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[2017] ZASCA 125
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Pather and Another v Financial Services Board and Others (866/2016) [2017] ZASCA 125; [2017] 4 All SA 666 (SCA); 2018 (1) SA 161 (SCA) (28 September 2017)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 866/2016
In
the matter between:
MASLAMONY
THEEGARAJAN PATHER
FIRST APPELLANT
AH-VEST
LIMITED
SECOND APPELLANT
and
FINANCIAL
SERVICES BOARD
FIRST RESPONDENT
THE
ENFORCEMENT COMMITTEE
SECOND RESPONDENT
THE
MINISTER OF FINANCE
(RSA)
THIRD RESPONDENT
Neutral
citation:
Pather v Financial
Services Board
(866/2016)
[2017] ZASCA
125
(28 September 2017)
Bench:
Ponnan, Cachalia and Tshiqi JJA and
Lamont and Rogers AJJA
Heard:
24 August 2017
Delivered:
28 September 2017
Summary:
Securities Services Act 36 of 2004
–
proceedings before enforcement committee – not in the nature of
criminal proceedings – civil standard of proof
applies –
administrative penalties imposed by enforcement committee – not
in the nature of a penal sanction.
ORDER
On
appeal from
:
Gauteng
Local Division, Pretoria (Kgomo J sitting as court of first
instance):
The
appeal is dismissed with costs, including the costs of two counsel.
JUDGMENT
Ponnan
JA (Cachalia and Tshiqi JJA and Lamont and Rogers AJJA
concurring):
[1]
During 2005, the Directorate of Market Abuse (the DMA) conducted an
investigation in terms of s 83(1) of the Securities Services
Act 36
of 2004 (the Act) into the conduct of the two appellants – the
first of whom, Mr
Maslamony
Pather
,
is the chief executive officer of the second, Ah-Vest Limited
(formerly All Joy Foods Limited), which since 2004 has been listed
on
the alternative exchange of the Johannesburg Securities Exchange. At
that stage, Mr Cedric Carroll, a former financial director
of All
Joy, was also subject to scrutiny by the DMA, but his whereabouts
subsequently became unknown and the action against him
was
accordingly discontinued. Between November 2006 and May 2007 a number
of persons, including Mr Pather, were interrogated under
oath in
terms of s 82 of the Act by the first respondent, the Financial
Services Board (the FSB).
[1]
The
investigation concluded that ‘All Joy, Pather and Carroll [had]
contravened s 76 of the [Act]’. In consequence,
two counts of
alleged contraventions of that section on the part of both appellants
were referred to the second respondent, the
Enforcement Committee
(the EC), in terms of s 94(
e
)
of the Act.
[2] The
contraventions referred to the EC were:
‘
Count
1
During
April 2005, for the purpose of the audit of the company’s
accounting records in preparation of its financial statements
for the
year ending 28 February 2005, the appellants, through the records,
represented to the auditors that portion of the recorded
credit sales
transactions to the value of R830 486 18 were genuine
transactions concluded in the normal course of business
when they
knew or ought reasonably to have known that the representation was
false, misleading or deceptive in that these were
fictitious
transactions which resulted in credit sales and accounts receivable
being overstated by the sum in question.
Count
2
On
31 May 2005 the appellants caused the financial statements for the
2005 year to be published on the Stock Exchange News Service
(SENS)
which they knew or ought to have known were false, misleading or
deceptive in overstating
1.
Trade and other receivables by R1 633 377,
2.
Capital and reserves after tax by R1 007 023 and
3.
Profit after tax by R295 747.’
[3] The
matter was enrolled to be considered by the EC in July 2009.
The
EC, chaired by Justice Eloff, found that ‘it was established on
a balance of probability that Pather authorised the manipulations,
and participated with Carroll in “cooking the books” of
the company’. On 7 September 2009 the EC arrived at the
following conclusion:
‘
In
our judgment the administrative penalty on the company in count 1
should be R500 000.00. The administrative penalty imposed
on Mr
Pather on count 1 should likewise be R500 000.00.
In
regard to count 2, the administrative penalty imposed on the company
is R1 million and the administrative penalty imposed on
Mr Pather
personally is R1 million.’
The
appellants appealed the decision in terms of s 111 of the Act to the
Board of Appeal established under s 26 of the
Financial
Services Board Act 97 of 1990 (the FSB Act)
. On 16
August 2010 the Board, chaired by Justice Howie, confirmed the EC’s
decision.
