O.C. 20/2010

January 26, 2010


WHEREAS the Province of Alberta regulates the securities market and industry in the Province of Alberta; and

WHEREAS on February 21, 2008, the Minister of Finance of Canada established the Expert Panel on Securities Regulation, which delivered to the Minister its Final Report and Recommendations, together with a draft Securities Act, on January 12, 2009; and

WHEREAS the Minister of Finance of Canada stated during his 2009 Budget Speech that the Government of Canada will follow the recommendations of the Expert Panel on Securities Regulation by establishing an office to manage the transition to a Canadian securities regulator and will table a federal securities act for Canada; and

WHEREAS on March 12, 2009, Royal Assent was given to the Budget Implementation Act, 2009, S.C. 2009, c.2, which provides in sections 295, 296 and 297 for, among other things, the enactment of the Canadian Securities Regulation Regime Transition Office Act; and

WHEREAS a Canadian securities regulation regime and a Canadian securities regulator will usurp provincial jurisdiction over property and civil rights and upset the balance of federalism affecting financial-sector and consumer-protection regulation in Canada;

THEREFORE the Lieutenant Governor in Council refers the following questions to the Court of Appeal of Alberta for hearing and consideration:

1    Does the Parliament of Canada have the legislative authority under the Constitution Act, 1867 to pass sections 295, 296, and 297 of the Budget Implementation Act, 2009, S.C. 2009, c.2, and to pass legislation that is co-extensive in substance with the Alberta Securities Act and similar to the draft Securities Act appended to the Final Report and Recommendations of the Expert Panel on Securities Regulation?

2    Does the Parliament of Canada have jurisdiction under the Constitution Act, 1867 to pass legislation that would exclude the application of the Alberta Securities Act

      (a)     to market participants who elect to be regulated under the federal regime only, as recommended in the Final Report and Recommendations of the Expert Panel on Securities Regulation,

      (b)     to market participants who have a substantial connection to a jurisdiction other than Alberta, as recommended in the Final Report and Recommendations of the Expert Panel on Securities Regulation, or

      (c)     by an express paramountcy clause or similar unilateral action, as recommended in the Final Report and Recommendations of the Expert Panel on Securities Regulation?

For Information only

Recommended by:            Minister of Justice and Attorney General

Authority:                             Judicature Act
                                                (section 26)