Jason Edmund Dearborn Appellant (Respondent) v. The Director of the Financial and, 2017 SKCA 63

Court of Appeal for Saskatchewan Docket: CACV2707, CACV2736, CACV2737 Citation: Dearborn v Saskatchewan (Financial and Consumer Affairs Authority) , 2017 SKCA 63 Date: 2017-08-10 Between: Jason Edmund Dearborn Appellant (Respondent) And The Director of the Financial and Consumer Affairs Authority Respondent (Applicant) REVISED JUDGMENT: The text of the original judgment has been corrected with text of the erratum (released August 15, 2017) appended. Before: Richards C.J.S., Jackson and Ottenbreit JJ.A.

Disposition: Appeals dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Ottenbreit On Appeal From: Financial and Consumer Affairs Authority decisions Appeal Heard: June 13, 2017 Counsel: Cloudesley Rook-Hobbs for the Appellant Sonne Udemgba for the Respondent Richards C.J.S. I. Introduction [ 1 ] The appellant, Jason Dearborn, was a director of Dominion Bitcoin Mining Company Ltd. Staff of the Financial and Consumer Affairs Authority of Saskatchewan (Authority) alleged that Dominion Bitcoin, Mr.

Dearborn and two other directors had offered securities without meeting the filing and registration requirements of The Securities Act, 1988 , SS 1988-89, c S-42.2 ( Act ). [ 2 ] These allegations were ultimately dismissed by a hearing panel. Notwithstanding having been vindicated in this way, Mr. Dearborn has appealed three interlocutory decisions made by the panel in the course of the proceedings before it.

The appeals are brought pursuant to s. 11(1) of the Act which allows a person or company affected by a decision of the Authority to appeal to this Court “on matters of law only”. [ 3 ] The decisions under appeal deal with (

a) whether remedies should have been granted because of failures to provide disclosure (Disclosure Decision), (

b) whether the identity of a tipster was privileged (Privilege Decision), and (

c) whether the proceedings should have been stayed pursuant to the Parliament of Canada Act , RSC 1985, c P-1 (Stay Decision). [ 4 ] I conclude that Mr. Dearborn’s appeals must be dismissed. As explained below, the key reason for this result is that, in large part, the appeals are moot. II. The appeals A. Appeal CACV2707 – The Disclosure Decision Appeal [ 5 ] Mr. Dearborn’s first appeal concerns certain difficulties he had in obtaining disclosure. 1.

Background [ 6 ] An Authority investigator, Harvey White, was apparently told by a source or contact that someone had been handing out Dominion Bitcoin business cards and that Dominion Bitcoin had a website. An investigation followed and a decision was made by the staff to proceed against Dominion Bitcoin, Mr.

Dearborn and his fellow directors with an allegation that they had engaged in offering securities without the requisite filings and registrations. (By apparent virtue of The Saskatchewan Policy Statement 12-602: Procedure for Hearings and Reviews , applications are made in the name of the staff, not the Authority itself, and the staff are a party to the proceedings.) A hearing panel was appointed. [ 7 ] On November 20, 2014, Mr. Dearborn requested disclosure, including disclosure of any investigation transcripts. Authority staff refused to provide disclosure unless Mr.

Dearborn gave an undertaking that would have placed restrictions on his use of the material in question. Ultimately, the hearing panel issued a decision on November 24, 2014, directing the staff to provide disclosure to Mr. Dearborn without requiring him to execute an undertaking. [ 8 ] It seems that the staff were concerned about the hearing panel’s decision. As a result, they did not provide disclosure to Mr. Dearborn. Rather, on January 7, 2015, the staff filed an application (dated December 19, 2014) asking the panel to vary its November 24 disclosure decision so as to require that Mr.

