McLean v. British Columbia (Securities Commission)

McLean v. British Columbia (Securities Commission)
Collection
Supreme Court Judgments
Date
2013-12-05
Neutral citation
2013 SCC 67
Report
[2013] 3 SCR 895
Case number
34593
Judges
LeBel, Louis; Fish, Morris J.; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard
On appeal from
British Columbia
Subjects
Administrative law
Notes
SCC Case Information: 34593
Decision Content
SUPREME COURT OF CANADA
Citation: McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895
Date: 20131205
Docket: 34593
Between:
Patricia McLean
Appellant
and
Executive Director of the British Columbia Securities Commission
Respondent
- and -
Financial Advisors Association of Canada and Ontario Securities Commission
Interveners
Coram: LeBel, Fish, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
Reasons for Judgment:
(paras. 1 to 73)
Concurring Reasons:
(paras. 74 to 82)
Moldaver J. (LeBel, Fish, Rothstein, Cromwell and Wagner JJ. concurring)
Karakatsanis J.
McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895
Patricia McLean Appellant
v.
Executive Director of the British Columbia Securities
Commission Respondent
and
Financial Advisors Association of Canada and
Ontario Securities Commission Interveners
Indexed as: McLean v. British Columbia (Securities Commission)
2013 SCC 67
File No.: 34593.
2013: March 21; 2013: December 5.
Present: LeBel, Fish, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for british columbia
Administrative law — Securities — Standard of review — Limitation of actions — Appellant entering into settlement agreement with Ontario Securities Commission in respect to certain possible improper actions — B.C. Securities Commission initiating secondary proceedings based on settlement agreement — B.C. Securities Act establishing limitation period of six years from date of “events” giving rise to proceedings — Whether “events” triggering six‑year limitation period are the underlying misconduct giving rise to the settlement agreement, or the settlement agreement itself — Whether the standard of review of the Commission’s decision should be correctness or reasonableness — Having regard to the standard of review, whether there is any basis to interfere with the Commission’s interpretation — Securities Act, R.S.B.C. 1996, c. 418, ss. 159, 161(6)(d).
On September 8, 2008, M entered into a settlement agreement with the Ontario Securities Commission in respect to misconduct that occurred in Ontario, in 2001 or earlier. The Ontario Securities Commission issued an order in the public interest barring her from trading in securities for five years and banning her from acting as an officer or director of certain entities registered in Ontario for 10 years. On January 14, 2010, the respondent notified M that he was applying to the British Columbia Securities Commission for a public interest order against her based on s. 161(6)(d) of the Securities Act, R.S.B.C. 1996, c. 418. Section 161(6)(d) empowers the Commission to bring proceedings in the public interest against persons who have agreed with another jurisdiction’s securities regulator, by way of a settlement agreement, to be subject to regulatory action. Section 159 of the Securities Act sets out that all proceedings under the Act “must not be commenced more than 6 years after the date of the events that give rise to the proceedings”. The Commission issued a reciprocal order adopting the same prohibitions as are set out in the Ontario Securities Commission’s order. In doing so, the Commission implicitly interpreted s. 159, as it applies to s. 161(6)(d), such that “the event” that triggered the six‑year limitation period was M’s entering into a settlement agreement and not the misconduct that occurred in 2001 or earlier. The Court of Appeal applied a correctness standard of review and upheld the Commission’s implied decision that “the event” that gave rise to the proceedings in British Columbia under s. 161(6)(d) was the agreement in Ontario.
Held: The appeal should be dismissed
Per LeBel, Fish, Rothstein, Cromwell, Moldaver and Wagner JJ.: The question presented is whether, for purposes of s. 161(6)(d), “the events” that trigger the six‑year limitation period in s. 159 are (i) the underlying misconduct that gave rise to the settlement agreement or (ii) the settlement agreement itself. A review of the ordinary meaning, the context, and the purpose of both ss. 159 and 161(6) of the Securities Act reasonably supports the Commission’s conclusion that the event giving rise to a proceeding under s. 161(6)(d) is the fact of having agreed with a securities regulatory authority to be subject to regulatory action. The appropriate standard of review is reasonableness. Both parties proposed reasonable interpretations of s. 159 of the Securities Act, as it applies to s. 161(6)(d). However, under reasonableness review, courts defer to any reasonable interpretation adopted by an administrative decision maker, even if other reasonable interpretations may exist. Because the Commission’s interpretation has not been shown to be an unreasonable one, there is no basis to interfere on judicial review.