[4]
On 6 October 2010 the appellants applied to the North Gauteng High
Court, Pretoria for an order in the following terms:
‘
1.
Declaring that the Enforcement Committee had no jurisdiction to make
the decision that
the applicants contravened s 76 of the Act (as
amended by the Financial Services Laws General Amendment Act 22 of
2008) by operation
of s 79 of the Act, alternatively by operation of
the doctrine of
ultra
vires
;
2.
Reviewing and setting aside the decision of the Enforcement Committee
that the
applicants contravened s 76 of the Act as
ultra vires
and incompetent;
3.
In the alternative, reviewing and setting aside the decision that the
applicants
contravened s 76 of the Act for the reason that the
Enforcement Committee applied the incorrect standard of proof;
4.
In the further alternative, declaring that s 102 to 105 of the Act
are unconstitutional
in relation to conduct under s 76 inasmuch as a
finding that conduct contravened s 76 of the Act is akin to a finding
of criminal
guilt, which finding only a court of law is competent to
make;
5.
Declaring that the costs of this application be paid jointly and
severally by
such of the respondents who oppose the relief; and
6.
Granting the applicant such further and/or alternative relief as this
court may
deem appropriate.’
In
addition to the FSB and EC, who were cited respectively as the first
and second respondents, the Minister of Finance (the Minister)
was
cited as the third. Kgomo J dismissed the application, but granted
leave to the appellants to appeal to this court. It is noteworthy
that the factual findings made by the EC and the Board against the
appellants were not challenged in the court a quo or in this
appeal.
[5]
Three
contentions were advanced on behalf of the appellants on appeal,
namely: first, the court below erred in finding that the
civil
standard of proof is applicable to proceedings before the EC, which
are criminal or, at least, quasi-criminal in nature;
second, the
court below erred in concluding that the EC did have jurisdiction to
make the findings that it purported to make against
the appellants
under s 76 of the Act: and, third, in the alternative to the two
grounds, the court below erred in not finding ss
102 to 105 of the
Act unconstitutional.
[6]
The prohibition against insider trading was first introduced into our
law in 1973 by the Companies Act 61 of 1973. But, as the
King Task
Group observed in its Final Report on Insider Trading Legislation
dated 21 October 1997, there had not been a single
prosecution since
the introduction of the prohibition. The Task Group accordingly
recommended that insider trading should be regulated
under a separate
statute outside of the Companies Act. In the result, the Insider
Trading Act 135 of 1998 (the ITA) was enacted
on 17 January 1999. It
established an Insider Trading Directorate and empowered the FSB to
bring a statutory civil action before
the high court for a civil
penalty. The FSB could sue an alleged offender for the profits made
or the losses avoided as a result
of the offending transactions, plus
a penalty of up to three times the amount. The ITA also created a
mechanism to distribute the
funds recovered from a successful action
to persons who had been prejudiced by the insider trading. In 2005,
the ITA was repealed
and replaced by the Act, which replaced the
Insider Trading Directorate with the DMA and extended its
jurisdiction to cover three
forms of market abuse, namely insider
trading,
[2]
market
manipulation
[3]
and false
statements.
[4]
It also
created the EC and empowered it to impose administrative penalties.
[7]
The Act was amended by the Financial Services Laws General Amendment
Act 22 of 2008 (the Amendment Act), which came into force
on 1
November 2008. The Amendment Act expanded the ‘administrative
penalties’ model. It did so primarily by introducing
ss 6A to
6I into the Financial Institutions (Protection of Funds) Act 28 of
2001 (the FI Act). In terms of those amendments, the
original EC was
replaced by a new EC, created in terms of a new s 10(3) of the FSB
Act, the main difference between the two being
that the new EC has
jurisdiction to deal with contraventions of, or non-compliance with,
all FSB-administered legislation.
[5]
There are
also some changes in the procedure to be followed by the EC. In what
follows, references to the EC are to the body created
by and
functioning under the Act, ie prior to the coming into force of the
Amendment Act. It became common cause at the hearing
of the appeal
that the Amendment Act did not apply to the EC’s consideration
of the complaints against the appellants. I
shall accordingly refer
to the repealed provisions of the Act in the present tense since they
reman applicable to the determination
of this appeal.
[8]
Prior to the legislative reforms brought about by the Act, the
regulatory framework provided for only three enforcement tools,
namely registrars’ financial penalties, the withdrawal of the
approval or licence of the transgressor and criminal prosecution
of
the wrongdoer. That regulatory scheme only catered, on the one hand,
for very minor transgressions and, on the other, for major
fraud-type
events. It followed that most contraventions that fell in between
those two extremes did not have appropriate enforcement
mechanisms.
