Criticism of the Ontario Securities Commission’s intervention in the Home Capital affair is misguided and misinformed.

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In April, 2017, the Ontario Securities Commission revealed allegations (which have been not proven) that Home Capital Group Inc. and three of its executive officers at the time made materially misleading disclosures for 2014 and in 2015. Why did it take two years for the OSC to make public its allegations of failed disclosure while shareholders traded on information that the OSC now alleges was misleading? Home Capital’s financial businesses, Home Trust and Home Bank, are federally supervised by the Office of Superintendent of Financial Institutions and the Canada Deposit Insurance Corporation. Presumably they were on Ottawa’s watchlist, but depositors and investors were not aware. At the start of 2015, Home Capital’s shares traded around $42 per share are are now at $6 (May 8, 2017). So where where the regulators – what did they know and when?

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The critical roles of audit committees in overseeing the external auditor and in contributing to audit quality and integrity of financial reporting have been restrained by the failure of the Canadian Public Accountability Board (CPAB) to permit the disclosure of its inspection findings of external auditors to audit committees. Audit committees should have the legal right to receive CPAB’s inspection findings from their external audit firms in order effectively to oversee their external auditors and to evaluate the quality of the audit of their financial statements.

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The Canadian Public Accountability Board (CPAB), Canada’s national audit regulator, and the audit firms the CPAB inspects, enjoy limited supervision by and accountability to the Canadian Securities Administrators. There is an undue lack of transparency of CPAB’s inspection findings of audit firms, which has resulted in a failure to achieve an enhanced degree of public confidence in the integrity of financial reporting in Canada that is fundamental to the effective operation of its capital markets. The supervision, accountability and transparency of the CPAB need to be reviewed by the Canadian Securities Administrators and the Ontario Securities Commission.

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The OSC requested comments on its proposals to introduce a new No-Contest Settlement program whereby those accused of breaching securities law could consent to a settlement of the allegations “without admitting or denying” any wrongdoing. The Emerson Advisory comment letter acknowledged the benefits of additional remedies for the OSC’s enforcement arsenal to protect investors and to foster fair and efficient capital markets. Concerns to be addressed included: (1) what are the principles and standards to be applied in approving No-Contest Settlements negotiated by the OSC staff?; (2) should it be required that, in addition to being “in the public interest”, the settlement should be objectively fair, reasonable and adequate to the public?; (3) should No-Contest Settlements be approved where there is a reasonable expectation that the settlement would adversely affect the rights of investors who have suffered loss to seek redress in civil actions?; (4) as the OSC is a multi-functional integrated agency that investigates, prosecutes and judges securities violations, should No-Contest Settlements be approved by an independent administrative authority?; and (5) are the policies, processes and procedures of the OSC concerning the administration of No-Contest Settlements clear, open, public and transparent?

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