Skip to Main Content

IN THE MATTER OF A DISCIPLINARY HEARING PURSUANT TO SECTIONS 20 AND 24 OF BY-LAW NO. 1 OF THE MUTUAL FUND DEALERS ASSOCIATION OF CANADA

Re: Michael Andrew Harrigan

Heard: April 13 and 14, 2015 in Halifax, Nova Scotia
Reasons For Decision: (Motion): May 25, 2015

Reasons For Decision

(Reasons of Motion)

Hearing Panel of the Atlantic Regional Council:

  • Ann C. Etter, Chair
  • Robert G. Malcolm, Industry Representative

Appearances:

Lyla Simon, For the Mutual Fund Dealers Association of Canada (“MFDA”)
Michael Andrew Harrigan, In person

Reasons of the Chair, Mr. Peacock:

Decision

  1. The Motion of Michael Andrew Harrigan (the “Respondent”) for an Order recusing R. Scott Peacock (the “Chair”) of the Hearing Panel is granted.

Background

  1. This matter was commenced with a Notice of Hearing dated May 12, 2014 in respect to two (2) allegations of breaches of MFDA By-laws, Rules or Policies.
  1. A First Appearance was held by telephone conference on July 10, 2014. A transcript of the First Appearance can be found as Exhibit 16 to the Affidavit of Mike Ford dated April 10, 2015 (the “Ford Affidavit”), which itself is Exhibit 6 in the proceeding.
  1. In the course of the First Appearance the Respondent was informed by the Chair that he had been directly involved in the supervision of a matter brought by the Nova Scotia Securities Commission (the “NSSC”) against the Respondent’s former dealer Keybase Financial Group Inc. in respect to supervision issues. The details of the exchange between the Chair and the Respondent can be found on pages 19 and 20 of Exhibit 16 to the Ford Affidavit:
    1. Page 19 line 21 “…I do not know the merits or anything about the case that the MFDA has prepared or the allegations that they’ve brought, but I do want you to know that I was a regulator and I was, at that time, privy to the issues of a supervision proceeding which was brought against one of your former employers, being Keybase.”
    2. Page 20 line 4 “But I do not have any personal knowledge of matters relating to your case.”
    3. Page 20 line 16 “Now in the normal course, the reporting procedure between the SRO, The Mutual Fund Dealers Association, and the provincial regulator, they would have provided notice to the Nova Scotia Securities Commission that they had opened an investigation in respect to you, but no investigation was conducted by my staff with respect to your conduct, but I did not want to proceed beyond this point without your being fully aware that I had some prior knowledge of the Keybase matters, but nothing in respect to you personally.”
  1. The Respondent acknowledged these caveats and advised the Chair that he was content to proceed with the Panel as appointed.
  1. Staff of the MFDA (“Staff”) and the Respondent completed the required exchange of documents by the end of October 2014. On April 8, 2015, the Respondent filed a Notice of Motion seeking the recusal of the Chair. In support of the Motion the Respondent filed an affidavit dated 8 April 2015 with five exhibits marked A to E which forms part of the record of this proceeding; and a number of authorities for consideration.
  1. Exhibit A in support of the Motion was a letter from Bruce O’Toole (“O’Toole”) of Crawley, MacKewn, Brush LLP dated April 7, 2015 where, amongst other things, the Respondent was informed by O’Toole; “I have had a discussion with staff of the NSSC (“Staff”) and have been advised that there was no investigation order issued for the Investigation.” Exhibits B, D and E were copies of letters from the Nova Scotia Securities Commission (the “NSSC”) to the MFDA acknowledging their advice that they had opened files in respect to the Respondent. Exhibit C was a copy of an email from a complainant to the MFDA in respect to a complaint against the Respondent which had been forwarded as a copy to the Chair in his former capacity as Director of Enforcement for the NSSC.
  1. Staff filed Written Submissions dated April 10, 2015, in which they did not oppose the Motion of the Respondent, a Book of Authorities and the supporting Ford Affidavit.
  1. Submissions of the parties were heard in Halifax on April 13 and 14, 2015 and a unanimous oral decision was made granting the Respondent’s Motion, and thereafter the matter was adjourned. These are the written reasons of the Chair.

