Abdula v. Canadian Solar Inc. et al. [Indexed as: Abdula v. Canadian Solar Inc.]

110 O.R. (3d) 256

2012 ONCA 211

Court of Appeal for Ontario,

Feldman, Hoy JJ.A. and Spence J. (ad hoc)

March 30, 2012

Securities regulation -- Misrepresentation -- Statutory cause of action -- "Responsible issuer" -- Defendant not reporting issuer but having real and substantial connection to Ontario -- Defendant's shares publicly traded over NASDAQ exchange but not trading on any Canadian stock exchange -- Motion judge correctly finding that defendant's shares did not have to be publicly traded in Canada for it to fall within definition of "responsible issuer" in s. 138.1 of Securities Act -- Securities Act, R.S.O. 1990, c. S.5, s. 138.1.

The defendant, a federal corporation, had its registered office and principal executive office in Ontario. Its shares were publicly traded over the NASDAQ exchange and did not trade on any Canadian stock exchange. The plaintiff was the proposed representative plaintiff in a putative class proceeding arising out of alleged misrepresentations contained in press releases, financial statements and its annual report released or presented by the defendant in Ontario. The motion judge found that, while the defendant was not a reporting issuer, it fell within para. (b) of the definition of "responsible issuer" in s. 138.1 of the Securities Act ("any other issuer with a real and substantial connection to Ontario, any securities of which are publicly traded"). The defendant appealed.

Held, the appeal should be dismissed.

The motion judge's finding that the defendant had a real and substantial connection to Ontario was not in issue. The motion judge did not err in concluding that the defendant's shares did not have to be publicly traded in Canada for it to fall within the definition of "responsible issuer". The legislative history did not establish that a statutory cause of action under s. 138.3 of the Securities Act was intended to arise only if the issuer was subject to continuous disclosure obligations in a province or territory of Canada or if, in addition to having a real and substantial connection to Ontario, some of the issuer's shares traded publicly in Canada. On its face, the wording of para. (b) of the definition of "responsible issuer" did not support a restrictive interpretation of "publicly traded". If the legislature had intended the second prong of the definition of "responsible issuer" to be confined to issuers that are reporting issuers in [page257] Canadian jurisdictions other than Ontario or any of whose securities are listed on Canadian stock exchanges, it would have been a simple task to adopt language which clearly expressed that intent. The statutory cause of action for prospectus misrepresentation in s. 130 of the Act is very different from s. 138.3. The analysis in the prospectus misrepresentation cases is not applicable to s. 138.3.

APPEAL from the order of G.E. Taylor J., [2011] O.J. No. 4067, 2011 ONSC 5105 (S.C.J.).

Cases referred to Unifund Assurance Co. v. Insurance Corp. of British Columbia, [2003] 2 S.C.R. 63, [2003] S.C.J. No. 39, 2003 SCC 40, 227 D.L.R. (4th) 402, 306 N.R. 201, [2003] 9 W.W.R. 1, J.E. 2003-1355, 16 B.C.L.R. (4th) 1, 176 O.A.C. 1, [2003] I.L.R. I-4209, 124 A.C.W.S. (3d) 61, distd Coulson v. Citigroup Global Markets Canada Inc., [2012] O.J. No. 717, 2012 ONCA 108, 16 C.P.C. (7th) 1, 288 O.A.C. 355, affg [2010] O.J. No. 1109, 2010 ONSC 1596, 92 C.P.C. (6th) 301 (S.C.J.); McKenna v. Gammon Gold Inc., [2010] O.J. No. 1057, 2010 ONSC 1591, 88 C.P.C. (6th) 27 (S.C.J.) [Leave to appeal partially granted (2010), 103 O.R. (3d) 451, [2010] O.J. No. 3183, 2010 ONSC 4068, 266 O.A.C. 314, 76 B.L.R. (4th) 170, 78 C.C.L.T. (3d) 143 (Div. Ct.)]; Pearson v. Boliden Ltd., [2002] B.C.J. No. 2593, 2002 BCCA 624, 222 D.L.R. (4th) 453, 175 B.C.A.C. 104, 7 B.C.L.R. (4th) 245, 119 A.C.W.S. (3d) 13 [Leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 29], consd Other cases referred to Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, REJB 2002-30904, 113 A.C.W.S. (3d) 52; Dobbie v. Arctic Glacier Income Fund, [2011] O.J. No. 932, 2011 ONSC 25, 3 C.P.C. (7th) 261 (S.C.J.); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S. Ct. 1375, 47 L. Ed. 2d 668 (1976); Kerr v. Danier Leather Inc. (2005), 2005 CanLII 46630 (ON CA), 77 O.R. (3d) 321, [2005] O.J. No. 5388, 261 D.L.R. (4th) 400, 205 O.A.C. 313, 11 B.L.R. (4th) 1, 144 A.C.W.S. (3d) 370 (C.A.); R. v. Jameson, [1896] 2 Q.B. 425 (Div. Ct.); Reference re: Firearms Act (Can.), [2000] 1 S.C.R. 783, [2000] S.C.J. No. 31, 2000 SCC 31, 185 D.L.R. (4th) 577, 254 N.R. 201, [2000] 10 W.W.R. 1, J.E. 2000-1234, 82 Alta. L.R. (3d) 1, 261 A.R. 201, 144 C.C.C. (3d) 385, 34 C.R. (5th) 1, 97 A.C.W.S. (3d) 64, 46 W.C.B. (2d) 450; Silver v. Imax Corp., 2009 CanLII 72342 (ON SC), [2009] O.J. No. 5573, 66 B.L.R. (4th) 222 (S.C.J.); Silver v. Imax Corp., 2009 CanLII 72334 (ON SC), [2009] O.J. No. 5585, 86 C.P.C. (6th) 273 (S.C.J.)

