The OSC sought her recusal over a witness she has known for years
A friendship was enough to remove the chair of an Ontario Securities Commission enforcement panel.
Adjudicator Andrea Burke recused herself from the Commission's ESG-misrepresentation case against Purpose Investments Inc and Som Seif after finding that her social ties to a planned Commission witness created a reasonable apprehension of bias, the Capital Markets Tribunal said in reasons for decision dated June 4.
The Commission alleges the respondents made untrue or misleading statements about how far Purpose Investments integrated environmental, social and governance, commonly referred to as ESG, factors into investment decisions for its managed funds.
Burke granted the Commission's recusal motion at an April 10 hearing, with her written reasons following.
The case is cited as Ontario Securities Commission v Purpose Investments Inc, 2026 ONCMT 26.
The conflict surfaced soon after Burke joined the panel.
The Tribunal's registrar told the parties on March 19 that the Commission planned to call a former Purpose employee whom Burke knows socially.
Burke disclosed several connections.
She had worked at a law firm with the witness's spouse from roughly 2007 to early 2010, attended the couple's wedding, and still occasionally has dinner with them or sees them at school events, where their sons share a grade.
She added that the witness's counsel is her former law firm partner.
Burke initially concluded the connection did not preclude her from sitting, the decision said.
The respondents agreed and wanted the May and June 2026 merits dates to hold, but the Commission objected, prompting the motion.
Burke also rejected an argument the respondents leaned on heavily: that Canada's capital markets community is a small "village" where adjudicators, lawyers and compliance professionals routinely know one another, and that a "reasonable person" inside it would accept such connections.
Burke agreed with the Commission that this amounted to a floodgates-type submission.
She declined to relax the bias test for the Tribunal, noting that it serves all investors in Ontario and across Canada, not only that narrow community.
Burke also found the witness's evidence central rather than peripheral, with credibility likely to be assessed.
A reasonable person would assume she knew the witness's mannerisms, habits and speech patterns and had formed a view of his character that she might struggle to set aside, she said.
She added that her decisions on the witness's evidence could carry social consequences that might, even subconsciously, sway her.
Burke rejected the respondents' claim that the motion was a delay tactic, finding no evidence of improper motive.
She also held that any delay from her recusal was irrelevant to the bias question, stating that the proceeding must be, and be seen to be, fair and impartial.
The Commission did not allege actual bias, according to the decision.
Having found a reasonable apprehension of bias, Burke agreed the only remedy was to step aside, and she did.