Dearborn, the other directors and Dominion Bitcoin not share the disclosed information with

the public or the media. On March 31, 2015, the panel declined to vary its original decision. [ 9 ] In the run-up to the panel’s March 31 decision, Mr. Dearborn had taken some steps of his own. On March 13, 2015, feeling displeased that disclosure was not forthcoming as per the hearing panel’s decision, Mr. Dearborn filed an application requesting various forms of relief against the staff of the Authority. An amended application was filed on March 27, 2015. For purposes of this appeal, the relief sought by Mr. Dearborn can be summarized as follows: (

a) an order pursuant to ss. 133(1) (

c) and (

d) of the Act requiring the staff to provide disclosure as per the hearing panel’s decision of November 24, 2014; (

b) an order requiring the panel to apply to the Court of Queen’s Bench pursuant to s. 133(1) (b)(

i) and (ii) of the Act for a court order requiring that staff provide disclosure; (

c) an order that the staff pay compensation to Mr. Dearborn pursuant to s. 133(1) of the Act for “funds wasted and lost in seeking disclosure that Staff has unreasonably withheld without lawful justification”; and (

d) an order pursuant to s. 135.1 of the Act requiring the staff, including a particular Authority lawyer, to pay an administrative penalty of up to $100,000 for their contempt of the November 24, 2014, decision and, as well, an order publicly reprimanding staff for their actions. [ 10 ] Sections 133 and 135.1 of the Act provide as follows: 133(1) Where it appears to the Commission that any person or company has failed to comply with, or is violating: (

a) any written undertaking made by that person or company to the Commission or the Director; (

b) any provision of: (

i) this Act ; (ii) any other Act administered by the Commission; or (iii) the regulations pursuant to this or any other Act administered by the Commission; or (

c) any decision made pursuant to this or any other Act administered by the Commission or the Director; notwithstanding the imposition of any penalty with respect to the non-compliance or violation and in addition to any other rights it may have, the Commission may apply to the Court of Queen’s Bench for an order : (

d) directing the person or company to comply with the undertaking, decision or provision or restraining the person or company from violating the undertaking, decision or provision; (

e) directing the directors and officers of the person or company to cause the person or company to comply with or to cease violating the undertaking, decision or provision; (

f) setting aside a transaction relating to trading in securities or derivatives; (f.1) directing that the terms of a derivative trade be amended; (

g) requiring the issuance or cancellation of a security or derivative, or the purchase, disposition or exchange of a security or derivative; (

h) prohibiting the voting of a security or the exercise of a right attaching to a security or derivative; and (

i) appointing or removing a director of the person who or the company that is the subject of the application; and the court may grant the order or any other order that the court thinks fit.

(2) An application pursuant to this

section may be made ex parte if the Court of Queen’s Bench considers it proper to do so. … 135.1(1) The Commission may make an order pursuant to subsection (2) where the Commission, after a hearing: (

a) is satisfied that a person or company has contravened or failed to comply with: (

i) Saskatchewan securities laws; or (ii) a written undertaking made by that person or company to the Commission or the Director; and (

b) considers it to be in the public interest to make the order.

(2) In the circumstances described in subsection (1), the Commission may order all or any of the following: (

a) that the person or company pay an administrative penalty of up to $100,000; (

b) that the person or company be given a private or public reprimand; or

(

c) that the person or company pay the cost, to a maximum of $100,000, of producing material specified by the Commission to promoteknowledge of participants in the capital markets of investment and regulatory matters.

(3) The Commission may make an order pursuant to this

section notwithstanding the imposition of any other penalty on the person orcompany or the making of any other order by the Commission related to the same matter.

(4) If the Commission has made an order against a person or company pursuant to this section, the Commission may also make an orderpursuant to this

section against: (

a) every director or officer of that person or company who directed, authorized, permitted, assented to, acquiesced in or participated inthe contravention of or failure to comply with Saskatchewan securities laws or an undertaking to the Commission or Director by thatperson or company; and (

b) every other individual who directed, authorized, permitted, assented to, acquiesced in or participated in the contravention of or failureto comply with Saskatchewan securities laws or an undertaking to the Commission or Director by that person or company. (Emphasis added) [11] As an aside, I note that, although these provisions refer to the powers of the “Commission”, s. 18 of The Financial andConsumer Affairs Authority of Saskatchewan Act, SS 2012, c F-13.5, indicates that a reference in any Act to the Commission is deemedto be a reference to the Authority.