Statutes referred to Canada Business Corporations Act, R.S.C. 1985, c. C-44 [as am.] Class Proceedings Act, 1992, S.O. 1992, c. 6 [as am.] Insurance Act, R.S.O. 1990, c. I.8 [as am.] Securities Act, R.S.O. 1966, c. 142 Securities Act, R.S.O. 1990, c. S.5, ss. 1(1) [as am.], 1.1, 56(1) [as am.], Part XVIII [as am.], ss. 76(5), 130 [as am.], (1) [as am.], 134(7), Part XXIII.1 [as am.], ss. 138.1 [as am.], 138.3 [as am.], 138.7 [as am.], 138.8(1) [as am.] Securities Act, S.O. 1966, c. 142 Securities Act, S.Y. 2007, c. 16, s. 122 Securities Exchange Act of 1934, 15 U.S.C 78a, s. 10(b)

Rules and regulations referred to R.R.O. 1990, Reg. 1015 (Securities Act), s. 250 17 C.F.R. 240.10b-5 (Securities Exchange Act of 1934) [page258]

Bryan Finlay, Q.C., Michael Statham and Richard Ogden, for appellants. Dimitri Lascaris, Douglas Worndl and Anthony O'Brien, for respondent.

The judgment of the court was delivered by

I Overview

[1] HOY J.A.: -- Canadian Solar Inc. appeals the motion judge's decision that it is a "responsible issuer", as defined in s. 138.1 of the Ontario Securities Act, R.S.O. 1990, c. S.5 (the "OSA"). At issue is whether an issuer that is not a reporting issuer, but that has a real and substantial connection to Ontario within the meaning of the OSA, can constitute a "responsible issuer", and therefore be subject to a statutory cause of action by purchasers in the secondary market for a misrepresentation in the issuer's disclosure pursuant to s. 138.3 of the OSA, if its securities are publicly traded only outside Canada.

[2] I conclude that it can and that Canadian Solar is a "responsible issuer". In the result, I would dismiss the appeal.

[3] Canadian Solar was originally incorporated in Ontario. It is now a federal corporation governed by the Canada Business Corporations Act, R.S.C. 1985, c. C-44 (the "CBCA"). It is engaged in the design, development, manufacture and sale of solar cell and solar module products that convert sunlight into electricity for a range of uses. Canadian Solar's registered office is in Toronto, Ontario and its principal executive office is in Kitchener, Ontario. Its shares are publicly traded over the NASDAQ exchange, an American electronic securities exchange that has no physical trading floor. Canadian Solar's shares do not trade on the Toronto Stock Exchange or any other Canadian stock exchange.

[4] The respondent, Tajdin Abdula, is a resident of Ontario and the proposed representative plaintiff in a putative class proceeding against Canadian Solar under the Class Proceedings Act, 1992, S.O. 1992, c. 6. The action arises out of alleged misrepresentations contained in press releases, financial statements and an annual report released or presented by Canadian Solar in Ontario and made in the course of investor conference calls. Mr. Abdula alleges that Canadian Solar materially overstated its financial results. [page259]

[5] The statutory cause of action created by s. 138.3 of the OSA applies to a misrepresentation by a "responsible issuer". Section 138.1 defines "responsible issuer" as (a) a reporting issuer, or (b) any other issuer with a real and substantial connection to Ontario, any securities of which are publicly traded[.]

[6] Canadian Solar does not fall within para. (a) of the definition. Canadian Solar is not a reporting issuer in Ontario, and accordingly was not required to file the documents containing the alleged misrepresentations with the Ontario Securities Commission (the "OSC"). It was, however, required to file them, and did file them, with the U.S. Securities Exchange Commission ("SEC") pursuant to the Securities Exchange Act of 1934, 15 U.S.C. 78a.

[7] As Canadian Solar is not a reporting issuer, the question before the motion judge was whether Canadian Solar falls within para. (b) of the definition of responsible issuer. The motion judge concluded that it does.

[8] "Issuer" is defined is s. 1(1) of the OSA as "a person or company who has outstanding, issues or proposes to issue, a security". It is common ground that Canadian Solar is an "issuer".

[9] The motion judge found that Canadian Solar has a "real and substantial connection to Ontario", and that finding, with which we agree, is not in issue. In addition to having its registered office and principal executive office in Ontario, Canadian Solar has held its annual meeting in Ontario. The alleged misrepresentations were contained in documents that were released or presented in Ontario. While Canadian Solar's principal place of business is in the People's Republic of China, directly and through its subsidiaries, it has undertaken or engaged in numerous solar projects in Ontario. Canadian Solar has also raised capital from Ontario investors through private placements and has made filings with the Ontario Securities Commission confirming this activity as required by Ontario securities laws. Mr. Abdula placed orders for shares of Canadian Solar through his online discount brokerage, Bank of Montreal InvestorOnline, using the computer at his home in Markham, Ontario. As of August 26, 2010, Canadian Solar had 1,253 shareholders in Ontario, who held in the aggregate over one million shares.

[10] As noted above, Canadian Solar's shares are publicly traded on NASDAQ. The motion judge concluded that Canadian Solar's shares did not have to be publicly traded in Canada for it [page260] to be within in the definition of "responsible issuer". It is with this conclusion that Canadian Solar takes issue on this appeal.

