Faculty Blog

 NOTE: This article first appeared in the Financial Post, November 20, 2014 

A selection of the shortcomings of the “Cooperative Capital Markets Regulatory System” (CCMRA), a cooperative enterprise between the federal government and five provinces to create a one-stop securities regulator, have been discussed in these pages in recent days. The CCMRA, if adopted, would be a watershed event in the architecture of Canada’s political institutions. And in no way for the better. 

Since the Great Depression, the rise of the welfare state has been associated with a vastly expanded role for government, and this vast expansion has received its expression in the commensurate growth of the administrative state. Government administrators, who exercise powers delegated to them by government, have tentacles into virtually every walk of life, from the TV we watch to how we behave in the workplace to the pedigree of the hamburgers we throw on the barbie in the summer. 

Note: the following was first published in the National Post, Nov. 20, 2014

A shiny bright “Cooperative Capital Markets Regulatory System” (CCMRA), a cooperative enterprise between the federal government and five provinces to create a one-stop securities regulator, is set to hit the show room floor next September. Regrettably, instead of a Porsche Carrera, it looks much more like a Ford Edsel.

For some years now, the federal government has been hell bent for leather to supplant Canada’s existing 13 securities regulators (10 provincial and three territorial) with a single pan-Canadian regulatory body. In 2011, however, the Supreme Court of Canada ruled that that the federal government’s constitutional authority in the securities law domain is limited to matters of systemic risk affecting the country as a whole. As discussed in this space yesterday and the day before, the CCMRA is thus an attempt to marry the respective constitutional authorities of provincial and federal governments in a single entity. To date, five provinces (B.C., Ontario, Saskatchewan, N.B., and P.E.I.) have signed on. They will all adopt common legislation that will be administered by a common regulatory authority called the “Capital Markets Regulatory Authority” (CMRA). In like fashion, the feds will adopt the “Capital Markets Stability Act” and delegate their power to administer this statute to the CMRA.

The following first appeared in the National Post, November 17, 2014

Anyone in the business community who draws breath will be aware that for some time now the federal government has been on the warpath to eliminate the provincially-based system of securities regulation and substitute a single national regulator. Unfortunately for the feds, in 2011 the Supreme Court ruled that the federal government does not have the constitutional power to enact a comprehensive scheme of securities regulation. The Court, however, did suggest that the feds have the power to enact securities laws designed to address nation-wide systemic risks, and to collect securities market information on a national basis.

Following this decision, the federal government and Ontario spearheaded an effort to get as many provinces as possible to sign on to a common piece of legislation known as the “Provincial Capital Markets Act” (PCMA) and to delegate their respective authorities to administer this statute to a common regulator – the Capital Markets Regulatory Authority (CMRA). Under the cooperative agreement (known as the “Cooperative Capital Markets Regulatory System, or CCMRA), the federal government is to adopt a statute called the “Capital Markets Stability Act,” which will deal with those matters within the feds’ constitutional capacity. They will also delegate their authority to administer the statute to the CMRA.

Originally posted on Prof. Katz's blog. 

Last week reports emerged that the Government is considering a new copyright exception for political advertising. The reports suggested that the exception would permit the use of news content by political parties without authorization. While most of the media coverage of this story focused on the copyright issue and the phenomenon of attack ads, documents that Sun Media obtained from the CBC (under an Access to Information request) reveal an even more interesting and more important story, both politically and legally. These documents, offering a rare glimpse behind the scenes of Canada's major media organization, reveal a picture of a concerted action between the majority of Canada's news outlets, action that might run afoul the Competition Act.