



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario Securities Commission v. Tiffin, 2018 ONCA
    953

DATE: 20181126

DOCKET: M49321

Brown J.A. (Motion Judge)

BETWEEN

Ontario Securities Commission

Respondent (Respondent)

and

Daniel Tiffin and Tiffin Financial Corporation

Applicants (Appellants)

Glen Jennings and Alex Zuvaglia, for the applicants

Jon Feasby, for the Ontario Securities Commission

Heard: November 21, 2018

REASONS FOR DECISION

[1]

Leave to appeal from the convictions entered by Justice R. Charney on
    May 15, 2018, with reasons reported at 2018 ONSC 3047, 142 O.R. (3d) 223, is
    granted pursuant to s. 131 of the
Provincial Offences Act
, R.S.O.
    1990, c. P.33. I am persuaded that the applicants have satisfied the high test
    for granting leave to appeal:
Ontario (Ministry of the Environment and
    Climate Change) v. Sunrise Propane Energy Group Inc.
, 2018 ONCA 461, at
    paras. 12-13. Special grounds exist in respect of a question of law and it is
    essential in the public interest that leave be granted.

[2]

The conviction appeal raises two main issues of public importance: (i) the
    interpretative principles to be applied apply to determine whether an
    instrument is a security within the meaning of s. 1(1) of the Ontario
Securities
    Act
, R.S.O. 1990, c. S.5; and (ii) the closely related issue as to whether
    a loan agreement of the type in the present case is a security.

[3]

Both issues concern the regulatory reach of the Ontario
Securities
    Act
and therefore engage broader public interests beyond the specific
    interests of the parties to this proceeding.

[4]

Both issues require a consideration of the principles guiding the
    interpretation of the term security, and its constituent components, in s.
    1(1) of the
Securities Act
, including the role, if any, played by the
    family resemblance test articulated by United States Supreme Court in
Reves
    v. Ernst & Young
, 494 U.S. 56 (1990). The British Columbia Court of
    Appeal and the Alberta Court of Appeal have taken different positions on the use
    that can be made of the
Reves
family resemblance test in
    interpreting securities legislation: see
BCSC v. Gill
, 2003 BCCA 169, 11
    B.C.L.R. (4th) 102, and
R. v. Stevenson
, 2017 ABCA 420, 61 Alta. L.R.
    (6th) 273, leave to appeal denied [2018] SCCA No. 54. This court has not
    previously considered the issue.

[5]

Leave to appeal is granted on the issues set out in para. 26 of the
    Moving Partys factum.

[6]

This conviction appeal shall be heard together with the sentence appeal
    for which leave previously was granted.

David Brown J.A.


