Competition Policy, Efficacy, and the National Securities Reference

• Author: Edward M. Iacobucci
• Pages: 49-56

• 49

chap ter 3

Competition Policy, Ecacy,

and the National Securities Reference

Edward M. Iacobucci

A. Introduction

In this brief comment on the Supreme Court of Canada’s decision

in the Reference Re Securities Act,1 I will expand and elaborate

on a point raised by Michael Trebilcock in his excellent critique

of the Court’s approach in Chapter 2.2 Trebilcock concludes that

the Court inappropriately distinguished competition policy from

securities regulation. The Court contended that competition

policy is an intrinsically national matter, while securities regula-

tion is not. It engaged in this exercise in order to determine the

applicability to the reference of the General Motors of Canada v

City National Leasing case, which upheld a civil remedy in a fed-

eral competition policy statute as within the federal government’s

general trade and commerce authority.3

I agree with Trebilcock that the Supreme Court failed to dis-

tinguish competition policy from securities regulation in a mean-

ingful way, but would go further. In my view, as I explain below,

securities regulation is of greater-

petition policy, and thus is even more suitably covered by the gen-

eral trade and commerce power. Trebilcock also describes what

1 Reference Re Securities Act, 2011 SCC 66 [Securities R eference].

2 See Chapter 2.

3 General Motors of Canada Ltd v City National Leasing

[General Motors].