Hretchka et al. v. Attorney General of British Columbia et al., [1972] SCR 119

Supreme Court of Canada

Hretchka et al. v. Attorney General of British Columbia et al., [1972] S.C.R. 119

Date: 1971-04-27

Michael Hretchka, Jean Marie Hretchka and Chromex Investments Limited Appellants;

and

Attorney-General of British Columbia, British Columbia Securities Commission and Superintendent of Brokers for British Columbia Respondents.

1971: March 29; 1971: April 27.

Present: Martland, Judson, Ritchie, Hall and Spence JJ.

MOTION TO QUASH

Appeal—Order of Securities Commission appealed to Court of Appeal—Court exercising powers under s. 31(5) of Securities Act, 1967 (B.C.), c. 45—Order varied—Whether appeal lies to Supreme Court of Canada—Supreme Court Act, R.S.C. 1952, c. 259, s. 44(1).

On an appeal from an order of the British Columbia Securities Commission, the majority of the Court of Appeal held that, under all the circumstances, a prohibition against the appellants trading in certain shares, which the Commission sought, by its order, to impose, was merited. The Court exercised its powers under s. 31(5) of the Securities Act, 1967 (B.C.), c. 45, to direct the Commission as to the nature of such order and varied, in certain respects, the Commission’s order.

An application for an order to quash an appeal from the judgment of the Court of Appeal was made on the fallowing grounds: 1. That the amount or value of the matter in controversy in the appeal does not exceed $10,000, as required by the provisions of s. 36(a) of the Supreme Court Act. 2. That the order of the Court of Appeal from which the appeal is taken is not a final judgment within the meaning of s. 36 of the Supreme Court Act. 3. That, in accordance with the provisions of s. 44(1) of the Supreme Court Act, no appeal lies by reason of the fact that the judgment from which the appellants seek to appeal was made in the exercise of judicial discretion.

A counter-application was made by the appellants for leave to appeal.

Held (Spence J. dissenting): The application to quash should be granted and the application for leave to appeal should be dismissed.

[Page 120]

Per Martland, Judson, Ritchie and Hall JJ.: It was sufficient to consider only the third ground upon which the application to quash was made. Section 31 of the Securities Act gives to a person primarily affected by an order of the Securities Commission a right of appeal from the Commission to the Court of Appeal. Unlike the right of appeal from the decision of an administrative tribunal frequently provided by statute, this appeal is not limited to questions of law or jurisdiction. It is a general right of appeal. But, in addition, the Court is not limited, when such appeal is taken, to affirming or reversing the Commission order. It is empowered to direct the Commission to make an order, within the scope of its statutory powers, “as the Court deems proper”. In other words, the Court, on appeal, has the same discretionary powers as has the Commission.

The order made by the Court of Appeal was, therefore, an order made in the exercise of judicial discretion. Accordingly, s. 44(1) of the Supreme Court Act was applicable and the appellants had no appeal, as of right, to this Court.

This was not a case in which leave to appeal should be granted under s. 41. The order prohibiting trading was in the public interest and, in the circumstances of the case, an appeal in relation to the discretion exercised by the Court of Appeal should not be considered.

Per Spence J., dissenting: 1. The amount in controversy in the appeal was over $10,000. 2. The judgment of the Court of Appeal was a final judgment within the meaning of s. 36 of the Supreme Court Act. 3. The appeal from the order of the Court of Appeal to this Court was not on the question of the exercise of discretion by a majority of the Court but on the question of the validity and intra vires nature of the order made by that Court and of its predecessor the order made by the Securities Commission. An appeal on this issue was not one that was barred by the provisions of s. 44 of the Supreme Court Act.

APPLICATION by the respondents for an order to quash the appellants’ appeal from a judgment of the Court of Appeal for British Columbia[1], varying an order of the British

[Page 121]

Columbia Securities Commission. APPLICATION by the appellants for leave to appeal. Application to quash appeal granted; application for leave to appeal dismissed. Spence J. dissenting.

Honourable C.H. Locke, Q.C., for the appellants.