Further, s. 17(7) of The Financial and Consumer Affairs Authority of Saskatchewan Act provides thatthe decision of a hearing panel is a decision of the Authority. Presumably in light of those provisions, Mr. Dearborn and the Authorityhave proceeded on the basis that the hearing panel could exercise all of the powers conferred by ss. 131 and 135.1 on the Commission. Iwill accept this assumption for the purposes of resolving the issues at stake in this appeal. [12] In a decision dated April 22, 2015, the hearing panel dealt with Mr.

Dearborn’s application by first noting the staff’sindication that disclosure had finally been provided. Accordingly, said the panel, “[d]isclosure having been made, the requests forenforcement proceedings to that end are no longer operative”. [13] As to the other relief requested by Mr. Dearborn – the sanctions against the staff – the panel concluded that ss. 133(1) and135.1 of the Act did not give it the jurisdiction to do as Mr. Dearborn requested. The panel explained its thinking as follows: [14] The Panel has concluded that the imposition of an administrative penalty against the Staff of the FCAA and Ms.

Smith pursuantto s. 135.1 of the Act would be beyond the Authority’s public interest jurisdiction. [15] The purpose of an order under s. 135.1 is to restrain future conduct that is likely to be prejudicial to the public interest in fair andefficient capital markets.

Section 135.1 is a regulatory provision. The role of the Authority in exercising its discretion under s. 135.1 is toconsider the protection of investors and the efficiency of, and public confidence in, capital markets generally. The request for an orderimposing an administrative penalty is punitive in nature and does not fit within the factors identified by the courts and securitiescommissions as relevant for the imposition of such an order. [16] The Respondent, Dearborn, asks the Authority to apply to the Court of Queen’s Bench under subsection 133(1) of the Act for anorder for compensation to be paid to Mr.

Dearborn by the Staff of FCAA and/or Ms. Smith. Subsection 133(1) of the Act is adiscretionary provision which may be exercised for the purpose of investigation and enforcement of the Act. The request sought isoutside the regulatory public interest objectives of the Act. [14] Mr. Dearborn appeals from the panel’s decision and takes issue with each element of it. 2. Analysis [15] Before turning to the merits of Mr. Dearborn’s submissions, it is useful to briefly review the doctrine of mootness. Theleading case in this area is Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342 [Borowski].

There, theSupreme Court explained as follows at page 353: The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely ahypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving somecontroversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights,the court will decline to decide the case. … [16] The consideration of an arguably moot appeal involves two steps.

The first is to determine if the appeal is moot, i.e., todetermine if it involves a live and concrete controversy between the parties. The second step is to determine whether, notwithstandingthat the appeal is moot, the court should nonetheless exercise its discretion to hear the case. That exercise of discretion, according toBorowski, should be undertaken with reference to the underlying basis of the mootness doctrine itself: (

a) the presence of an ongoingadversarial context, perhaps because of the collateral consequences of the outcome of the appeal, (

b) the importance of conservingjudicial resources, and (

c) the need for a court to be sensitive to its proper law-making function, i.e., its role as an adjudicator of disputesaffecting the rights of parties. [17] With that background, I now return to Mr. Dearborn’s arguments. First, with respect to disclosure, Mr. Dearborn contends thatstaff misled the panel by saying disclosure had been made. He submits this representation was not accurate because the staff had notdisclosed the name of the tipster who had originally spoken to Mr. White or the information this individual had passed on to Mr. White.Mr.

Dearborn seeks the name of the tipster because, as he candidly advises, he wants to consider commencing civil proceedings fordamages against both the person who, in his view, wrongly drew the Authority into the affairs of Dominion Bitcoin and, perhaps, againstthe Authority as well.

