McLean v. Securities Comm. (2013), 452 N.R. 340 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Temp. Cite: [2013] N.R. TBEd. DE.002
Patricia McLean (appellant) v. Executive Director of the British Columbia Securities Commission (respondent) and Financial Advisors Association of Canada and Ontario Securities Commission (interveners)
(34593; 2013 SCC 67; 2013 CSC 67)
Indexed As: McLean v. British Columbia Securities Commission
Supreme Court of Canada
LeBel, Fish, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
December 5, 2013.
Summary:
On September 8, 2008, McLean entered into a settlement agreement with the Ontario Securities Commission in which she consented “to the making of the order against her” in the form of attachment. By letter dated January 14, 2010, McLean was notified that the Executive Director of the British Columbia Securities Commission (the Commission) was applying for an order against her under s. 161(6)(d) of the British Columbia Securities Act. McLean provided a written submission, asserting that no order could be made against her because the six year limitation period in s. 159 had expired. No oral hearing was requested or held. The Commission issued an order which was essentially identical to that made by the Ontario Commission and implicitly rejected her limitation period assertion. McLean applied for leave to appeal.
The British Columbia Court of Appeal, per Prowse, J.A., in a decision reported at [2010] B.C.A.C. Uned. 87, granted leave to appeal. The Commission obtained an order removing it as a respondent and adding the Executive Director as a respondent. The appeal proceeded. McLean asserted that the Commission erred in making an order more than six years after the events underlying the Ontario agreement and in failing to provide reasons for the order.
The British Columbia Court of Appeal, in a decision reported at 312 B.C.A.C. 288; 531 W.A.C. 288, allowed the appeal on the basis that the Commission erred in not providing an explanation for the imposed sanctions. The court remitted the matter to the Commission to proceed in accordance with the court’s observations. McLean moved for leave to appeal.
The Supreme Court of Canada, in a decision reported at 436 N.R. 396, allowed the motion. McLean appealed on the basis that the Commission had not been entitled to make an order against her as it was outside the s. 159 limitation period.
The Supreme Court of Canada dismissed the appeal, holding that the Commission’s interpretation of the limitation period was reasonable. Although it would have been preferable had the Commission provided reasons for its decision, there was nothing to be gained from requiring the Commission to explain on remand what was readily apparent.
Administrative Law – Topic 547
The hearing and decision – Decisions of the tribunal – Reasons for decisions – When required – McLean entered into a settlement agreement with the Ontario Securities Commission in which she consented “to the making of the order against her” in the form of attachment – McLean was subsequently notified that the Executive Director of the British Columbia Securities Commission (the Commission) was applying for an order against her under s. 161(6)(d) of the British Columbia Securities Act – McLean provided a written submission, asserting that the action was barred by the limitation period in s. 159 of the Act – The Commission issued an order and, in doing so, impliedly decided that the proceeding was not barred by s. 159 – McLean asserted that the Commission erred in not providing reasons for its order – The Supreme Court of Canada stated that “As noted in [Alberta Teachers’ Association v. Information and Privacy Commissioner (Alta.) et al. (2011, S.C.C.)], ‘deference under the reasonableness standard is best given effect when administrative decision makers provide intelligible and transparent justification for their decisions’ … Nonetheless, ‘when a reasonable basis for the decision is apparent to the reviewing court, it will generally be unnecessary to remit the decision to the tribunal’ … Unlike Alberta Teachers, in the case at bar, we do not have the benefit of the Commission’s reasoning from its decisions in other cases involving the same issue … However, a basis for the Commission’s interpretation is apparent from the arguments advanced by the respondent, who is also empowered to make orders under (and thus to interpret) ss. 161(1) and (6). These arguments follow from established principles of statutory interpretation. Accordingly, though reasons would have been preferable, there is nothing to be gained here from requiring the Commission to explain on remand what is readily apparent now.” – See paragraphs 71 and 72.
Administrative Law – Topic 3202
Judicial review – General – Scope or standard of review – At issue on an appeal from a decision of the British Columbia Securities Commission was the proper interpretation of the limitation period in s. 159 of the Securities Act (B.C.) as it related to public interest orders made under s. 161(6)(d) of the Act – The Supreme Court of Canada held that the Commission’s decision was reviewable on the standard of reasonableness – An administrative decision maker’s interpretation of its home or closely-connected statutes “… should be presumed to be a question of statutory interpretation subject to deference on judicial review” (Alberta Teachers’ Association v. Information and Privacy Commissioner (Alta.) et al. (2011, S.C.C.)) – That presumption was not rebutted by a contextual analysis – It was solely the Commission that was tasked with interpreting s. 159 as it applied to s. 161(6)(d) in the first instance – Accordingly, contrary to the appellant’s assertion, there was no possibility of the Commission and the courts giving conflicting interpretations – The court also rejected the assertion that the issue was a general question of law that was of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise – The resolution of unclear language in an administrative decision maker’s home statute was usually best left to the decision maker – That was so because the choice between multiple reasonable interpretations often involved policy considerations that the court presumed that the legislature desired the administrative decision maker, not the courts, to make – The exercise of that interpretative discretion was part of an administrative decision maker’s expertise – See paragraphs 19 to 33.