[11] Specifically, the issue on appeal is whether there is an implied limit on the definition of "responsible issuer" that an issuer's securities must be traded in Canada. The issue of whether or not leave should be granted to permit the proposed statutory cause of action against Canadian Solar was not determined by the motion judge and is not an issue on this appeal.

II The Regulatory Context

(1) Purposes of the OSA

[12] The purposes of the OSA are explicitly stated in s. 1.1:

1.1 The purposes of the Act are, (a) to provide protection to investors from unfair, improper or fraudulent practices; and (b) to foster fair and efficient capital markets and confidence in capital markets.

(2) Requirement for a prospectus

[13] Subject to various exceptions, the OSA prohibits an issuer from distributing securities to the public unless it has filed a prospectus and obtained a receipt for the prospectus from the Ontario Securities Commission. A prospectus must provide full, true and plain disclosure of all material facts relating to the securities issued or proposed to be distributed: OSA, s. 56(1). The OSA has long afforded a right of action for damages for a misrepresentation contained in the prospectus to persons who purchase securities offered by a prospectus during the period of distribution: see OSA, s. 130.

[14] Persons who acquire securities offered by a prospectus are sometimes referred to as having acquired the securities on the primary market. Most investors acquire securities on what are referred to as secondary markets; that is, they purchase the securities from third parties after the period of distribution of the securities under a prospectus.

(3) Reporting issuer

[15] The concept of a "reporting issuer", introduced in 1978, is fundamental to Ontario securities laws. The term is defined in s. 1(1) of the OSA. The most common ways in which an issuer becomes a reporting issuer in Ontario are by filing a prospectus and having a receipt issued for the prospectus by the OSC, or by [page261] having its securities listed for trading on an exchange in Ontario recognized by the Ontario Securities Commission (e.g., the Toronto Stock Exchange).

(4) Continuous disclosure

[16] The concept of continuous disclosure was first introduced into the OSA in 1966, when Ontario enacted the Securities Act, S.O. 1966, c. 142, which came into force in 1967. It required periodic disclosure through financial statements, proxy circulars and insider reports.

[17] What is now Part XVIII of the OSA, entitled "Continuous Disclosure", came into force in 1979. Its requirements are broader than those under the 1966 Securities Act. It requires reporting issuers to immediately disclose material changes in their affairs and file annual financial statements and interim financial reports. Only reporting issuers are subject to the continuous disclosure obligations prescribed by Part XVIII. The objective of this continuous disclosure obligation is to ensure that all investors in the secondary market have equal access to material facts and that the securities market operates efficiently and fairly.

(5) Civil liability for secondary market disclosure

[18] More than 25 years after Part XVIII came into force, and after nearly a decade of consultation and reports, detailed later in these reasons under the heading "Legislative History", Part XXIII.1 of the OSA, entitled "Civil Liability for Secondary Market Disclosure", was enacted on December 31, 2005.

[19] Section 138.3 of Part XXIII.1 gives investors in secondary markets a statutory cause of action against a "responsible issuer" for a misrepresentation in a "document" released by it or contained in a public oral statement. Investors are not required to prove that they relied on the misrepresentation.

[20] Pursuant to s. 138.8(1), an action may not be commenced under s. 138.3 without leave of the court.

[21] Part XXIII.1 includes various defences and other limitations, including a cap on a responsible issuer's liability, calculated with reference to its market capitalization. Pursuant to s. 138.7, the cap on a responsible issuer's liability is reduced by "the aggregate of all damages assessed after appeals, if any, against the person or company in all other actions brought under section 138.3, and under comparable legislation in other provinces or territories in Canada in respect of that misrepresentation". [page262]

[22] Between December 31, 2006 and October 26, 2008, all of the other provinces and territories of Canada adopted legislation imposing civil liability for secondary market disclosure.

(6) The CSA

[23] Securities regulation in Canada is decentralized. The 13 securities regulators of Canada's provinces and territories have formed a voluntary umbrella organization known as the Canadian Securities Administrators (the "CSA"). Its objective is to improve, coordinate and harmonize regulation of the Canadian capital markets.

(7) The U.S. scheme

[24] In the United States, investors rely principally on SEC Rule 10b-5, 17 C.F.R. 240.10b-5, under s. 10(b) of the Securities Exchange Act of 1934, to bring actions for misrepresentation in continuous disclosure. A plaintiff in a U.S. court must plead and prove "scienter", namely, an intent to deceive, manipulate or defraud: Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S. Ct. 1375 (1976). However, there is no limit on the damages that may be awarded against the issuer in the U.S.

III Canadian Solar's Submissions

[25] Canadian Solar submits that para. (b) of the definition of "responsible issuer" is confined to issuers with a real and substantial connection to Ontario, any securities of which are "publicly traded in Ontario or in another province or territory of Canada with comparable legislation imposing continuous disclosure obligations on reporting issuers and providing statutory liability for misrepresentation in secondary market disclosure". As comparable legislation has been enacted in all provinces and territories of Canada, the appropriate limitation could currently be worded "publicly traded in Canada".

[26] Canadian Solar's position is that, since its shares are not publicly traded in Canada, it is not a responsible issuer and Mr. Abdula cannot advance a statutory claim against it pursuant to s. 138.3 of the OSA.

