The enforcement efforts of the Ontario Securities Commission (OSC), the regulator that administers and enforces compliance with the provisions of the Securities Act (Ontario) and the Commodity Futures Act (Ontario), have had mixed success— at best. With a mandate to protect investors and ensure fair and efficient capital markets through monitoring compliance and enforcement measures in the securities industry in Ontario, the regulatory body has been struggling to be taken seriously. Having taken a chapter from the playbook of the American national Securities Exchange Commission (SEC), prosecuting individuals for Insider trading, tipping, and securities fraud, the initial results, which are highlighted below, were underwhelming. Now, in a renewed effort to assert its presence in the capital markets as a regulator with teeth, the OSC is taking new approaches, with more promising results.
Category Archives: Canada
Managing Local and International Criminal Law Risk for Mining Companies
Despite internal safe guards and the best efforts of mining companies and their executives, criminal investigations can arise in relation to operations at home or abroad. How a company responds to a criminal investigation or to possible internal criminal misconduct, can have a serious legal and reputational impact, particularly since changes to Canadian law have made it easier for prosecutors to convict corporations and their officers of criminal wrongdoing. Today at Fasken Martineau’s PDAC 2016 seminar, Peter Mantas and Norm Keith of Fasken Martineau and Sandy Boucher of Grant Thornton discussed how proactive a mining company should be during the critical period after suspected criminal wrongdoing is discovered.
Project Manager Sentenced to Five 3.5-Year Jail Terms in Metron Swing Stage Conviction
In what can only be described as a harsh sentence, with scathing reasons, Justice MacDonnell sentenced Vadim Kazenelson to 3 ½ years in prison, for each of five convictions of criminal negligence, relating to the Metron Construction Swing Stage collapse, to be served consecutively. With the January 11, 2016 sentencing, the tragic saga of a quadruple fatality on a construction site on Christmas Eve 2009 has finally come to legal conclusion. On June 26, 2015, following a trial, Kazenelson had been found guilty of all five counts of criminal negligence for which he had been charged in relation to the cause of the incident.[1]
The trial judge said in the Reasons for Sentence: “ … [2]a significant term of imprisonment is necessary to reflect the terrible consequences of the offences and to make it unequivocally clear that persons in positions of authority in potentially dangerous workplaces have a serious obligation to take all reasonable steps to ensure that those who arrive for work in the morning will make it safely back to their homes and families … “
In August 2009, Metron was retained to repair concrete balconies on two high-rise apartments. As was its normal practice, Metron hired a project manager and a site supervisor to oversee the project. Mr. Kazenelson was retained by Metron as its project manager. Mr. Kazenelson owned and operated his own construction company and according to reports, came highly recommended as an experienced and qualified project manager.
News alert: SNC-Lavalin Avoids Debarment with Unprecedented Administrative Agreement
On December 10, 2015, SNC-Lavalin announced that it had signed the first-ever administrative agreement with the Government of Canada under the Integrity Regime.
The Integrity Regime, in effect since July 2015, bars companies and their related legal entities from bidding on government contracts if they are charged with or convicted of certain criminal or administrative charges. SNC-Lavalin is currently battling fraud and corruption charges filed in February, 2015 regarding three of its legal entities. This administrative agreement allows it to bid and win government contracts as it signifies the government’s satisfaction with SNC-Lavalin’s ethics and compliance programs.
SNC-Lavalin had to undertake and institute a comprehensive ethics and compliance program. Some of the measures it took include an antitrust and competition policy, a whistleblowing policy, a political contribution policy, appointing compliance officers in every business sector, and obligatory compliance training and certification for all employees.
This is a significant step towards addressing what many companies and legal advisors believe to be a harsh policy. Until now, the Integrity Regime allowed very little discretion to the government to create an alternative to debarment of the accused, pending a judicial decision on criminal charges. While on its face, the Integrity Regime remains rigid, in practice, it now appears that companies facing criminal charges or under investigation may have other options.
Supreme Court of Canada redefines human smuggling
On November 27, 2015, the Supreme Court of Canada decided two appeals, B010 v. Canada (Citizenship and Immigration) and R. v. Appulonappa[1]. The appeals concerned the meaning and application of the human smuggling provisions in the Immigration and Refugee Protection Act (IRPA)[2].
The Supreme Court of Canada unanimously concluded that the offence of “human smuggling” in s. 117 of IRPA, despite its broad wording, applies only to those engaged in organized crime. It does not apply to those who provide humanitarian, mutual and family assistance to asylum-seekers coming to Canada.
These cases arose out of large scale entries to Canada in 2009 and 2010 by Tamil refugees arriving by boat in British Columbia. The Supreme Court’s decision comes in the midst of the most serious worldwide refugee crisis since the Second World War and as Canada prepares to welcome 25,000 Syrian refugees.