Nova Scotia Securities Commission v. Potter et al.

• Jurisdiction: Nova Scotia
• Judge: Rosinski, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Citation: (2011), 305 N.S.R.(2d) 104 (SC),2011 NSSC 239
• Date: 18 May 2011

N.S. Securities Comm. v. Potter (2011), 305 N.S.R.(2d) 104 (SC);

    966 A.P.R. 104

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. JN.081

STAFF of the Nova Scotia Securities Commission (applicant) v. Daniel F. Potter, Knowledge House Inc., Raymond G. Courtney, Calvin W. Wadden and Kenneth G. MacLeod (respondents)

(Hfx. No. 334479; 2011 NSSC 239)

Indexed As: Nova Scotia Securities Commission v. Potter et al.

Nova Scotia Supreme Court

Rosinski, J.

June 16, 2011.

Summary:

The Nova Scotia Securities Commission issued a Notice of Hearing to the respondents alleging breaches of the Securities Act following the collapse of a publicly traded company and the de-listing of its shares. During the discovery of a Commission investigator, the applicant objected to a line of questions. The applicant applied for an order (declaration) sustaining its objection to the line of questions. Two respondents requested an adjournment.

The Nova Scotia Supreme Court refused the adjournment and held that it had jurisdiction to grant declaratory relief. The court declined to grant declaratory relief on the basis of relevancy and declared that investigators would not violate Nova Scotia Securities laws if they answered a question in issue.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - The Nova Scotia Securities Commission issued a Notice of Hearing to the respondents alleging breaches of the Securities Act following the collapse of a publicly traded company and the de-listing of its shares - During the discovery of a Commission investigator, the applicant objected to a line of questions - The applicant applied for an order (declaration) sustaining its objection to the line of questions - It argued that the court had inherent jurisdiction to supervise and assist boards, commissions and other tribunals - The Nova Scotia Supreme Court held that its "inherent jurisdiction" should not be relied upon here, because the Commission was not "powerless to act" and it was not "essential to avoid an injustice that action be taken" since the Commission had an implied statutory mandate to control its own process to the extent necessary to prevent any injustice - However, the court had jurisdiction to entertain the application under Civil Procedure Rule 38.07(5) which specifically provided for declaratory relief regarding the "legal status or right of a person" - See paragraphs 26 to 35.

Courts - Topic 6023

Provincial Courts - Nova Scotia - Supreme Court - Jurisdiction - General - [See Courts - Topic 2004 ].

Courts - Topic 6026

Provincial Courts - Nova Scotia - Supreme Court - Jurisdiction - Inherent - [See Courts - Topic 2004 ].

Practice - Topic 3073.1

Applications and motions - Applications - Adjournments - The Nova Scotia Securities Commission issued a Notice of Hearing to the respondents alleging breaches of the Securities Act following the collapse of a publicly traded company and the de-listing of its shares - During the discovery of a Commission investigator, the applicant objected to a line of questions - The applicant applied for an order (declaration) sustaining its objection to the line of questions - Two respondents requested an adjournment pending the outcome of an appeal in a related proceeding - The Nova Scotia Supreme Court refused the adjournment - The questions left for determination of the Court of Appeal were not going to have any considerable influence on, or affect the course of, the application - See paragraphs 6 to 22.

Practice - Topic 5652

Judgments and orders - Declaratory judgments - When available - General - The Nova Scotia Securities Commission issued a Notice of Hearing to the respondents alleging breaches of the Securities Act following the collapse of a publicly traded company and the de-listing of its shares - During the discovery of a Commission investigator, the applicant objected to a line of questions - The applicant applied for an order (declaration) sustaining its objection to the line of questions on the basis that the questions were irrelevant and that investigators would violate the Act by answering them - The Nova Scotia Supreme Court held that there was no need for it to make a declaration respecting the relevancy objection as the Commissioner had ruled that the question was irrelevant - It was in the interests of justice to make a declaration as to the effect of the statutory prohibition on answering - Following an in camera hearing, the court was satisfied that the investigators would not violate Nova Scotia Securities laws if they answered the question in issue - See paragraphs 45 to 106.

