Global Securities Corp. v. British Columbia Securities Commission et al., 2006 BCCA 404

• Judge: Rowles, Ryan and Lowry, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 05, 2006
• Jurisdiction: British Columbia
• Citations: 2006 BCCA 404;(2006), 230 B.C.A.C. 236 (CA)

Global Securities v. Securities Comm. (2006), 230 B.C.A.C. 236 (CA);

    380 W.A.C. 236

MLB headnote and full text

Temp. Cite: [2006] B.C.A.C. TBEd. SE.014

Global Securities Corporation (appellant/respondent) v. Executive Director of the British Columbia Securities Commission and TSX Venture Exchange Inc. (Formerly the Canadian Venture Exchange Inc.) (respondents/appellants) and Robert Semple, Robert Tassone and Bruce McConnachie (respondents/respondents) and The Investment Dealers Association of Canada and Market Regulation Services Inc. (intervenors)

(CA033395; 2006 BCCA 404)

Indexed As: Global Securities Corp. v. British Columbia Securities Commission et al.

British Columbia Court of Appeal

Rowles, Ryan and Lowry, JJ.A.

September 14, 2006.

Summary:

Global Securities Corp. was a registered dealer under the Securities Act and a member of the TSX Venture Exchange Inc. The Act required the Exchange to regulate and discipline its members. The Exchange issued a notice of hearing against Global regarding three infractions. A hearing panel of the Exchange found against three representatives of Global regarding two of the infractions and dismissed the third. The Exchange and the executive director of the British Columbia Securities Commission applied to the Commission under s. 28(1) of the Act for a review of the hearing panel's decision. Global brought a preliminary application before the Commission Hearing and Review Panel, seeking determination of two points: (i) the Exchange's standing to seek review of its own disciplinary panel's decision and (ii) limitation of the Exchange's arguments before the Commission Panel to an explanatory role relating to the record and submissions on jurisdictional issues.

The Commission Panel, in a decision reported at 2005 BCSECCOM 573, concluded that (i) the Exchange was a "person directly affected" by the decision under s. 28(1) of the Act and was therefore entitled to apply for review of the hearing panel's decision and (ii) it was open to the Exchange to present arguments on the merits of the hearing panel's decision. Global appealed.

The British Columbia Court of Appeal dismissed the appeal.

Administrative Law - Topic 8842

Boards and tribunals - Capacity or status - To seek review of own decision (incl. decisions of committees) - A hearing panel of the TSX Venture Exchange Inc. found against three representatives of Global Securities Corp. regarding two infractions and dismissed a third - The Exchange and the executive director of the B.C. Securities Commission sought review of the decision by the Commission - As a preliminary matter, the Commission's Hearing Panel determined that the Exchange had standing under s. 28(1) of the Securities Act to apply for review of the hearing panel's decision - Global appealed - The British Columbia Court of Appeal dismissed the appeal - The standard of review was reasonableness simpliciter - The Commission Panel had to determine whether the Exchange was a person "directly affected by the decision" of the hearing panel - In coming to its conclusion that the effect of the hearing panel's decision was direct because the decision engaged one of the Exchange's primary functions, the prosecution of infractions, the Commission Panel clearly recognized the legislative intent revealed by the use of the modifier "directly" with the word "affected" - While the court had some reservations about the conclusion, it was supported by a tenable explanation and could not be said to be unreasonable - See paragraphs 62 to 68.

Securities Regulation - Topic 1386

Regulatory commissions (incl. self-regulatory organizations) - Statutory appeal to courts or judicial review - Scope of appeal or standard of review - A hearing panel of the TSX Venture Exchange Inc. found against three representatives of Global Securities Corp. regarding two infractions and dismissed a third - The Exchange and the executive director of the B.C. Securities Commission sought review of the decision by the Commission - As a preliminary matter, the Commission's Hearing Panel determined that the Exchange had standing under s. 28(1) of the Securities Act to apply for review of the hearing panel's decision and that the Exchange was not limited to an explanatory role but was entitled to present arguments on the merits of the decision - Global appealed - The British Columbia Court of Appeal applied the pragmatic and functional approach to determine that the standard of review was reasonableness simpliciter - The merits decision and the s. 28 decision were sufficiently intertwined to allow for one standard of review - Both decisions raised questions of mixed fact and law because each involved an assessment of the purpose and principles of the Act and their application in specific circumstances - See paragraphs 28 to 49.