[18] This aspect of Mr. Dearborn’s appeal must fail because it does not involve “matters of law only” as per s. 11 of the Act.Rather, he alleges only that the panel erred in finding full disclosure had been made and contends the panel should have required thetipster’s identity and the particulars of his tip to be revealed. Because Mr. Dearborn’s concerns on this front are not developed or cast asan error of law, the Court has no jurisdiction to deal with them. [19] Moreover, as will be explained below, the hearing panel determined in the Privilege Decision that the identity of the tipster isprivileged. Mr.

Dearborn cannot attempt to overcome that Decision through the generalized argument he advances in the context of thisappeal. If he wants to have the name of the tipster disclosed, he must overcome the Privilege Decision itself. [20] This takes the analysis to the second aspect of Mr. Dearborn’s appeal from the Disclosure Decision – his request for sanctionsagainst Authority staff. Contrary to the submissions of the Authority, this part of his appeal is not moot.

As is evident, the sanctions Mr.Dearborn seeks stand outside of, and apart from, any decision concerning the merits of the allegation that he had acted in contraventionof the Act. [21] Let me deal first with s. 133 of the Act. In brief, I do not see how it applies in the circumstances at hand. My conclusion isdictated by the basic rules of statutory

interpretation. A provision of this sort must be construed using the standard technique, i.e., itswords must be read in their ordinary and grammatical sense harmoniously with the scheme of the Act, its objects and the intention of theLegislature. See: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27 at para 21. [22] The language of s. 133, particularly ss. 133(1)(c), (

d) and (e), might be broad enough to apply to staff if it is read in isolationfrom the Act as a whole. However, the goal of the Act, as stated in s. 3.1, is “to provide protection to investors and to foster fair, efficientcapital and derivatives markets and confidence in capital and derivatives markets”. Its purpose is not concerned with regulating orsanctioning the staff of the Authority.

Section 133 itself is found in

Part XVIII of the Act. That

Part is entitled “Enforcement”. All of theprovisions in it are tools to ensure the compliance of persons and companies with the regulatory scheme created by the Act. Thus, whenread in context, s. 133 does not have the reach in relation to staff that Mr. Dearborn seeks to project onto it. [23] In addition, the staff are under the control of the Authority by virtue of their employment relationship with it. If necessary, theAuthority can bring an array of sanctions into play against them, up to and including termination of their employment, in order to securetheir proper conduct.

Accordingly, there is simply no need to read s. 133 as somehow creating a sanction to be used to correct,superintend or punish the actions of individuals employed by the Authority. [24] Moreover, even if the hearing panel could have made an application to the Court of Queen’s Bench pursuant to s. 133 for thepurpose of obtaining an order sanctioning staff, it is important to remember the relevant facts. At the time of the hearing panel’s decision,the staff were declining to make disclosure to Mr.

Dearborn in circumstances where an application to vary the panel’s November 24,2014, decision was in play and where, if disclosure had been made to Mr. Dearborn without an undertaking from him, the application tovary would have been rendered meaningless. In those circumstances, it was hardly unreasonable for the panel to have exercised itsdiscretion so as to decide against the idea of making an application to the Court of Queen’s Bench for special sanctions against the staff. [25] A parallel line of statutory

interpretation to the one that informs s. 133 also applies to s. 135.1 and Mr. Dearborn’s applicationfor sanctions under it. Read in the context of the Act as a whole and harmoniously with the scheme of the Act, s. 135.1 cannot be properlyunderstood as being aimed at the actions of staff undertaken in the course of their work for the Authority. Like s. 133, s. 135.1 is clearlyconcerned with the conduct of those persons and companies subject to regulation pursuant to the Act. In the end, therefore, I see no errorin the hearing panel’s decision not to act on Mr.

Dearborn’s request for relief pursuant to s. 135.1. [26] I note that Mr. Dearborn also suggests the Disclosure Decision was rendered in violation of the principles of proceduralfairness. His primary complaint is that the parties were not given notice of the hearing as per the Authority’s Policy Statement 12-602.The facts underpinning this argument are somewhat obscure but, in the end, I see no merit in it. The reality is that Mr. Dearbornparticipated in the proceedings leading to the Disclosure Decision and so obviously did, in fact, receive notice of them.

