This is part 7 of a series of posts about the Law of Speculation (start at part 5 or part 1). This part focuses not on the law itself but on how the law is experienced through its adjudication. Currently, victims of investments scams, cheated gamblers, aggrieved shareholders, or ripped off buyers of mutual funds can file a complaint with a regulator (sometimes several), file a lawsuit based on securities grounds, file a lawsuit based on other grounds, or take other action, typically represented by a lawyer.
The status quo is confusing, expensive and often slow. Expected outcomes are often unclear and the processes themselves are often not even possible to map to a flowchart. The cost of pursuing a remedy is usually very high, which makes many offences/civil wrongs not worth pursuing in the eyes of the victim (or the government). This article looks at solving this problem through online processes, statutory damages, enhanced private rights of action, whistleblower rewards, non-lawyer representation, and a merger of disparate resolution bodies. Justice for all should be the objective.
Any reformation of the Law of Speculation should be accompanied by a reform of its dispute resolution process. And the only process that could possibly enable Ontario (or another province) to become a global hub of orderly and lawful (not "low risk") speculation is an online one.
Online dispute resolution can look like the dispute resolution process used by Amazon and other merchants (e.g. basically customer service reps of the companies, who could be legal professionals), the BC Civil Rights Tribunal, or a full-fledged court. Traditional courts have been operating online throughout the Covid-19 pandemic. It turns out it can be done. But this proposal is about more than using Zoom, it's about truly taking advantage of online processes to improve efficiency. Dispute resolution online can be done at a lower cost, which means more justice available for the same level of expense.
Customers come for the low prices of Amazon but stay becauase when they have a problem it gets solved promptly. This has created a corporation worth $2 trillion dollars. There's merit in this approach. And more fundamentally, it is better to have a system in which everyone has access to efficient justice, not just those who can afford expensive lawyers or insiders.
Lawyers are often allergic to the idea of written hearings. They typically prefer standing in-person to make a speech at an office building or courthouse somewhere (often speaking about something that's written down anyway). But they fail to see that the vast majority of wrongs go uninvestigated and unpunished, and that everyone is worse off as a result. Oral hearings are very costly and often inefficient, and we should not prefer a system that achieves high quality justice for those who can pay and nothing for those who can't. The world has moved online, and embraced facts and statistics. Dispute resolution must move with it.
A bad dispute resolution system is bad for aggrieved parties but also bad for the system itself. When people are wronged and they suffer the loss (rather than the wrongdoer), the overall system of speculation suffers. So the goal should be an efficient system that helps weed out bad actors (by making them pay), improves procedures and user interfaces (by clarifying points of confusion experienced by customers), and ensuring faith in the system.
Online also means: in writing. Not eloquent spoken hearings (which are poorly supported by evidence). And it should also mean open and transparent. Information storage is nearly free today and there's no reason why the public shouldn't have access to the body of decisions, which would ultimately enable new types of legal research tools that could be used by market participants and the public. The system should be online and be "Digital Law". Online resolution is a required element of modernizing the Law of Speculation.
Statutory Damages And Private Right Of Action
People must be able to sue when the government doesn't. And when someone has a wrong committed against them, the cost of resolving it must be recoverable. The only way of accomplishing this is statutory damages because the typical evaluations of whether someone has "lost" don't take into account modern economic thinking of total cost in the way that businesses do. A fixed tariff (e.g. $1000 for not disclosing the company's name at the time of contracting) would ensure discipline. It would radically alter the status quo in which many wrongs can't be economically pursued because of the high cost of achieving resolution.
No one today can hire a securities lawyer in Ontario to sue a company for a shareholder dispute without putting up at least $10,000 in trust and taking this action to court would cost tens of thousands of dollars. Similarly, a gambler cheated by a casino can only pursue justice by spending thousands on lawyers, thousands they may not have because they lost their money to the casino. Investment in uncovering and punishing wrongdoing ought to be rewarded.
Lawyers typically argue against these ideas by suggesting that it will "open the floodgates". But if the legal system is the dam holding back the flood of aggrieved individuals who have lost money then shouldn't the dam be broken? Are there really so many people not getting justice today that they would be a "flood"? (Probably.) This principle that many lawyers hold dear is one that discriminates against the main losers in the current system: people without much money (perhaps because they lost it all due to fraud or just because they didn't start with much). The goal of the dispute resolution system for the Law of Speculation ought to be maximizing justice, and particularly so for people who don't have much money. Equality before the law should mean something. And in some cases, "small" (perhaps not for the litigant) matters are the tip of the iceberg of wrongdoing, rather than something that should be regarded as a nuisance by regulators looking for big fish.
The current approach of relying on the government to act to protect people who can't afford private claims likely only results in a tiny percentage of claims being pursued (due to limited resources and limited ROI). For example, the Ontario Securities Commission (OSC) in their annual report proudly highlights that in 2019-2020 they completed "Four court proceedings concluded with 119 months of jail sentence ordered" (2021 Annual Report, page 3) and "22 administrative sanctions and $44.4 million in monetary sanctions handed down". There is no doubt that Ontario's securities markets have been affected by far, far more wrongs in 2021 than these enforcement actions addressed.
