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RULES OF PROCEDURE | PART A: GENERAL MATTERS

[Applicable to all proceedings under MFDA By-law No. 1]

Rule 1 | Rule 2 | Rule 3 | Rule 4 | Rule 5 | Rule 6


RULE 1: INTERPRETATION AND APPLICATION

1.1  Application of these Rules

(1)  Part A applies to all proceedings under MFDA By-law No. 1.

(2)  Part B applies to proceedings conducted pursuant to sections 20 (Disciplinary Hearings), 24.1 (Power of Hearing Panels to Discipline) and 24.4 (Settlement Agreements) of MFDA By-law No. 1.

(3)  Part C applies to proceedings conducted pursuant to sections 11.8 (Reviews of Membership Application Hearings) and 24.6.3 (Reviews of Disciplinary Hearings) of MFDA By-law No. 1.

(4)  Part D applies to proceedings conducted pursuant to section 11.6 (Membership Application Hearings) of MFDA By-law No. 1.

(5)  Part E applies to proceedings conducted pursuant to section 24.3 (Applications in Exceptional Circumstances) of MFDA By-law No. 1.

(6)  Part F applies to proceedings conducted pursuant to sections 20 (Disciplinary Hearings), 24.1 (Power of Hearing Panels to Discipline), 24.3 (Applications in Exceptional Circumstances), 24.4 (Settlement Agreements) and 24.7 (Monitor) of MFDA By-law No. 1.

1.2  Definitions

In these Rules:

"appeal" means a review hearing conducted pursuant to MFDA By-law No. 1.

"Appeal Panel" means a panel appointed to preside over an appeal, including a single-member Appeal Panel appointed to preside over any motion or step in a proceeding.

"Appellant" means a party bringing a review hearing.

"Applicant" means a party bringing a Membership Application Hearing.

"Corporation" means the Mutual Fund Dealers Association of Canada and where these Rules require, includes any director, officer, employee or agent of the Corporation authorized to perform any act on behalf of the Corporation.

"document" means any book, record, account, statement, report, correspondence, note, memorandum, file, chart, list, voucher or any other information stored or recorded by any means or by any device, including any sound or video recording, photograph, computer file or e-mail.

"electronic hearing" means a hearing held by teleconference, video-conference, or any other technology that allows people to communicate electronically.

"hearing" means any hearing conducted pursuant to MFDA By-law No. 1.

"Hearing Panel" means:

  1. a panel of three representatives of a Regional Council appointed to preside over a proceeding or a panel of one Public Representative of a Regional Council appointed to preside over a motion, an application or any step in a proceeding; or
  2. the board of directors of the Corporation, or any panel or committee of directors appointed by the board of directors under the By-laws of the Corporation, that presides over a proceeding or any step in a proceeding.

"holiday" means:

  1. any Saturday or Sunday;
  2. New Year’s Day;
  3. Family Day
  4. Good Friday;
  5. Easter Monday;
  6. Victoria Day;
  7. Canada Day;
  8. Labour Day;
  9. Thanksgiving Day;
  10. Remembrance Day;
  11. Christmas Day;
  12. Boxing Day; and
  13. any other special holiday proclaimed by the federal government or a provincial government which inures to the benefit of any party to a proceeding.

"Member" means a member of the Corporation.

“monitor” means a person or company appointed to oversee and report on a Member’s activities and to act in furtherance of powers granted by a Hearing Panel.

"Moving Party" means a party bringing a motion.

"oral hearing" means a hearing where the parties attend in person, also called a “hearing in person”.

"Panel" means a Hearing Panel or an Appeal Panel.

"party" means any party to a proceeding brought pursuant to MFDA By-law No. 1, including the Corporation.

"Pre-hearing Conference Officer" means a Public Representative of a Regional Council appointed to preside over a pre-hearing conference.

"proceeding" means all steps in a disciplinary, membership or appeal proceeding conducted pursuant to MFDA By-law No. 1, from the issuance of the commencing document to the final disposition of the matter.

"Respondent" means a Member or person under the jurisdiction of the Corporation named in a Notice of Hearing, Notice of Application or a Settlement Agreement, or a party named in a Notice of Appeal against whom the appeal is brought.

