Thow v. British Columbia Securities Commission, (2009) 266 B.C.A.C. 140 (CA)

• Judge: Ryan, D. Smith and Groberman, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 09, 2008
• Jurisdiction: British Columbia
• Citations: (2009), 266 B.C.A.C. 140 (CA);2009 BCCA 46

Thow v. Securities Comm. (2009), 266 B.C.A.C. 140 (CA);

    449 W.A.C. 140

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. FE.026

Ian Gregory Thow (appellant) v. British Columbia Securities Commission (respondent)

(CA035753; 2009 BCCA 46)

Indexed As: Thow v. British Columbia Securities Commission

British Columbia Court of Appeal

Ryan, D. Smith and Groberman, JJ.A.

February 12, 2009.

Summary:

The British Columbia Securities Commission found that Thow had committed a number of violations of the Securities Act and had misappropriated monies that he had been entrusted to invest on behalf of his clients. The Commission made a number of orders under s. 161 of the Securities Act, permanently prohibiting Thow from participation in the securities industry and imposed an "administrative penalty" of $6 million under s. 162. Thow appealed the administrative penalty.

The British Columbia Court of Appeal allowed the appeal and reduced the administrative penalty to $250,000.

Securities Regulation - Topic 5322

Trading in securities - Offences - Penalties and punishments - Administrative penalties - The British Columbia Securities Commission found that Thow had committed a number of violations of the Securities Act and had misappropriated monies that he had been entrusted to invest on behalf of his clients - The Commission imposed an "administrative penalty" of $6 million under s. 162 of the Securities Act - Thow appealed the administrative penalty - He asserted that because his contraventions occurred at a time when the Act authorized a maximum administrative penalty of only $250,000, any penalty in excess of that amount was outside the Commission's jurisdiction - The Commission acknowledged that Thow's contraventions of the Act pre-dated the amendments that increased the maximum administrative penalty - It interpreted the amendments as providing it with jurisdiction to impose the increased penalty even for contraventions that occurred before those amendments were enacted - The British Columbia Court of Appeal allowed the appeal and reduced the administrative penalty to $250,000 - The court held that "the Commission's imposition of the fine was arguably not 'punitive' in the narrow sense of the word; that is, it may not have been imposed as a punishment for Mr. Thow's moral failings, and it may not have been motivated by a desire for retribution or to denounce his conduct. Nonetheless, it was 'punitive in the broad sense of the word; it was designed to penalize Mr. Thow and to deter others from similar conduct. It was not merely a prophylactic measure designed to limit or eliminate the risk that Mr. Thow might pose in the future. Accordingly, I am of the view that the Securities Commission erred in finding that the presumption against retrospectivity was inapplicable to the increase in the maximum administrative penalty authorized by the 2006 legislation".

Statutes - Topic 2272

Interpretation - Presumptions and rules in aid - Presumption against retrospective or retroactive operation - [See Securities Regulation - Topic 5322 ].

Cases Noticed:

R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 61 Sask.R. 105; 24 O.A.C. 321; 60 C.R.(3d) 193; 37 C.C.C.(3d) 385, refd to. [para. 12].

Martineau v. Ministre du Revenu national, [2004] 3 S.C.R. 737; 328 N.R. 48; 2004 SCC 81, refd to. [para. 12].

R. v. Vine (1875), L.R. 10 Q.B. 195, refd to. [para. 22].

Solicitor's Clerk, In re A, [1957] 1 W.L.R. 1219; [1957] 3 All E.R. 617 (Q.B.), refd to. [para. 23].

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241, refd to. [para. 25].

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. 28].

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

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. 28].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 291 D.L.R.(4th) 577; 2008 SCC 9, refd to. [para. 35].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 35].

Royal Canadian Mounted Police Act, Re, [1991] 1 F.C. 529; 123 N.R. 120 (F.C.A.), refd to. [para. 42].

British Columbia Securities Commission v. Biller (2001), 150 B.C.A.C. 155; 245 W.A.C. 155; 199 D.L.R.(4th) 124; 2001 BCCA 208, refd to. [para. 58].

Authors and Works Noticed:

Driedger, Elmer A., Statutes: Retroactive Retrospective Reflections (1978), 56 Can. Bar Rev. 264, pp. 268 [para. 13]; 269 [paras. 13, 16]; 271 [para. 20]; 275 [para. 24]; 319 [para. 26].

Edinger, Elizabeth, Retrospectivity in Law (1995), 29 U.B.C.L.R. 5, pp. 11 [para. 17]; 12 [para. 10].

Finnis, John, Natural Law and Natural Rights (1980), p. 270 [para. 10].

Fuller, Lon L., The Morality of Law (Rev. Ed. 1969), p. 44 [para. 19].

Raz, Joseph, The Rule of Law and Its Virtue, in The Authority of the Law: Essays on Law and Morality (1979), p. 214 [para. 10].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 559 [para. 15].

Counsel:

Ronald N. Pelletier, for the appellant;

Warren B. Milman and Michael A. Feder, for the respondent.

This appeal was heard on September 9, 2008, at Vancouver, B.C., by Ryan, D. Smith and Groberman, JJ.A., of the British Columbia Court of Appeal. The following judgment of the Court of Appeal was delivered by Groberman, J.A., on February 12, 2009.