Like almost all government organizations, the OSC doesn't study how many cases they overlooked, and it doesn't make public how many complaints they received that were well-founded but didn't lead to regulatory action. The numbers must be quite high considering they claim that their investor education site (getsmarteraboutmoney.ca) received 5.8 million visits. Their inaction is maybe made more clear by some of the other highlights in the 2021 Annual Report which include "hosting a webinar ... delivered to more than 300 participants". This is not an organization that's aiming to reach everyone and resolve every problem in the markets they oversee. They consider many problems too small or too insignificant, but this overlooks the importance of these matters to the people who filed the complaints or experienced the unjustified loss.
Statutory damages helps solve the problem of government inaction (or the impossibility of it, given resource constraints) by creating an incentive to pursue wrongs that are difficult to price but known to be wrongs. They also help ensure that there's a reasonable return on the costs of investigation such as hiring private investigators. By shifting the resolution into a private action and away from government, people can be more assured that their interests will be taken care of. This might also mean a reduction in the workload of litigators for the regulator, which could then be redirected more toward "public interest" cases and assisting Ontarians with their disputes.
Whistleblowers in corrupt companies ought to also receive a reward. This approach has been used very successfully in other jurisdictions. The SEC in America (similar to the OSC) has awarded over $900 million to whistleblowers since 2011 related to securities market wrongdoing. Often only insiders have the knowledge necessary to discover and then investigate complicated wrongdoing in speculative markets. People who put their lives and careers on the line should be rewarded for it. Typically in Canada today there is no reward for whistleblowers in speculative markets, only retaliation and black marks on their careers. The OSC does have a whistleblower program but it has many restrictions and has only paid out about $2 million per year ($8m since 2016). Last year it paid ~$500,000 to whistleblowers. Is that really the extent of wrongdoing known to insiders?
Other provinces haven't followed suit yet with their own whistleblower programs, so in most of Canada, whistleblowers get nothing, even in securities markets. Other areas of the Law of Speculation have no system at all for whistleblowers. This should be fixed.
A whistleblower system for a reformed Law of Speculation would work even better than the OSC's current program because the OSC's program concerns a system with so many rules that it's difficult to follow all of them strictly to the letter. Simpler rules would make it more clear when wrongs have been committed, and make people more comfortable with the idea of whistleblowers (still a controversial topic in Canada.)
Who Knows Best? Bringing In Other Professionals
Speculation markets are almost entirely run by people who aren't lawyers. Whether that's horse racing operators, ETF traders, investment dealer compliance professionals, cryptocurrency exchange managers, or any other aspect of speculation - it's almost always not lawyers doing the work. So why should dispute resolution solely be the domain of lawyers? Even if someone thinks that's right, and only lawyers have the necessary knowledge of disputes (if not industry knowledge), it's not possible to resolve everyone's disputes using lawyers. More creativity is required that simply answering "lawyer" as the person who should be participating in dispute resolution.
Accountants, investment professionals, professional gamblers, paralegals, self-studied amateurs who know more than lawyers, in all cases, these people should be able to act as "advocates" in the online dispute resolution process. Don't bar lawyers, but open it up to more people. This would reduce the cost and help the process to focus more on the facts and reality, and less on legal points. Experienced people are very often more knowledgeable than lawyers about how the many specialized systems of speculation operate.
There could perhaps be bonding requirements or registration of the advocates, but the general principle should be to let anyone be a representative and collect a portion of the fee for their time (because we live in a market-based society, and that's at the core of speculation itself). Only this can ensure a large number of qualified people available at a reasonable price for resolving disputes of varying sizes.
Merging The Bureacracy
An online dispute resolution system for speculation would merge dozens of disparate organizations in Ontario, most of which are totally unknown to the public. For example, there is a Horse Racing Appeal Panel run by the AGCO that is "an adjudicative body that is mandated to consider appeals of decisions made under the Rules of Racing". Each one has its own special procedures. There's very little "compatibility" between them and each one is under-resourced in terms of information technology, legal, and other necessary aspects of a properly-functioning, efficient system.
It's impossible for the Horse Racing Appeal Panel to come close to the firepower that a body 100x better financed could provide. They can never provide the level of justice that a system scoped to the size of society's levels of speculation could address. The result of this decentralization is repetition, waste, and far more expensive dispute resolution for litigants. Standardization is the essence of modern prosperity, but our dispute resolution processes in speculative markets completely ignore mass production, in favour of the preferences of lawyers and historic precedent (also driven by lawyers). But it's unfair to suggest that lawyers are the reason holding back a merger of bodies, and there are benefits to specialized bodies vs. a general system. But the downsides and costs are obvious, and the lack of skill in resolving disputes is apparent. A combined system of online dispute resolution (even decentralized itself through perhaps arbitration) could greatly improve efficiency, and thereby accomplish more justice.
Dispute resolution could be made much faster, cheaper, and more widely available by moving exclusively to online dispute resolution. By merging the capabilities of today's disparate resolution bodies the public could be better assured that if something goes wrong they'll be able to obtain a remedy. And statutory damages would help ensure that the costs of wrongs are borne by the wrongdoers. Better whistleblower regulation (economically) would also bring many more wrongs into daylight and help ensure that the jurisdiction that reforms its Law of Speculation is seen as the cleanest and best-policed market. Faith in the market is one of the key purposes of regulators and it could be greatly enhanced by these reforms. There's also a lot to be said about having a system in which everyone has a chance, and where justice for all exists in reality, not just on paper.