"Responding Party" means a party responding to a motion or a review of an application pursuant to section 24.3.6 of MFDA By-law No. 1.

“Requesting Party” means a party requesting a review of an application conducted pursuant to section 24.3.6 of MFDA By-law No.1.

"Rules" means these Rules of Procedure.

"Secretary" means the Secretary of the Corporation.

"written hearing" means a hearing held by exchanging documents.

1.3  General Principles

(1)  These Rules shall be liberally construed to secure the most expeditious and cost-effective determination of every proceeding on its merits consistent with the requirements of fairness.

(2)  Where matters are not provided for in these Rules, the practice may be determined by analogy to them.

1.4  Conflicts

(1)  Where any of these Rules are inconsistent or conflict with the provisions of a By-law of the Corporation, the provisions of the By-law shall prevail to the extent of the inconsistency or conflict.

1.5  General Powers of a Panel

(1)  A Panel may:

  1. exercise any of its powers under these Rules on its own initiative or at the request of a party;
  2. waive or vary any of these Rules at any time, on such terms as it considers appropriate;
  3. issue directions or make interim orders concerning the practice or procedure to be followed during a proceeding, on such terms as it considers appropriate.

1.6  Admissibility of Evidence

(1)  Subject to sub-Rule (3), a Panel may admit as evidence any testimony, document or other thing, including hearsay, which it considers to be relevant to the matters before it and is not bound by the technical or legal rules of evidence.

(2)  A Panel may admit a copy of any document or other thing as evidence if it is satisfied that the copy is authentic.

(3)  Nothing is admissible in evidence which would be inadmissible by reason of a statute or a legal privilege.

1.7  Defect or Irregularity in Form

(1)  No proceeding or document, hearing, decision or step in a proceeding is invalid only by reason of a defect or irregularity in form.

1.8  Hearings Open to the Public

(1)  Subject to sub-Rules (2) and (3), all hearings shall be open to the public unless the Panel orders otherwise.

(2)  A Panel may order that all or part of a hearing be heard in the absence of the public where the Panel is of the opinion that intimate financial or personal matters or other matters may be disclosed at the hearing which are of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public.

(3)  An electronic hearing shall be open to the public unless the Panel makes an order under sub-Rule (2) or the Panel is of the opinion that it is not practical to hold the electronic hearing in a manner that is open to the public.

(4)  A Panel may impose such terms as it considers appropriate for the conduct of a hearing held in the absence of the public.

(5)  Exhibits, documents and transcripts relating to that part of a hearing that is held in the absence of the public shall be marked “Confidential” and shall be kept separate from the public record, and access to this material shall only be by order of the Panel.

RULE 2: TIME

2.1  Computation of Time

(1)  When computing time periods under these Rules or an order of a Panel:

  1. Where there is a reference to a number of days between two events, they are counted by excluding the day on which the first event happens and including the day on which the second event happens;
  2. Where a period of less than 7 days is prescribed, holidays are not counted;
  3. Where the time for doing an act expires on a holiday, the act may be done on the next day that is not a holiday;
  4. Where a document would be deemed to be received or service would be deemed to be effective on a day that is a holiday, it shall be deemed to be received or effective on the next day that is not a holiday.

2.2  Extension or Abridgment of Time

(1)  The time for the performance of any obligation under these Rules may be extended or abridged:

  1. by a Panel, at any time on such terms as it considers appropriate;
  2. on consent of the parties prior to the expiration of the prescribed time.

RULE 3: APPEARANCE AND REPRESENTATION

3.1   Representation before a Panel

(1)  In any proceeding, a party may act on his, her or its own behalf or may be represented by counsel or agent.

3.2   Change in Representation

(1)  A party represented by counsel or agent may change counsel or agent by immediately advising the Secretary and every other party in writing of the name, address, telephone number, fax number and e-mail address, if any, of the new counsel or agent.

(2)  A party acting on his, her or its own behalf may appoint counsel or agent by immediately advising the Secretary and every other party in writing of the name, address, telephone number, fax number and e-mail address, if any, of the counsel or agent.

