2024 ONSC 3719

DIVISIONAL COURT FILE NO.: 335/24 DATE: 20240627

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

B E T W E E N:

Binance Holdings Limited, Appellant

-and-

Ontario Securities Commission, Respondent

BEFORE: FL Myers J

COUNSEL: Graeme Hamilton, for the appellant Aaron Dantowitz, for the respondent Priscila Atkinson, for the Attorney General of Ontario

HEARD at Toronto (by videoconference): June 27, 2024

ENDORSEMENT

[1] The parties convened a scheduling conference for this appeal.

[2] In 2023, the OSC issued a summons to Binance as part of a regulatory investigation.

[3] Binance sought judicial review of the constitutionality of the summons in this court. It was unsuccessful partly on the basis that it should first ask the OSC to quash the summons in order to create a factual record needed for the Charter challenge brought by Binance among other things.

[4] Binance sought leave to appeal to the Court of Appeal but obtained an order of that court holding the application for leave to appeal in abeyance pending the outcome of the motion to quash the summons to be brought before the OSC.

[5] The OSC has now ruled that it does not have jurisdiction to consider the propriety of a summons despite the decision of the Divisional Court.

[6] Binance appeals the OSC’s ruling in this proceeding.

[7] Binance has now perfected its motion for leave to appeal in the Court of Appeal from the prior judicial review decision of this court. It has also moved before the Court of Appeal for an order joining together before the Court of Appeal both this appeal and the proposed appeal of the judicial review order. The Court of Appeal has jurisdiction under s. 6 (2) of the Courts of Justice Act, RSO 1990, c C.43, to move an appeal from this court to join with an appeal in the Court of Appeal in same underlying proceeding. Binance also seeks an order to expedite the hearing of the joined appeals.

[8] The Court of Appeal has apparently convened an appeal management conference about the motion to join this appeal with the existing application for leave to appeal before that court and about the request to expedite the joined appeals. The appeal management conference will occur in mid-July. I do not know how or when the motion to join the appeals will be heard or decided. I do not know, for example, if it is heard by a single judge on a few days’ notice or if it can be heard by the panel hearing the leave to appeal motion in writing. Perhaps it cannot even be considered until leave to appeal is already granted in the judicial review application. The processes and timing of those proceedings is completely in the bailiwick of the Court of Appeal.

[9] Binance asks to extend the time for it to perfect this appeal in this court until the Court of Appeal decides either to take over or to refuse to take over this appeal or if it denies leave to appeal in the judicial review proceeding. Binance submits that judicial economy and affordability support hearing everything in one place at one time. Binance says any delay in this proceeding will be reasonable. Moreover, it says there is no prejudice suffered the OSC because there is currently no stay in place so its summons is in force and is being complied with.

[10] The OSC submits that this request is simply another effort by Binance to create procedural obstacles to tie up its investigation. It submits that Binance seeks to bypass an appeal to this court and the related requirement that it obtain leave to appeal any decision of this court to the Court of Appeal.

[11] In my view, the outcome is straightforward. I cannot tell who is trying to tie up whom. Neither can or should I speculate about the process issues engaged at the Court of Appeal.

[12] It seems to me that what I should concern myself with is this court. An appeal has been properly brought to this court. It should proceed before this court unless or until the Court of Appeal decides otherwise.

[13] If the Court of Appeal takes on this appeal, then the appeal will be heard there as ordered. Until then, it is being heard here.

[14] There is an investigative process under way before the OSC. Interim court proceedings are generally not considered an efficient or affordable way to fulfill the public interest that undergirds administrative proceedings. If appeals to the courts have merit, they will succeed on the schedule that the applicable court imposes. Absent good cause however, it seems to me that this court should just get on with its business in the interests of efficient and affordable justice and to promote the public interest such as it may be found to be.

[15] The parties agree that if I do not defer this appeal, then in the ordinary course Binance ought to be entitled to 45 days to perfect its appeal. Regardless of which court hears the appeal, the same substantive arguments are required. Apart from perhaps formatting documents, time spent preparing in one court will not be lost if the appeal proceeds in the other. If the Court of Appeal hears an appeal management conference in the next few weeks and a judge there takes a different view, my directions will yield of course.

[16] I am simply treating this appeal as a regular appeal to this court until such time as someone says it isn’t. Subject to an order under s. 6 (2) of the CJA if made:

a. The appellant shall perfect its appeal by August 10, 2024.

b. The respondent’s materials will be delivered by October 9, 2024.

c. If Ontario decides to participate, the Attorney General will deliver his material by November 8, 2024.

[17] The Registrar is directed to schedule a hearing of this appeal for 1/2 day before a panel of three judges on the first available date in the week of November 25, 2024 or thereafter.

[18] Counsel are reminded to upload their properly formatted documents to Caselines well in advance of the hearing.

FL Myers J

Date: June 27, 2024