Further, there isno suggestion that he was somehow prejudiced by a lack of notice or by a lack of timely or adequate notice. Mr. Dearborn also submits,as I understand it, that the reasons offered by the panel for its decision are fatally inadequate. I disagree. The reasons are brief but theyclearly reveal the basis on which the panel rejected Mr. Dearborn’s application. Accordingly, the procedural fairness wing ofMr. Dearborn’s submissions must also fail. [27] It follows from all of the foregoing that Mr. Dearborn’s appeal from the Disclosure Decision must be dismissed. B.

Appeal CACV2736 – The Privilege Decision Appeal [28] Mr. Dearborn’s second appeal relates to the hearing panel’s decision to treat the identity of the tipster as privileged. [29] As a preliminary matter, it may be useful to deal here with Mr. Dearborn’s application, made during oral argument, tointroduce as fresh evidence the Memorandum of Fact and Law dated June 12, 2015, that was filed by legal counsel for the Authority withthe panel. This Memorandum was only very recently disclosed to Mr. Dearborn by virtue of a May 31, 2017, Chambers decision of thisCourt.

An exhaustive analysis of the admissibility question is not necessary. Bearing in mind the principles found in R v Palmer, (SCC), [1980] 1 SCR 759, I conclude the Memorandum may be introduced. [30] The Memorandum advances an argument that the identity of the tipster is protected by informer privilege. Rather obviouslyrelying on an affidavit from Mr. White, it recounts that, while acting as a Special Constable, Mr. White was approached by a person heknew personally (the tipster) who asked if it was possible to confidentially share some information with Mr. White. Mr.

White indicatedthat he would not reveal the tipster’s name whereupon the tipster advised that he had seen someone at a Bitcoin symposium handing outa business card for a company called “Dominion Bitcoin Mining”, that the company had a website at www.dominionbitcoin.com, andthat someone named Peter Voldeng had an email address at PeterV@dominionbitcoin.com. The Memorandum goes on to say that thiswas the only information received by Mr. White from the tipster.

[ 31 ] It may also be useful to note that the tipster did not testify at the hearing into the allegations against Dominion Bitcoin, Mr. Dearborn and the other directors. Nor, apparently, was any information provided by him introduced as evidence at the hearing. 1. Background [ 32 ] The hearing panel was aware of Mr. Dearborn’s position that, by way of disclosure, he was entitled to receive the name of the tipster. As a result, the panel acted on its own motion to decide that question. On May 21, 2015, it provided Mr.

Dearborn and the other parties subject to the proceedings under the Act with a “Notice of In Camera Hearing” stating as follows: WHEREAS the Hearing Panel of the Financial and Consumer Affairs Authority of Saskatchewan (the “Panel”) has received correspondence from the Respondents indicating that the Respondents have not yet received full disclosure in this matter; TAKE NOTICE THAT the Panel will hold an in camera hearing with the Staff of the Financial and Consumer Affairs Authority on June 15, 2015 at 9:00 a.m. to determine if the original informant in this matter has privilege based on the legal authority with respect to informants, A. v.

Drapeau , 2012 NBCA 73 , among other leading authorities. [ 33 ] The record is somewhat unclear but it appears that the hearing panel did not consider the written materials filed by Mr. Dearborn’s counsel in relation to the privilege issue and that his counsel was advised that he would have no opportunity to make oral submissions to the hearing panel on the matter. However, the panel apparently did consider the June 12, 2015, Memorandum of Fact and Law prepared by the staff and an affidavit sworn by Mr.

White. [ 34 ] On June 15, 2015, the hearing panel released a decision in which it concluded that the identity of the tipster was privileged. The decision is set out below: Decision of the Panel The Panel has determined that the identity of the person who provided the tip upon which the investigator proceeded to inquire into this matter is privileged. Background: In making this determination, the Panel has relied on the Affidavit of Harvey White, who is an investigator and duly appointed as a Special Constable under

section 78 of The Police Act, 1990 . The Affidavit of Harvey White is sealed. The information disclosed to the investigator while carrying out his duties as a Special Constable is not contained in a document material to the proceedings against the Respondents. The Panel is not aware of the identity of the said informant who is referred to as Person X. The Panel is convinced that information provided by Person X is not relevant to the proceedings against the Respondents and will not be used at the hearing. Person X is not going to be called as a witness.