Securities Regulation - Topic 1403

Exchanges - Status or standing - [See Administrative Law - Topic 8842 ].

Securities Regulation - Topic 1405

Exchanges - Role of exchange - A hearing panel of the TSX Venture Exchange Inc. found against three representatives of Global Securities Corp. regarding two infractions and dismissed a third - The Exchange and the executive director of the B.C. Securities Commission sought review of the decision by the Commission - As a preliminary matter, the Commission's Hearing Panel determined that the Exchange was not limited to an explanatory role in the review but was entitled to argue the decision's merits - Global appealed - The British Columbia Court of Appeal dismissed the appeal - The standard of review was reasonableness simpliciter - There was nothing unreasonable about the Commission Panel's conclusion that the hearing panel operated independently of the Exchange and that a hearing panel decision could not be characterized as the Exchange's decision - The hearing panel interpreted the Exchange's rules but otherwise had no policy role - The Exchange's role was analogous to that of a prosecutor while the Commission's Panel was the judge - The limitation on submissions established in Northwestern Utilities (S.C.C.), that an administrative decision-maker should not argue the merits of its own decision, was not offended by the Exchange arguing the merits of the hearing panel's decision - See paragraphs 50 to 61.

Cases Noticed:

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449, consd. [para. 8].

Pacific International Securities Inc. et al., Re (2002), 171 B.C.A.C. 86; 280 W.A.C. 86; 2 B.C.L.R.(4th) 114; 2002 BCCA 421, refd to. [para. 18].

O'Neill, Re, [1999] B.C.S.C. 18 Weekly Summary 55, refd to. [para. 25].

Bibeault - see Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

U.E.S., Local 298 v. Bibeault - see Union des employés de service.

Union des employés de service, local 298 v. Bibeault - see Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, refd to. [para. 29].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 29].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, appld. [para. 29].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 29].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 29].

Cartaway Resources Corp. et al., Re, [2004] 1 S.C.R. 672; 319 N.R. 1; 195 B.C.A.C. 161; 319 W.A.C. 161; 2004 SCC 26, refd to. [para. 29].

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, refd to. [para. 31].

Starson v. Swayze et al., [2003] 1 S.C.R. 722; 304 N.R. 326; 326; 173 O.A.C. 210, dist. [para. 32].

Gill v. Canadian Venture Exchange Inc. et al. (2003), 185 B.C.A.C. 197; 303 W.A.C. 197; 15 B.C.L.R.(4th) 259; 2003 BCCA 431, dist. [para. 32].

Mason v. British Columbia Securities Commission (2003), 184 B.C.A.C. 111; 302 W.A.C. 111; 2003 BCCA 359, dist. [para. 32].

Hammond v. Law Society of British Columbia (2004), 203 B.C.A.C. 177; 332 W.A.C. 177; 34 B.C.L.R.(4th) 73; 2004 BCCA 560, refd to. [para. 34].

Roeder v. British Columbia Securities Commission (2005), 210 B.C.A.C. 274; 348 W.A.C. 274; 40 B.C.L.R.(4th) 181; 2005 BCCA 189, refd to. [para. 48].

Committee for the Equal Treatment of Asbestos Minority Shareholders v. Ontario (Securities Commission) - see Asbestos Corp., Société nationale de l'Amiante and Quebec (Province), Re.

Asbestos Corp., Société nationale de l'Amiante and Quebec (Province), Re, [2001] 2 S.C.R. 132; 269 N.R. 311; 146 O.A.C 201; 2001 SCC 37, refd to. [para. 48].

Children's Lawyer for Ontario v. Goodis et al. (2005), 196 O.A.C. 350; 253 D.L.R.(4th) 489 (C.A.), refd to. [para. 60].

Counsel:

R.W. Taylor and J.J. Kinghorn, for the appellant;

C.P. Leggat, for the respondent, British Columbia Securities Commission;

L.R. Jackie, for the respondent, TSX Venture Exchange Inc.;

L. Herlin, for the intervenor, The Investment Dealers Association of Canada;

C.C. Cheng, for the intervenor, Market Regulation Services Inc.

This appeal was heard on May 5, 2006, at Vancouver, British Columbia, by Rowles, Ryan and Lowry, JJ.A., of the British Columbia Court of Appeal. Rowles, J.A., delivered the following reasons for judgment for the Court on September 14, 2006.