[27] Canadian Solar argues that the motion judge failed to come to this conclusion because (1) he incorrectly distinguished Unifund Assurance Co. v. Insurance Corp. of British Columbia, [2003] 2 S.C.R. 63, [2003] S.C.J. No. 39, 2003 SCC 40, and as a result failed to correctly interpret the definition of "responsible issuer" in a manner that confines the OSA to its proper territorial sphere; (2) he did not give effect to the purpose of s. 138.3 as gleaned from its legislative history; and (3) he did not "test" his [page263] interpretation against recent decisions of Canadian courts which considered the territorial reach of the statutory cause of action for prospectus misrepresentation.

(1) Unifund

[28] Canadian Solar argues that this case is analogous to Unifund and the motion judge erred in distinguishing it. Counsel submits that, just as the Supreme Court in Unifund held that the territorial limits on the scope of provincial authority prevented the application of the provisions of the Ontario Insurance Act, R.S.O. 1990, c. I.8, to the Insurance Corporation of British Columbia in respect of a motor vehicle accident that occurred in British Columbia, the provisions of the OSA creating liability for a misrepresentation in secondary market disclosure should be interpreted as inapplicable to an issuer whose securities are only publicly traded on markets outside of Canada.

[29] Counsel for Canadian Solar submits that, applying the principles in Unifund, the definition of responsible issuer properly extends to issuers whose securities are publicly traded in Canada, outside of Ontario, but not to issuers whose securities are publicly traded outside of Canada. This, counsel explains, is because the other provinces have enacted provisions creating liability for misrepresentation in secondary market disclosure which parallel Ontario's.

[30] Counsel argues that the scheme of interconnected, parallel legislation in Canada creates a connection between Ontario and the other provinces and territories that is sufficient to support the extra-provincial application of the legislation. For instance, counsel points to s. 138.7 -- which reduces the cap on a responsible issuer's liability for a misrepresentation by the damages assessed against the issuer in all actions brought under comparable legislation in other provinces or territories in Canada in respect of that misrepresentation -- as showing the interconnected nature of the liability provisions in the various provinces.

[31] In contrast, counsel argues, while investors can sue in the United States for misrepresentation in secondary market disclosure, the American scheme is not similar enough to, and not interconnected with, the Ontario scheme so as to create a sufficient connection between Ontario and the United States.

(2) Legislative history

[32] Counsel for Canadian Solar submits that the legislative history of the OSA provisions that create statutory liability for [page264] a misrepresentation in secondary market disclosures makes clear that the provisions were enacted to provide "teeth" to the continuous disclosure obligations imposed on reporting issuers under the OSA and comparable legislation in other provinces and territories of Canada. Counsel submits that, given this, the motion judge erred in concluding that Canadian Solar is a "responsible issuer", as Canadian Solar is subject to continuous disclosure obligations in the United States but not in Ontario or another province or territory of Canada with comparable legislation.

(3) Territorial reach of the statutory cause of action for prospectus misrepresentation

[33] Canadian Solar cites four cases which, it submits, stand for the principle that the statutory cause of action in s. 130 of the OSA, and the comparable provision in the securities legislation of each of the other provinces and territories, can only be relied on in respect of the distribution of securities within the province's boundaries. Canadian Solar argues that the motion judge's interpretation of "publicly traded" is inconsistent with the approach of the courts in these cases: Pearson v. Boliden Ltd., [2002] B.C.J. No. 2593, 2002 BCCA 624, 222 D.L.R. (4th) 453, at paras. 64-66, leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 29; Coulson v. Citigroup Global Markets Canada Inc., [2010] O.J. No. 1109, 2010 ONSC 1596, 92 C.P.C. (6th) 301 (S.C.J.), at paras. 141 and 145-46, affd on other grounds [2012] O.J. No. 717, 2012 ONCA 108; McKenna v. Gammon Gold Inc., [2010] O.J. No. 1057, 2010 ONSC 1591, 88 C.P.C. (6th) 27 (S.C.J.), at paras. 116 and 118, leave to appeal refused for claim under s. 130 of the OSA (2010), 103 O.R. (3d) 451, [2010] O.J. No. 3183, 2010 ONSC 4068 (Div. Ct.); and Dobbie v. Arctic Glacier Income Fund, [2011] O.J. No. 932, 2011 ONSC 25, 3 C.P.C. (7th) 261 (S.C.J.), at paras. 38 and 40.

IV Mr. Abdula's Submissions

[34] Counsel for Mr. Abdula argues that the best indicator of legislative intent is the words chosen by the legislature, and the legislature could have, but did not, add the words "in Canada" to para. (b) of the definition of responsible issuer.

[35] Counsel submits that the motion judge's interpretation is supported by other provisions of Part XXIII.1. The definition of "document" in s. 138.1 is broadly defined to capture documents that are not filed pursuant to Ontario's continuous disclosure regime or the continuous disclosure regime of any other Canadian province or territory. The definition of "principal [page265] market" in s. 250 of R.R.O. 1990, Reg. 1015 (Securities Act), which is used to determine an issuer's liability limit under Part XXIII.1, contemplates that such market may not be in Canada.

[36] Counsel further argues that the conclusion that Canadian Solar is a responsible issuer accords with the OSA's investor protection objective. The stated purposes of the OSA, counsel notes, refer to the protection of "investors" generally, and not just to the protection of investors in Ontario reporting issuers or in issuers whose securities are listed on a Canadian stock exchange. While one aspect of Part XXIII.1 of the OSA is deterring non-compliance with the continuous disclosure obligations imposed by the OSA on reporting issuers, the courts have recognized that another aspect is partially compensating investors for losses they suffer as a result of misconduct of issuers having a real and substantial connection to Ontario: Silver v. Imax Corp., 2009 CanLII 72342 (ON SC), [2009] O.J. No. 5573, 66 B.L.R. (4th) 222 (S.C.J.), at para. 293; and Dobbie v. Arctic Glacier, at para. 106.

