Wilder et al. v. Ontario Securities Commission, (2001) 142 O.A.C. 300 (CA)

• Judge: Abella, Goudge and Sharpe, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 06, 2001
• Jurisdiction: Ontario
• Citations: (2001), 142 O.A.C. 300 (CA)

Wilder v. Securities Comm. (2001), 142 O.A.C. 300 (CA)

MLB headnote and full text

Temp. Cite: [2001] O.A.C. TBEd. MR.053

Lawrence D. Wilder and Cassels Brock & Blackwell (applicants/appellants) v. Ontario Securities Commission (respondent/respondent in appeal)

(C34363)

Indexed As: Wilder et al. v. Ontario Securities Commission

Ontario Court of Appeal

Abella, Goudge and Sharpe, JJ.A.

March 22, 2001.

Summary:

The Ontario Securities Commission (OSC) issued a notice that it would hold a hearing pursuant to its public interest jurisdiction, to determine, inter alia, whether a lawyer had made misleading statements to the OSC respecting a client and should, therefore, be reprimanded by the OSC. The lawyer and his law firm applied for judicial review, submitting that the OSC lacked jurisdiction over a lawyer acting in his professional capacity. The Law Society of Upper Canada was added as an intervener.

The Ontario Divisional Court, in a decision reported 131 O.A.C. 369, dismissed the application. The OSC was not usurping the role of the Law Society as its objective was not to discipline a lawyer for professional misconduct; rather its concern was to remedy a breach of its own Act which violated the public interest in fair and efficient capital markets, and to control its own processes. The lawyer and his law firm appealed.

The Ontario Court of Appeal dismissed the appeal.

Barristers and Solicitors - Topic 7658

Regulation - Powers of governing bodies - Securities commissions - [See all Securities Regulation - Topic 1242 and Securities Regulation - Topic 1253 ].

Securities Regulation - Topic 1242

Regulatory commissions - Powers or jurisdiction - Public interest - The Ontario Securities Commission (OSC) issued a notice that it would hold a hearing pursuant to its public interest jurisdiction, to determine, inter alia, whether a lawyer had made misleading statements to the OSC respecting a client and should, therefore, be reprimanded by the OSC (s. 127(1)6 of the Securities Act) - The lawyer and his law firm applied for judicial review, submitting that the OSC lacked jurisdiction over a lawyer acting in his professional capacity - The Divisional Court dismissed the application - The OSC was not usurping the role of the Law Society as its objective was not to discipline a lawyer for professional misconduct; rather its concern was to remedy a breach of its own Act which violated the public interest in fair and efficient capital markets, and to control its own processes - The Ontario Court of Appeal affirmed the decision - See paragraphs 28 to 29.

Securities Regulation - Topic 1242

Regulatory commissions - Powers or jurisdiction - Public interest - The Ontario Securities Commission (OSC) issued a notice that it would hold a hearing pursuant to its public interest jurisdiction, to determine, inter alia, whether a lawyer had made misleading statements to the OSC (s. 127(1)6 of the Securities Act) - The lawyer and his law firm unsuccessfully applied for judicial review - The lawyer and his law firm appealed, submitting, inter alia, that the Ontario Court of Justice had exclusive jurisdiction over the alleged misconduct under s. 122 of the Act - The Ontario Court of Appeal stated that in light of the overall purpose of the Act, the statute provided the OSC with a range of remedial options to assist in carrying out its statutory mandate - To hold that the Ontario Court of Justice had exclusive jurisdiction was a rigidly narrow interpretation - See paragraphs 15 to 24.

Securities Regulation - Topic 1242

Regulatory commissions - Powers or jurisdiction - Public interest - The Ontario Securities Commission (OSC) issued a notice that it would hold a hearing pursuant to its public interest jurisdiction, to determine, inter alia, whether a lawyer had made misleading statements to the OSC (s. 127(1)6 of the Securities Act) - The lawyer and his law firm unsuccessfully applied for judicial review - The lawyer and his law firm appealed, submitting, inter alia, that the power to reprimand in para. 6 of s. 127(1) was limited to the situations falling within paras. 1 to 5 of s. 127(1) - The Ontario Court of Appeal dismissed this ground of appeal - See paragraph 25.

Securities Regulation - Topic 1242

Regulatory commissions - Powers or jurisdiction - Public interest - The Ontario Securities Commission (OSC) issued a notice that it would hold a hearing pursuant to its public interest jurisdiction, to determine, inter alia, whether a lawyer had made misleading statements to the OSC (s. 127(1)6 of the Securities Act) - The lawyer and his law firm unsuccessfully applied for judicial review - The lawyer and his law firm appealed, submitting, inter alia, that a reprimand was a punitive measure that could only be imposed as a sanction upon conviction of an offence under s. 122 - The Ontario Court of Appeal stated that the OSC's public interest jurisdiction included the power to reprimand - A reprimand was not a punitive measure, but qualified as a preventative sanction - See paragraphs 26 to 27.

