Appeals From The Ontario Securities Commission Post-Vavilov

• Published date: 22 October 2020
• Subject Matter: Corporate/Commercial Law, Securities
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Securities Regulatory Monitor, Simon Cameron, Shane C. D'Souza, Andrew Matheson and Rene R. Sorell

The Supreme Court of Canada's decisions in companion appeals Canada (Minister of Citizenship and Immigration) v. Vavilov¹ and Bell Canada v. Canada (Attorney General)² established a revised framework for appellate and judicial review of administrative law matters, which applies to the decisions of securities regulators. This new framework should bring an end to the wide-ranging, nearly complete deference that courts have afforded to decisions of the Ontario Securities Commission ("OSC"). Appeals will now be reviewed on the same standard as appeals from lower court decisions, which will mean a much less deferential standard for questions of law than the OSC enjoyed in the past. As a recent Ontario Divisional Court case exemplifies, the impact of Vavilov is much less important where the grounds of appeal are factual in nature.³

Traditionally, courts have shown securities regulators a high degree of deference in recognition of the fact that "securities regulation is a highly specialized activity that requires specific knowledge and expertise in the complexities of capital and financial markets."⁴ However, the traditional approach has been criticized for failing to give effect to the fact that section 9.1 of...