Securities Regulation - Topic 1365

Regulatory commissions (incl. self-regulatory organizations) - Practice - Discovery or examination - [See Practice - Topic 5652 ].

Cases Noticed:

Tinkham Real Estate Ltd. et al. v. Future Group Realty Ltd. et al. (2007), 255 N.S.R.(2d) 66; 814 A.P.R. 66; 2007 NSSC 167, refd to. [para. 13].

Secunda Marine Services Ltd. v. Caterpillar Inc. et al. (2010), 297 N.S.R.(2d) 279; 943 A.P.R. 279; 2010 NSCA 105, refd to. [para. 13].

Alberta Teachers' Association v. Grande Yellowhead Public School Division No. 77 et al., [2010] A.R. Uned. 799; 2010 ABQB 599, refd to. [para. 13].

Gaudet v. Ontario Securities Commission (1990), 38 O.A.C. 216 (Div. Ct.), refd to. [para. 13].

Stewart McKelvey Stirling Scales v. Nova Scotia Barristers' Society et al. (2005), 238 N.S.R.(2d) 293; 757 A.P.R. 293; 2005 NSCA 149, refd to. [para. 13].

O'Connor v. Nova Scotia (Minister of the Priorities and Planning Secretariat) (2001), 193 N.S.R.(2d) 8; 602 A.P.R. 8; 2001 NSCA 47, refd to. [para. 13].

Babiuk v. Calgary (City) (1992), 133 A.R. 21; 95 D.L.R.(4th) 158 (Q.B.), refd to. [para. 24].

Oakland/Indian Point Residents Association v. Seaview Properties Ltd. et al. (2010), 294 N.S.R.(2d) 149; 933 A.P.R. 149; 2010 NSCA 66, refd to. [para. 24].

R. v. Caron (G.) (2011), 411 N.R. 89; 499 A.R. 309; 514 W.A.C. 309; 2011 SCC 5, refd to. [para. 28].

TeleZone Inc. v. Canada (Attorney General) (2010), 410 N.R. 1; 273 O.A.C. 1; 2010 SCC 62, refd to. [para. 32].

Canadian Broadcasting Corp. v. Nova Scotia (Attorney General) (2010), 293 N.S.R.(2d) 187; 928 A.P.R. 187; 2010 NSSC 295, refd to. [para. 34].

Saturley v. CIBC World Markets Inc. (2011), 297 N.S.R.(2d) 371; 943 A.P.R. 371; 2011 NSSC 4, refd to. [para. 60].

Johnson v. Mill, [2011] N.S.R.(2d) Uned. 31; 2011 NSSC 66, refd to. [para. 61].

Banks et al. v. National Bank Financial Ltd. et al. (2011), 302 N.S.R.(2d) 25; 955 A.P.R. 25; 2011 NSSC 79, refd to. [para. 61].

R. v. Conway (P.), [2010] 1 S.C.R. 765; 402 N.R. 255; 263 O.A.C. 61, refd to. [para. 63].

Shapray v. British Columbia Securities Commission (2009), 274 B.C.A.C. 58; 463 W.A.C. 58; 2009 BCCA 322, refd to. [para. 63].

Named Person v. Vancouver Sun - see Vancouver Sun et al. v. Canada (Attorney General) et al.

Vancouver Sun et al. v. Canada (Attorney General) et al., [2007] 3 S.C.R. 253; 368 N.R. 112; 368 B.C.A.C. 1; 409 W.A.C. 1, refd to. [para. 93].

Counsel:

Heidi Schedler, for the applicants;

W. Dale Dunlop, for the respondents, Wadden and MacLeod;

Daniel Potter, self-represented.

This matter was heard on May 18, 2011, in Halifax, Nova Scotia, before Rosinski, J., of the Nova Scotia Supreme Court, who delivered the following decision on June 16, 2011.