The Court of Appeal erred by applying a correctness standard of review. It is presumed that courts will defer to an administrative decision maker interpreting its own statute or statutes closely connected to its function. This presumption is not rebutted in this case. Nor does the question fall within any exceptional category that warrants a correctness standard. Although limitation periods generally are of central importance to the fair administration of justice, the issue here is statutory interpretation in a particular context within the Commission’s specialized area of expertise. The possibility that other provincial securities commissions may arrive at different interpretations of similar statutory limitation periods is a function of the Constitution’s federalist structure and does not provide a basis for a correctness review. Finally, and most significantly, the modern approach to judicial review recognizes that courts may not be as qualified as an administrative tribunal to interpret that tribunal’s home statute. In particular, the resolution of unclear language in a home statute is usually best left to the administrative tribunal because the tribunal is presumed to be in the best position to weigh the policy considerations often involved in choosing between multiple reasonable interpretations of such language.
The Commission’s interpretation of the limitations period here is reasonable. The ordinary meaning of “the events” in s. 159 that give rise to a proceeding under s. 161(6)(d) is the fact of having agreed with a securities regulatory authority to be subject to regulatory action. Although s. 159 predates s. 161(6), and originally limitation periods were understood to run from the date of the underlying misconduct, that drafting history is not dispositive. The phrase “the events” is deliberately open‑ended and applicable to a variety of contexts. As applied to s. 161(6)(d), it can mean the date the person “has agreed with a securities regulatory authority”. Finally, allowing secondary jurisdictions to wait until the conclusion of a primary proceeding obviates the need for parallel and duplicative proceedings that will overburden securities commissions and the targets of proceedings. The Commission’s interpretation thus furthers the legislative goal of improving interjurisdictional cooperation between provinces and territories.
Although the Commission’s interpretation significantly extends the duration of time for which a person may be subject to regulatory action, of itself, that is not offensive to the purpose of limitation periods. Limitation periods are always driven by policy choices that attempt to balance the interests of the parties. The Commission’s interpretation strikes a reasonable balance between facilitation of interprovincial cooperation and the underlying purposes of limitation periods.
Per Karakatsanis J.: The Commission was reasonable in interpreting s. 159 to require that secondary proceedings under s. 161(6) must be initiated within six years of a person being sanctioned in another jurisdiction. However, the opposite interpretation — that the limitation period runs from the time of the underlying misconduct — is not reasonable. Such an interpretation would require duplicative proceedings in cases, like this one, where an investigation in another jurisdiction does not conclude within six years of the underlying misconduct. It is inconsistent with the legislative objective of facilitating interjurisdictional cooperation and it is at odds with a purposive interpretation. Consequently, it would not have been open to the Commission to interpret the limitations period as the appellant urges.
Cases Cited
By Moldaver J.