The foregoing decision is based in part upon a review of the following decisions: A v. Drapeau , 2012 NBCA 73 and R v. Liepert [1977] 1 S.C.R. 281 (S.C.C.) . [ 35 ] Mr. Dearborn appeals from this decision on a number of grounds. He contends: (

a) the Act does not provide for “ ex parte in- camera” hearings except on the application of a party, (

b) the panel denied him procedural fairness by making a decision without giving him an opportunity to make oral submissions, and (

c) the panel’s decision is so lacking in explanatory content as to be a denial of procedural fairness. Mr. Dearborn asks that the panel’s decision be quashed and that an order be made directing the disclosure of “all information related to the complaint that triggered these proceedings, including, but not limited to, the identity of the complainant”. In the alternative, Mr. Dearborn asks that the matter of the tipster’s identity be returned to the panel for rehearing.

As noted above, his interest in learning the identity of the tipster is so that he can consider commencing civil proceedings against the tipster, the Authority, or both. 2. Analysis [ 36 ] The basic approach for resolving a claim of informer privilege is well established. The existence of the privilege must be determined in camera at what has been called a “first stage” hearing.

Such hearings must be conducted bearing in mind that ex parte proceedings raise serious procedural fairness questions and that, consequently, they must be conducted with a view to excluding the defendant and defence counsel from the proceedings no more than necessary. In R v Basi , 2009 SCC 52 , [2009] 3 SCR 389 [ Basi ], the Supreme Court explained as follows: [53] Where a hearing is required to resolve a Crown claim of privilege, the accused and defence counsel should therefore be excluded from the proceedings only when the identity of the confidential informant cannot be otherwise protected.

And, even then, only to the necessary extent. In determining whether the claim of privilege has been made out, trial judges should make every effort to avoid unnecessary complexity or delay, without compromising the ability of the accused to make full answer and defence. [54] Throughout, it should be remembered as well that the interest of accused persons in being present (or, at least, represented) at any proceeding relating to the charges they face remains a fundamental one, even where s. 650, by its very terms, has no application.

An ex parte procedure is particularly troubling when the person excluded from the proceeding faces criminal conviction and its consequences. [55] In order to protect these interests of the accused, trial judges should adopt all reasonable measures to permit defence counsel to make meaningful submissions regarding what occurs in their absence. Trial judges have broad discretion to craft appropriate procedures in this regard.

[56] Measures that a trial judge may wish to adopt in assessing a claim of informer privilege include inviting submissions on the scope of the privilege — including argument as to who constitutes a confidential informant entitled to the privilege — and its application in the circumstances of the case.

Defence counsel may be invited as well to suggest questions to be put by the trial judge to any witness that will be called at the ex parte proceeding. [57] In appropriate cases, fairness may require the court to provide the defence with a redacted or summarized version of the evidence presented ex parte — edited to eliminate any possibility of disclosing the informant’s identity — so as to permit the trial judge to receive additional submissions from the defence on whether the privilege applies in the particular circumstances of the case.

In particularly difficult cases, the trial judge may appoint an amicus curiae to attend the ex parte proceeding in order to provide assistance in assessing the claim of privilege. See also: A. v Drapeau , 2012 NBCA 73 , 393 NBR (2d) 76. [ 37 ] In light of Basi , it can be seen that, on their face, the circumstances of the Privilege Decision hearing appear to raise concerns. This is because the panel made no effort to allow Mr. Dearborn’s voice to be heard in its proceedings even though there are some obvious ways this could have been done. [ 38 ] However, the issue of mootness looms large in this appeal.