[9]
The mischief with which
the Act
seems
principally concerned is protecting the public and promoting
confidence in the market. That finds expression in s 2(
a
)
of the Act, which describes the purposes of the Act, inter alia, as
being to increase confidence in South African financial markets
by:
(a) requiring financial services to be provided in a fair efficient
and transparent manner; and (b) contributing to the maintenance
of a
stable financial market environment. The Act empowers the DMA to
investigate contraventions and to refer them to the EC, which
the
latter is statutorily obliged to consider in the manner prescribed by
s 102.
As appears from
subsections (1) to (3) of s 102, the EC is obliged to determine
matters on the basis of an assessment of the
documentary evidence
submitted to it by the DMA.
According
to s 99(1), if the DMA refers a matter to the EC under s 94, the
latter must deal with it in accordance with ss 102
to 105, to
the extent that those sections are applicable to the matter in
question. In terms of s 102(1), the referral of
a matter to the
EC must be accompanied by a report on the investigation and by all
other evidence relevant to the alleged contravention
or failure, in
the possession of the registrar or the DMA. The EC must serve a copy
of that report and evidence on the respondent
and direct such
respondent to respond thereto by way of affidavit.
[6]
Section
102(3) provides that the panel of the EC ‘. . . must consider
the documentary evidence before it without hearing further
evidence,
subject to subsection (4)’. According to subsection (4), the
panel ‘may, in exceptional circumstances and
when it is
necessary to come to a just decision’ summon a person to appear
before it to be questioned or to produce a document.
[10]
The Act recognises that a single act may give rise to more than one
consequence. Ordinarily, the purpose of an administrative
penalty is
to ensure compliance with the legislation and to give the regulatory
authority an effective means of enforcing it. Contraventions
have to
be discouraged and offences punished for the system to be viable. In
addition to the fact that the penalty itself is described
as an
‘administrative penalty’, the following are important
pointers against the appellants: First, s 112 of the Act
explicitly
distinguishes between ‘civil, criminal, administrative or
disciplinary proceedings under this Act’. Second,
s 104(3)
provides that if the respondent concerned fails to pay the
administrative penalty, the DMA may file with the clerk or
registrar
of any competent court a certificate stating the amount of the
penalty imposed, which then ‘has all the effects
of a civil
judgment lawfully given in that court in favour of the Board’.
Third, ss 104(6)
[7]
and (7)
[8]
draw a clear
distinction between a penalty imposed by the EC in terms of s 104 and
criminal proceedings. Fourth, s 104(8)
[9]
expressly
provides that an administrative penalty does not constitute a
‘previous conviction’. These regulatory provisions
are
collateral to the other provisions of the Act and whilst some have a
punitive aspect they are not criminal or quasi criminal
in nature.
[11]
An effective and credible financial regulatory system must be
capable, at least in its design, to produce reasonably speedy
results. Relative to the courts, the process adopted by the EC is
informal and inexpensive. The Act contemplates that the EC shall
be
staffed with personnel with specific knowledge and experience in law,
as well as the subject matter under consideration.
[10]
Further, its
proceedings must be open to the public
[11]
and any
decision must be by majority, in writing and include reasons.
[12]
Furthermore,
s 102(5) affords a respondent the right to be legally represented
when summoned to appear in person before the panel
envisaged by s
105(4). The EC does not fall under the control of the FSB. The
DMA is generally represented in proceedings
before the EC (and the
Appeal Board) in the same manner as the respondent to the proceedings
is. A person aggrieved by a decision
of the EC has a right of appeal
to the Appeal Board, which is staffed by at least two advocates or
attorneys with a minimum of
ten years’ experience or
judges.
[13]
The powers
of the EC and Appeal Board are limited to the imposition of a
monetary penalty. They do not include the power to impose
imprisonment or indeed any form of deprivation of liberty. What is
more, those proceedings are susceptible to review by a court
inter
alia on the ground that the monetary penalty is unreasonably high or
severe.
[12]
Whilst the meaning of the Act must ordinarily be found within its
four corners, some guidance, say the appellants, can be derived
from
foreign jurisprudence. The appellants accordingly seek to avoid the
consequences of the analysis that the lawgiver had in
mind
administrative – not criminal – proceedings before the EC
by various arguments based principally on foreign authorities.
