the Registrar, you will need to serve it on the witness in accordance with rules 3.4(4) and 3.4(5) of the Rules of Procedure. You will also need to pay attendance fees to the witness as required by rule 8.10(4). When a Summons to Witness is properly served on a witness, the Tribunal can take measures to force the witness to attend the hearing.
Expert Witnesses
You should also determine whether you will call an expert witness. An expert witness is a specialist in a particular field by virtue of their education, training, skill, or experience. An expert witness can provide an opinion about an issue of evidence or fact within the scope of their expertise. The purpose of the expert witness’ testimony or report is to provide assistance to the hearing panel.
If you intend to call an expert witness, you must complete a Notice of Expert Witness (Form 15), in which you identify your expert witness and attach a copy of their expert report. You must also provide your completed Notice of Expert Witness to the Registrar. The Registrar will file it and provide a copy to all parties. The Registrar will advise you of the deadline for providing your Notice of Witness.
Prepare Your Written Arguments
It is very useful to provide written arguments before the hearing. This allows you to identify your evidence and to provide your position and arguments.
If you intend to provide written arguments, you must complete a Statement of Position (Form 13) and provide it to the Registrar. The Registrar will provide a copy to all other parties. The Registrar will advise you of the deadline for providing your Statement of Position.
Prepare For The Hearing
It is important that you prepare for the hearing. The effort you devote to your preparation may have a direct impact on the decision of the Tribunal. You can prepare for the hearing by doing the following:
- Read all the material provided to you including the Record of the Decision-making Process, any additional documents provided by the parties, and the Statements of Position of each party.
- Prepare a list of questions to ask your witnesses. Prepare your witnesses before the hearing by asking them these questions. To prepare them for cross-examination by other parties, ask them the questions that you think other parties might ask. Make sure your witnesses know they must tell the truth, even if it is not helpful to your case.
- Prepare a list of questions to ask the other parties’ witnesses in cross-examination. The purpose of these questions will be to (1) obtain admissions from the witness, (2) impeach the credibility of the witness, and (3) reveal contradictions or inconsistencies in the evidence of the witness.
- Advise your witnesses that they must either swear on a holy book or solemnly declare to tell the truth. If you or your witnesses want to swear on a holy book other than the Holy Bible, please contact the Registrar.
- Prepare your oral arguments. These arguments focus on why the hearing panel should accept your version of the events. You may also choose to read a portion of your Statement of Position during the hearing.
Hearing & Decision
Setting the Hearing Date
The hearing dates will typically be set during the case management conference. The Registrar will then issue a Notice of Hearing indicating the location, date and time of the hearing.
Open to the Public
Hearings are generally open to the public. If you have concerns about your privacy or that of your witnesses, you may request a private hearing. You will have to show the Tribunal that the safety of the public or the risk of harm, injustice or hardship to any person outweighs the benefits of public access to the hearing. For more information, please see the Tribunal’s Privacy Policy or contact the Registrar of the Tribunal.
Conduct of the Hearing
A hearing is held before a hearing panel composed of three Tribunal members. The Tribunal members hear the evidence and decide the matter. The hearing in an appeal or a review usually follows the outline set out below.
Welcome
The hearing panel enters the hearing room and the Tribunal members introduce themselves.
Preliminary Matters
The hearing panel will ask the parties whether there are any preliminary matters. Preliminary matters are issues that need to be addressed and considered before the hearing can continue. Some examples include challenging the jurisdiction of the Tribunal, the absence of a party, and requests for adjournments.
Admissibility of Additional Documents
If the parties presented documents in addition to those contained in the Record of the Decision-Making Process, the hearing panel will address each party's additional documents at the start of the hearing and hear any objections from the other parties regarding these documents. The Tribunal will decide whether the documents can be admitted into evidence. Only the documents accepted into evidence by the hearing panel may be used at the hearing and be considered in the decision.
Testimony of the Parties and Witnesses
The testimony of each party or witness follows a set structure.
The direct examination is when the witness or party provides testimony during the hearing. If you choose to testify at the hearing and have a lawyer, your lawyer will ask you questions and you will answer these questions. If you do not have a lawyer, you can testify by telling your version of the events. If you call a witness, you (or your lawyer) will ask the witness questions.
A party or witness who testified is typically subject to cross-examination. This is when the other party (or the party's lawyer) questions you or your witnesses.
After the cross-examination, follow-up questions resulting from the cross-examination can be asked of the witness or party who testified. If you are self-represented, you can use the re-direct to clarify or provide further details on the testimony you provided during the cross-examination.
Closing Arguments
The closing argument is your opportunity to explain to the hearing panel why it should decide in your favour. This consists of presenting your arguments and highlighting which evidence supports your position.
Decision
At the end of the hearing, the hearing panel will indicate whether the decision will be given that day or sent to the parties at a later date. Typically, the hearing panel will reserve its decision so it has time to fully consider the evidence and arguments. In those situations, the decision will usually be issued in the weeks or months following the hearing.
Appeal a Decision of the Tribunal
If you disagree with the Decision of the Tribunal, you may have the option of appealing it or seeking a judicial review.
Final decisions of the Tribunal may be appealed to the Court of Appeal with permission (leave) of that Court. The deadline for filing an application for leave to appeal is 30 days from the issuance of the Decision. Section 48 of the Financial and Consumer Services Commission Act, S.N.B. 2013, c 30 sets out the appeal process.
You may also be able to seek a judicial review of the Decision of the Tribunal. For more information on judicial review, please consult Rule 69 of the New Brunswick Rules of Court.
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