Reasons

  1. The Respondent and Staff filed and referred to numerous cases of various courts and tribunals in support of their oral submissions. It is not necessary to canvass all of the cases referred to as the principles in respect to recusal and the reasonable apprehension of bias are well established in a few decisions of the Supreme Court of Canada.
  1. It is well established that the current applicable test for the apprehension of bias was set out in the dissent of de Grandpré J. in Committee for Justice & Liberty v Canada (National Energy Board)[1]. At paragraph 40 de Grandpré J. stated:
    1. The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.  In the words of the Court of Appeal, the test is “what would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude.  Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly?”
    2. I can see no real difference between the expressions found in the decided cases, be they “reasonable apprehension of bias”, “reasonable suspicion of bias” or “real likelihood of bias”. The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”.
    3. This is the proper approach which, of course must be adjusted to the facts of the case. The question of bias in a member of a court of justice cannot be examined in the same light as that in a member of an administrative tribunal entrusted by statute with an administrative discretion exercised in the light of its experience and of that of its technical advisers.
    4. The basic principle is of course the same, namely that natural justice be rendered. But its application must take into consideration the special circumstances of the tribunal. As stated by Reid, Administrative Law and Practice, 1971, at page 220 “…“tribunals” is a basket word embracing many kinds and sorts.  It is quickly obvious that a standard appropriate to one may be inappropriate to another.  Hence, facts which may constitute bias in one, may not amount to bias in another.”
  1. Further, de Grandpré referred to the case of Tomko v S. Labour Relations Board [2] where a member of the Labour Relations Board had been actively involved and participated in meetings with representatives of the employer and union where the point in issue in the case was actively discussed. At page 298 of that decision MacKeigan, C.J. stated “This does not mean, however, that the standards of what constitutes disqualifying interest or bias are the same for a tribunal like the Panel as for the courts.  The nature and purpose of the Trade Union Act dictate that members bring an experience and knowledge acquired extra-judicially to the solution of their problems….”  and at page 299 “… The many unions and many subcontractors and supplies involved in any single construction project make it inevitable that union representatives on the Panel and most employer representative would each have at least an indirect interest, much knowledge and many preconceptions and prejudgments respecting any matter coming before the Panel.  Thus mere prior knowledge of the particular case or pre conceptions or even prejudgments cannot be held per so to disqualify a Panel Member. ….. I cannot see, however, that such knowledge and opinions show likelihood of bias, likelihood that MacNeil would be unable to exercise his duties impartially as a member of the Board.”
  1. In paragraph 47 de Grandpré cites with approval from 1 Halsbury (4th edition) at pp. 83-84 which states “ the fact that an administrator may incline towards deciding an issue before him one way rather than another, in the light of implementing a policy for which he is responsible, will not affect the validity of his decisions, provided that he acts fairly and with a mind not closed to argument; and similar standards may be applied to other persons whose prior connection with the parties or the issues are liable to preclude them from acting with total detachment.”
  1. The issue of an apprehended bias on the part of a commissioner hearing a securities related matter was considered in the case of Brosseau v Alberta Securities Commission [3] . The issue there is that one of the panel members sitting to hear an allegation of misconduct had received investigation reports prior to commencement of the proceeding. The Supreme Court considered its earlier decision in the Committee for Justice and Liberty v Canada [4], the decision of the Court being given by L’Heureux-Dubé J.
  1. In her decision L’Heureux-Dubé J. addressed the issue of reasonable apprehension of bias commencing at paragraph 18 where she stated:
    1. The appellant contends that a reasonable apprehension of bias arose by the fact that the chairman, who had received the investigative report, was also designated to sit on the panel at the hearing of the matter.  He objects to the chairman’s participation at both the investigatory and adjudicatory levels.
    2. The maxim nemo judex in causa susa debet esse underlies the doctrine of “reasonable apprehension of bias”. It translates into the principle that no one ought to be a judge in his own cause.  In this case, it is contended that the chairman, in acting as both investigator and adjudicator in the same case, created a reasonable apprehension of bias.  As a general principle, this in not permitted in law because the taint of bias would destroy the integrity of proceedings conducted in such a manner.