W.G. Burke-Robertson, Q.C., for the respondents.

The judgment of Martland, Judson, Ritchie and Hall JJ. was delivered by

MARTLAND J.—The respondents have applied for an order to quash this appeal from a judgment of the Court of Appeal for British Columbia, which, on an appeal by the appellants from an order of the British Columbia Securities Commission (hereinafter referred to as “the Commission”), had varied that order. The powers of the Commission are defined in the Securities Act, 1967, 1967 (B.C.), c. 45, as amended by 1968 (B.C.), c. 50, (hereinafter referred to as “the Act”). The relevant provisions of that statute are as follows:

77A. (1) Where the Commission considers it to be in the public interest, the Commission may at any time issue an order prohibiting any person or company to whom the order is addressed, whether such person or company is registered or not, from trading in the securities mentioned in the order for such period or periods as may be mentioned therein.

(2) No order shall be made under subsection (1) without a hearing, unless in the opinion of the Commission the length of time required for a hearing could be prejudicial to the public interest, in which event a temporary order may be made which shall expire fifteen days from the date of the making thereof.

(3) Every order made under this section shall be served on the person or company to whom it is addressed and forthwith upon receipt of the notice, and so long as the order remains in force, the person or company named therein shall comply with the order.

(4) A copy of the order shall be served on the person or company issuing the security.

5. (1) The Superintendent or any Deputy Superintendent may exercise the powers and shall perform

[Page 122]

the duties vested in or imposed upon him by this Act, and he may exercise the powers and shall perform the duties that are vested in or imposed upon the Commission by this Act or the regulations and that are assigned to him by the Commission, except those referred to in sections 23, 24, 25, 26, 27, 30, and 141, and, subject to the direction of the Commission, he shall be the chief administrative officer of the Commission.

30. (1) Any person or company primarily affected by a direction, decision, order, or ruling of the Superintendent may, by notice in writing sent by registered mail to the Superintendent within thirty days after the mailing of the notice of the direction, decision, order, or ruling, request and be entitled to a hearing and review thereof by the Commission.

(2) Upon a hearing and review, the Commission may by order confirm the direction, decision, order, or ruling under review or make such other direction, decision, order, or ruling as the Commission deems proper.

(3) The Attorney-General may appoint counsel to assist the Commission upon a hearing and review under this section.

31. (1) Any person or company primarily affected by a direction, decision, order, or ruling of the Commission, other than a ruling under section 56, may appeal to the Court of Appeal.

(2) Every appeal shall be by notice of motion sent by registered mail to the Superintendent within thirty days after the mailing of the notice of the order, and the practice and procedure upon and in relation to the appeal shall be the same as upon an appeal from a judgment of a Judge of the Supreme Court in an action.

(3) The Superintendent shall certify to the Registrar of the Court of Appeal

(a) the direction, decision, order, or ruling that has been reviewed by the Commission;

(b) the order of the Commission, together with any statement of reasons therefor;

(c) the record of the review; and

(d) all written submissions to the Commission or other material that are relevant to the appeal.

(4) The Attorney-General may appoint counsel to assist the Court of Appeal upon the hearing of any appeal under this section.

[Page 123]

(5) Where an appeal is taken under this section, the Court of Appeal may by its order direct the Commission to make such direction, decision, order, or ruling or to do such other act as the Commission is authorized and empowered to do under this Act or the regulations and as the Court deems proper, having regard to the material and submissions before, it and to this Act and the regulations, and the Commission shall make the direction, decision, order, or ruling or do the act accordingly.

(6) Notwithstanding an order of the Court of Appeal, the Commission has power to make any further direction, decision, order, or ruling upon new material or where there is a material change in the circumstances, and every such direction, decision, order, or ruling is subject to this section.