[37] Unifund, counsel argues, is clearly distinguishable from this case, and the motion judge's interpretation of "responsible issuer" does not result in improper extra- territorial regulation by Ontario.

[38] Moreover, counsel submits that the motion judge did not err in not referring to the cases relied on by Canadian Solar that considered, in the context of motions for class action certification, the very different question of which class members have a statutory right of action under securities legislation for prospectus misrepresentation.

V Analysis

(1) Conclusion

[39] In my view, when the words "publicly traded" in para. (b) of the definition of "responsible issuer" are read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the OSA, the object of the OSA and the intention of the legislature, gleaned from the legislative history and the words chosen by the legislature, they do not mean "publicly traded in Canada".

[40] I reach this conclusion for the following reasons, which are explained below:

-- Such an interpretation is not required by Unifund.

-- The legislative history does not establish that a statutory cause of action under s. 138.3 was intended to arise only if [page266] the issuer was subject to continuous disclosure obligations in a province or territory of Canada or if, in addition to having a real and substantial connection to Ontario, some of the issuer's shares traded publicly in Canada.

-- The preferred approach to statutory interpretation supports this conclusion.

-- The statutory cause of action for prospectus misrepresentation in s. 130 of the OSA is very different from s. 138.3. The analysis in the prospectus misrepresentation cases is not applicable to s. 138.3.

(2) Unifund

[41] I agree with the motion judge that here, unlike in Unifund, there is a sufficient connection between Ontario and Canadian Solar to support the application of Ontario's regulatory regime to Canadian Solar. The general principles with respect to extra-territorial regulation do not require that the definition of "responsible issuer" be interpreted as confined to issuers any of whose securities are publicly traded in Canada.

[42] In Unifund, the Supreme Court of Canada considered the applicability of one province's regulatory scheme to a defendant in another province. Binnie J., for the majority, wrote, at paras. 50 and 51:

It is well established that a province has no legislative competence to legislate extraterritorially[.]

This territorial restriction is fundamental to our system of federalism in which each province is obliged to respect the sovereignty of the other provinces within their respective legislative spheres, and expects the same respect in return.

[43] This concern for extra-provincial legislative reach is rooted in the ancient doctrine of territorial limits. At para. 60, Binnie J. cited Lord Russell of Killowen C.J.'s description of the doctrine of territorial limits in R. v. Jameson, [1896] 2 Q.B. 425 (Div. Ct.), at p. 430 Q.B.:

One other general canon of construction is this -- that if any construction otherwise be possible, an Act will not be construed as applying to foreigners in respect to acts done by them outside the dominions of the sovereign power enacting. (Emphasis added)

[44] Binnie J. explained, at para. 55, that the question to be asked to determine whether a provincial legislative scheme applies to an out-of-province defendant is "whether the 'connection' [page267] between Ontario and the [defendant] is sufficient to support the application to the [plaintiff] of Ontario's regulatory regime".

[45] He continued, at para. 56: "What constitutes a 'sufficient' connection depends on the relationship among the enacting jurisdiction, the subject matter of the legislation and the individual or entity sought to be regulated by it." He observed, at para. 58, that "a 'real and substantial connection' sufficient to permit the court of a province to take jurisdiction over a dispute may not be sufficient for the law of that province to regulate the outcome".

[46] Binnie J. concluded that the Ontario Insurance Act was inapplicable in Unifund because the defendant was not sufficiently connected to Ontario. As the motion judge described, at para. 43 of his reasons:

The issue in Unifund was whether the provisions of the Ontario Insurance Act applied to the Insurance Corporation of British Columbia in respect of a motor vehicle accident that occurred in British Columbia involving a British Columbia defendant and Ontario plaintiffs. Unifund involved an attempt by the plaintiff to have Ontario law apply to a British Columbia defendant arising out of a motor vehicle accident that occurred in British Columbia.

Further, Binnie J. noted, at para. 82 of Unifund, that the Insurance Corporation of British Columbia was not authorized to sell insurance in Ontario and had not in fact sold insurance in Ontario.

[47] Unifund is clearly distinguishable from Mr. Abdula's case. As stated by the motion judge, at para. 43 of his reasons, Mr. Abdula's case deals with an Ontario plaintiff seeking to have Ontario law apply to a defendant carrying on business in Ontario.

[48] Territorial limits of provincial authority are respected by applying Ontario law to Canadian Solar in these circumstances. Canadian Solar is not the "foreigner" averted to in R. v. Jameson. It is a CBCA corporation with its registered office, its principal executive office and business operations in Ontario.

[49] The subject matter of Part XXIII.1 is a remedy to investors for misrepresentation in certain issuers' secondary market disclosure. In this case, at least some of that disclosure emanated from Ontario. That, together with the relationship of Canadian Solar to Ontario, constitutes a sufficient connection between Ontario and Canadian Solar to potentially subject Canadian Solar to a statutory cause of action pursuant to Part XXIII.1 of the OSA. I say "potentially" because, as noted above, pursuant to s. 138.8 of the OSA, leave of the court is required before such an action may be commenced and the issue of whether leave should be granted has not yet been determined. [page268]

(3) Legislative history

[50] Canadian Solar filed a comprehensive legislative history brief with the motion judge and on this appeal. The motion judge carefully recounted and considered the legislative history in his reasons. He concluded, at para. 37 of his reasons: "I have been unable to find any specific reference showing an intent to restrict the definition of 'responsible issuer' to companies whose shares are traded only on other Canadian exchanges. In my view, the history of the legislation indicates to the contrary."

