Tariffs-Free Regulatory Importing?
Asad Akhtar
However, the Court left it open for the creation of a cooperative scheme that recognizes
the essential provincial nature of securities regulation and allowed Parliament to deal with
“genuinely national concerns” would remain an available approach.16 Affirmatively, the federal
government and several provinces/territories17 have responded by the creation of the Cooperative
Capital Markets Regulatory Authority (“CCMR”).
The CMA and its regulations would constitute a singular set of securities law that would
replace the existing Securities Acts in each participating province/territory.18 Additionally, the
complementing federal legislation (“CMSA”) would address national systemic risk, data
collection and criminal law matters – matters that have typically escaped the jurisdiction of
provincial regulators.19 The CCMR will be empowered to administer the federal and provincial
legislations and be able to establish new regulations. Consequently, the successful
implementation of the CCMR will have a profound impact on future developments in Canadian
securities regulation.
B. The Public Interest Jurisdiction
In 1962, the Act was amended to allow the OSC to issue certain sanctions that did not
require an explicit breach of a provision in the legislation. This “public interest” jurisdiction was
exercisable at the discretion of the Commission but the application and remedies sought were
restrained by explicit provisions in the Act.20 The 1994 amendments fundamentally altered this
relationship by removing the explicit provisions governing its application and transformed the
16
Ibid.
The current members of the CCMR include British Columbia, Ontario, Saskatchewan, New Brunswick, Prince
Edward Island, and the Yukon.
18
CCMR, About, online: CCMR .
19
Supra, note 6 at 974-976.
20
Nigel Campel, Erin Hoult & David Badham, “Lesser Included Non-Offences? The Use of the Public Interest
Power in Re Donald” (2012) at 2, online: Blakes . The public interest jurisdiction is found
under s. 127.1 of the Act.
17
11