The reasons for judgment of the majority of the Court of Appeal were delivered by Bull J.A., from which I quote the following statement of the facts which gave rise to these proceedings:

Chromex Nickel Mines Ltd. (hereafter sometimes called “Chromex”) is what is often called a “Dominion Company” having been incorporated on January 26, 1966 by the issue of Letters Patent under the Canada Corporations Act, a statute of the Parliament of Canada. Its authorized capital was $800,000 divided into 8,000,000 common shares of a par value of 10 cents each. Its head office was in British Columbia and its stated purpose and objects were the exploration, development and operation of mining properties in the United States, Canada and elsewhere. Since its incorporation the company has issued a total of 2,901,096 paid-up shares of which 2,107,757 were issued in 1966 for mining properties. Of that latter number the appellant Michael Hretchka was issued 1,000,000 shares for six Crown-granted British Columbia mineral claims on a basis of 12 cents per share, and the remainder of 1,107,757 were issued pursuant to an exchange offer for all the shares of Hunter Point Explorations Ltd., which owned a large number of mineral claims and owed $30,000 to the appellant Chromex Investments Ltd. The appellant Michael Hretchka received 10,000 shares for an approximate one per cent interest in Hunter Point Explorations Ltd., the appellant Jean Marie Hretchka (the wife of Michael Hretchka) received 20,000 shares for her approximate two per cent interest and the appellant Chromex Investments Ltd. (beneficially owned by Mrs. Hretchka but managed by her husband) received 80,000 shares for its approximate 8 per cent interest. Chromex

[Page 124]

Investments Ltd. also received 150,000 shares in payment of the $30,000 debt on the basis of 20 cents per share.

The only other treasury shares issued by Chromex (except originally to cover incorporation expenses) were 76,536 shares in December 1967 at 30 cents per share cash and 529,300 shares in April-May 1969 at 60 cents per share cash, in both cases allegedly to registered shareholders only.

Therefore, the three appellants were allotted between them in 1966 a total of 1,260,000 Chromex shares. It seems that the appellant Michael Hretchka still retains his original holding of 1,010,000 shares and his wife, the appellant Jean Marie Hretchka, most of her 20,000 shares, but the appellant Chromex Investments Ltd. has disposed of large but unspecified blocks of its original holding of 230,000 shares. Thus, the appellants hold as a group a minimum of about 40 per cent of all the outstanding capital.

Chromex never filed a prospectus under the Securities Act, 1967, although in 1966 it filed one with the Secretary of State of Canada under the Canada Corporations Act, with an updating amendment in the following year. Those prospectuses were filed in Newfoundland, but refused in this Province on the grounds that they did not comply with the British Columbia requirements. The company was never qualified as a security‑issuer in this Province. It seems that Chromex shares were being traded in Vancouver as unlisted shares over-the-counter during the fall of 1968 and spring of 1969. Prices ranged from 30 cents to 60 cents a share. In May 1969, however, great market activity occurred and the prices rose quickly to the two-dollar level. On June 6, 1969, the Superintendent of Brokers, purporting under s. 5(1) to exercise the powers of s. 77A(2) of the Securities Act, 1967 made a temporary order without holding any hearing. Under that order all members of the Vancouver Stock Exchange, registered Brokers and Broker-Dealers were prohibited from trading in the shares of Chromex for fifteen days.

On the same day, the Superintendent sent to the appellant Michael Hretchka, at the company’s office, with a copy to the company’s solicitor, a notice enclosing the temporary order and calling attendance before him on June 12 to be heard regarding the continuation of the order beyond fifteen days by way

[Page 125]

of a further temporary order. Hretchka appeared with Chromex’s counsel before the Superintendent on June 12, gave evidence and was cross-examined at length by the Superintendent. The appellants Chromex Investments Ltd. and Mrs. Hretchka were not notified of the hearing and were neither present nor represented.

On June 24, 1969, the Deputy Superintendent of Brokers, after reciting that a hearing had been held on June 12, 1969 (which was not stated to have been for the purpose of determining whether the order of June 6, 1969 should be made permanent) and that the Commission was of the opinion that it was in public interest for a “further order to be made pursuant to section 77A…” ordered that the temporary order of June 6, 1969 be rescinded and that Chromex and the three appellants be prohibited from trading in Chromex securities until the Commission ordered otherwise. That order was sent to all four, as well as to the company’s solicitors and to the Vancouver Stock Exchange. Chromex and the three appellants then requested a review of the order and a full hearing before the members of the British Columbia Securities Commission, pursuant to s. 30 of the Securities Act, 1967.

