- with Inhouse Counsel
- with readers working within the Advertising & Public Relations, Healthcare and Oil & Gas industries
On November 6, 2025, the Ontario Court of Appeal released Binance Holdings Limited v. Ontario Securities Commission, 2025 ONCA 751, an important decision striking down an investigatory summons as overbroad and unconstitutional. The decision is a rare victory for a party seeking to challenge the broad powers afforded to securities regulators. Binance confirms the substantive rights of respondents in securities investigations to challenge arguable regulatory overreach.
The OSC takes the position that trading platforms offering crypto assets and instruments or contracts involving rights or claims to crypto assets may facilitate trade in "securities and/or derivatives" within the meaning of the Securities Act, and required such platforms doing business in Ontario to start compliance discussions with the Ontario securities regulator in 2021.
Binance Holdings Limited's (Binance), a Cayman Islands-based crypto trading platform and one of the world's largest crypto platforms, operated in Ontario without registration or exemption under the Securities Act. Despite assurances to the OSC that it had ceased Ontario operations, Binance allegedly continued to allow trading by Ontario users.
The OSC launched an investigation and issued a summons under section 13 of the Securities Act – which gives the OSC far-reaching powers to compel documents and testimony as part of its investigative powers. Binance argued that the summons was unconstitutionally overbroad and violated its rights under section 8 of the Canadian Charter of Rights and Freedoms (the Charter), which protects against unreasonable search and seizure.
The summons issued sought extremely broad production from Binance, seeking amongst other things "all communications regarding Ontario (or Canada generally) among directors, officers, employees, contractors, agents and consultants of Binance Holdings Limited and related entities" from 2021 to present. Binance challenged the summons before multiple bodies, including the Capital Markets Tribunal, and the Divisional Court, but none adjudicated the constitutional issue. Binance appealed to the Court of Appeal, which set aside the summons and ordered the return of the documents seized, without prejudice to the OSC issuing a Charter-compliant summons in future.
The Ontario Court of Appeal allowed the appeal in part. It confirmed that section 8 of the Charter applies to regulatory production orders, even though it cited cases confirming that the expectation of privacy of an organization like Binance in such records is typically low in the face of a regulatory investigation. The Court of Appeal emphasized that even in regulatory contexts, seizures must be reasonable, and regulators must have a foundation to believe the documents sought may be relevant. While s. 8 protections in the regulatory context are significantly narrower than in criminal proceedings, Binance confirms that they do exist and will be enforced in appropriate cases.
The Court found the summons issued to Binance as "staggering in its breadth and...made without apparent concern about the relevance of what was being demanded, beyond mere speculation that there could be something relevant that would otherwise be missed".
The Court rejected the OSC's arguments that section 13 of the Securities Act permits unrestricted document demands, citing previous jurisprudence to affirm that even in regulatory settings, relevance is a constitutional requirement. It also rejected the OSC's argument that such a broad summons was necessary in this case. The Court's reasoning is concisely and colorfully summarized in paragraph 98: "I cannot conceive that it would be reasonable for the Commission to demand an overbroad array of documents to enable it to conduct a fishing expedition of the entire business in a speculative search for documents where there is no reasoned basis for believing that they may be relevant to the inquiry that is being undertaken."
Binance also has interesting procedural implications for challenging an OSC summons. The Court of Appeal held that s. 144 of the Securities Act does not permit parties to challenge OSC summonses through the Capital Markets Tribunal but instead through applications for judicial review. This is likely to lead to more applications to the courts in the context of OSC investigations.
The Binance decision is a welcome one for persons and companies responding to regulatory investigations that wish to challenge very broad investigatory orders, though the sheer breadth of the demand here (all correspondence related to a country from a very large company) would appear to make it a relative outlier.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