(3)  A party represented by counsel or agent may elect to act on his, her or its own behalf by immediately advising the Secretary and every other party in writing of the address, telephone number, fax number and e-mail address, if any, at which the party may be contacted and served.

(4)  Where a counsel or agent ceases to act for a party, the counsel or agent should immediately notify the Secretary and every other party in writing.

RULE 4: SERVICE AND FILING

4.1  Parties to be Served

(1)  Any document required to be served under these Rules shall be served on every other party whose interests may be affected by the document.

4.2  Manner of Service – Notice of Hearing

(1)  A Notice of Hearing shall be served by one of the following methods:

  1. by personal service on the Respondent;
  2. by registered and ordinary mail or by courier with confirmation of delivery to the Respondent’s last known address as recorded in the Corporation’s records or in the records of any securities commission with which the Respondent is or was registered;
  3. by providing it to the Respondent’s counsel or agent, with the consent of the counsel or agent; or
  4. by any other means, with the consent of the Respondent or by order of the Hearing Panel.

4.3  Manner of Service – Other Documents

(1)  Where these Rules require a document other than a Notice of Hearing to be served, it may be served:

  1. by personal service;
  2. by registered and ordinary mail or by courier;
  3. by fax, provided that the document does not exceed 16 pages, inclusive of the covering page, unless the party consents or the Panel orders otherwise;
  4. by e-mail, provided that the entire document is capable of being transmitted by e-mail; or
  5. by any other means, with the consent of the party or by order of the Panel.

(2)  Where all or part of any document referred to in sub-Rule (1) exists in an electronic format, a Panel or the Secretary may require a party to provide an electronic copy of the document or a portion thereof to any other party, on such terms as may be appropriate.

4.4  Effective Date of Service

(1)  Service of a document is deemed to be effective:

  1. if served personally before 5 p.m., on the same day, and after 5 p.m., on the next day;
  2. if sent by mail, on the fifth day after the day of mailing;
  3. if sent by courier, on the second day after the day the document was given to the courier;
  4. if sent by fax or e-mail, on the same day if the transmission was received before 5 p.m., and if received after 5 p.m., on the next day.

(2)  Sub-Rule (1) does not apply where a party, counsel or agent, acting in good faith, does not receive the document whether by reason of absence, accident, illness or other cause beyond the person’s control.

(3)  A document may not be served or service deemed to be effective on a holiday, except with the consent of the party being served or by order of a Panel.

4.5  Proof of Service

(1)  Where these Rules require a document to be served, the party required to serve the document shall file a single copy of a document showing proof of service within five days of the effective date of service.

4.6  Filing

(1)  Except where these Rules provide otherwise, where these Rules require a document to be filed, the document shall be filed by:

  1. providing 4 copies of the document to the Secretary by personal delivery, mail, or courier; or
  2. transmitting 1 copy of the document to the Secretary by fax, provided that the document does not exceed 16 pages, inclusive of the covering page, unless the Secretary permits otherwise.

(2)  Where all or part of any document referred to in sub-Rule (1) exists in an electronic format, a Panel or the Secretary may require a party to file an electronic copy of the document or a portion thereof in addition to or instead of any other copy required to be filed by the party.

4.7  Required Information – Service and Filing

(1)  A party serving or filing a document by any means shall include the following information with the document:

  1. the name of the proceeding to which the document relates;
  2. where a party is being served with the document, the name of the party being served; and
  3. the name, address, telephone number, fax number, and e-mail address, if any, of the party, counsel or agent serving or filing the document.

4.8  Order for Substituted Service or Waiver of Service

(1)  A Panel may order substituted service or waive the requirement for service of any document where it is satisfied that it is in the public interest to do so or the circumstances giving rise to the requirement to effect service make it unnecessary or impractical to do so.

RULE 5: ELECTRONIC HEARINGS

5.  When Electronic Hearings may be Held

(1)  A Panel may hold an electronic hearing to determine:

  1. any procedural matter; or
  2. any other matter, unless a party objects and the Panel is satisfied that holding an electronic hearing is likely to cause significant prejudice to the party.