[51] I agree that the legislative history does not establish that the legislature intended that a statutory cause of action under s. 138.3 arise only if the responsible issuer was subject to continuous disclosure obligations in a province or territory of Canada, or if the responsible issuer's shares were publicly traded in Canada.

[52] It is important to note the extent to which legislative history may be considered in determining a law's purpose. The Supreme Court stated in Reference re: Firearms Act (Can.), [2000] 1 S.C.R. 783, [2000] S.C.J. No. 31, 2000 SCC 31, at para. 17, that while a law's purpose is often stated in the legislation, it may also be determined by reference to extrinsic material such as the legislative history, as long as it is relevant, reliable and not assigned undue weight. This court discussed the use of committee reports as indicators of legislative meaning in Kerr v. Danier Leather Inc. (2005), 2005 CanLII 46630 (ON CA), 77 O.R. (3d) 321, [2005] O.J. No. 5388 (C.A.), at para. 119:

Traditionally, committee reports have been considered a relevant and admissible indicator of legislative purpose but not of legislative meaning . . . More recently, courts have begun to rely on these reports as evidence of legislative meaning. The weight to be accorded to any particular report must be assessed on a case-by-case basis[.]

[53] With these principles in mind, I will review the relevant legislative history to illustrate why it does not support the restrictive interpretation argued by Canadian Solar.

(a) The Allen Committee report

[54] In the early 1990s, the Toronto Stock Exchange created a committee, under the chairmanship of Thomas I.A. Allen, Q.C., and generally known as the Allen Committee, to review continuous disclosure by public corporations in Canada, comment on the adequacy of such disclosure, and determine whether additional remedies should be available to injured investors or regulators if corporations fail to comply with the rules governing corporate disclosure. [page269]

[55] In its final report released in March of 1997, the Allen Committee remarked, at p. vi, that information is the lifeblood of trading on securities markets. It concluded, on the same page, that there was evidence of a significant number of incidents of disclosure violations and a perception that problems existed with the adequacy of disclosure. Starting at p. 63 of its report, it proposed draft legislation that attached civil liability for a misrepresentation in continuous disclosure to reporting issuers, as well as "every issuer any of the securities of which are publicly traded in the jurisdiction in question", subject to limitations.

(b) The CSA's draft legislation

[56] In response to the Allen Committee's report, the CSA published proposed amendments to securities legislation creating a limited statutory civil liability regime for continuous disclosure, first in 1998 and then, after receiving comments from stakeholders, again in 2000.

[57] The CSA's 1998 draft legislation provided that liability would attach to a "responsible issuer" and defined that term as "an issuer that is not a private issuer". There was no requirement that the issuer be a reporting issuer or that its shares be publicly traded. The Canadian Bankers Association submitted a comment to this definition, proposing a specific exemption for mutual funds. The CSA responded that it "intended no automatic exemption for mutual funds or any other type of issuer".

[58] The CSA's 2000 draft proposed a definition of "responsible issuer" that is almost identical to that subsequently incorporated in the OSA, namely, a reporting issuer or "any other issuer with a substantial connection to Ontario any securities of which are publicly traded". The Allen Committee's proposed definition, focusing on whether any of the issuer's securities are publicly traded in the jurisdiction in question, was discarded.

(c) Bill 198

[59] In October 2002, Bill 198 was introduced in the Ontario legislature and included a proposed amendment to the OSA to add civil liability for secondary market disclosure. It incorporated the definition of "responsible issuer" in the CSA's 2000 proposed draft legislation. Bill 198 was never proclaimed.

(d) Draft uniform securities act

[60] In January 2003, the CSA released a proposal for the harmonization of securities laws across Canada. Its goal was to develop a uniform securities act for adoption by each jurisdiction [page270] of Canada. It proposed that the uniform act "provide a right of action for secondary market trades that applies regardless of whether the issuer is a reporting issuer in the jurisdiction in which the security holder resides if the issuer is a reporting issuer in any jurisdiction in Canada".

[61] In December 2003, the CSA released a consultation draft of a proposed Uniform Securities Act and a related commentary. The draft Uniform Securities Act defined "responsible issuer" as follows:

"responsible issuer" means, (a) a reporting issuer or a reporting issuer under extra-provincial securities laws, or (b) any other issuer with a real and substantial connection to [insert local jurisdiction] whose securities are publicly traded[.]

[62] "Extra-provincial securities laws" in para. (a) was defined in the draft Uniform Securities Act as a uniform securities act enacted in another Canadian jurisdiction. As it was envisaged that each jurisdiction in Canada would enact a uniform securities act, para. (b) was presumably intended to include issuers who were not reporting issuers in any jurisdiction in Canada. This is reflected in the legislation subsequently enacted by CSA members, discussed below.

[63] The CSA commented on the scope of the definition of "responsible issuer" in fn 29 of its commentary:

The definition of "responsible issuer" in Bill 198 differs from that proposed in the USA. Bill 198 defines "responsible issuer" to mean a reporting issuer or any other issuer with a real and substantial connection to Ontario, any securities of which are publicly traded. Part 9 of the USA defines "responsible issuer" to mean a reporting issuer in that particular jurisdiction or any other jurisdiction of Canada. This departure from Bill 198 wording ensures that security holders in a province where the issuer is not a reporting issuer will have the same rights as security holders in jurisdictions where the issuer is a reporting issuer. Ontario intends to maintain the Bill 198 definition of "responsible issuer". In the OSC's view, the Bill 198 definition of "responsible issuer" is sufficiently broad to provide a right of action against an issuer who is not a reporting issuer in the investor's resident province. (Emphasis added)

[64] In September 2004, the CSA published responses to comments received on its consultation draft. It reported a comment respecting the extent to which secondary market civil liability should apply to non-reporting issuers:

One commenter disagrees with the proposal to extend secondary civil market liability to non-reporting issuers if they have a real and substantial connection to the local jurisdiction and their securities are publicly traded. The [page271] commenter is of the view that it is inconsistent with the policy behind current legislation, which does not impose continuous disclosure obligations on non-reporting issuers. The commenter notes that a similar provision has already been passed by the Ontario legislature.

