Simon's Legal Resources

Privacy - Administrative

. Binance Holdings Limited v. Ontario Securities Commission

In Binance Holdings Limited v. Ontario Securities Commission (Div Court, 2023) the Divisional Court considered a JR against a Capital Markets Tribunal (CMT) decision that it lacked jurisdiction to order the revocation of an "(i)nvestigation Order under s. 144(1) of the Securities Act" (which was initiated "under s. 11(1)(a) of the Securities Act, R.S.O. 1990, c. S.5").

In this quote the court cites a reduced Charter s.8 ['search and seizure'] privacy interest in the securities context:

[58] The OSC further relies on British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3. There is no doubt that this is a key decision, setting out important general principles regarding the s. 8 Charter right in the securities context. However, the Supreme Court did not rule that there was no expectation of privacy. It ruled, at para. 58, that people involved in the business of trading securities “do not have a high expectation of privacy with respect to regulatory needs that have been generally expressed in securities legislation.”

[59] Binance accepts that the expectation of privacy is “undoubtedly lower” in the regulatory context but submits that there is a blurred distinction between business and personal records in the modern workplace. Again, the OSC submits that this is unsupported by evidence.

[60] Although Branch is very important to the s. 8 analysis, Branch does not rule that every summons in the securities industry, regardless of its breadth, does not engage s. 8 of the Charter. It therefore does not rule out the need for a balancing of interests under Doré/Loyola.