Distinguished: Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283; referred to: Committee for the Equal Treatment of Asbestos Minority Shareholders v. Ontario (Securities Commission), 2001 SCC 37, [2001] 2 S.C.R. 132; McLean (Re), 2008 LNONOSC 660, 31 O.S.C.B. 8734; Heidary (Re), 2000 LNONOSC 79, 23 O.S.C.B. 959; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; City of Arlington, Texas v. Federal Communications Commission, 133 S. Ct. 1863 (2013); Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Nor‑Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616; Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458; British Columbia Securities Commission v. Bapty, 2006 BCSC 638 (CanLII); National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650; Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405; Woods (Re), 1997 LNBCSC 11 (QL); Seto (Re), 2006 BCSECCOM 569 (CanLII); Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., [1993] 3 S.C.R. 724; ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140; Montréal (City) v. 2952‑1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141; Dennis (Re), 2005 BCSECCOM 65, 2004 LNBCSC 705 (QL); Perka v. The Queen, [1984] 2 S.C.R. 232; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494; Novak v. Bond, [1999] 1 S.C.R. 808; Friedland (Re), 2010 BCSECCOM 654 (CanLII); Nielsen (Re), 2013 LNONOSC 254, 36 O.S.C.B. 3478; Robinson (Re), 2013 LNABASC 295, 2013 ABASC 317 (CanLII); Maitland Capital Ltd. (Re), 2012 LNONOSC 95, 35 O.S.C.B. 1729; M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; Cholmondeley v. Clinton (1820), 2 Jac. & W. 1, 37 E.R. 527; Lines v. British Columbia (Securities Commission), 2012 BCCA 316, 35 B.C.L.R. (5th) 281; Roncarelli v. Duplessis, [1959] S.C.R. 121; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623; Murphy v. Welsh, [1993] 2 S.C.R. 1069; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559.
By Karakatsanis J.
Referred to: Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494; Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837.
Statutes and Regulations Cited
Bill 20, Securities Amendment Act, 2006, 2nd Sess., 38th Parl., British Columbia (Third reading, April 25, 2006).
Bill 28, Securities Amendment Act, 2007, 3rd Sess., 38th Parl., British Columbia (Third reading, October 23, 2007).
Securities Act, C.C.S.M., c. S50, ss. 137, 148.4(1).
Securities Act, R.S.A. 2000, c. S‑4, s. 198(1.1).
Securities Act, R.S.B.C. 1996, c. 418, ss. 127, 127.1, 140(a), 140.94, 159, 161(1), (6).
Securities Act, R.S.N.L. 1990, c. S‑13, ss. 127(1.1), 129.
Securities Act, R.S.N.S. 1989, c. 418, s. 134(1A).
Securities Act, R.S.O. 1990, c. S.5, s. 127(10).
Securities Act, R.S.P.E.I. 1988, c. S‑3.1, s. 60(3).
Securities Act, S.N.B. 2004, c. S‑5.5, s. 184(1.1).
Securities Act, S.Nu. 2008, c. 12, s. 60(3).
Securities Act, S.N.W.T. 2008, c. 10, s. 60(3).
Securities Act, S.Y. 2007, c. 16, s. 60(3).
Securities Act, 1988, S.S. 1988‑89, c. S‑42.2, s. 134(1.1).
Securities Amendment Act, 2006, S.B.C. 2006, c. 32.
Authors Cited
Canada. A Provincial/Territorial Memorandum of Understanding Regarding Securities Regulation, 2004 (online: http://www.securitiescanada.org/2004_0930_mou_english.pdf).
Côté, Pierre-André, in collaboration with Stéphane Beaulac and Mathieu Devinat. The Interpretation of Legislation in Canada, 4th ed. Toronto: Carswell, 2011.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008.
Teplitsky, Martin. “Standard of review of administrative adjudication: ‘What a tangled web we weave . . .’” (2013), Advocates’ Soc. J. 3.
Willis, John. “Statute Interpretation in a Nutshell” (1938), 16 Can. Bar Rev. 1.
APPEAL from a judgment of the British Columbia Court of Appeal (Saunders, Chiasson and Neilson JJ.A.), 2011 BCCA 455, 312 B.C.A.C. 288, 531 W.A.C. 288, 343 D.L.R. (4th) 432, [2011] B.C.J. No. 2124 (QL), 2011 CarswellBC 2929, allowing an appeal from a decision by the British Columbia Securities Commission, 2010 BCSECCOM 262, 2010 LNBCSC 222 (QL). Appeal dismissed.
Christopher H. Wirth and Fredrick Schumann, for the appellant.
Stephen M. Zolnay, for the respondent.
Lou Brzezinski and John Polyzogopoulos, for the intervener the Financial Advisors Association of Canada.
Johanna M. Superina and Usman M. Sheikh, for the intervener the Ontario Securities Commission.
