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Carving the Public Interest Jurisdiction in Securities Regulation: Contributions of Justice Iacobucci

Judicially speaking, the breadth of securities commissions’ enforcement powers has historically been uncharted territory. Securities commissions are, in a sense, self-sufficient – they conduct investigations and bring cases, and in many instances they hear and decide cases also. While judicial reviews and appeals of regulatory decisions in this area of law occur, it is rare that such cases find their way to the Supreme Court of Canada. However, a few such cases have reached the Supreme Court in the past decade. At the pen of Justice Iacobucci, these decisions have been instrumental in defining regulatory enforcement powers, including principles on which orders in the public interest should be made, while recognizing and upholding general deference to securities regulatory authorities. Clearly this is a fine balance to strike! Since its inception in 1962, the public interest power has become the most significant enforcement power that securities regulators in Canada possess. Under this power, a securities regulator has the ability to issue an order if, ‘in its opinion,’ it would be in the public interest to do so. Given this general wording, there has been broad leeway for interpretation and application of the power. In addition, the scope of the orders that securities regulators can grant under the public interest jurisdiction has grown substantially over the years. In the beginning, only cease trade orders and denials of exemptions were available to securities regulators under this power. Now the orders are more numerous and include a disgorgement power and a monetary administrative penalty, for example. The public interest power has been controversial, though not without justification. In the 1987 Canadian Tire decision, the Ontario Securities Commission (OSC) held that the insider bid transaction at issue was