30 | Securities Enforcement
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against self-incrimination, but once an
answer is given it's out there and can be
shared. In Canada, the notion has typically been you don't have that same right
against self-incrimination in the context
of an investigation, but there are limits on
the sharing between bodies for different
purposes. That's absolutely the concern
with the Ontario changes."
The Ontario amendments have been
creating buzz in Alberta, he says.
"Ontario is gathering some interest
because of the concern about due process and self-incrimination and things
like that. And I completely understand
their concerns. The absence of a notice
provision obviously tends to foreclose
an opportunity to make some arguments
around self-incrimination."
That is not the only amendment Ontario adopted that has securities practitioners predicting more risk and uncertainty
on the road ahead. Another amendment
causing some concern broadens the definition of insider trading.
Traditionally, insiders were banned
from trading shares of a company that
was "proposing to make a take-over bid."
That prohibition has been expanded to
situations where an issuer is "considering
or evaluating" a take-over bid.
Jeffrey Leon, co-head of the litigation
group at Bennett Jones LLP in Toronto,
says it's an important change.
"What this means is an issuer no longer has to have gone so far as to propose a
transaction. If you're considering or evaluating a transaction, then that can be caught
by the new insider trading provisions.
"In terms of widening the net, I think
that legislative change makes sense if
you're trying to identify those people
who trade on non-public information to
their advantage."
What the expanded insider-trading
rules mean for TSX-listed companies
and those associated with them is that
they will have to be very careful that
their blackout policies comply with the
new amendment so they don't come up
against the tripwire, he says. The challenge is it's not clear at what point the
OSC will determine insiders are "considering" a deal.
"That's the rub. What does considering
mean? It will be a question to determine
the point at which that comes into play.
LEXPERT®Ranked Lawyers
Osborne, Peter J.
Lenczner Slaght Royce
Smith Griffin LLP
(416) 865-3094
posborne@litigate.com
One of Canada's
leading litigators, Mr.
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civil litigation and
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practice encompassing
commercial disputes,
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Paliare, O.Ont., LSM,
Chris G.
Paliare Roland
Rosenberg Rothstein LLP
(416) 646-4318
chris.paliare@
paliareroland.com
Mr. Paliare's practice
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Pape, Paul J.
Plumpton, Linda M.
Poplaw, Mason
Potter, Simon V.
Pape Barristers
Professional Corporation
Torys LLP
McCarthy Tétrault LLP
McCarthy Tétrault LLP
(416) 865-8193
lplumpton@torys.com
(514) 397-4155
mpoplaw@mccarthy.ca
(514) 397-4268
spotter@mccarthy.ca
Partner in Torys'
Litigation & Dispute
Resolution and
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practice groups.
Member of firm's
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Focuses on class action
defence, corporate/
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Mr. Poplaw focuses
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Mr. Potter focuses
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at trial and appeal,
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(416) 364-8765
pjp@papebarristers.com
Mr. Pape focuses on
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malpractice and
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with a special emphasis
on appeals. He is a
Fellow of the IATL and
the ACTL. He has acted
in a number of cases
of significance.
