Market Surveillance Administrator – Release of Market Participant’s Name
In this decision, the AUC approved the application made by the Market Surveillance Administrator (“MSA”) under subsection 6(4)(b) of the Market Surveillance Regulation (“MSR”) to make public a record that identifies a market participant by name.
Pursuant to subsection 6(4)(c) of the MSR, the MSA must notify a market participant before publicly releasing a document that names the participant. Pursuant to subsection 6(5) of the MSR, the market participant can file an objection with the MSA within seven days of the notice.
The MSA reviewed the concerns in the market participant’s objection to the release of the notice naming the participant. The MSA remained of the view that the release of the notice including the participant’s name in a public document was within the MSA’s mandate; enhanced fair, efficient and open competition in the market; and would not result in undue financial harm impacting the competitive position of the market participant. The MSA subsequently brought the application to the AUC pursuant to Subsection 6(7)(b) of the MSR. The MSA requested a private proceeding to review the reasonableness of the MSA’s determination. The AUC determined subsections 6(2)(b), 6(4), 6(5), 6(7), 6(9) and 6(10) of the MSR to be relevant legislation. This legislation is relevant to the MSA’s abilities to make public MSA investigations, market participants’ ability to object to the publications, and the MSA’s responsibility to review the objections.
Standard of Review is Reasonableness
Subsection 6(9) of the MSR specifically enables the AUC to act in the role of a reviewing body concerning the determination of the MSA and requires the AUC to assess the MSA’s determination on the basis of reasonableness. The MSA has been recognized by the Court of Queen’s Bench of Alberta as a body that possesses considerable expertise in carrying out its mandate. As such, it is entitled to deference. Consequently, the AUC considered whether the MSA’s determination is transparent, intelligible, and justifiable, and as such falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law.
The principal issue before the AUC was whether it was reasonable for the MSA to determine that the factors it assessed under subsection 6(4) of the MSR favour the release of the name of the market participant in the public document it seeks to publish.
The MSA determined that the benefits of releasing the public document would include demonstration to the public that it was fulfilling its mandate, as well as control the messaging and public interest regarding the subject of its investigation of this market participant. In addition, the AUC found that the MSA’s rejection of the market participant’s claim that publishing the name in this circumstance could result in financial loss or harm to competitiveness was set out in the MSA’s determination. The determinations were supported by past facts, which the AUC determined to be reasonably reliable, to support the MSA’s conclusion that publishing the name would not reasonably result in this type of harm or loss.
The AUC also found that the MSA’s reasoning that the MSR provides for a statutory scheme permitting the MSA to make public its activities in the fulfillment of its mandate, including the commencement and progress of its investigations, is supported by its analysis of the provisions set out in subsections 6(2), 6(3) and 6(4). The MSA’s determination on the application of these provisions of the MSR to these documents was found to be reasonable.
The AUC accepted the MSA’s determination that its investigative process is public and well known to market participants and that as such, the release of the name of the market participant will not diminish the procedural protections available to the market participant, nor necessarily result in a tarnished reputation. The AUC also accepted the MSA’s reasoning that because the matters referenced in the public document are well known to market participants, the identity of the market participant would inevitably be known.
The AUC concluded that the determination made by the MSA was reasonable.