Administrative Law – Topic 3221
Judicial review – General – Unreasonableness of decision attacked – Section 159 of the Securities Act (B.C.) prohibited the British Columbia Securities Commission from commencing a regulatory action “… more than 6 years after the date of the events that give rise to the proceedings” – Section 161(6)(d)) permitted the Commission to commence a secondary proceeding in the public interest against persons who had agreed with another jurisdiction’s securities regulator, by way of a settlement agreement, to be subject to regulatory action – McLean appealed the commencement of secondary proceedings against her, asserting that the proceedings had been barred as they were commenced more that six years after the underlying misconduct – The Commission asserted that, inter alia, the purpose of s. 161(6)(d) would be undermined if it was barred from making an order in any case where the extra-provincial proceedings concluded more than six years after the date of the wrongdoer’s misconduct – The Supreme Court of Canada held that both interpretations were reasonable – Because the administrative decision maker was charged with administering and applying its home statute, it was the decision maker, first and foremost, that had the discretion to resolve a statutory uncertainty by adopting any interpretation that the statutory language could reasonably bear – Judicial deference in such instances was a principle of modern statutory interpretation – McLean’s burden was not only to show that her competing interpretation was reasonable, but also that the Commission’s interpretation was unreasonable – The court reviewed the ordinary meaning, the drafting history, the context and the purpose of ss. 159 and 161(6), and concluded that the Commission’s interpretation struck a reasonable balance between achieving the legislative goal of facilitating interprovincial cooperation and the underlying purpose of limitation periods – Notwithstanding McLean’s reasonable concerns, the court was unable to conclude that the Commission’s interpretation was unreasonable – There was no basis for judicial interference – See paragraphs 37 to 41.
Administrative Law – Topic 9102
Boards and tribunals – Judicial review – Standard of review – [See
Administrative Law – Topic 3202
].
Administrative Law – Topic 9116
Boards and tribunals – Judicial review – Review of administrative policy or discretion – [See
Administrative Law – Topic 3202
].
Administrative Law – Topic 9118
Boards and tribunals – Judicial review – Curial deference to decisions of tribunals – [See
Administrative Law – Topic 3202
].
Securities Regulation – Topic 1362
Regulatory commissions (incl. self regulatory organizations) – Practice – Limitations of actions – [See
Administrative Law – Topic 3221
].
Securities Regulation – Topic 1386
Regulatory commissions (incl. self-regulatory organizations) – Statutory appeal or judicial review – Scope of appeal or standard of review – [See
Administrative Law – Topic 3202
and
Administrative Law – Topic 3221
].
Securities Regulation – Topic 5302
Trading in securities – Offences – Legislation – Interpretation – [See
Administrative law – Topic 3221
].
Securities Regulation – Topic 5302.1
Trading in securities – Offences – Limitation period – [See
Administrative Law – Topic 3221
].
Statutes – Topic 501
Interpretation – General principles – Purpose of legislation – Duty to promote object of statute – [See
Administrative Law – Topic 3221
].
Statutes – Topic 516
Interpretation – General principles – Ordinary meaning of words – [See
Administrative Law – Topic 3221
].
Statutes – Topic 1415
Interpretation – Construction where meaning is not plain – Ambiguity – Choice of meaning to attain purpose of Act – [See
Administrative Law – Topic 3221
].
Statutes – Topic 1641
Interpretation – Extrinsic aids – Legislative history – General – [See
Administrative Law – Topic 3221
].
Statutes – Topic 2614
Interpretation – Modern rule (incl. interpretation by context) – Legislative or statutory context – [See
Administrative Law – Topic 3221
].
Cases Noticed:
Asbestos Corp., Société nationale de l’Amianté 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. 6].
Committee for the Equal Treatment of Asbestos Minority Shareholders v. Ontario (Securities Commission) – see Asbestos Corp., Société nationale de l’Amianté and Quebec (Province), Re.
Heidary, Re (2000), 23 O.S.C.B. 959; 2000 LNONOSC 79, refd to. [para. 11].
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; 2008 SCC 9, refd to. [para. 21].
Alberta Teachers’ Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 22].
Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al., [2012] 2 S.C.R. 283; 432 N.R. 1; 2012 SCC 35, dist. [para. 22].
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. 21, footnote 2].
Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 21, footnote 2].
Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 26].
Canada (Canadian Human Rights Commission) v. Canada (Attorney General) – see Canada (Attorney General) v. Mowat.
Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc., [2011] 3 S.C.R. 616; 423 N.R. 95; 275 Man.R.(2d) 16; 538 W.A.C. 16; 2011 SCC 59, refd to. [para. 26].
Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30 (2013), 445 N.R. 1; 404 N.B.R.(2d) 1; 1048 A.P.R. 1; 2013 SCC 34, refd to. [para. 26].
Arlington, City v. Federal Communications Commission (2013), 133 S. Ct. 1863, refd to. [para. 25, footnote 3].
British Columbia Securities Commission v. Bapty et al., [2006] B.C.T.C. 638; 2006 BCSC 638, refd to. [para. 28].
