An enforcement case against a former rep by the British Columbia Securities Commission (BCSC) can continue, pending a possible Supreme Court of Canada challenge to the constitutionality of a provision of the province’s securities law, the Court of Appeal for B.C. ruled.
In 2022, the BCSC brought enforcement allegations against former advisor Jean Andre Lamarche, alleging that he engaged in unregistered trading and advising between 2016 and 2020. (Lamarche was last registered as a dealing rep in 2013). Those allegations have not been proven.
Indeed, before that case could be heard, Lamarche filed a court challenge — alleging that the BCSC breached his Charter rights by seizing communications from an internet provider, Shaw Communications Inc., that are subject to solicitor-client privilege, and arguing that the section of the provincial securities act that allowed that seizure is unconstitutional.
In June 2024, the Supreme Court of B.C. stayed that challenge, ruling that Lamarche should seek relief before the regulatory hearing panel before undertaking a court challenge. That decision was upheld on appeal.
Lamarche has since applied to the Supreme Court of Canada for leave to appeal — and in the meantime, sought a stay of the proceedings against him.
According to the appeal court, while it can’t directly stay the BCSC’s proceeding, it could stay the lower court’s ruling, allowing Lamarche to seek interim relief halting the regulatory case.
However, the appeal court rejected that application, saying that while it is “sufficiently plausible that the Supreme Court may grant leave to bring the proposed appeal … the prejudice to the commission and the public interest outweighs the prejudice to the applicant.”
As a result, the regulatory hearing should continue, it ruled.
In its decision, the appeal court said, “There is no risk that the commission’s process will culminate and render the proposed appeal moot in the 12 to 14 weeks before the Supreme Court is expected to render its leave judgment.”
The BCSC hearing is set to start on Sept. 8, with eight days of hearings in the month and additional time scheduled for January, March and May 2026. The appeal court said that the constitutionality issue is expected to be addressed in the portion of the hearing that takes place in September, with the privacy issue considered in January.
And, it concluded that, while Lamarche “would be prejudiced by having to litigate on two fronts at once, that prejudice is outweighed by the prejudice to the commission and public interest of further delay of the administrative proceeding.”
“Delay increases the uncertainty of the proceeding before the commission as memories fade and witnesses cease to be available. It increases the difficulty of the factual inquiries required for the just determination of the proceeding, and the risk of an unjust result. None of this is in the public interest,” the appeal court said.
Ultimately, the appeal court said that, “The balance of convenience does not favour granting a stay.”