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Administrative - Summons. Binance Holdings Limited v The Ontario Securities Commission
In Binance Holdings Limited v The Ontario Securities Commission (Div Court, 2023) the Divisional Court considered a judicial review against a Capital Markets Tribunal (CMT) denial of an order to stay an "Investigation Order and a Summons issued by the Ontario Securities Commission". The proceedings started out as a combined appeal/JR but the parties sought, and the court consented [grounded in their JRPA s.2(1) discretion], that only the JR would advance. In these quotes the court considers the test for staying the summons (it's the same as a stay pending appeal and interlocutory injunctions: the RJR-MacDonald test):[28] The parties agree that the applicable test on this motion is as articulated by the Supreme Court of Canada in RJR MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, at para. 49. Here the application of the test to this case involves three questions:i. Is there a serious issue to be tried?
ii. Will Binance suffer irreparable harm if the stay is not granted?
iii. Does the balance of convenience favour an order granting a stay? ....
i. Is there a serious issue to be tried?
[33] The “serious issue to be tried” test requires that the motion judge assess the merits of the case. This branch of the test is not demanding. The applicant must show that the litigation is not frivolous or vexatious: RJR MacDonald Inc. at paras. 54-55.
[34] This is a preliminary assessment. It is not intended to be a prolonged or detailed evaluation of the merits of the matter, with two exceptions. The first exception is where the result of the interlocutory motion will determine the action or the issue. Where “either the grant or the refusal” will cause the very harm sought to be protected this will require a more detailed analysis of the merits: RJR MacDonald Inc., at paras. 55-59; Toronto (City) v. Ontario (Attorney General), 2018 ONCA 761, 142 O.R. (3d) 481, at para. 10.
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[38] The second exception is where there is a simple question of constitutionality which can be settled by the motion judge. This is a narrow exception which would not apply where there are s. 1 issues that would require an expansive record that would not normally be before the motion judge: RJR MacDonald Inc., at paras. 60-61.
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The Question of Irreparable Harm
[63] The concept of irreparable harm is that the outcome of failing to grant the stay is such that it cannot be undone or compensated in damages. The court should focus on the nature of the harm, rather than its magnitude in the analysis: RJR-MacDonald, at para. 64.
[64] Examples of irreparable harm provided in RJR MacDonald, at para. 64, include instances where a party will be put out of business by the court's decision (R.L. Crain Inc. v. Hendry (1988), 1988 CanLII 5042 (SK KB), 48 D.L.R. (4th) 228 (Sask. Q.B.) ); where one party will suffer permanent market loss or irrevocable damage to its business reputation (American Cyanamid v. Ethicon Ltd., [1975] A.C. 39); or where a permanent loss of natural resources will happen if the challenged activity is not enjoined (MacMillan Bloedel Ltd. v. Mullin, 1985 CanLII 154 (BC CA), [1985] 3 W.W.R. 577 (B.C.C.A.).
[65] There must be more than mere speculation that irreparable harm “may” arise from the failure to grant the stay: Canada (Attorney General) v. Canada (Information Commissioner), 2001 FCA 26, at para. 12.
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Do the Balance of Convenience and Public Interest Considerations Favour a Stay?
[76] As a result of my findings that Binance has failed to establish that there is a serious issue to be tried, or that it will suffer irreparable harm from the refusal of a stay, the balance of convenience does not favour granting a stay.
[77] This application for judicial review involves the authority of a law enforcement agency and legislation which has effectively been found to be constitutionally valid. The public interest is engaged at this stage of the analysis: Ainsley Financial Corp. v. Ontario Securities Commission, (1993), 1993 CanLII 5552 (ON SC), 14 O.R. (3d) 280, at pp. 303-4. . Jocko v Criminal Injuries Compensation Board
In the case of Jocko v Criminal Injuries Compensation Board (Ont Div Ct, 2009) the court held that s.5.4 did not authorize the Criminal Injuries Compensation Board to order pre-hearing documentary disclosure from non-parties (in that case police officers), be they witnesses or not. The Board's only authority to compel documentation from non-parties lay in it's general authority to issue summons to witnesses [SPPA s.12], which could specify the documents that non-party witnesses should bring with them to the hearing.
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