Stenner v. British Columbia Securities Commission et al., (1996) 82 B.C.A.C. 124 (CA)

• Judge: Rowles, Donald and Newbury, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 09, 1996
• Jurisdiction: British Columbia
• Citations: (1996), 82 B.C.A.C. 124 (CA)

Stenner v. Securities Comm. (1996), 82 B.C.A.C. 124 (CA);

    133 W.A.C. 124

MLB headnote and full text

Gordon Stenner (plaintiff/appellant) v. The British Columbia Securities Commission, Her Majesty The Queen in right of the Province of British Columbia, Neil de Gelder, Wade Nesmith and Attorney General of British Columbia (defendants/respondents)

(CA018128)

Indexed As: Stenner v. British Columbia Securities Commission et al.

British Columbia Court of Appeal

Rowles, Donald and Newbury, JJ.A.

October 9, 1996.

Summary:

The plaintiff was a mutual fund salesman and the principal of a corporate licensed mutual fund dealer. The dealer was the subject of an order freezing the funds, secu­rities and other property of its clients in its possession and a receiver was appointed. Under s. 25 of the Securities Act the sales­man's registration was suspended. The sales­man applied for registration or reinstatement. The Superintendent of Brokers and his Deputy Superintendent, after an alleged delay, granted the registration of the sales­man, subject to four conditions. The sales­man sued the officials, among others, for, inter alia, negligence and abuse of public office. The trial judge dismissed the action on the ground that the defendants were protected at common law by the defence of good faith. The salesman appealed.

The British Columbia Court of Appeal dismissed the appeal.

Crown - Topic 5149

Officials and employees - Liability of officials in tort - Defences - Good faith - A mutual fund salesman whose company's registration was terminated or suspended applied for reinstatement of his own regis­tration - He complained that the Superin­tendent of Brokers and his Deputy delayed their consideration of his application, mishandled that application and improperly imposed four conditions on his registration, including that he keep a "low profile" for a time - The British Columbia Court of Appeal affirmed that the officials did not knowingly act without statutory jurisdic­tion or act with improper motive - The court affirmed that the defence of good faith, at common law and under s. 152 of the Securities Act, protected the officials, where they acted in the intended exercise of their duties under the Act - See para­graphs 20 to 35.

Securities Regulation - Topic 5017

Registration - Securities advisors and sales persons - Reinstatement - Sec­tion 25 of the Secur­ities Act provided that when the registra­tion of a registered dealer was suspended or termin­ated, the registra­tion of any employed sales person was also sus­pended until the sales person was re-employed by another regis­tered dealer - Under s. 21 the Superin­tendent of Brokers was required to grant registration or rein­statement when he considered an applicant "suitable" - The British Colum­bia Court of Appeal held that the word "suitable" in s. 21 was not confined to honesty and pro­fessional com­petence - See paragraphs 15 to 17.

Securities Regulation - Topic 5017

Registration - Securities advisors and sales persons - Reinstatement - Sec­tion 25 of the Secur­ities Act pro­vided that when the registra­tion of a regis­tered dealer was suspended or termin­ated, the registra­tion of any employed sales person was also sus­pended until the sales person was re-employed by another regis­tered dealer - Under s. 21 the Superin­tendent of Brokers was required to grant registration or rein­statement when he considered an applicant "suitable" - The British Colum­bia Court of Appeal held that the Superin­tendent was entitled to consider whether the applicant salesman discharged his responsibilities respecting the affairs of the dealer com­pany of which he was principal, and re­specting the clients he was hoping to recapture, in deciding whether the sales­man was "suitable" for reinstatement - See paragraph 19.

Cases Noticed:

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 8].

Kripps v. Touche Ross Ltd. (1990), 48 B.C.L.R.(2d) 171 (C.A.), refd to. [para. 8].

Farrington v. Thomson et al., [1959] V.R. 286 (S.C.), refd to. [para. 9].

Northern Territory of Australia v. Mengel (1995), 129 A.L.R. 1 (H.C.), refd to. [para. 9].

Bourgoin S.A. et al. v. Ministry of Agriculture, Fisheries and Food, [1985] 3 All E.R. 585 (Q.B.), revd. in part [1985] 3 All E.R. 602 (C.A.), refd to. [para. 9].

Three Rivers District Council v. Bank of England (No. 3), [1996] 3 All E.R. 558, refd to. [para. 9].

Harris v. Law Society of Alberta, [1936] S.C.R. 88, refd to. [para. 10].

Starline Entertainment Centre Inc. v. Ciccarelli (1995), 25 O.R.(3d) 765 (Gen. Div.), refd to. [para. 10].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 10].

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. 13].

Pezim v. British Columbia (Superintendent of Brokers) - see Pezim v. British Columbia Securities Commission et al.

Gregory & Co. v. Quebec Securities Commission, [1961] S.C.R. 584, refd to. [para. 13].

Lymburn v. Maryland, [1932] A.C. 318 (P.C.), refd to. [para. 15].

Instinet Corp., Re (1995), 18 O.S.C.B. 5439 (Ont. Securities Comm.), refd to. [para. 16].

Rosen and the Ontario Securities Act, Re (1992), 15 O.S.C.B. 4789 (Ont. Securities Comm.), refd to. [para. 16].

Austin (T.W.) Investment Inc., Re (1990), 13 O.S.C.B. 5336 (Ont. Securities Comm.), refd to. [para. 16].

Sombach and Saskatchewan Securities Commission et al. (1994), 4 C.C.L.S. 102 (Sask. Securities Comm.), refd to. [para. 17].

Pask v. McDonald, Bubnick, Caswell, Sapara, Kubik and Esterhazy (Town), [1980] 6 W.W.R. 133; 5 Sask.R. 143 (Dist. Ct.), affd. [1983] 6 W.W.R. 287; 35 Sask.R. 109 (C.A.), consd. [para. 23].

Magrum v. McDougall, [1944] 3 W.W.R. 486 (Alta. C.A.), refd to. [para. 23].

Simpson v. Attorney General (Baigent's Case), [1994] 3 N.Z.L.R. 667 (C.A.), refd to. [para. 23].

Statutes Noticed:

Securities Act, S.B.C. 1985, c. 83, sect. 20 [para. 14, Appendix A.]; sect. 21, sect. 25 [para. 3, Appendix A]; sect. 152 [para. 7, Appendix A].

Securities Act Regulations (B.C.), Reg. 270/86, sect. 25 [para. 9, Appendix A].

Authors and Works Noticed:

Alboini, Victor P., Ontario Securities Law (1980), p. 2-800, § 24 to 26 [para. 16].

Concise Oxford Dicionary, generally [para. 23].

Johnston, David, Canadian Securities Regulation (1977), p. 99 [para. 15].

Counsel:

Robert E. Breivik and G. Crickmore, for the appellant;

D. Clifton Prowse, for the respondents.

This appeal was heard on September 10, 11 and 12, 1996, at Vancouver, British Columbia, before Rowles, Donald and Newbury, JJ.A., of the British Columbia Court of Appeal.

On October 9, 1996, Newbury, J.A., delivered the following judgment for the court.