The judgment of LeBel, Fish, Rothstein, Cromwell, Moldaver and Wagner JJ. was delivered by
Moldaver J. —
I. Introduction
[1] In Canada, the individual provinces and territories bear primary responsibility for the regulation of stocks, bonds, and other securities. However, because modern securities markets transcend provincial and territorial borders, the provinces and territories have in recent years taken steps to harmonize their securities laws and to improve cooperation between their securities regulators.
[2] As a result of these efforts, the British Columbia Securities Commission (the “Commission”), like all of its provincial and territorial peers, has been empowered to bring proceedings in the public interest against persons who, among other things, have agreed with another jurisdiction’s securities regulator, by way of a settlement agreement, to be subject to regulatory action; see s. 161(6)(d) of the Securities Act, R.S.B.C. 1996, c. 418. In the jargon of the industry, these proceedings are known as “secondary proceedings” because they piggy-back on another jurisdiction’s efforts. Subject to a few exceptions, all proceedings under the Act — secondary or otherwise — “must not be commenced more than 6 years after the date of the events that give rise to the proceedings” (s. 159).
[3] At issue in this appeal is whether, for purposes of s. 161(6)(d), “the events” that trigger the six-year limitation period in s. 159 are (i) the underlying misconduct that gave rise to the settlement agreement or (ii) the settlement agreement itself. The Commission takes the position that the settlement agreement is the triggering event. On that basis, it commenced secondary proceedings against the appellant after she entered into a settlement agreement with another regulator, even though the underlying misconduct referred to in that agreement occurred roughly nine years earlier. Had the Commission adopted the alternative interpretation, as the appellant argues it should have, the secondary proceeding would have been commenced outside the six-year limitation period and thus been statute-barred.
[4] Applying the governing standard of review, which I consider to be reasonableness, I am satisfied that the Commission’s interpretation is a reasonable construction of the relevant statutory language. Significantly, the Commission’s conclusion supports the legislative objective of facilitating interjurisdictional cooperation in secondary proceedings and does so without undercutting the crucial role of limitation periods. Accordingly, I see no reason to interfere and would dismiss the appeal.
II. Facts
A. The Primary Investigation and The Settlement Agreement
[5] The facts are straightforward and undisputed. From March 1996 to June 2001, the appellant, Patricia McLean, served as a director of Hucamp Mines Ltd., a reporting issuer registered in Ontario under the Securities Act, R.S.O. 1990, c. S.5. Beginning in July 2001, the appellant began cooperating with the Ontario Securities Commission (“OSC”) in respect of “certain possible improper actions at Hucamp” (Settlement Agreement Between OSC Staff and Patricia McLean, at para. 63 (A.R., at p. 45)). The particulars of the alleged misconduct are not relevant, but the timing is — the allegations pertain to conduct that occurred in 2001 or earlier.
[6] On July 11, 2005, the OSC announced that it would hold a hearing under its public interest powers to sanction the appellant and certain others for their alleged misconduct at Hucamp; see Securities Act, ss. 127 and 127.1. Such powers, which exist in each of the provincial and territorial statutes, confer a “very wide discretion” to make whatever orders the OSC considers to be in the public interest (Committee for the Equal Treatment of Asbestos Minority Shareholders v. Ontario (Securities Commission), 2001 SCC 37, [2001] 2 S.C.R. 132, at para. 39).
[7] Three years later, on September 8, 2008, the appellant entered into a settlement agreement with the OSC staff wherein she “consent[ed] to the making of [such] an order against her” (Settlement Agreement, at para. 2 (A.R., at p. 33)). On the same day, the OSC approved the settlement agreement and issued the agreed-upon order (McLean (Re), 2008 LNONOSC 660, 31 O.S.C.B. 8734).
[8] In its pertinent parts, the OSC order barred the appellant for five years from trading in securities (with some exceptions) and banned her for ten years from acting as an officer or director of certain entities registered under the Ontario Securities Act. By virtue of the OSC’s provincial jurisdiction, the reach of these sanctions did not extend beyond Ontario’s borders. No one challenges the propriety of the OSC’s order.