They
invoke
Davidson
& Tatham v Financial Services Authority
[14]
–
a
decision by the United Kingdom Financial Services and Markets
Tribunal (FSMT) – regarding the determination of administrative
penalties. Although the Tribunal determined that the penalties for
the market abuse were criminal charges for the purposes of article
6
of the European Convention on Human Rights (the Convention), it held
that the civil – not criminal – standard applied.
[15]
[13]
The appellants also rely on the jurisprudence of the European Court
of Human Rights (EHHR), the Hong Kong Court of Final Appeal
and the
decision of the England and Wales Court of Appeal in
Han
v Customs and Excise Commissioners
.
[16]
In
Han,
the
court held that the imposition of penalties pursuant to the
provisions of the VAT Act 1994 gave rise to criminal charges within
the meaning of article 6 of the Convention. In arriving at that
conclusion the court applied the United Kingdom Human Rights Act
1998
(HRA). Article 6 is a ‘Convention right’ within the
meaning of s 1 of the HRA. In terms of s 2(1) of that Act,
‘[a]
court or tribunal determining any question which has arisen in
connection with a Convention right must take into account
any
judgment, decision, declaration or advisory opinion of the [EHHR]’.
Article 6(1) of the
Convention provides: ‘In the determination of his civil rights
and obligations or of any criminal charge
against him, everyone is
entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal
established by law.’
Article 6(2)
[17]
enshrines the presumption of innocence in criminal matters. Article
6(3)
[18]
provides further ‘minimum rights’ for those facing
criminal charges.
[14]
However, the case law of the EHHR makes clear that the concept of a
‘criminal charge’ under article 6 has an ‘autonomous’
Convention meaning.
[19]
Three
criteria are applied by the EHHR in order to determine whether
proceedings are criminal: first, the classification of the
proceedings in domestic law; second, the nature of the offence; and
third, the nature and degree of the severity of the penalty
that the
person concerned risks incurring.
[20]
The EHHR
‘does not in practice treat these three requirements as
analytically distinct or as a ‘three stage test’,
but as
factors to be weighed together in seeking to decide whether, taken
cumulatively, the relevant measure should be treated
as
“criminal”.’
[21]
In
determining whether an individual is the subject of a criminal
charge, the first criterion, namely the categorisation of the
allegation in domestic law, is no more than the starting point and is
not decisive of the enquiry.
[22]
A finding
that the proceedings are classified as criminal in domestic law is
likely to be conclusive.
[23]
If the
offence, the subject of the allegation, is not criminalised by
national law, the court proceeds to determine whether it is
nonetheless criminal in character for the purposes of article 6 by
proceeding to the second and third criteria.
[24]
In the
context of disciplinary proceedings, the EHHR has placed great
emphasis on the seriousness of the penalty for holding the
proceedings criminal rather than disciplinary.
[25]
It bears
emphasis that the treatment of the categorisation of the allegation
in domestic law merely as a starting point largely
renders irrelevant
the rationale underlying a national law which seeks to decriminalise
conduct.
[26]
[15]
The principal questions in
Koon
Wing Yee v Insider Dealing Tribunal
[27]
were whether
articles 10 and 11 of the Hong Kong Bill of Rights
[28]
applied to
proceedings before the Insider Dealing Tribunal and if so, whether,
inter alia, the standard of proof applied by the
Tribunal complied
with these provisions. The provisions of articles 10 and 11 are in
the same terms as articles 14(1), (2) and
(3)(
g
)
of the International Covenant on Civil and Political Rights
(ICCPR).
[29]
Neither the
Convention nor the ICCPR explicitly mandate a specific standard of
proof.
[30]
The court
held that the Tribunal’s findings were ‘impaired’,
inter alia, because of a failure to apply the criminal
standard of
proof. Importantly, that conclusion was preceded by a finding that
the proceedings before the Tribunal involved the
determination of a
criminal charge. It thus stood to reason that the applicable standard
would have had to be the criminal standard
of proof. The court had
regard to the principles enunciated by the EHHR in relation to
article 6 of the Convention and applied
by UK Courts in the
interpretation and application of the HRA. The decisions of those
courts on provisions which were the same
as (or similar to) the Hong
Kong Bill of Rights, so observed the court, were of high persuasive
authority. In arriving at its conclusion,
reliance was also placed by
the court on a general comment by the United Nations Human Rights
Committee relating to article 14
of the ICCPR.
