What’s Next for Canada?

For many years lawyers, policy makers, scholars, and investors have debated the merits of, and the necessity for, a national securities regulator in Canada. Most have agreed that the status quo is unacceptable as a model of securities regulation. However, in December 2011 the Supreme Court of Canada, in the Reference Re Securities Act, held that a national securities act, as proposed by the federal government, would represent an intrusion by Parliament into provincial constitutional powers. The Court’s judgment raises the question of whether Canadian markets can continue to operate within the current, fragmented system, or whether the federal and provincial governments can work together to achieve a national model based on cooperation. This timely volume represents an effort by 17 leading academics and practitioners to contribute to the ensuing public policy debate. The book analyzes the Reference decision, examines its implications for both constitutional and administrative law in Canada, and raises important questions about the future of security regulation in Canada.

What’s Next For Canada? is essential reading for all those concerned with the future of Canadian security markets and the regulatory framework within which they operate, as well as those interested in the broader constitutional dimensions of this issue.

Anita Anand

Anita Anand is a professor at the Faculty of Law at Toronto and served as associate dean (JD program) at the faculty from 2007 to 2009. She is the academic director of the Faculty of Law’s Centre for the Legal Profession. Professor Anand has conducted research for the Five Year Review Committee, the Wise Person's Committee, and the Task Force to Modernize Securities Legislation in Canada. She is the inaugural chair of the Ontario Securities Commission's Investor Advisory Panel. Her main research areas relate to the regulation of capital markets and include a focus on corporate and securities law, as well as prudential regulation.

Chapter Title Abstract Contributors Pages Year Price

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Overview of the Supreme Court of Canada’s 2011 decision not to endorse a proposed national securities regulator (Securities Reference) and the collected articles inspired by that decision. 9 $0.90

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Analysis of the Securities Reference in the context of some other Supreme Court reference decisions. 24 $2.40

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Critique of the Securities Reference based on the Court’s response to concerns over the movement of capital within Canada exacerbated by the evolution of capital markets from local to … 12 $1.20

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Critique of the Securities Reference based on the comparative national importance of securities regulation and competition policy, and the Court’s apparent confusion in attempting to set … 8 $0.80

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Commentary on how the result of the Securities Reference does not entail a more general conclusion that Parliament has no power to enact national securities legislation. 15 $1.50

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Examination of both legal arguments and non-legal factors to explain why the Court turned away from a flexible federalism model to decide the Securities Reference. 20 $2.00

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Commentary on the previous two chapters in exploring the questions of why or if the federal side lost in the Securities Reference. 5 $0.50

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Critique of the Securities Reference for a failure to articulate an approach to Canadian federalism that is relevant to the realities of the twenty-first century administrative state. 8 $0.80

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Proposal to create a national financial services regulatory authority with strong investigation and enforcement powers, with a separate independent adjudicative tribunal to hear and determine … 33 $3.30

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Argument that the Securities Reference invites the creation of a meaningful and ambitious national systemic risk regulator deeply connected to securities markets and securities regulators. ; 40 $4.00

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Exploration of how well a regulatory model based on cooperation between federal and provincial governments would be able to overcome the difficulties of the current system. 10 $1.00

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Proposal for the creation of a federal regulator of systemic risk, as that term has been used in the policy context following the global financial crisis. 25 $2.50

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Argument that a national securities commission would not have resulted if the Supreme Court decided in the Securities Reference that the proposed legislation was constitutional. 55 $5.50

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Argument against the idea of a national securities regulator. 11 $1.10

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Comments on various legal and political aspects of the Securities Reference decision. 13 $1.30

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Comments on various legal and political aspects of the Securities Reference decision in a public policy context. 12 $1.20