Tariffs-Free Regulatory Importing?
Asad Akhtar
SCC Ruling – Broad but not unlimited, Prevent Future Harm
On its appeal to the SCC, Justice Iacobucci, for the Court, upheld the Commission’s
decision and provided greater clarification on the nature and scope of the public interest
jurisdiction. He noted that the power conferred to the Commission is broad, but it is not
unlimited.27 The power is animated by the dual purposes of the Act – to provide protection to
investors from unfair, improper or fraudulent practices and to foster fair and efficient capital
markets and confidence in capital markets.28 Finally, the power is a regulatory provision and
should be used to prevent likely future harm to the markets as opposed to as a remedial or
punitive measure.29
2. Public Interest Slide & Restraint
Decisions following Asbestos Corp. have similarly affirmed the broad discretion afforded
to the OSC in exercising its public interest jurisdiction. However, the practical limitations of this
power has sparked a contentious debate.30 Some argue that OSC Staff has been engaging in a
“public interest slide” – relying on the public interest power to sanction individuals when they
fail to successfully prove an alleged breach on the same action and with the same evidence.31
Waheed
This slide seems to have been met with some restraint, at least in the context of tribunal
proceedings, following the 2014 Commission’s decision in Waheed.32
In Waheed, OSC Staff brought allegations that the respondent engaged in insider trading
and conduct contrary to the public interest. The insider trading allegation was premised on
27
Supra note 23 at para 41.
Supra note 23 at para 41-42.
29
Ibid.
30
Supra note 20 at 10.
31
In Re Donald, 2012 LNONOSC 546, 35 OSCB 7383, OSC Staff utilized the public interest jurisdiction to
sanction an individual who was deemed to not be in a “special relationship” pursuant to s. 76(5) of the Act.
32
Re Waheed 2014 LNONOSC 543, 37 OSCB 8007, [Waheed]. See also Seumas Woods & Doug McLeod, “OSC
Adopts Restrained Interpretation of ‘Public Interest’ Jurisdiction in Baffinland Case” (2014), online: Blakes
.
28
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