B. The Secondary Investigation and the B.C. Order
[9] All was quiet for the next 15 months — until January 14, 2010 to be exact — when the appellant was notified by the Executive Director of the B.C. Securities Commission (the respondent) that he was applying to the Commission under s. 161(1) of the Act for a “public interest” order against her based on s. 161(6)(d). For present purposes, the relevant aspects of those provisions are as follows:
159 [Limitation Period] Proceedings under this Act, other than an action referred to in section 140, must not be commenced more than 6 years after the date of the events that give rise to the proceedings.
. . .
161 (1) [Enforcement Orders] If the commission or the executive director considers it to be in the public interest, the commission or the executive director, after a hearing, may order one or more of the following:
. . .
(b) that
. . .
(ii) the person or persons named in the order, . . .
. . .
cease trading in, or be prohibited from purchasing, any securities or exchange contracts, a specified security or exchange contract or a specified class of securities or class of exchange contracts;
. . .
(d) that a person
(i) resign any position that the person holds as a director or officer of an issuer or registrant,
(ii) is prohibited from becoming or acting as a director or officer of any issuer or registrant,
. . .
(6) The commission or the executive director may, after providing an opportunity to be heard, make an order under subsection (1) in respect of a person if the person
(a) has been convicted in Canada or elsewhere of an offence
(i) arising from a transaction, business or course of conduct related to securities or exchange contracts, or
(ii) under the laws of the jurisdiction respecting trading in securities or exchange contracts,
(b) has been found by a court in Canada or elsewhere to have contravened the laws of the jurisdiction respecting trading in securities or exchange contracts,
(c) is subject to an order made by a securities regulatory authority, a self regulatory body or an exchange, in Canada or elsewhere, imposing sanctions, conditions, restrictions or requirements on the person, or
(d) has agreed with a securities regulatory authority, a self regulatory body or an exchange, in Canada or elsewhere, to be subject to sanctions, conditions, restrictions or requirements.
[10] In asserting that it had authority to make an order under s. 161(1) based on s. 161(6)(d), the Commission relied on the appellant’s settlement agreement with the OSC. And thus began the present case.
[11] There is no dispute that had the Commission proceeded solely under s. 161(1), the proceeding would have run afoul of s. 159. The respondent accepts that the six-year limitation period in s. 159 as applied to s. 161(1) alone begins to run from “the last event in the series of events which form the course of conduct” sanctioned by the order (R.F., at para. 79, citing Heidary (Re), 2000 LNONOSC 79, 23 O.S.C.B. 959, at p. 961). By January 2010, it had been almost nine years since the last event described in the settlement agreement.
[12] The question in this case is whether the same conclusion holds true for secondary proceedings initiated using s. 161(6)(d). If it does, as the appellant contends, the Commission’s order must be set aside for the same reason that an order based on s. 161(1) alone would be — it had been almost nine years after the last event described in the settlement agreement and three years beyond the requisite limitation period. If, however, the clock under s. 161(6)(d) starts running on the date of the settlement agreement referred to in that provision, as the Commission concluded, the Commission’s order must stand because the proceeding was commenced well within the six-year window prescribed by s. 159.
III. Proceedings Below
A. British Columbia Securities Commission, 2010 BCSECCOM 262 (CanLII)
[13] After receiving notice of the secondary proceeding, the appellant “made extensive written submissions on the limitation period issue” to the Commission arguing that it lacked authority to make an order against her by virtue of s. 159 (A.F., at para. 10). She raised no other issues or arguments.
[14] The Commission implicitly rejected the appellant’s limitations argument by issuing what it termed a “reciprocal order” that was substantially identical to the OSC order. In particular, the Commission barred the appellant from trading in securities under s. 161(1)(b) (except for those trades permitted under the OSC order) and prohibited her from acting as an officer or director of certain entities registered under the Act under s. 161(1)(d)(i) and (ii). The prohibitions expired on the same day as the OSC order — that is, five years and ten years, respectively, from September 8, 2008.