    3. As with most principles, there are exceptions. One exception to the nemo judex principle is where the overlap of functions which occurs has been authorized by statute, assuming the constitutionality of the statute is not in issue. A case in point relied on by the respondents, Re W.D. Latimer Co. and A.G.Ont; Re Onuska and A.G. Ont, (1973), 2 O.R. (2d) 391, 43 D.L.R. (3d) 58, affirmed (sub nom. Re W.D. Latimer Co. and Bray; Re Onuska and Bay), 6. O.R. (2d) 129, 52 D.L.R. (3d) 161 (C.A.), addresses this particular issue with respect to the activities of a securities commission. In that case as in this one, members of a panel assigned to hear proceedings had also been involved in the investigatory process.  Dubin J.A. for the Court of Appeal found that the structure of the Act itself, whereby commissioners could be involved in both the investigatory and adjudicatory functions did not, by itself, give rise to a reasonable apprehension of bias.  He wrote a pp 140-41:
      1. “Where by statute the tribunal is authorized to perform tripartite functions, disqualification must be founded upon some act of the tribunal going beyond the performance of the duties imposed upon it by the enactment pursuant to which the proceedings are conducted.  Mere advance information as to the nurture to the complaint and the grounds for it are not sufficient to disqualify the tribunal from completing its task.”
    4. In order to disqualify the commission from hearing the matter in the present case, some act of the commission going beyond its statutory duties must be found.”
  1. The facts in Brosseau might be distinguished in that the case dealt with a tribunal established by statute as opposed to a panel of a Self-Regulatory Organization established by contract between the parties. However; the principle of prior knowledge and involvement is applicable to the case in point here. The NSSC by order dated the November 26, 2008 recognized the MFDA as an SRO with the power to regulate its members and to discipline them. The prior knowledge of facts without evidence that the panel member cannot or would not be persuaded by the evidence nor relied upon to judge the matter upon the evidence before the tribunal; should not in itself disqualify the panel member.
  1. Madame Justice L’Heureux-Dubé referred to the case of Latimer[5] in the Ontario Court of Appeal where Dubin J.A. had held that the organization and duties of securities commissions was such that the commissioners could be involved with administrative and adjudicative functions and not give rise to an apprehension of bias.
  1. The issue of prior knowledge and apprehension of bias was considered in the case of A. Manning Ltd. v Ontario Securities Commission.[6] Dubin, C.J.O. delivered the decision of the Court and recognized the often competing roles that members of administrative and adjudicative bodies must play within their statutory regimes. After canvassing the authorities he states at paragraph 28:
    1. “Securities Commissions, by their very nature, are expert tribunals, the members of which are expected to have special knowledge of matters within their jurisdiction. They may have repeated dealings with the same parties in carrying out their statutory duties and obligations. It must be presumed, in the absence of any evidence to the contrary, that the Commissioners will act fairly and impartially in discharging their adjudicative responsibilities and will consider the particular facts and circumstances of each case.” (emphasis added)
  1. On the evidence provided by the Respondent with his Notice of Motion, I am not certain that I would have concluded that a reasonable, informed and right-minded person considering the matter realistically and practically would have come to the belief that I could not adjudicate the matter before the panel impartially upon the evidence presented by the parties. However, in the course of his final submissions to the panel the Respondent made reference to a document which had not been presented by the parties in their written or oral submissions.
  1. That document was subsequently produced and marked as Exhibit number 4 in the proceeding. It was an unsigned and undated draft settlement agreement in which the Respondent was named amongst other parties including Keybase Financial Group Inc. This was not the settlement agreement of October 4, 2012 which I had addressed in the First Appearance teleconference. I have no knowledge of when it was drafted, for what purpose, nor how it came into the possession of the Respondent. However, I must conclude that it was drafted by Enforcement Staff of the NSSC as such matters were within their responsibilities. Enforcement Staff of the NSSC were at the relevant times under my supervision.
  1. Exhibit number 4 contains purported statements of facts which could cause the reasonable and right minded person, described by de Grandpré, to form a reasonable apprehension of bias. I have considered all of the evidence before the panel and the submissions of the parties. Having done so I conclude that the best interests of the public’s right to confidence in the fair administration of securities regulation and the principles of natural justice are best served by recusing myself from this disciplinary proceeding.

