On July 8, 2009, the British Columbia Court of Appeal released
its decision in Shapray v. British Columbia Securities Commission.
The appellant was Howard Shapray, a commercial litigator in
Vancouver who often acts on behalf of individuals who were subject
to and directly affected by s. 148(1) of the Securities Act
(British Columbia) (the "Act"). Section 148(1) of the
Act, much like provisions contained in other provincial securities
legislation, prohibits, without the consent of the British Columbia
Securities Commission (the "Commission"), the disclosure
of any information or evidence obtained or sought to be obtained
pursuant to an investigation order of the Commission, and the
disclosure of the name of any witness examined or sought to be
examined pursuant to such an order. It contains an exemption in
relation to disclosure to the person's legal counsel. According
to Mr. Shapray, s. 148(1) prohibits "innocent and otherwise
lawful speech" and was not demonstrably justified by s. 1 of
the Charter of Right and Freedoms (the "Charter").
Practically, Mr. Shapray argued that, as counsel for targets and
witnesses in Commission investigations, his ability to
"properly respond to and defend disputed allegations of
misconduct or to otherwise prepare a [w]itness to give evidence
under oath" was seriously hampered in that he was unable to
gather evidence from third parties or speak to other witnesses.
The chambers judge dismissed the application, finding that the
prohibition on disclosure was limited in time (in that it expired
once a notice of hearing was issued, or after six years) and in
scope (in that it did not interfere with solicitor-client
communications and did not prevent counsel from discussing the fact
or events at issue). The chambers judge concluded that the minimal
impairment test under s. 1 of the Charter had been satisfied and
that the benefits of the provision (namely the preservation of
evidence and the protection of the markets, listed corporations and
investors against premature and potentially incorrect information
about investigations) outweighed the detrimental effects on the
right to freedom of expression.
The Court of Appeal unanimously allowed the appeal and held s.
148(1) invalid. The Court agreed with Mr. Shapray that a target of
an investigation had an interest in having counsel attempt to
clarify facts, speak to and prepare witnesses, and obtain relevant
documents in the possession of third parties. The ability to obtain
the Commission's consent did not save the provision because no
guidance was provided as to when such consent would be granted and
in order to obtain consent, a lawyer was forced to disclose
information that he or she would not otherwise find it prudent to
disclose. The Court was not satisfied that the blanket prohibition
on disclosure contained in the impugned provision could be said to
fall within a range of reasonable alternatives that minimally
impaired free expression, noting that because it was first enacted
in 1930, decades before the Charter, the Legislature had never had
an opportunity to consider less invasive methods to achieving its
objectives. To permit the Legislature sufficient time to consider
how to achieve those objectives in a manner consistent with the
Charter, the Court delayed the coming into effect of the order of
invalidity for a period of 12 months.
If it stands, the Shapray decision will likely have a
significant impact on disclosure prohibitions in securities
legislation across the country.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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