The SEC becomes concerned with Penny stock traders and issues a policy statement – saying their actions violate the Securities Act. Then they hold a hearing to decide what they already took a public stance on. Under Judicial review is whether they have jurisdiction to make the policy statement, and that there is a RAB. After they loose the first application for judicial review there is a press conference by Chair, he says we will get these people
The Div. Ct. in the second judicial review says there was a RAB for all commissioners present for formulation of policy, first application and response to loss of first application. Stock traders wanted to include all subsequent commissioner in RAB, argued it was a corporate bias, the commission as a whole.
The CA agrees with Div. Ct., the new commissioners not there for policy and first judicial review, public statements are not subject to the reasonable apprehension of bias. Consistent with Brosseau, they noted repeated dealings with the same parties, so we must presume they are not biased.
The CA says if the SEC had appealed there would have been no RAB for any commissioners. The Court is really saying the Chair is doing what he is supposed to be doing, speaking publically on the work being done, making opinions known relative to regulative responsibility. The comments of the chair were keeping in line with mandate, very in favour of protection. You can say you are pursuing the parties, or the objective, because they are not abiding by the law. The machinery is there to decide the issue, but they don’t have to be indifferent to the outcome.
There were claims for damages of more than $1 million, it would be odd if they could not strenuously defend their self. Only the Chair of the commission, not the whole commission was involved in defence.
The standard of bias has to be very tolerant to their responsibility to protect the public. CA says even if the comments were more inline with what the outcome was at the second hearing, that would be acceptable
Allegations of bias that are not institutional, you don’t get tainted by association with an organizational attitude.