DATED this 25th day of May, 2015.

“R. Scott Peacock”

R. Scott Peacock
Chair

[1] [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716
[2] (1974) N.S.R. (2d) 277 affd. [1977] 1 S.C.R. 112
[3] [1989] 1 S.C.R. 301, [1989] 3 W.W.R. 456
[4] 1., supra
[5]  6 O.R. (2d) 129, 52 D.L.R. (3d) 161 (C.A.)
[6] [1995] 23 O.R. (3d) 257, 125 D.L.R. (4th) 305 ( Ont. CA )

Reasons of Ms. Etter and Mr. Malcolm, Concurring in the Result:

Decision

  1. The Motion of Michael Andrew Harrigan (the “Respondent”) for an Order recusing R. Scott Peacock (the “Chair”) of the Hearing Panel is granted.

Background

  1. This matter was commenced with a Notice of Hearing dated May 12, 2014 in respect to two (2) allegations of breaches of MFDA By-Laws, Rules or Policies.
  1. A First Appearance was held by telephone conference on July 10, 2014. A transcript of the First Appearance can be found as Exhibit 16 to the Affidavit of Mike Ford dated April 10, 2015 (the “Ford Affidavit”), which itself is Exhibit 6 in the proceeding.
  1. Staff of the MFDA (“Staff”) and the Respondent completed the required exchange of documents by the end of October 2014. On April 8, 2015 the Respondent filed a Notice of Motion seeking the recusal of the Chair of the Hearing Panel, R. Scott Peacock. In support of the Motion the Respondent filed an affidavit dated April 8, 2015, Exhibit 5, with five exhibits marked A to E which forms part of the record of this proceeding; and a number of authorities for consideration.
  1. Exhibit A in support of the Motion was a letter from Bruce O’Toole (“O’Toole”) of Crawley, MacKewn, Brush LLP dated April 7, 2015, where amongst other things the Respondent was informed by O’Toole; “I have had a discussion with staff of the NSSC (“Staff”) and have been advised that there was no investigation order issued for the Investigation.” Exhibits B, D, and E were copies of letters from the Nova Scotia Securities Commission (“NSSC”), signed by R. Scott Peacock, Director of Enforcement, to the MFDA acknowledging their advice that they had opened files in respect to the Respondent. Exhibit C was a copy of an email from a complainant to the MFDA in respect to a complaint against the Respondent which had been forwarded as a copy to the Panel Chair, R. Scott Peacock, in his former capacity as Director of Enforcement for the NSSC.
  1. Staff filed Written Submissions dated April 10, 2015, in which they did not oppose the Motion of the Respondent, a Book of Authorities, and the supporting Ford Affidavit.
  1. Submissions of the parties were heard in Halifax on April 13 and 14, 2015 and a unanimous oral decision was made granting the Respondent’s Motion and the matter was adjourned.
  1. The former Panel Chair, R. Scott Peacock has submitted his Reasons for Decision (Motion). The Industry Representatives, Ann C. Etter and Robert G. Malcolm have submitted their Reasons for Decision (Motion), as in their opinion the Chair’s submission was a personal one and not a Panel submission. The following are the written reasons of the Industry Representatives, Ann C. Etter and Robert G. Malcolm.

Reasons

  1. Staff and the Respondent filed numerous cases of various courts and tribunals in support of their oral submissions. It is not necessary to cite all of the cases referred to, as the principles relative to recusal and the reasonable apprehension of bias are established in a few Supreme Court of Canada decisions.
  1. It is well established that the manner in which the test for bias should be applied was set out by de Grandpré J. in his reasons in Committee for Justice and Liberty v. National Energy Board (1978) 1 S.C.R. 369 at page 394:
    1. The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information.  In the words of the Court of Appeal, the test is “what would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude.
  1. In addition, we refer to the Written Submissions of Staff of the MFDA, re Respondent’s Motion to Recuse, page 9, paragraph 33…:
    1. It is well established that because of the inherent difficulty in determining actual bias in the mind of a judge or a hearing panel member, the governing principle is not whether actual bias exists, but whether or not a reasonable apprehension of bias exists. The Supreme Court of Canada (“SCC”) has commented on the difficulties in measuring bias stating:
      1. “It is, of course, impossible to determine the precise state of mind of an Adjudicator who has made an administrative board decision. As a result, the courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness. To ensure fairness the conduct of members of administrative tribunals has been measured against a standard of reasonable apprehension of bias. The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator.”

      Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623 (“Newfoundland Telephone”), at para. 22, Staff’s Book of Authorities, Tab 9.

  1. We as Industry Representatives of the Panel are not in a position to determine the state of mind of the Chair in respect to any actual bias or no bias.
  1. The question we as panel members considered is whether the Chair had prior knowledge of the Respondent in respect to any prior regulatory issues or allegations, complaints or investigations, or any regulatory settlement agreements.
  1. In the Respondent’s Motion and submissions there were several documents that referenced settlement agreements, regulatory investigations and complaints.
  1. The Respondent’s submissions included references he marked as Exhibits A to E, and the settlement agreement marked by the panel as Exhibit 4, all show prior knowledge of investigations, settlement agreements, complaints and allegations against the Respondent and include copies to or correspondence to and from R. Scott Peacock as Director of Enforcement at the Nova Scotia Securities Commission.
  1. In Staff’s submissions, the Ford Affidavit, Exhibit 6, there were a number of documents with reference to the Respondent and complaints or investigations and R. Scott Peacock as Head of Enforcement at NSSC was either provided with a cc copy, or the document was sent to R. Scott Peacock or was from R. Scott Peacock.
    1. See Tab 5, Letter from Astrid Iral to Ada Yeung dated September 14, 2011
    2. See Tab 6, Letter from R. Scott Peacock to Sheila Wong dated September 21 2011
    3. See Tab 7, Email from Complainant GC to MFDA dated September 30 2011
    4. See Tab 8, Letter from Astrid Iral to Ada Yeung Dated December 21, 2011
    5. See Tab 9, Letter from R. Scott Peacock to Sheila Wong Dated January 03 2012
    6. See Tab 10, Letter from Astrid Iral to R. Scott Peacock Dated Jan 16 2012
    7. See Tab 11, Letter from R. Scott Peacock to Sheila Wong dated Jan 17 2012
    8. See Tab 12, Email thread between R. Scott Peacock and Sheila Wong Dated December 28, 2012 and January 2, 2013
  1. It is not a matter of what the depth of knowledge of these matters that R. Scott Peacock has, had or could recall, or to what level of involvement R. Scott Peacock may or may not have had in these matters. It is our opinion that a reasonable and informed person, taking into consideration the fact that R. Scott Peacock was named in a number of the pertinent documents and/or had letter/email correspondences, would be enough to conclude there is a reasonable apprehension of bias.
  1. It is also a consideration of fairness and how the public and the Industry would view the MFDA Hearing Panel having the Chair of the Panel have any prior knowledge or information that could cause there to be any reasonable apprehension of bias. As panel members, we are of the opinion that a person who held a position with the NSSC, and especially a senior position, such as the Director of Enforcement, should not sit as panel member or Chair of any MFDA Hearing Panel that relates to any individual or organization where the allegations may have taken place during the tenure of the Chair’s (or any other panel members’) position at the NSSC.
  1. Supporting this opinion, in Staff’s Book of Authorities, Tab 3, Ethical Principles for Judges page 51 E. 19:
    1. “Judges will face the issue of whether they should hear cases involving former clients, members of the judge’s former law firm or lawyers from the government or legal aid office in which the judge practised before appointment. There are three main factors to be considered.  First, the judge should not deal with cases concerning which the judge actually has a conflict of interest, for example, as a result of having had confidential information concerning the matter prior to appointment. Second, circumstances must be avoided in which a reasonable, fair minded and informed person would have a reasoned suspicion that the judge is not impartial…”
  1. It is not a matter of whether the knowledge of any issues was from 2, 3, 5 or 10 years ago, as noted in the Respondent’s submissions, reference “Littler v. Howie 2013, Nova Scotia Supreme Court 84”, the point at issue was related to a meeting over 13 years earlier where there was no recollection of the meeting but there was confirmation that it did take place and that was enough to step down.
