Category: Securities Law


R v Bandali: Patient Information and Securities Trading in Ontario

Personal Health Information Protection in Ontario We live in a time where we are constantly bombarded with information. At the same time,  more and more institutions and businesses are keeping track of our personal data. Sometimes this information is shared inappropriately and some other times, where it should be shared, it is not. In Ontario, people often complain when their healthcare information is not being shared between providers and specialists, thus making the process of going to the doctor unnecessarily time consuming. It was not until recently that we have started to have a public debate about who can access...


Insider Trading and the Use of Evidence: Walton v Alberta

In Walton v Alberta (Securities Commission), 2014 ABCA 273, the Alberta Court of Appeal (“ABCA”) was asked to assess an Alberta Securities Commission (“ASC”) decision. The ABCA’s rejection of some of the ASC’s conclusions demonstrates the complications security regulators face when applying the law of insider trading and its related provisions.


The USSC Revisits the Fraud-on-the-Market Principle: Halliburton Co v Erica P John Fund

Last Wednesday, the United States Supreme Court heard oral arguments for Halliburton Co v Erica P. John Fund, thereby revisiting the contentious “fraud-on-the-market” principle adopted in the 1988 case of Basic Inc v Levinson, 485 US 224 (1988). The principle works as follows: open and developed securities markets are efficient and all relevant information about a particular security is reflected in its price; investors buy these securities relying on the integrity of this price; material misstatements made by the issuer distort this price; and therefore, investors can be deemed to have relied on the misstatement because they relied on the...


Assessing Access to Justice in Class Actions: AIC Limited v Fischer

Introduction In order for a class action to be certified, a judge must be satisfied that a class action is the “preferable” way of bringing the claims as against other alternatives. In Hollick v Toronto (City), [2001] 3 SCR 158, McLachlin CJ wrote that this preferability analysis must focus on the three “advantages” of class actions: behaviour modification, judicial economy, and access to justice. In AIC Limited v Fischer, [2013] 3 SCR 949 [Fischer, SCC], the Supreme Court of Canada developed the meaning of access to justice in this context.


When is a ‘Penalty’ Not ‘Penal’? – Rowan v OSC

Last week, the Ontario Court of Appeal (“ONCA”) released its decision in Rowan v Ontario Securities Commission 2012 ONCA 208  [Rowan]. In Rowan, the chief issue was whether s. 127(9) of the Ontario Securites Act, RSO 1990, c S.5 [the Act], which allows the Ontario Securities Commission (“OSC”) to order administrative monetary penalties (“AMPs”) of up to $1 million per breach of securities law, violated s. 11(d) of the Charter of Rights and Freedoms. Writing for a unanimous Court, Justice Sharpe dismissed the appeal, holding that AMPs are not ‘penal’ such as to engage section 11 and are “entirely in keeping...


Amici Curiae: Deporting Mugesera, Responding to the Securities Reference, Mandating Condom Use and Reflecting on SOPA

A Long-Awaited Departure Twenty years after arriving in Canada, and seventeen years after his initial deportation order, Leon Mugesera is back in Rwanda to face a slew of charges stemming from comments he made that allegedly sparked the beginning of the Rwandan genocide in 1994. Mugesera sought refuge in Canada in 1992 after being charged with inciting hatred in Rwanda for a speech he made suggesting that the Hutu majority exterminate the Tutsi minority in the country. Mugesera’s exhaustive legal battle illustrates the expansive nature of the appellate system in Canada – he managed to avoid deportation for nearly two...


Cooperative Federalism and The Securities Act Reference: A Rocky Road

In the Supreme Court of Canada’s (“SCC”) recent opinion on the federal government’s proposed Securities Act, the Court held that the proposed Act was not a valid exercise of federal power under the general branch of the trade and commerce power in section 91 of the Constitution Act, 1867 (see Reference Re Securities Act, 2011 SCC 66). Though the Court rejected the federal proposal, it was careful to leave the door open for some form of national securities regulator in the future, holding that “a cooperative approach that permits a scheme recognizing the essentially provincial nature of securities regulation while allowing...


Prospects for Cooperation: The Reference Re Securities Act

The Supreme Court recently released its opinion on the federal government’s proposed Securities Act, deciding that the proposal is not a valid exercise of federal power under the general branch of the trade and commerce power (see Reference re Securities Act, 2011 SCC 66). Rather than rejecting the idea of a national securities regulator per se, the Court’s opinion seems to lay the groundwork for a cooperative solution to securities regulation, leaving room for both provincial and federal regulation in this field.


The Court visits the Court

This past Tuesday, a group of student editors from The Court, along with our faculty advisor, Simon Fodden, took a visit to the Supreme Court of Canada. We attended the hearing in Kerr v Daniel Leather, a securities case dealing with an issuer’s disclosure obligations during the prospectus process. Simon Archer, who came along for the ride, provides an excellent summary of the facts and issues arising from the case in his post earlier this week. My first trip to the SCC cleared up several misconceptions I had about what occurs within its hallowed walls. Looking from outside the massive...


The Hide Business: A Review of the Facts and Issues in Kerr v Danier Leather

Tomorrow, the Supreme Court of Canada will hear the appeal in the Danier Leather case, a case which has been followed by the securities bar and is, sadly, not about bawdy houses in Montreal. At issue in this case is the interpretation of some key terms and provisions in the Ontario Securities Act, RSO 1990, c S-5 (“material change” and “material fact”), the operation of s. 57(1) of that Act, whether prospectuses contain an implied warranty of “reasonableness,” and whether the business judgment rule is a defence available to senior management when issuing a prospectus. Both judgments below had remarkable features,...