(2)  A Panel may continue an oral hearing as an electronic hearing, or an electronic hearing as an oral hearing, at the request of a party or on its own initiative, on such terms as it considers appropriate.

(3)  In determining whether to hold an electronic hearing, the Panel may consider any relevant factors, including:

  1. convenience;
  2. fairness;
  3. cost, efficiency and timeliness;
  4. public access to and participation in the hearing;
  5. the Panel’s mandate;
  6. whether an electronic hearing is appropriate having regard to the evidence and the issues to be considered.

(4)  A Panel may impose any terms on an electronic hearing it considers appropriate, including that one or more of the parties to the electronic hearing shall pay all or part of the costs of conducting the electronic hearing.

RULE 6: MOTIONS

6.1  Bringing a Motion

(1)  A motion may be brought at any stage of a proceeding.

(2)  The Moving Party shall serve on every other party and file a Notice of Motion at least 10 days prior to the date of the motion, unless the nature of the motion or the circumstances giving rise to the motion make it unnecessary or impractical to do so.

6.2  Date for the Hearing of a Motion

(1)  Where a motion is to be heard prior to the hearing of a proceeding on its merits, the Moving Party shall obtain a date for the motion from the Secretary before serving the Notice of Motion.

(2)  Where a motion is to be heard on a date scheduled for the hearing of the proceeding on its merits, the Panel shall determine the procedure for hearing the motion.

6.3  Motions – To Whom to be Made and Form of Motion

(1)  A motion shall be heard by a Panel.

(2)  The Moving Party may propose that the motion be conducted as an oral hearing, a written hearing, or an electronic hearing, and the motion shall be heard in that form unless a Responding Party objects or the Panel directs otherwise;

(3)  A Responding Party may object to the proposed form of a motion by advising all other parties and the Secretary in writing of the grounds for the objection no later than two days after the effective date of service of the Motion Record;

(4)  The Panel shall determine the form of the motion and in doing so may consider any relevant factors, including:

  1. convenience;
  2. fairness;
  3. cost, efficiency and timeliness;
  4. public access to and participation in the hearing;
  5. the Panel’s mandate;
  6. whether the proposed form of the motion is appropriate having regard to the evidence and the issues to be considered.

(5)  Where the Panel determines that the motion will be heard in a form other than the form proposed by the Moving Party, the Secretary shall notify the parties of the Panel’s determination.

6.4  Contents of Notice of Motion

(1)  The Notice of Motion shall state:

  1. the date, time and location of the motion;
  2. whether it is proposed that the motion be conducted as an oral hearing, a written hearing, or an electronic hearing;
  3. the relief sought;
  4. a brief summary of the grounds for the relief sought, including reference to any relevant provisions of a By-law, Rule or Policy of the Corporation, these Rules, or a statute or regulation; and
  5. the list of evidence and materials to be relied upon.

6.5  Requirement to Serve and File a Motion Record

(1)  The Moving Party shall serve on every other party and file a Motion Record at least 10 days prior to the date of the motion.

6.6   Contents of the Motion Record

(1)  The Motion Record shall contain:

  1. the Notice of Motion; and
  2. copies of the evidence and materials to be relied upon.

6.7  Response to a Motion Record

(1)  The Responding Party may serve on every other party and file a Responding Record at least 5 days prior to the date of the motion.

6.8  Contents of the Responding Record

(1)  A Responding Record shall contain:

  1. a statement of the reasons why the relief should not to be granted; and
  2. copies of any additional evidence or other materials to be relied upon.

6.9  Motions on Consent

(1)  Where a motion is made on consent:

  1. the motion shall be heard in writing without the attendance of the parties affected, unless the Panel orders otherwise; and
  2. the Moving Party shall file, in addition to any other materials required for the motion, the written consent of the parties affected and a draft order.

6.10  Disposition of Motions

(1)  When a motion is heard by a Panel prior to the hearing of the proceeding on its merits, the Panel may:

  1. grant the relief requested;
  2. dismiss or adjourn the motion, in whole or in part and with or without terms; or
  3. adjourn the motion to be disposed of by the Panel presiding over the hearing of the proceeding on its merits.