Securities Regulation - Topic 1253

Regulatory commissions - Powers or jurisdiction - Respecting disclosure of information - The Ontario Securities Commission (OSC) issued a notice that it would hold a hearing pursuant to its public interest jurisdiction, to determine, inter alia, whether a lawyer had made misleading statements to the OSC (s. 127(1)6 of the Securities Act) - The lawyer and his law firm unsuccessfully applied for judicial review - The Ontario Court of Appeal affirmed that the OSC had jurisdiction to remedy a breach of its own Act - The court added the caveat that the OSC must respect the importance of solicitor-client privilege - The Professional Conduct Rules allowed for disclosure of confidential information when necessary to defend a lawyer's legal interests, but the OSC should avoid creating a dynamic where the lawyer is placed in the dilemma of either forgoing the right to defend his or her own interests or harming the interests of a client by disclosing privileged information - See paragraphs 30 to 35.

Cases Noticed:

Canadian Pacific Airlines Ltd. et al. v. Canadian Air Lines Pilots Association et al. [1993] 3 S.C.R. 724; 160 N.R. 321, refd to. [para. 17].

Morguard Properties Ltd. v. Winnipeg (City), [1983] 2 S.C.R. 493; 50 N.R. 264, refd to. [para. 17].

Jodrey Estate v. Nova Scotia and British Columbia and Quebec (Attorneys General), [1980] 2 S.C.R. 774; 32 N.R. 275; 41 N.S.R.(2d) 181; 76 A.P.R. 181, refd to. [para. 19].

Covert v. Nova Scotia (Minister of Finance) - see Jodrey Estate v. Nova Scotia and British Columbia and Quebec (Attorneys General).

Pointe-Claire (Ville) v. Syndicat des employées et employés professionnels-les et de bureau, section locale 57 (S.E.P.B. - U.I.E.P.B. - C.T.C. - F.T.Q.), [1997] 1 S.C.R. 1015; 211 N.R. 1, refd to. [para. 19].

Ponte-Claire (City) v. Quebec - see Pointe-Claire (Ville) v. Syndicat des employées et employés professionnels-les et de bureau, section locale 57 (S.E.P.B. - U.I.E.P.B. - C.T.C. - F.T.Q.).

Pacific Coast Coin Exchange of Canada et al. v. Ontario Securities Commission, [1978] 2 S.C.R. 112; 18 N.R. 52, refd to. [para. 21].

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; [1994] 7 W.W.R. 1; 92 B.C.L.R.(2d) 145; 14 B.C.R.(2d) 217; 22 Admin. L.R.(2d) 1; 114 D.L.R.(4th) 385, refd to. [para. 21].

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

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241, refd to. [para. 21].

Brosseau v. Alberta Securities Commission - see Barry and Brosseau v. Alberta Securities Commission.

Gregory & Co. v. Quebec Securities Commission, [1961] S.C.R. 584, refd to. [para. 21].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 25].

Asbestos Corp., Société Nationale de l'Amiante and Quebec (Province), Re (1999), 117 O.A.C. 224; 43 O.R.(3d) 257 (C.A.), refd to. [para. 26].

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

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380; 105 D.L.R.(3d) 745; 50 C.C.C.(2d) 495, refd to. [para. 31].

R. v. McClure (D.E.) (2001), 266 N.R. 275 (S.C.C.), refd to. [para. 31].

Anderson v. Bank of British Columbia (1876), 2 Ch.D. 644, refd to. [para. 31].

Jones v. Smith, [1999] 1 S.C.R. 455; 236 N.R. 201; 120 B.C.A.C. 161; 196 W.A.C. 161, refd to. [para. 31].

Statutes Noticed:

Securities Act. R.S.O. 1990, c. S-5, sect. 1.1 [para. 20]; sect. 122 [para. 5]; sect. 127 [para. 6]; sect. 128 [para. 7].

Authors and Works Noticed:

Driedger, Elmer A., The Construction of Statutes (3rd Ed. 1994), pp. 38 to 41, 131 [para. 19].

Counsel:

H. Lorne Morphy, Linda Fuerst and Miriam Saksznajder, for the appellants;

Brian Greenspan, for the intervener;

Ian R. Smith and Kathryn J. Daniels, for the respondent.

This appeal was heard on February 6, 2001, before Abella, Goudge and Sharpe, JJ.A., of the Ontario Court of Appeal. On March 22, 2001, Sharpe, J.A., released the following judgment for the court.