As a result of these requests, the Commission held a hearing on July 17 and July 21, 1969, at which time Chromex was represented by counsel and the appellant Michael Hretchka was present in person and represented the other two appellants, that is, his wife and her investment company. At this hearing various preliminary objections were taken, including submissions that the order of June 24, 1969, was invalid as the notice of the hearing upon which it was purportedly based described the purpose thereof quite improperly, and, although sent to the appellant husband Hretchka, it did not indicate that he personally was, or might be involved, and, in any event, no notice at all was given to the other two appellants. These objections were rejected. However, full evidence was adduced and the two companies and two individuals seeking the hearing and review were given full opportunity to cross-examine witnesses, to give evidence and to make submissions to the Commission as they saw fit.

On September 10, 1969, the Commission pronounced its decision in which it confirmed the order of the Deputy Superintendent prohibiting the trading in securities of Chromex by the three appellants,

[Page 126]

lifted that restriction against the company itself, but added a further direction against the appellant Michael Hretchka to escrow 600,000 of his 1,010,000 Chromex shares and place 350,000 of the remainder with a trust company. It is that order (except for the part rescinding the order against Chromex) which is under appeal to this court, pursuant to s. 31 of the statute.

The majority of the Court of Appeal, in the exercise of the powers given to that Court by s. 31(5) of the Act, varied the order of the Commission, of September 10, 1969, by inserting a declaration that the order of the Commission be varied by:

1. Inserting therein a declaration that the Order of the Deputy Superintendent of Brokers made the 24th day of June, 1969, was invalid.

2. Prohibiting each appellant from trading in any shares issued to that appellant from the treasury of Chromex Nickel Mines Ltd. and held by or for such appellant as of the 10th day of September, 1969, the prohibitions to continue for one year from the date of the Order so varying or until such earlier time as the Commission orders otherwise.

3. Deleting from the said Commission’s said order of the 10th day of September, 1969, all reference to escrowing 600,000 such shares and placing in trust 350,000 such shares held by or for the appellant Michael Hretchka.

It was contended in this Court, on behalf of the appellants, that para. 2 of this order purported to prohibit the appellants from trading anywhere in the shares issued to them by Chromex, and that this was beyond the powers of the Court. The Court’s order was made pursuant to its powers under s. 31(5) of the Act. Accordingly, it is in the form of a direction to the Commission to vary its order of September 10, 1969, in the manner prescribed in the Court’s order. The actual prohibition against trading by the appellants in Chromex shares would be by virtue of the Commission order effecting the Court’s direction. That order is not before us, but, in any event, like any other order of the Commission, it would have application only in the Province of British Columbia.

[Page 127]

It was also contended, as it was before the Court of Appeal, that s. 77A of the Act could not permit interference, directly or indirectly, with the issuing of securities by a Dominion company to raise capital. As to this submission, it should be pointed out, in the first place, that the Privy Council has held in Lymburn et ah v. Mayland et al.[2], that a provincial legislature has the power to subject a Dominion company to regulations, in respect of the sale of its shares, which apply to all persons in the province trading in securities. I appreciate that s. 77A gives to the Commission power to prohibit any person, whether registered or not, from trading in the securities mentioned in the order. Whether or not that power can enable the Commission to forbid a Dominion company from trading in its own securities is an issue which does not arise in the present case.

It has already been pointed out that that portion of the order of June 24, 1969, made by the Deputy Superintendent of Brokers, which prohibited Chromex from trading in its own securities, was rescinded by the order of the Commission on September 10, 1969. The only prohibition in question here is that which prohibits the appellants from trading in their shares issued from the treasury of Chromex. As to that prohibition I agree with the view stated by Bull J.A., as follows:

Here the appellants, who were prohibited from trading in the Dominion company’s securities, were but three of many, albeit their holdings were extensive. The securities involved were shares all issued fully paid-up and non-assessable in 1966 for considerations fully received by the company. There was not the slightest suggestion that any of these shareholdings formed any part of any plan for raising capital. Whether sold or no, no funds involved could or would form any part of the company’s capital or form part of its assets.

