Lexpert Special Editions

Securities Enforcement | 31 "Is it as soon as somebody wakes up one morning and says maybe they should look at a transaction? Or does it have to reach a certain stage before the provision kicks in?" Some of those same concerns also overlay the third Ontario amendment, which expands fraud and market manipulation provisions to include "attempts." Ontario's securities regime now says a person or company must not "attempt to engage" in any fraud or market manipulation violation, directly or indirectly. What constitutes an "attempt to engage" in fraud raises new questions, says Leon. "All of this seems to be designed to catch conduct that both the legislature and regulator think is contrary to capital markets and should be prohibited, which is fine. But it will require the courts to determine what it all means. "And it involves an expansion of powers that I think is questionable as to whether it is really necessary and fair." The expansion of powers appears to be coming as part of a larger movement toward tighter securities enforcement following the 2008 global financial meltdown, says Clarke Hunter, QC, a senior partner at Norton Rose Fulbright Canada LLP in Calgary. "If you look at securities trends you have to start with the growing influence of globalization on enforcement and regulation in particular," says Hunter. "You see Canadian regulators adopting standards created in the US by the SEC." The US regulator has been extremely active in securities enforcement in recent years, creating special prosecution units and bringing charges against corporate giants such as Goldman Sachs, J.P. Morgan, Credit Suisse and Citigroup. With intense international competition for global capital, Canada can't afford to have other jurisdictions seen as incorporating higher regulatory standards, Hunter says. "I think that's the rationale for some of these changes in Ontario." Brock at Davies says the OSC, which formed a serious offences unit earlier this year, appears to be trying to take a page from the SEC's playbook. He believes it sounds a worrying note. "I am apprehensive frankly that Canada is moving to a US model of aggressiveness," he says. "One of the concerns I have is we don't necessarily have the expertise in the prosecutorial authorities and budgets which allow for it. I think this is of real concern. "We don't have a judicial system like they have in the United States, and I'm not sure we necessarily want one." "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." – David Tupper, Blake, Cassels & Graydon LLP Sandra Rubin is a freelance legal affairs writer. LEXPERT®Ranked Lawyers Pound, QC, FCA, Richard W. Pratte, Guy J. Radomski, Harry B. Reddon, Andrew J. Goodmans LLP McCarthy Tétrault LLP Stikeman Elliott LLP Borden Ladner Gervais LLP (514) 397-3037 rpound@stikeman.com (514) 954-2545 gpratte@blg.com (416) 597-4142 hradomski@goodmans.ca (416) 601-7928 areddon@mccarthy.ca Mr. Pound's practice includes tax litigation, tax advisory work, negotiations with tax authorities and commercial and sports arbitration. Editorin-Chief of Canada Tax Cases, Stikeman Income Tax Act Annotated and Pound's Tax Case Notes. Mr. Pratte's practice focuses on commercial litigation and public law in both Ontario and Québec. He pleads regularly before the Supreme Court of Canada, the Federal Courts and the Superior and Appeal Courts of Ontario and Québec. Mr. Radomski's national litigation practice focuses on IP law before courts and tribunals. He has appeared before the SCC on leading patent and trade-mark issues and is recognized for proceedings under the PMNOC for generic clients. Mr. Reddon is the chair of the firm's National Intellectual Property Litigation Group. His practice focuses almost exclusively in IP litigation, primarily in the field of patent litigation with an emphasis on pharmaceutical patents. Renaud, AdE, Madeleine Richler, Joel McCarthy Tétrault LLP Blake, Cassels & Graydon LLP (514) 397-4252 mrenaud@mccarthy.ca (416) 863-2735 jr@blakes.com Ms. Renaud advises a broad range of Canadian and international clients on all aspects of competition law. Her litigation practice includes criminal and civil competition law cases, including class actions, administrative and regulatory law. Mr. Richler's commercial litigation practice embraces trials, appeals, arbitrations and mediations before administrative tribunals, the courts of Ont., BC and NB, the FC and the SCC. He also acts as an arbitrator and mediator.

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