[15] As a consequence of the twin orders from the Ontario and B.C. Commissions, the appellant was prohibited from engaging in substantially identical conduct in both Ontario and British Columbia for identical periods of time.
B. British Columbia Court of Appeal, 2011 BCCA 455, 312 B.C.A.C. 288
[16] On appeal, the appellant reiterated her limitations argument. The B.C. Court of Appeal concluded that “generally the interpretation of a limitation period provision in a statute by an administrative tribunal will engage the standard of correctness” (para. 15). Applying that standard, it nonetheless found in favour of the Commission. On a “plain reading”, the court concluded that “although the acts which gave rise to the Ontario proceedings obviously occurred before the agreement was made, the event that gave rise to the [B.C.] proceedings under s. 161(6)(d) was the agreement in Ontario” (para. 20). The interpretation put forward by the appellant “would eliminate the effective operation of s. 161(6)(d) which cannot have been the intention of the Legislature” (ibid.).
[17] The appellant also challenged the Commission’s failure to give reasons for its order, both as to the limitation period and as to why the order was in the public interest. As regards the limitation argument, the court held that “although it might have been of assistance” had the Commission given reasons for its interpretation of s. 159, reasons were not essential because the question was one of law reviewable on a standard of correctness (para. 27). With respect to the order being in the public interest, the court concluded that “the complete absence of reasons makes appellate review of the public interest aspect of the decision and the sanctions imposed impossible” (para. 30). Hence, the court remitted the matter to the Commission for a “brief explanation” (para. 31). The Commission subsequently provided such an explanation (2012 BCSECCOM 50 (CanLII)), and that aspect of its decision is not challenged before this Court.
IV. Issues
[18] At issue in this appeal is the proper interpretation of the limitation period in s. 159 as it relates to public interest orders made under s. 161(6)(d) of the Act. The following two questions arise:
(1) What is the standard of review for the Commission’s interpretation of s. 159 as it applies to s. 161(6)(d)?
(2) Having regard to the applicable standard of review, is there any basis to interfere with the Commission’s interpretation?
V. Analysis
A. Standard of Review
(1) The Presumption of Reasonableness Review for Home Statutes
[19] As noted, the Court of Appeal was of the view that the standard of review was correctness. Before this Court, the parties and the intervener, the OSC, disagreed on that issue. For the reasons that follow, I am satisfied that the standard of review is reasonableness.
[20] Before turning to my analysis, I pause to note that the standard of review debate is one that generates strong opinions on all sides, especially in the recent jurisprudence of this Court. However, the analysis that follows is based on this Court’s existing jurisprudence — and it is designed to bring a measure of predictability and clarity to that framework.[1]
[21] Since Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, this Court has repeatedly underscored that “[d]eference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (para. 54).[2] Recently, in an attempt to further simplify matters, this Court held that an administrative decision maker’s interpretation of its home or closely-connected statutes “should be presumed to be a question of statutory interpretation subject to deference on judicial review” (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 34).
[22] The presumption endorsed in Alberta Teachers, however, is not carved in stone. First, this Court has long recognized that certain categories of questions — even when they involve the interpretation of a home statute — warrant review on a correctness standard (Dunsmuir, at paras. 58-61). Second, we have also said that a contextual analysis may “rebut the presumption of reasonableness review for questions involving the interpretation of the home statute” (Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283, at para. 16). The appellant follows both these routes in urging us to accept a correctness standard. I propose to deal with her second argument first as it can be dispensed with quickly.
(2) The Presumption of Reasonableness Review Is Not Rebutted
[23] The appellant contends that the presumption of reasonableness review has been rebutted. She relies on our recent decision in Rogers, where we held that a correctness standard was appropriate because of a statutory scheme under which both an administrative tribunal and the courts had concurrent jurisdiction at first instance in interpreting the relevant statute.