[65] The CSA responded, in part, as follows:

Many issuers have securities that are publicly traded in jurisdictions where they are not reporting issuers. From a public policy perspective, the secondary market civil liability regime should be aimed at protecting all investors that purchase, hold, sell or redeem publicly traded securities, whether or not the issuer of those securities is a reporting issuer in the jurisdiction. (Emphasis added)

[66] The CSA accepted that civil liability was not tied to having continuous disclosure obligations in the enacting province.

(e) Ontario definition proclaimed in force

[67] In November 2004, Bill 149 was introduced in the Ontario legislature. It contained the definition of "responsible issuer" as it appears in the OSA today. The only difference from the definition of "responsible issuer" in Bill 198 is that the words "real and" appear before the word "substantial". Bill 149 came into force on December 31, 2005.

[68] The concept of restricting a responsible issuer to an issuer whose securities were publicly traded in the jurisdiction in question was flagged by the Allen Committee, but not included in Bill 149. In my view, this reflects a conscious decision on the part of the legislature.

(f) Other CSA members enact legislation

[69] The CSA did not achieve its goal of developing a uniform securities act for adoption by each jurisdiction in Canada. The CSA officially withdrew the draft Uniform Securities Act, its Uniform Securities Legislation Project and all related CSA documents on February 19, 2010.

[70] Between December 31, 2006 and October 26, 2008, all of the other provinces and territories of Canada adopted legislation imposing civil liability for secondary market disclosure. All incorporate a definition of "responsible issuer" that includes, as its second prong, any other issuer having a real and substantial connection (or, in the case of Quebec, that is "closely connected") to the province, which has issued securities that are publicly traded. With the exception of the Yukon Securities Act, S.Y. 2007, c. 16, none qualifies where the securities must be traded. The definition [of "responsible issuer"] in the Yukon Securities Act, at s. 122, specifies that the securities must be "publicly traded in Yukon". [page272]

[71] Each of Nova Scotia, Prince Edward Island, Yukon, the Northwest Territories and Nunavut also specifically include reporting issuers under the laws of another province of Canada in para. (a) of the definition, making it clear that the issuers referred to in the second prong of the definition are issuers who are not reporting issuers in any jurisdiction of Canada. This, in my view, makes clear that CSA members intended that civil liability for secondary market disclosure not be linked to the issuer being subject to continuous disclosure requirements in Canada.

(4) Statutory interpretation

[72] The preferred approach to statutory interpretation supports the conclusion that the words "publicly traded" in para. (b) of the definition of "responsible issuer" do not mean "publicly traded in Canada".

[73] The preferred approach to statutory interpretation requires that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, at para. 26. The context for interpreting the definition of "responsible issuer" includes the purpose of the definition, the purpose of Part XXIII.1 of the OSA, the purpose of the OSA as a whole and related provisions of the OSA: see, for example, the approach of this court in Kerr v. Danier Leather, at para. 84.

[74] On its face, the wording of para. (b) of the definition of "responsible issuer" does not support a restrictive interpretation of "publicly traded". I agree with counsel for Mr. Abdula that if the legislature intended the second prong of the definition of "responsible issuer" to be confined to issuers that are reporting issuers in Canadian jurisdictions other than Ontario or any of whose securities are listed on Canadian stock exchanges, it would have been a simple task to adopt language which clearly expressed that intent.

[75] Indeed, as counsel for Mr. Abdula notes in his factum, in recent amendments to the insider trading provisions of the OSA, the legislature expanded the definition of "reporting issuer" in ss. 76(5) and 134(7) to include "an issuer that has a real and substantial connection to Ontario and whose securities are listed and posted for trading on the TSX Venture Exchange" (emphasis added).

[76] Section 138.7, which reduces the cap on a responsible issuer's liability by the damages assessed "under comparable [page273] legislation in other provinces or territories in Canada", further demonstrates that, where the legislature intends to limit the geographical application of a provision, it so specifies.

[77] The fact that s. 138.7 does not reduce the cap by damages assessed under s. 10(b) of the Securities Exchange Act of 1934 does not indicate that s. 138.3 is confined to issuers that are reporting issuers in a Canadian jurisdiction or issuers any of whose securities are listed on a Canadian stock exchange. A significant number of Canadian issuers are listed both on the TSX and an American exchange. Counsel for Canadian Solar agrees that such issuers fall within the definition of "responsible issuer". They are exposed to litigation under both s. 138.3 of the OSA and s. 10(b) of the Securities Exchange Act of 1934. Damages assessed against them under s. 10(b) of the Securities Exchange Act of 1934 do not statutorily reduce the cap on their liability under s. 138.3 of the OSA. Section 138.3 applies even where the issuer may be sued in both Canada and the U.S.

[78] The motion judge's conclusion is also supported by related provisions of the OSA, namely, the definitions of "document" in s. 138.1 and "principal market" in s. 250 of R.R.O. 1990, Reg. 1015.