I have concluded, therefore, that the order which is under appeal does not affect Chromex in the sense of interfering to the slightest degree with its status or capacities.

[Page 128]

Before the Court of Appeal it was contended that the order of the Deputy Superintendent of Brokers dated June 24, 1969, was invalid because the notice of hearing, upon which it was purportedly based, described improperly the purpose of the hearing, and because it was not served upon two of the appellants. With this contention the Court of Appeal agreed. It was further contended that the hearing by the Commission, leading to its order of September 10, 1969, had to be limited solely to the issue of whether or not the order of the Deputy Superintendent of Brokers was invalid. This submission was rejected by the majority of the Court of Appeal. I agree with this conclusion, which is stated by Bull J.A. in the following passages from his reasons:

In the first place, it is clear that the Commission should have recognized and declared that the order of the Deputy Superintendent was invalid. This it did not do. It rescinded the order made against Chromex and that ended the matter with respect to that company. However, it affirmed the prohibiting order against the three appellants on the basis that the Deputy Superintendent acted properly in the interests of the general public. It is apparent from the record that the whole matter and the surrounding circumstances were canvassed in detail before the Commission. Extensive viva voce evidence was led, the appellants were represented, sworn testimony was given on their behalf and exhibits filed. Oral submissions were made that the public interest was not served by the prohibitions ordered by the Deputy Superintendent. In my view, the hearing was full and complete and in compliance with the principles of natural justice. In short, whether or not the Deputy Superintendent’s order was valid or invalid, the appellants were present or represented at the hearing held before the Commission at their requests to convince it, not only that the earlier order was bad, but that it should not, in the public interest, make or affirm an order prohibiting the trading by the appellants in Chromex shares.

…

Here the power to make an order to prohibit trading lay in the Commission itself under s. 77A, and the power purported to be exercised by the Deputy Superintendent was merely a delegated power under s. 5(1), and from which s. 30 provides not only a “review” but a “hearing”. The extent of that hearing is indicated by the specific power given in the section, not only of confirming the order or ruling of the Superintendent but of making such “other direc-

[Page 129]

tion, decision, order or ruling as the Commission deems proper”. That goes far beyond appellate jurisdiction in the strict sense of deciding merely whether a lower decision be right or wrong.

On the merits, the majority of the Court of Appeal held that, under all the circumstances, a prohibition against trading in the shares of Chromex, which the Commission sought, by its order, to impose, was merited. The Court exercised its powers under s. 31(5) of the Act to direct the Commission as to the nature of such order and varied, in certain respects, the Commission’s order. In my opinion the Court, under the provisions of that subsection, had the power to make the order which it did. The appeal to it had been taken under s. 31 of the Act, and subs. (5) provides that, where such an appeal is taken, the Court of Appeal may direct the Commission to make such order, as the Commission is empowered to make under the Act, as the Court deems proper.

The application to quash was made on three grounds, but I need only consider one of them. Section 44(1) of the Supreme Court Act, R.S.C. 1952, c. 259, provides that:

No appeal lies to the Supreme Court from a judgment or order made in the exercise of judicial discretion except in proceedings in the nature of a suit or proceedings in equity originating elsewhere than in the Province of Quebec and except in mandamus proceedings.

The Commission is an administrative tribunal which has authority, in specified instances, to conduct hearings, make decisions and issue orders. Section 77A of the Act empowers it to issue an order to prohibit a person or company from trading in securities mentioned in the order. A hearing is required, save in the case of a temporary fifteen-day order under subs. (2). It can make a determination, not on the basis of fixed legal rules, but on the basis of its own opinion as to what is in the public interest. In my opinion this is a discretionary power.

