On February 6, 2019, the Public Sector Lawyers Section of the Ontario Bar Association hosted the Mastering Regulatory Inspections and Investigations program at Institute 2019. The program was chaired by David Demirkan, former Section Chair, who has experience in government, private, and in-house practice. The program featured an array of excellent speakers and took place in two parts, including time for questions and answers.
Brian Osler, Director of Legal Services for the Ontario Motor Vehicle Industry Council, started off the “Inspections vs. Investigations: What’s the Difference and Why Should Counsel Care?” discussion with an overview of administrative law principles relating to public sector bodies. He addressed scope of authority, procedural fairness, reasonable apprehension of bias, and their application in the context of inspections and investigations.
Shelly Feld, Manager of Litigation at the Mutual Fund Dealers Association of Canada, then compared and contrasted inspections and investigations. He noted that inspections are usually oriented to ensuring compliance with standards, and are often routine and scheduled, while investigations are generally triggered by a concern that there is some wrongdoing. He noted that in an investigation counsel can usually attend with a client during interviews and encouraged counsel to learn about the investigator’s scope of authority, rules, and process. He cautioned that where counsel is involved, they should clarify whether they are representing a corporate client, an individual or multiple witnesses, and consider whether there are any conflict of interest or privilege concerns. He also emphasized the importance of witness cooperation, as failure to cooperate may result in a penalty. He observed that at the investigative stage courts have ruled there is only minimal entitlement to procedural fairness.
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