  1. In Staff’s Book of Authorities, the case of Rando Drugs Ltd. v. Scott at Tab 16, the judge in that matter used a period of time “cooling off period” after which it was felt there was sufficient time so as not to present an issue of Bias (under Tab 16, page 3 of 9, item # 10).   The ruling in that case showed that there is no set time period after which there can be an assumption of no bias.   Refer to Tab 16, page 5 of 9, item # 22 – 23.
  1. In Rutigliano v. Ontario (Provincial Police), the Adjudicator did not recuse himself indicating the evidence did not meet the test required for a recusal, but the Divisional Court held that there was a reasonable apprehension of bias as a result of the information the Adjudicator received, and they ordered that the Adjudicator be removed.
  1. As pointed out by Staff and in the submissions provided, the onus is upon the Respondent to present proof of bias and to sufficiently demonstrate that there is a reasonable apprehension of bias. We understand that the Respondent does not have a legal background and is not a lawyer, and that his Motion and submissions may not have been expertly done and were not as detailed or presented in as much depth as a lawyer would have done. We do contend that there was sufficient proof and a reasonable demonstration of the apprehension of bias and that it would pass the test such that an informed and reasonable person would consider there is a reasonable apprehension of bias in this case.
  1. We reference several of the cases presented in the submissions, including but not limited to:
    1. Littler v. Howie, 2013 NSSC 84.
    2. Weyakum Indian Band v. Canada [2003] S.C.J. No 50
    3. SOS – Save Our St Clair Inc. v. City of Toronto [2005] O.J. No 4729
    4. Rutigliano v. Ontario (Provincial Police)
  1. The MFDA Hearing Panel should be held to a higher standard and are closer to the high end of the spectrum towards Judicial Standards. Continuing along this line, it is important for the integrity of future MFDA Hearing Panels that the standards must be set high and the panels need to be held to the higher standards to ensure the values of independence, impartiality, and no hint of any bias. This must be so in order to preserve not only the public, but also the industry confidence in the Self-Regulatory Organization’s panels.
  1. We reference Staff’s submissions on the Motion at Tab 15, v. R.D.S. page 23 of 29 paragraph 113:
    1. “Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high.   It is a finding that must be carefully considered since it calls into question an element of judicial integrity.   Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice.  See Stark, supra at paras. 19-20.   Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations.  Yet this is a serious step that should not be taken lightly.”
  1. We reference Staff’s submissions on the Motion at Tab 18 case SOS – Save our St Clair pages 20 (103 -105) Matlow’s decision (that he would judge fairly) were contrary to the other panel members and their Decision & Reasons were submitted separately see Tab 18, page 22 paragraph 118 subsection 13 page 23, Greer & MacDonald’s opposing decision:
    1. It must be remembered that the original application in this matter was highly notorious.  Perception in the mind’s eye of the public and the litigants is of unique importance in this case. Justice Matlow’s activities create a perception of partiality towards the City. In all of the circumstances of this unique case, perception is sufficient.

    and page 24 (item 118 sub paragraph #20):

    1. The circumstances that led to the City’s motion and the fact that these circumstances have been aired in a public courtroom has led us to the conclusion that we are duty bound to ensure that the panel is properly constituted in accordance with the law governing the exercise of judicial process, judicial power and natural justice.
  1. The test is an objective one and it is the appearance as well as the reality that is of fundamental importance. It is our opinion that there should not be any apprehension of bias and there is existence in this case of a reasonable apprehension of bias by the evidence presented in the motion. The Chair, R. Scott Peacock was correct in making his decision; concluding that the best interests of the public’s right to confidence in the fair administration of securities regulation and the principles of natural justice are best served by recusing himself from this proceeding.
  • Ann C. Etter
    Ann C. Etter
    Chair
  • Robert G. Malcolm
    Robert G. Malcolm
    Industry Representative

426666