[79] A "document" includes any written communication that is not required to be filed with the OSC and "that is filed or required to be filed with a government or an agency of a government under applicable securities or corporate law".[^1] The [page274] clause does not, as it easily might have, limit the definition to documents filed with a government of a Canadian province or territory.

[80] The definition of "principal market"[^2] contemplates that a responsible issuer's securities may not be traded on a Canadian market, at least during certain periods.

[81] Further, a stated objective of the OSA is to provide protection to investors from unfair, improper or fraudulent practices. Mr. Abdulla is an Ontario investor who alleges that he suffered damage as a result of a misrepresentation in documents released or presented in Ontario by a corporation based in Ontario. While the legislative history indicates that a purpose of Part XXIII.1 of the OSA is to promote a better standard of continuous disclosure, it also provides a measure of compensation to injured investors. As counsel for Mr. Abdulla submits, the courts recognized this dual purpose in Silver v. Imax, at para. 293, and Dobbie v. Arctic Glacier, at para. 106. Thus, the objectives of both the OSA as a whole and Part XXIII.1 specifically do not support restricting the application of civil liability for secondary market disclosure to those issuers with continuous disclosure obligations in Canada.

(5) Prospectus misrepresentation cases

[82] The motion judge did not err in failing to refer to the four cases that Canadian Solar cites with respect to the territorial reach of the statutory cause of action for prospectus misrepresentation. The reasoning in these cases is not applicable to the [page275] statutory cause of action for misrepresentations in secondary market disclosure.

[83] In Pearson v. Boliden, at para. 64, Newbury J.A. wrote:

Once the Act of a province applies to regulate (by means of a prospectus requirement) the "distribution" of securities taking place within the province's boundaries, the same Act must surely be looked to for any statutory cause of action for misrepresentation contained in the document. [Emphasis added]

[84] Perell J. in Coulson v. Citigroup agreed. McKenna v. Gammon Gold and the more recent Dobbie v. Arctic Glacier left that issue to be determined at trial. The certification judge in McKenna v. Gammon Gold Inc., Strathy J., did however conclude that it was not appropriate to include persons who purchased securities from the underwriters or their agents outside of Canada in the class. At para. 116, he wrote: "The acquisition of those securities in a jurisdiction outside Canada would not give rise to a reasonable expectation that the acquiror's rights would be determined by a court in Canada."

[85] As noted by van Rensburg J. in Silver v. Imax Corp., 2009 CanLII 72334 (ON SC), [2009] O.J. No. 5585, 86 C.P.C. (6th) 273 (S.C.J.), at para. 145, fn 20, the scope of persons who may assert a claim under s. 138.3 does not fit neatly into the analysis in Pearson v. Boliden, which is driven by where the distribution pursuant to which the plaintiff acquired shares took place.

[86] Section 130(1) of the OSA, which establishes liability for misrepresentation in a prospectus, provides as follows:

130(1) Where a prospectus, together with any amendment to the prospectus, contains a misrepresentation, a purchaser who purchases a security offered by the prospectus during the period of distribution or during distribution to the public has, without regard to whether the purchaser relied on the misrepresentation, a right of action for damages against, (a) the issuer[.] (Emphasis added)

[87] Section 138.3 is very different:

138.3 Where a responsible issuer . . . releases a document that contains a misrepresentation, a person or company who acquires or disposes of the issuer's security . . . has . . . a right of action for damages against, (a) the responsible issuer[.]

[88] The definition of "responsible issuer" is not confined to persons who are reporting issuers in Ontario and therefore have a continuous disclosure obligation in Ontario. Extra- territorial application is specifically envisaged by the para. (b) of the definition of "responsible issuer", with its reference to issuers with a [page276] "real and substantial connection" to Ontario. The neat division of class members, without overlap, contemplated by Pearson v. Boliden and Coulson v. Citibank was not envisaged.

[89] Mr. Abdula, an Ontario resident who placed his order in Ontario for shares of a corporation based in Ontario, would reasonably expect that his claim for misrepresentations in documents released or presented in Ontario would be determined by an Ontario court.

VI Costs

[90] Mr. Abdula shall provide his submissions as to costs within 14 days. Canadian Solar shall provide its submissions within ten days thereafter. No reply submissions shall be provided without leave.

Appeal dismissed.

[^1]: The definition of "document" in s. 138.1 of the OSA reads:

138.1 In this Part,

"document" means any written communication, including a communication prepared and transmitted only in electronic form,

(a) that is required to be filed with the Commission, or

(b) that is not required to be filed with the Commission and,

(i) that is filed with the Commission,

(ii) that is filed or required to be filed with a government or an agency of a government under applicable securities or corporate law or with any exchange or quotation and trade reporting system under its by-laws, rules or regulations, or

(iii) that is any other communication the content of which would reasonably be expected to affect the market price or value of a security of the responsible issuer[.]

[^2]: The definition of "principal market" in s. 250 of R.R.O. 1990, Reg. 1015 reads:

250. For the purposes of Part XXIII.1 of the Act, "principal market" means, in respect of a class of securities of a responsible issuer,

(a) the published market in Canada on which the greatest volume of trading in securities of that class occurred during the 10 trading days before the day on which the misrepresentation was made or the failure to make timely disclosure first occurred, or

(b) the published market on which the greatest volume of trading in securities of that class occurred during the 10 trading days before the day on which the misrepresentation was made or the failure to make timely disclosure first occurred, if securities of that class are not traded during those 10 trading days on a published market in Canada.