[31]
[16]
Following
Han
and
McCann,
the
Hong Kong Court of Final Appeal took the view that ‘if the
proceedings are classified as civil in domestic law, that,
though
important, is by no means conclusive because the second and third
criteria are more significant’.
[32]
Under the
second criterion, so said Potter LJ in
Han
:
[33]
‘
[T]he
court considers whether or not, under the law concerned, the
“offence” is one which applies generally to the public
at
large or is restricted to a specific group. If the former, then
despite its “de-criminalisation” by the national
law, it
is apt to be regarded as criminal. Further, if a punitive and
deterrent penalty is attached, it is likely to be regarded
as
criminal in character, even in cases where the penalty is in the
nature of a fine rather than imprisonment. On the other hand,
where
the offence is limited to a restricted group, as is generally the
case in relation to disciplinary offences, the court is
unlikely to
classify a charge under the applicable disciplinary or regulatory
code as criminal, at least unless it involves or
may lead to loss of
liberty.’
[17]
The court in
Koon
Wing Yee
did
caution that the EHHR’s ‘jurisprudence is fact-sensitive
so that it is hazardous to apply decisions of that Court
to facts
which are different’.
[34]
It must be
appreciated that:
‘
The
fair trial guarantee under article 6(1) applies to both “the
determination of a (person’s) civil rights” and
“the
determination of any criminal charge”. On the other hand, only
the latter attract the additional protections under
article 6(2) and
6(3). In so far as the latter provisions apply to “everyone
charged with a criminal offence” it is
well established in the
jurisprudence of the European Court of Human Rights that this concept
is co-extensive with the concept
of the determination of any criminal
charge.’
[35]
Moreover,
as Lord Bingham of Cornhill CJ pointed out in
B
v Chief Constable of Avon
:
[36]
‘
I
am aware of no case in which the European Court has held a proceeding
to be criminal even though an adverse outcome for the defendant
cannot result in any penalty.’
The
fact of the matter therefore is that decisions of the EHHR are not a
safe guide for us. It follows that properly analysed this
line of
authorities does not assist the appellants’ case.
[18]
Neither the courts in the United States nor Canada appear to support
the appellants’ contention that proceedings before
the EC are
criminal or quasi criminal in character. The leading case in the
United States is
Hudson
v United States
.
[37]
There,
monetary administrative penalties and occupational debarment were
imposed for the violation of federal banking statutes.
Thereafter,
criminal proceedings were also instituted. The US Supreme Court held
that the double jeopardy clause was not a bar
to the criminal
prosecution because the administrative proceedings were not
criminal.
[38]
The court
stated:
‘
Whether
a particular punishment is criminal or civil is, at least initially,
a matter of statutory construction . . . A court must
first ask
whether the legislature, ‘”in establishing the penalizing
mechanism, indicated either expressly or impliedly
a preference for
one label or the other.” . . . Even in those cases where the
legislature “has indicated an intention
to establish a civil
penalty, we have inquired further whether the statutory scheme was so
punitive either in purpose or effect,”
. . . as to “transfor[m]
what was clearly intended as a civil remedy into a criminal
penalty”.’
[19]
Hudson
,
inter alia, observed that: (a) it had long recognised that the double
jeopardy clause does not prohibit the imposition of all
additional
sanctions that could in common parlance be described as punishment;
(b) all civil penalties have some deterrent effect;
(c) the due
process and equal protection clauses already protect individuals from
sanctions which are down-right irrational; (d)
that the authority to
impose administrative penalties is conferred upon administrative
agencies, is prima facie evidence that Congress
intended to provide
for a civil sanction; (e) quintessential criminal punishments may be
imposed only ‘by a judicial trial’;
(f) while the
petitioners have been prohibited from further participating in the
banking industry - that is certainly nothing approaching
the
‘infamous punishment of imprisonment’; and (g)
‘
only the clearest proof’ will suffice
to override legislative intent and transform what has been
denominated a civil remedy
into a criminal penalty.
[20]
In Canada, the jurisprudence on the distinction between criminal and
administrative proceedings was articulated in
R
v Wigglesworth
[39]
and
Martineau
v MNR
.
[40]
In the
latter case, a customs officer had demanded, by way of a written
notice served pursuant to the Customs Act, that the appellant
pay
$315 458, being the deemed value of the goods he allegedly attempted
to export by making false statements. This set in motion
a process
referred to as ‘ascertained forfeiture’. The Canadian
Supreme Court had to consider whether the appellant
may, in the
course of an action under the Customs Act, avail himself of the
right against self-incrimination guaranteed by
s 11
(c)
of the Canadian Charter of Rights and Freedoms (the
Charter).