[24] This case is different. As Rothstein J. made clear in Rogers, it was the fact that both the tribunal and the courts “may each have [had] to consider the same legal question at first instance” that “rebutt[ed] the presumption of reasonableness review” (para. 15 (emphasis added)). Here, the legal question is the interpretation of s. 159 as it applies to s. 161(6)(d) — and it is solely the Commission that is tasked with considering that matter in the first instance. Accordingly, there is no possibility of conflicting interpretations with respect to the question actually at issue. The logic of Rogers is thus inapplicable.
(3) The Question Does Not Fall Into an Exceptional Category
[25] I return then to the appellant’s first argument — that the question presented falls into an exceptional category warranting “correctness” review. Post-Dunsmuir, it has become fashionable for counsel to argue that the question before an administrative decision maker falls into one of the few recognized exceptional categories. One wave of cases focuses on whether the question raised is a “true” question of vires or jurisdiction; see Alberta Teachers, at paras. 37-38 (citing various cases). In that case, the Court expressed serious reservations about whether such questions can be distinguished as a separate category of questions of law, but ultimately left the door open to the possibility (para. 34).[3]
[26] A second wave — the one which the appellant now rides — focuses on “general questions of law that are both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” (Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 (“Mowat”), at para. 22, referring to Dunsmuir, at para. 60); see also Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616; Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458. In each of these cases, this Court unanimously found that the question presented did not fall into this exceptional category — and I would do so again here.
[27] The logic underlying the “general question” exception is simple. As Bastarache and LeBel JJ. explained in Dunsmuir, “[b]ecause of their impact on the administration of justice as a whole, such questions require uniform and consistent answers” (para. 60). Or, as LeBel and Cromwell JJ. put it in Mowat, correctness review for such questions “safeguard[s] a basic consistency in the fundamental legal order of our country” (para. 22).
[28] Here, the appellant’s arguments in support of her contention that this case falls into the general question category fail for three reasons. First, although I agree that limitation periods, as a conceptual matter, are generally of central importance to the fair administration of justice, it does not follow that the Commission’s interpretation of this limitation period must be reviewed for its correctness. The meaning of “the events” in s. 159 is a nuts-and-bolts question of statutory interpretation confined to a particular context. Indeed, the arguably complex legal doctrines such as discoverability that the appellant says demand correctness review (see A.R.F., at para. 9) have been specifically excluded from any application to s. 159. The appellant recognizes this fact elsewhere in her submissions (A.F., at para. 25, citing British Columbia Securities Commission v. Bapty, 2006 BCSC 638 (CanLII), at para. 28). Accordingly, there is no question of law of central importance to the legal system as a whole, let alone one that falls outside the Commission’s specialized area of expertise.
[29] Second, while it is true that reasonableness review in this context necessarily entails the possibility that other provincial and territorial securities commissions may arrive at different interpretations of their own statutory limitation periods, I cannot agree that such a result provides a basis for correctness review — and thus judicially mandated “consisten[cy] . . . across the country” (A.R.F., at para. 13). No one disputes that each of the provincial and territorial legislatures can enact entirely different limitation periods. Indeed, one of them has; see Manitoba’s Securities Act, C.C.S.M., c. S50, s. 137 (providing an eight-year period, instead of the six-year norm). By the same token, it may be the case that provincial and territorial securities regulators come to differing (but nonetheless reasonable) interpretations of those limitation periods (though that has yet to occur). If there is a problem with such a hypothetical outcome, it is a function of our Constitution’s federalist structure — not the administrative law standards of review.
[30] Third, and most significantly, the problem with the appellant’s argument is her narrow view of the Commission’s expertise. In particular, the appellant argues that limitation periods “are not in themselves part of substantive securities regulation, the area of the [Commission’s] specialised expertise” (A.R.F., at para. 9). The argument presupposes a neat division between what one might call a “lawyer’s question” and a “bureaucrat’s question”. The logic seems to be that because the meaning of “the events” in s. 159 cannot possibly require any great technical expertise — there is, after all, no specialized “bureaucratese” to interpret — why should the matter be left to the Commission?
[31] While such a view may have carried some weight in the past, that is no longer the case. The modern approach to judicial review recognizes that courts “may not be as well qualified as a given agency to provide interpretations of that agency’s constitutive statute that make sense given the broad policy context within which that agency must work” (National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at p. 1336, per Wilson J.; see also Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, at para. 92; Mowat, at para. 25).
