Securities Regulation and the Public Interest: Of Politics, Procedures, and Policy Statements - Part II

Abstract

In this article, the author argues that securities regulators in Canada have issued many policy statements that are used as de facto law. These policy statements add substantive requirements to those contained in the Act and regulations. In many cases, they even exceed the power possessed by the Lieutenant Governor in Council to make regulations. Indeed, in some cases, they contradict what is found in the Act or regulations. Whether supported by blanket rulings, or merely the securities regulators' public interest powers, the author argues that all of these policy statements lack juridical foundation. He additionally argues that little or no attention has been directed to a number of potential legal problems associated with the use of policy statements. Taken together with the first part of this article, the two parts are substantially the same as a paper delivered at the mini-conference "The Ontario Securities Commission: Advice to the Chairman" on December 17, 1993, and sponsored by the Canadian Business Law Journal, in cooperation with the Faculty of Law, University of Toronto.