In Binance Holdings Limited (Re), 2023 ONCMT 27, Ontario’s new Capital Markets Tribunal (the Tribunal) clarified that it does not have the jurisdiction to revoke an investigation order made by the Ontario Securities Commission (OSC).

Background

In May 2023, the OSC issued an investigation order under s. 11 of the Ontario Securities Act[1](the Act) to investigate the conduct of Binance Holdings Limited, which operates a crypto-asset trading platform.

Binance applied to the Tribunalunder s. 144(1) of the Act requesting that the Tribunal revoke the investigation order. According to s. 144(1), “[t]he Commission may make an order revoking or varying a decision of the Commission”. The primary question before the Tribunal was whether “Commission” referred to in s. 144(1) includes the new Tribunal.

2022 Amendments

In 2022, various amendments were made to the Act which included the creation of the Tribunal as a separate division of the OSC. Prior to the amendments, the OSC performed three distinct functions including:

 (i) a quasi-legislative function to make rules and policies;

(ii) an executive function to enforce legislation; and

(iii) an adjudicative function holding hearings before panels of OSC members.

The Tribunal now performs the adjudicative function independently from the rest of the OSC.

Decision of the Tribunal

In light the amendments, the Tribunal concluded that only the Commission exercising its executive function can revoke its own s. 11 investigation order.

The Tribunal opined that the word “Commission” is used in the amended Act to include or exclude the Tribunal depending on the context. To resolve the ambiguity, the Tribunal applied the principles of statutory interpretation to the specific occurrence of the word “Commission” in s. 144(1). Applying the modern approach to statutory interpretation, the Tribunal looked at s. 144(1) in its entire context to interpret the text and purpose of the section in a way that produces a reasonable and just meaning.

The amendments to the Act also included the addition of s. 144.1 which states that the Tribunal can revoke an order of the Tribunal. If “Commission” under s. 144(1) were to include the Tribunal, then the addition of section 144.1 would become completely repetitive and unnecessary.

Furthermore, the legislative debates show that the amendments intended to clearly separate the regulatory and policy functions of the Commission including investigation, on one hand, from the adjudicative functions of the Tribunal, on the other. As well, nothing in the Act’s amendments prevent Binance from applying to the Commission in its executive function for revocation of the investigation order, or pursuing other routes that may be available through the courts.

Takeaway

This decision clarifies an important jurisdictional point about the Tribunal under the amended Act. The amendments to the Act and specifically distinct references to “Commission” and “Tribunal” were meant to clearly separate the regulatory functions of the former and the adjudicative functions of the latter. As well, the Tribunal is a “creature of statute” that does not have inherent jurisdiction. Rather, it is only able to exercise the powers provided by the legislature “even if that leaves parties with options they consider less than ideal”.

[1] RSO 1990, c S.5