[32] In plain terms, because legislatures do not always speak clearly and because the tools of statutory interpretation do not always guarantee a single clear answer, legislative provisions will on occasion be susceptible to multiple reasonable interpretations (Dunsmuir, at para. 47; see also Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405). Indeed, that is the case here, as I will explain in a moment. The question that arises, then, is who gets to decide among these competing reasonable interpretations?
[33] The answer, as this Court has repeatedly indicated since Dunsmuir, is that the resolution of unclear language in an administrative decision maker’s home statute is usually best left to the decision maker. That is so because the choice between multiple reasonable interpretations will often involve policy considerations that we presume the legislature desired the administrative decision maker — not the courts — to make. Indeed, the exercise of that interpretative discretion is part of an administrative decision maker’s “expertise”.
B. The Commission’s Interpretation of Section 159 Was Reasonable
(1) Overview
(a) The Appellant’s Position
[34] In a nutshell, the appellant argues that s. 161(6) merely “codifies the [Commission’s] already-existing ability to rely on convictions, findings, orders, or agreements as evidence of a person’s conduct contrary to the public interest” (A.F., at para. 40 (emphasis in original)). The law is clear that the Commission could — and did — issue reciprocal orders using its existing power under s. 161(1) on the strength of factual findings in other jurisdictions prior to the introduction of s. 161(6); see, e.g., Woods (Re), 1997 LNBCSC 11 (QL), at p. 5 (where the Commission relied on “the findings of fact and law of the Ontario courts, and the enforcement orders made by the Ontario Securities Commission”); Seto (Re), 2006 BCSECCOM 569 (CanLII), at para. 4 (where the Commission drew the facts “solely from the decision and order of the [Alberta Securities Commission] and the judgment of the Alberta Provincial Court”).
[35] In those earlier cases, “the events” meant the underlying misconduct — and no one suggests otherwise. As such, the Commission’s choice to rely on the “procedural shortcut” reflected in s. 161(6)(d) does not change the nature of the proceedings such that the agreement becomes the event (A.F., at para. 40). Rather, because s. 161(6)(d) must be fused with s. 161(1), the proceedings remain s. 161(1) proceedings — and “the events” must thus remain the underlying misconduct.
(b) The Respondent’s Position
[36] The respondent says that the appellant’s argument is untenable because the plain wording of s. 161(6) says nothing about decisions, orders, or settlement agreements being admissible as “evidence”. Rather, “the provisions empower the Commission to make an order in specific circumstances (i.e., if a person is subject to another regulator’s order or has agreed to be subject to sanctions)” (R.F., at para. 53). Because securities investigations do not always conclude within the six-year window, the purpose of s. 161(6)(d) would be undermined if the Commission were “barred from making an order in any case where the extra-provincial proceeding concludes more than six years after the date of the wrongdoer’s misconduct” (R.F., at para. 84). Put simply, on the appellant’s interpretation, the limitation period could expire before the event referred to in s. 161(6)(d) ever occurs — and that would all but defeat the purpose of the provision.
(c) The Choice Between the Two Interpretations
[37] For the reasons that follow, I conclude that both interpretations are reasonable. Here, the statutory language is less than crystal clear. Or, as Professor Willis once put it, “the words are ambiguous enough to induce two people to spend good money in backing two opposing views as to their meaning” (J. Willis, “Statute Interpretation in a Nutshell” (1938), 16 Can. Bar Rev. 1, at pp. 4-5, cited in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 30).
[38] It will not always be the case that a particular provision permits multiple reasonable interpretations. Where the ordinary tools of statutory interpretation lead to a single reasonable interpretation and the administrative decision maker adopts a different interpretation, its interpretation will necessarily be unreasonable — no degree of deference can justify its acceptance; see, e.g., Dunsmuir, at para. 75; Mowat, at para. 34. In those cases, the “range of reasonable outcomes” (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 4) will necessarily be limited to a single reasonable int