As explained above, the proceedings against Mr. Dearborn have been finally concluded and, indeed, finally concluded in his favour. The merits of the decision about protecting the identity of the tipster can have no impact of any sort on the hearing panel’s bottom line and, indeed, Mr. Dearborn does not want to disturb that bottom line. The underlying foundation of the contest between Mr. Dearborn and the Authority has disappeared. It follows, in my view, that this appeal is moot. [ 39 ] The real question, as a result, is whether the Court should take on the appeal notwithstanding that it is moot.

The answer to that question is “no”. [ 40 ] Mr. Dearborn and the Authority both made submissions to the Court with respect to the advisability of disclosing the tipster’s name and thus there is still an ongoing adversarial context in that limited sense. But, there is no strong “collateral” consequence of resolving this appeal in the way that there might be in the situation where, for example, deciding a moot criminal appeal would lift the stigma of a conviction from the shoulders of an accused person. Here, there is nothing more than Mr.

Dearborn’s desire to learn the identity of the tipster so that he can consider whether to initiate a wholly new proceeding. In effect, Mr. Dearborn seeks to use the appeal as an investigation tool. [ 41 ] Deciding this appeal would also engage concerns about the proper allocation of judicial resources. Mr. Dearborn succeeded before the hearing panel. Allowing him to keep that victory intact while going back to relitigate one of the skirmishes leading to it would be inefficient and would set an unfortunate precedent. If Mr.

Dearborn can pursue this appeal, it would mean that, in many situations, a party who comes out on the winning side of a panel hearing could, if it chose, keep that victory in place but, at the same time, appeal the interlocutory decisions subsumed in the victory. Such appeals, given the wording of s. 11 of the Act , would be as of right and unfettered by any form of leave process.

This kind of situation, either in this case or more generally, self-evidently does not involve a wise deployment of this Court’s resources. [ 42 ] Moreover, there is nothing in the record before the Court to lend credence to the idea that the tipster was somehow acting in bad faith or for the purpose of improperly causing problems for Mr. Dearborn or Dominion Bitcoin.

The material that is available – the Memorandum of Fact and Law in particular – suggests that the tipster’s role was very limited and that, as per paragraph 8 of the Memorandum, “[he] did not make any written complaint, or really, any complaint at all”. In other words, as presented, this appeal is not one where the interests of justice call out for the Court to deal with an issue even though it is moot. [ 43 ] In the end, I am not convinced the Court should exercise its discretion in favour of hearing Mr.

Dearborn’s appeal notwithstanding that it is moot. [ 44 ] I might also add that there is a question here as to whether the right to appeal a “decision” found in s. 11 of the Act even confers a right to appeal interlocutory-type rulings in circumstances like the ones at play in this appeal. Ordinarily, a party who is successful at first instance cannot preserve its victory by choosing not to appeal from the bottom-line order in question but, at the same time, initiate appeals with respect to the various interlocutory decisions that were made by a judge or tribunal on the way to reaching that bottom line.

For example, a defendant who successfully resists a breach of contract claim cannot expect to both protect that result and, at the same time, appeal the evidentiary rulings made by the judge in the course of the trial. See, generally: Le Soleil Hospitality Inc. v Louie , 2008 BCCA 142 at para 13 , 82 BCLR (4th) 260; Rask v Hus , 2006 SKCA 29 at para 3 . It is possible that the right of appeal conferred by s. 11 can or should be read as including this sort of limitation.

However, this issue was not raised or argued by the parties and, as a result, it is best left for another day. [ 45 ] The appeal from the Privilege Decision must be dismissed. C. Appeal CACV2737 – The Stay Decision Appeal [ 46 ] Mr. Dearborn’s last appeal concerns an attempt to stay the work of the hearing panel. 1. Background [ 47 ] On April 20, 2015, Mr. Dearborn filed an application for an immediate stay of the hearing panel’s proceedings. The application was based on s. 7 of the Parliament of Canada Act . It reads as follows: 7

(1) Where any person is a defendant in any civil or criminal proceedings that are commenced or prosecuted in a court in any manner for, on account of or in respect of the publication of any report, paper, votes or proceedings, by that person or the servant of that person,

by or under the authority of the Senate or the House of Commons, that person may bring before the court or any judge thereof, after twenty-four hours notice of intention to do so given in accordance with subsection (2), a certificate (

a) given under the hand of the Speaker or the Clerk of the Senate or the House of Commons, and (

b) stating that the report, paper, votes or proceedings were published by that person or servant, by order or under the authority of the Senate or the House of Commons, together with an affidavit verifying the certificate.

