Court of Appeal for Ontario
Date: 2018-11-26 Docket: M49321 Motion Judge: Brown J.A.
Between
Ontario Securities Commission Respondent (Respondent)
and
Daniel Tiffin and Tiffin Financial Corporation Applicants (Appellants)
Counsel
Glen Jennings and Alex Zuvaglia, for the applicants
Jon Feasby, for the Ontario Securities Commission
Heard
November 21, 2018
Reasons for Decision
[1] Leave to appeal from the convictions entered by Justice R. Charney on May 15, 2018, with reasons reported at 2018 ONSC 3047, 142 O.R. (3d) 223, is granted pursuant to s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33. I am persuaded that the applicants have satisfied the high test for granting leave to appeal: Ontario (Ministry of the Environment and Climate Change) v. Sunrise Propane Energy Group Inc., 2018 ONCA 461, at paras. 12-13. Special grounds exist in respect of a question of law and it is essential in the public interest that leave be granted.
[2] The conviction appeal raises two main issues of public importance: (i) the interpretative principles to be applied to determine whether an instrument is a "security" within the meaning of s. 1(1) of the Ontario Securities Act, R.S.O. 1990, c. S.5; and (ii) the closely related issue as to whether a loan agreement of the type in the present case is a "security".
[3] Both issues concern the regulatory reach of the Ontario Securities Act and therefore engage broader public interests beyond the specific interests of the parties to this proceeding.
[4] Both issues require a consideration of the principles guiding the interpretation of the term "security", and its constituent components, in s. 1(1) of the Securities Act, including the role, if any, played by the "family resemblance test" articulated by United States Supreme Court in Reves v. Ernst & Young, 494 U.S. 56 (1990). The British Columbia Court of Appeal and the Alberta Court of Appeal have taken different positions on the use that can be made of the Reves "family resemblance test" in interpreting securities legislation: see BCSC v. Gill, 2003 BCCA 169, 11 B.C.L.R. (4th) 102, and R. v. Stevenson, 2017 ABCA 420, 61 Alta. L.R. (6th) 273, leave to appeal denied [2018] SCCA No. 54. This court has not previously considered the issue.
[5] Leave to appeal is granted on the issues set out in para. 26 of the Moving Party's factum.
[6] This conviction appeal shall be heard together with the sentence appeal for which leave previously was granted.
David Brown J.A.