[Page 130]

Section 31 of the Act gives to a person primarily affected by an order of the Commission a right of appeal from the Commission to the Court of Appeal. Unlike the right of appeal from the decision of an administrative tribunal frequently provided by statute, this appeal is not limited to questions of law or jurisdiction. It is a general right of appeal. But, in addition, the Court is not limited, when such appeal is taken, to affirming or reversing the Commission order. It is empowered to direct the Commission to make an order, within the scope of its statutory powers, “as the Court deems proper”. In other words, the Court, on appeal, has the same discretionary powers as has the Commission. The test which the Court had to apply in its determination of the appeal was not a legal test, but a test as to what was considered to be in the public interest. Its task was similar in nature to that which was involved in the case of Swain et al. v. Dennison et al.[3]

In my opinion s. 44(1) of the Supreme Court Act is applicable and the appellants have no appeal, as of right, to this Court.

Section 44(2) of the Supreme Court Act provides that the section does not apply to an appeal under s. 41, i.e., by leave of the Court. The appellants have applied for such leave, but, in my opinion, this is not a case in which leave should be granted. For the reasons given by Bull J.A., it is my view that the order prohibiting trading by the appellants was in the public interest and I do not feel that this Court should consider, in the circumstances of this case, an appeal in relation to the discretion exercised by the Court of Appeal.

In my opinion, the respondents’ application for an order to quash should be granted, with costs, and the appellants’ application for leave to appeal should be dismissed, without costs.

SPENCE J. (dissenting)—This is a motion by the respondents under the provisions of s. 45 of the Supreme Court Act to quash the appeal of

[Page 131]

the appellants. The application is made upon three grounds:

1. That the amount or value of the matter in controversy in the appeal does not exceed $10,000, as required by the provisions of s. 36(a) of the Supreme Court Act.

2. That the order of the Court of Appeal from which the appeal is taken is not a final judgment within the meaning of s. 36 of the Supreme Court Act.

3. That, in accordance with the provisions of s. 44(1) of the Supreme Court Act, no appeal lies by reason of the fact that the judgment from which the appellants seek to appeal was made in the exercise of judicial discretion.

It is my purpose to deal with these grounds seriatim.

(1) That the amount or value of the matter in controversy in the appeal does not exceed $10,000:

The material reveals, and this was confirmed by an affidavit sworn by Michael Hretchka and filed on the hearing of the motion for the application to quash, that the said Michael Hretchka himself held 1,010,000 shares of the share capital of Chromex Nickel Mines Ltd. and that those shares were traded on the unlisted market of the Vancouver Stock Exchange from 1966 to 1969 at prices which ranged from thirty cents to sixty cents per share but that in May 1967 the price at which the stock was traded rose quite suddenly to two dollars per share. The order of the Court of Appeal for British Columbia which is subject to the appeal taken by Michael Hretchka and his co-appellants prohibits each of the appellants from trading in any shares issued to that appellant from the treasury of Chromex Nickel Mines Ltd. and held by or for such as of September 10, 1969, until one year from that date, apparently October 29, 1970, the date of the formal order of the Court of Appeal. Therefore the order of the Court of Appeal will prevent the appellants from dealing in any way with the shares which they hold prior to October 29, 1971. It is quite possible that the sale price of those shares during the time between the filing of the appeal in this Court and October 29, 1971, might vary from practically

[Page 132]

nothing to a very large value per share and therefore with the volume of shares held by the appellant Michael Hretchka alone without even considering his fellow appellants the amount in controversy in the appeal is over $10,000.

I would therefore not quash the appeal on the first ground stated by the applicants, the respondents on the appeal.

(2) The second ground put forward by the applicants is that the order of the Court of Appeal from which the appeal is taken is not a final judgment within the meaning of s. 36 of the Supreme Court Act:

It is true that the order of the Court of Appeal, as I have already pointed out, placed a limit on the indefinite suspension of trading made in the order of the Securities Commission from which the appeal to the Court of Appeal was taken, that limit being one year from October 29, 1970, but between the date of the order of the Court of Appeal and October 29, 1971, the order is absolutely final unless the Commission were to order otherwise during that period. Such a unilateral right to shorten the period of the suspension I do not think can be considered as making the order of the Court of Appeal other than final during that limited period and I do not find any authority for the proposition that an order which is limited in time is none the less a final order of the Court making it. Counsel for the applicants cited Bruce v. Fuller[4], but the judgment in that case which was on an application to quash the appeal was simply on the basis that the order made was the grant of an interim injunction; Duff C.J. said at p. 126:

There is no final determination of any substantive right in issue in the action, and, therefore, the judgment is not a final judgment within the contemplation of the Supreme Court Act.