(2) The notice of intention referred to in subsection (1) shall be given to the plaintiff or prosecutor in the civil or criminal proceedings or to the attorney or solicitor of the plaintiff or prosecutor.

(3) On the bringing of a certificate before a court or judge in accordance with subsection (1), the court or judge shall immediately stay the civil or criminal proceedings, and those proceedings and every writ or process issued therein shall be deemed to be finally determined and superseded by virtue of this Act . [ 48 ] Mr. Dearborn argued that s. 7 had been offended because the staff of the Authority had prepared an affidavit and exhibited to it some testimony that he had given to a Senate Committee.

The testimony had been about matters arguably relevant to the proceedings before the hearing panel. [ 49 ] The panel dismissed the application on the basis that s. 7 was not applicable to Mr. Dearborn’s situation. It explained its conclusion in a decision dated June 15, 2015: The Panel has reviewed the Notice of Application filed by Counsel for Mr. Jason Edmund Dearborn and has concluded that

section 7 of the Parliament Act of Canada ( sic ) does not extend the scope of any privilege or immunity from which Members may benefit to the within proceedings. These proceedings have not been “commenced or prosecuted in a court in any manner for, on account of or in respect of the publication of any report, paper, votes or proceedings”. Accordingly, the application filed by Counsel for Mr. Jason Edmund Dearborn for an immediate stay of proceedings pursuant to subsection 7(3) of the Parliament Act of Canada ( sic ) is dismissed. [ 50 ] Mr. Dearborn appeals from this decision.

He argues that the panel misconstrued the scope of s. 7 , failed in its duty to consider all of the relevant evidence and failed to provide reasons for decision that permit meaningful review. He also suggests, as I understand it, that various procedural fairness problems attended the panel’s decision. 2. Analysis [ 51 ] I find it unnecessary to consider the merits of any of Mr. Dearborn’s arguments. The panel proceedings against him have been concluded, and concluded in his favour. As a result, and as is self-evident, his application for a stay of those proceedings is moot.

I see no reason on the facts of this case to consider the issues raised by Mr. Dearborn despite that mootness. The issue concerning the Parliament of Canada Act arose in a unique circumstance and is not even of any arguable ongoing significance to him. [ 52 ] This appeal must also be dismissed. III. conclusion [ 53 ] Mr. Dearborn’s appeals are dismissed. There will be no order with respect to costs. “Richards C.J.S.” Richards C.J.S. I concur. “Jackson J.A.” Jackson J.A.

I concur. “Richards C.J.S.” for Ottenbreit J.A. as per authorization Dearborn v Saskatchewan (Financial and Consumer Affairs Authority) 2017 SKCA 63 released August 10, 2017 Erratum released August 15, 2017

Please make the following modifications to the above-noted judgment: Paragraphs 33 and 38 of the decision are replaced with the following: [33] The record is somewhat unclear but it appears that the hearing panel did not consider the written materials filed by Mr. Dearborn’s counsel in relation to the privilege issue and that his counsel was advised that he would have no opportunity to make oral submissions to the hearing panel on the matter. However, the panel apparently did consider the June 12, 2015, Memorandum of Fact and Law prepared by the staff and an affidavit sworn by Mr.

White. [38] However, the issue of mootness looms large in this appeal. As explained above, the proceedings against Mr. Dearborn have been finally concluded and, indeed, finally concluded in his favour. The merits of the decision about protecting the identity of the tipster can have no impact of any sort on the hearing panel’s bottom line and, indeed, Mr. Dearborn does not want to disturb that bottom line. The underlying foundation of the contest between Mr. Dearborn and the Authority has disappeared. It follows, in my view, that this appeal is moot.