BCSC attempted to question Harjit Gahunia and Ranvir Brar 

THE B.C. Court of Appeal has dismissed a challenge to a B.C. Securities Commission (BCSC)’s investigator’s effort to question witnesses as part of an investigation.

The decision stemmed from the BCSC’s attempt in 2020 and 2021 to question Harjit Gahunia and Ranvir Brar as witnesses in an investigation. Gahunia and Brar objected to the summonses and refused to comply, saying they needed more information about why the investigator wanted to speak to them.

After the B.C. Supreme Court dismissed their petitions challenging the summonses, Gahunia and Brar were granted leave to appeal.

The Court of Appeal said that, even assuming the investigator’s summons could be judicially reviewed for procedural fairness, an investigator’s duty of fairness in summonsing a potential witness is “minimal” and there was no breach of procedural fairness in this case: Gahunia and Brar were given prior notice of the questioning, were informed of the identity of the subjects of the investigation, and had a right to counsel before and during the questioning.

“If the Commission were required to disclose further information or to provide a ‘record’ at this early stage, the practical consequences might well be to ‘bog down’ or compromise the investigation – as well as to raise possible privacy consequence for the subjects of the investigation,” the court said.

In separate litigation, Gahunia and Brar are contesting the BCSC’s power to seek consequences for not cooperating with an investigation. The BCSC applied under B.C.’s Securities Act for an order that they be held in contempt, which, if granted, could lead to incarceration and fines. Gahunia and Brar challenged the BCSC’s application for contempt, contending that the Act, by allowing such applications, conferred upon the BCSC a power that belonged solely to the court, and violated their rights under the Canadian Charter of Rights and Freedoms. That argument was dismissed by the B.C. Supreme Court, and is pending before the Court of Appeal.

Recent amendments to the Act now permit the commission to issue an administrative penalty up to $1 million, as well as other sanctions, for failing or refusing to attend and answer questions in response to a summons.