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LEGISLATION - Jurisdiction - Provincial and territorial

Monday, October 21, 2019 @ 9:51 AM  


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Appeal by Berger from a decision of the Hearing Panel of the Financial and Consumer Affairs Authority that found he violated s. 27(2)(a) of The Securities Act by trading in securities without being registered. Evans, a Saskatchewan resident, opened a trading account with Latin Clearing after being advised by the appellant, who lived in Costa Rica. The appellant opened a second account for Evans, which Evans refused to fund. Evans’ trading account was frozen after he refused to cover a margin call. He made several requests of the appellant for the refund of his original investment, but his funds were never returned. The Panel declined to grant the appellant an adjournment. It found the fact the appellant and Latin Clearing were not resident in Saskatchewan was not relevant.

HELD: Appeal allowed. There was no denial of procedural fairness in the refusal to grant an adjournment or by the Panel failing to more fully explain the nature of the proceedings to the appellant. The Panel made a critical error in its fact finding when it found the appellant had denied any knowledge of Latin Clearing. The error led directly to its negative credibility assessment against the appellant and its treatment of the appellant and Latin Clearing as acting in concert. It applied the wrong test in determining whether it had jurisdiction to deal with the allegations against the appellant. The Panel failed to recognize that the true jurisdictional issue was whether the matter had a sufficient connection to Saskatchewan. While the appellant’s residency might not have been determinative of the issue it was relevant. The matter was referred back for rehearing.

Berger v. Saskatchewan (Financial and Consumer Affairs Authority), [2019] S.J. No. 350, Saskatchewan Court of Appeal, R.G. Richards C.J.S., R.K. Ottenbreit and N.W. Caldwell JJ.A., September 16, 2019. Digest No. TLD-October212019002