National Corn Growers’ Association et al. v. Canadian Import Tribunal, [1990] 2 S.C.R. 1324; 114 N.R. 81, refd to. [para. 31].
VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2007] 1 S.C.R. 650; 360 N.R. 1; 2007 SCC 15, refd to. [para. 31].
Council of Canadians with Disabilities v. Via Rail Canada Inc. – see VIA Rail Canada Inc. v. Canadian Transportation Agency et al.
Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720 et al. (2012), 437 N.R. 202; 539 A.R. 17; 561 W.A.C. 17; 2012 SCC 65, refd to. [para. 32].
Construction Labour Relations v. Driver Iron Inc. – see Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720 et al.
Woods, Re, 1997 LNBCSC 11, refd to. [para. 34].
Seto, Re, 2006 BCSECCOM 569, refd to. [para. 34].
Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 37].
Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 38].
Canadian Pacific Air Lines v. Canadian Air Lines Pilots Association, [1993] 3 S.C.R. 724; 160 N.R. 321, refd to. [para. 42].
ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.), [2006] 1 S.C.R. 140; 344 N.R. 293; 380 A.R. 1; 363 W.A.C. 1; 2006 SCC 4, refd to. [para. 43].
Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305; 2005 SCC 62, refd to. [para. 43].
Dennis, Re, (2005), 2004 L.N.B.C.S.C 705; 2005 BCSECCOM 65, refd to. [para. 45].
R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 46].
Global Securities Corp. v. British Columbia Securities Commission et al., [2000] 1 S.C.R. 494; 252 N.R. 290; 134 B.C.A.C. 207; 219 W.A.C. 207; 2000 SCC 21, refd to. [para. 51].
Novak et al. v. Bond, [1999] 1 S.C.R. 808; 239 N.R. 134; 122 B.C.A.C. 161; 200 W.A.C. 161, refd to. [para. 61].
Friedland, Re, 2010 BCSECCOM 654, refd to. [para. 62].
Nielsen, Re (2013), 36 O.C.S.B. 3478; 2013 LNONOSC 254, refd to. [para. 62].
Robinson, Re, 2013 LNABASC 295; 2013 ABASC 317, refd to. [para. 62].
Maitland Capital Ltd., Re (2012), 35 O.C.S.B 1729; 2012 LNONOSC 95, refd to. [para. 62].
K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 63].
Cholmondeley v. Clinton (1820), 2 Jac. & W. 1; 37 E.R. 527, refd to. [para. 63].
Lines v. British Columbia Securities Commission et al. (2012), 325 B.C.A.C. 236; 553 W.A.C. 236; 35 B.C.L.R.(5th) 281; 2012 BCCA 316, refd to. [para. 65].
Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 66].
Manitoba Metis Federation Inc. v. Canada (Attorney General) (2013), 441 N.R. 209; 291 Man.R.(2d) 1; 570 W.A.C. 1; 2013 SCC 14, refd to. [para. 68].
Murphy v. Welsh, [1993] 2 S.C.R. 1069; 156 N.R. 263; 65 O.A.C. 103, addendum 157 N.R. 372; 66 O.A.C. 240, refd to. [para. 68].
Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 71].
Reference Re Securities Act, [2011] 3 S.C.R. 837; 424 N.R. 1; 519 A.R. 63; 539 W.A.C. 63; 2011 SCC 66, refd to. [para. 77].
Statutes Noticed:
Securities Act, R.S.B.C. 1996, c. 418, sect. 159, sect. 161(6)(d) [para. 9].
Authors and Works Noticed:
Côté, Pierre-André, Beaulac, Stéphane and Devinat, Mathieu, The Interpretation of Legislation in Canada (4th Ed. 2011), pp. 287, 288 [para. 47].
Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 149 [para. 47].
Teplitsky, Martin, Standard of review of administrative adjudication: “What a tangled web we weave …” (2013), Advocates Soc. J. 3, generally [para. 20, footnote 1].
Willis, John, Statute Interpretation in a Nutshell (1938), 16 Can. Bar Rev. 1, pp. 4, 5 [para. 37].
Counsel:
Christopher H. Wirth and Fredrick Schumann, for the appellant;
Stephen M. Zolnay, for the respondent;
Lou Brzezinski and John Polyzogopoulos, for the intervener, the Financial Advisors Asso-
ciation of Canada;
Johanna M. Superina and Usman M. Sheikh, for the intervener, the Ontario Securities Commission.
Solicitors of Record:
Stockwoods, Toronto, Ontario, for the appellant;
British Columbia Securities Commission, Vancouver, British Columbia, for the respondent;
Blaney McMurtry, Toronto, Ontario, for the intervener, the Financial Advisors Association of Canada;
Ontario Securities Commission, Toronto, Ontario, for the intervener, the Ontario Securities Commission.
This appeal was heard on March 21, 2013, by LeBel, Fish, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada. The judgment of the court was released in both official languages on December 5, 2013, with the following opinions:
Moldaver, J. (LeBel, Fish, Rothstein, Crowell and Wagner, JJ., concurring) – see paragraphs 1 to 73;
Karakatsanis, J. – see paragraphs 74 to 82.