In this case, unless the Securities Commission acts unilaterally between the date of the order of the Court of Appeal and October 29, 1971, it is the final disposition of a substantive right, the right of a registered owner of shares in a company untrammelled by any escrow or agreement or similar limitation to sell such shares if he deems fit.

[Page 133]

I therefore am of the opinion that the judgment of the Court of Appeal for British Columbia which is appealed from is the final judgment within the meaning of s. 36 of the Supreme Court Act and I would refuse to grant the application to quash the appeal on this second ground.

(3) The third ground urged by the applicant is that the judgment appealed from was made in the exercise of judicial discretion and that therefore under the provisions of s. 44(1) of the Supreme Court Act no appeal lies to this Court unless, of course, leave were granted under s. 41 of the said Supreme Court Act:

I am of the opinion that the applicant misconceives the position taken by the respondent and which counsel for the respondent urged in this Court. The respondent seeks to rely on the reasons for judgment of Robertson J.A. in the Court of Appeal for British Columbia. Robertson J.A. found that the order of the Deputy Superintendent of the Securities Commission of June 24th was invalid and that the decision of the Commission itself was also invalid. The majority of the Court of Appeal for British Columbia were in agreement that the order of the Deputy Superintendent dated June 24, 1969, was invalid but were of the opinion, on the other hand, that the order of the Commission made on September 10, 1969, was valid and was intra vires. The majority then proceeded to consider the latter order of the Commission as the majority deemed it was its duty to do under the provisions of s. 31(5), of the Securities Act, 1967 (B.C.), c. 45. There is no doubt that the Securities Commission had, under the statute, a discretionary power to grant or refuse to grant its order of September 10, 1969, and it would seem that the majority of the Court of Appeal were of the opinion that that Court had, in turn, a discretion to consider and review and alter the terms of the order of the Commission. However, as I have pointed out, Robertson J.A. was of the opinion that the Commission had no jurisdiction to make the order of September 10, 1969, and that therefore that order was invalid.

[Page 134]

But before the Court of Appeal for British Columbia is called upon to exercise its discretion in determining whether the order made by the Securities Commission was in the public interest, it must be determined that that order was valid and intra vires. The majority of the Court did so determine. Robertson J.A., however, determined the order was invalid and therefore never was called upon to exercise a discretion in determining whether it was in the public interest.

The appeal, therefore, from the order of the Court of Appeal for British Columbia to this Court is not on the question of the exercise of discretion by a majority of the Court but on the question of the validity and intra vires nature of the order made by that Court and of its predecessor the order made by the Securities Commission. An appeal on this issue therefore is not one that is barred by the provisions of s. 44 of the Supreme Court Act. In fact, it is, in my view, open to the appellants to make the submission in this Court that certain provisions of the Securities Act of British Columbia are ultra vires. I do not make any inference that the appellants will be successful on their appeal. I simply say that, in my opinion, there is jurisdiction in this Court to hear such an appeal.

I, therefore, would dismiss with costs the application to quash. It becomes unnecessary to consider the counter-application by the appellants for leave to appeal. I agree with Martland J. that that latter application should be dismissed without costs.

Application to quash granted with costs; application for leave to appeal dismissed without costs. SPENCE J. dissenting.

Solicitor for the appellants: Thomas R. Berger, Vancouver.

Solicitors for the respondent, Attorney-General of British Columbia: Crease & Company, Victoria.

Solicitors for the respondents, British Columbia Securities Commission and Superintendent of Brokers for British Columbia: Sullivan, Smith & Bigelow, Victoria.