Barry and Brosseau v. Alberta Securities Commission, (1989) 93 N.R. 1 (SCC)

• Judge: Dickson, C.J.C., Estey, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 09, 1989
• Jurisdiction: Canada (Federal)
• Citations: (1989), 93 N.R. 1 (SCC);93 NR 1;[1989] SCJ No 15 (QL);96 AR 241;[1989] 1 SCR 301;35 Admin LR 1;57 DLR (4th) 458;AZ-89111033;[1989] ACS no 15;47 CRR 394;[1989] 3 WWR 456;1989 CanLII 121 (SCC);65 Alta LR (2d) 97

Barry v. Securities Comm. (1989), 93 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Georges R. Brosseau (appellant) v. The Alberta Securities Commission (respondent)

(19832)

Indexed As: Barry and Brosseau v. Alberta Securities Commission

Supreme Court of Canada

Dickson, C.J.C., Estey, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ.

March 9, 1989.

Summary:

Barry and Brosseau allegedly made false or misleading statements in a prospectus contrary to s. 136 of the Securities Act. An Alberta Securities Commission hearing to determine whether Barry and Brosseau should be subject to a cease trading order and deprived of certain statutory exemptions was adjourned pending a trial on the same offence before the Alberta Provincial Court. The Provincial Court dismissed the charges. Barry and Brosseau then applied to the Commission for a preliminary ruling that the Commission lacked jurisdiction, grounding the application on submissions of double jeopardy and bias, where the Chairman of the Commission, as required by the Act, was involved with the investigative procedure and the report. The Commission ruled that it had jurisdiction. Barry and Brosseau appealed.

The Alberta Court of Appeal in a judgment reported 67 A.R. 222 dismissed the appeal. The court held that ss. 11(d) and (h) of the Canadian Charter of Rights and Freedoms were inapplicable, because the sanctions sought to be imposed were not criminal or quasicriminal, but protective. The court also held that there was no reasonable apprehension of bias, where the Chairman was acting within his statutory authority. Barry and Brosseau appealed, but Barry subsequently withdrew.

The Supreme Court of Canada dismissed the appeal and affirmed the judgment of the Court of Appeal.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal - Bias - Apprehension of bias - Two men were investigated by the Alberta Securities Commission for alleged violations of the Securities Act - The Chairman of the Commission, as required by the Act, was involved with the investigative procedure and report leading to a hearing - The men submitted that the Chairman's involvement created a reasonable apprehension of bias depriving the Commission of jurisdiction to hold the hearing - The Supreme Court of Canada held that there was no apprehension of bias where the Chairman did no more than he was statutorily required to do - See paragraphs 18 to 41.

Statutes - Topic 2272

Interpretation - Presumptions - Against retrospective operation - Two men allegedly made misleading or false statements in a prospectus statement - The Alberta Securities Commission sought to impose sanctions under the Securities Act that were unavailable at the time of the alleged incident - The Supreme Court of Canada held that the Commission had jurisdiction to impose the sanctions, because the presumption against retrospective application was inapplicable where the object of the sanctions was regulatory or protective and not punitive - See paragraphs 42 to 55.

Cases Noticed:

W.D. Latimer Co. and Attorney General for Ontario, Re (1973), 2 O.R.(2d) 391, appld. 6 O.R.(2d) 129, appld. [para. 20].

Gregory & Co. Inc. v. Quebec Securities Commission, [1961] S.C.R. 584, consd. [para. 32].

Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; 9 N.R. 115, consd. [para. 40].

Angus v. Hart and Angus and Sun Alliance Insurance Co., [1988] 2 S.C.R. 256; 87 N.R. 200; 30 O.A.C. 210, dist. [para. 44].

Nova, An Alberta Corporation v. Amoco Canada, Petroleum Co., [1981] 2 S.C.R. 437; 38 N.R. 381; 32 A.R. 163, consd. [para. 47].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, consd. [para. 47].

R. v. Vine (1875), L.R. 10 Q.B. 195, consd. [para. 49].

Re A Solicitor's Clerk, [1957] 3 All E.R. 617, appld. [para. 50].

Statutes Noticed:

Securities Act, R.S.A. 1970, c. 333, sect. 136 [para. 43].

Securities Act, S.A. 1981, c. S-6.1, sect. 11 [para. 29]; sect. 28, sect. 29 [para. 26]; sect. 165, sect. 166 [para. 43].

Authors and Works Noticed:

Cote, Pierre-Andre, The Interpretation of Legislation in Canada, p. 91 [para. 46].

Driedger, Elmer, Construction of Statutes (2nd Ed. 1983), p. 198 [para. 48].

Driedger, Elmer, Statutes: Retroactive, Retrospective Reflections (1978), 56 Can. Bar Rev. 264, p. 275 [para. 51].

Krauss, Michel, Reflexions sur la retroactivite de lois (1983), 14 R.G.D. 287, p. 291 [para. 45].

Counsel:

Rostyk Sadownik, for the appellant Georges R. Brosseau;

P.J. McIntyre, for the respondent.

Solicitors of Record:

Wheatley, Sadownik, Edmonton, Alb., for the appellant Georges R. Brosseau;

Burnet, Duckworth & Palmer, Calgary, Alb., for the respondent.

This case was heard on March 28, 1988, at Ottawa, Ontario, before Dickson, C.J.C., Estey, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ., of the Supreme Court of Canada.

On March 9, 1989, L'Heureux-Dubé, J., delivered the following judgment for the Supreme Court of Canada in both official languages. Estey and Le Dain, JJ., did not take part in the judgment.