[41]
In dismissing his appeal
the
court pointed out that a distinction must be drawn between penal
proceedings on the one hand and administrative proceedings
on the
other. Only penal proceedings, so observed the court, attracted the
application of s 11 of the Charter.
[21]
More recently,
Guindon
v Canada
[42]
affirmed the
tests developed in the earlier cases. The appellant, Ms
Guindon
,
was assessed penalties totalling $546 747 under s 163.2(4) of
the Income Tax Act RSC 1985 arising from certain false statements
made by her. She asserted that the penalty imposed under the section
was criminal and that she was therefore a person ‘charged
with
an offence’ who is entitled to the procedural safeguards
enshrined in s 11 of the Charter. In dismissing her appeal,
the court
held that the proceedings were of an administrative nature and that
Ms Guindon therefore was not a person ‘charged
with an offence’
and accordingly the protections under s 11 of the Charter did not
apply. In arriving at that conclusion
the court explained that an
individual is entitled to the procedural protections of s 11 of the
Charter where the proceeding is,
by its very nature, criminal, or
where a ‘true penal consequence’ flows from the sanction.
The court expatiated: (a)
A proceeding is criminal by its very nature
when it is aimed at promoting public order and welfare within a
public sphere of activity.
Proceedings of an administrative nature,
on the other hand, are primarily intended to maintain compliance or
to regulate conduct
within a limited sphere of activity.
[43]
(b) A ‘true
penal consequence’ is ‘imprisonment or a fine which by
its magnitude would appear to be imposed for
the purpose of
redressing the wrong done to society at large rather than to the
maintenance of internal discipline within [a] limited
sphere of
activity’.
[44]
(c) The
criminal in nature test asks whether the proceedings by which a
penalty is imposed are criminal. The test is not concerned
with the
nature of the underlying act, but the nature of the proceedings
themselves’.
[45]
[22]
The first issue raised by the appellants cannot be answered without
examining the nature and purpose of criminal proceedings.
In the
words of Lord Steyn ‘[t]he aim of criminal law is not
punishment for its own sake but to allow everyone to go about
their
daily lives without fear of harm to person or property’.
‘Criminal law’, observed Lord Atkin, ‘connotes
only
the quality of such acts or omissions as are prohibited under
appropriate penal provisions by authority of the state. The
criminal
quality of an act cannot be discerned by intuition; nor can it be
discovered by reference to any standard but one: is
the act
prohibited with penal consequences?’
[46]
And,
criminal proceedings, according to Lord Bingham of Cornhill CJ,
‘involve a formal accusation made on behalf of the state
or by
a private prosecutor that a defendant has committed a breach of the
criminal law, and the state or the private prosecutor
has instituted
proceedings which may culminate in the conviction and condemnation of
the defendant.’
[47]
[23]
In the proceedings before the EC, neither the police nor the
prosecutorial authority is involved at all. That the facts
underpinning
the complaint can as well give rise to a criminal
offence does not alter the nature of the complaint before the EC. The
EC is primarily
concerned with the exercise of a disciplinary power
in respect of a limited group of persons possessing a special
status.
[48]
There is no
formal accusation of a breach of the criminal law. The proceedings
are initiated by way of a complaint by the DMA to
the EC, not a
criminal charge. In
Martineau
[49]
the court
observed:
‘
This
process thus has little in common with penal proceedings. No one is
charged in the context of an ascertained forfeiture. No
information
is laid against anyone. No one is arrested. No one is summoned to
appear before a court of criminal jurisdiction. No
criminal record
will result from the proceedings. At worst, once the administrative
proceeding is complete and all appeals are
exhausted, if the notice
of ascertained forfeiture is upheld and the person liable to pay
still refuses to do so, he or she risks
being forced to pay by way of
civil action’.
Those
considerations find equal application here.
[24]
Moreover, sight cannot be lost of the fact that criminal prosecutions
come with many challenges. First, the responsibility
for the
prosecution lies with the National Directorate of Public
Prosecutions, not the regulatory authorities, such as the FSB.
Given
an already overburdened prosecutorial staff, such contraventions
generally do not enjoy priority and the regulator, as complainant,
has to stand in line with many other complainants. Second, a criminal
prosecution can be both time-consuming and fraught with difficulty
and the prosecuting authority may not always possess the necessary
expertise. Third, the stigma attached to a criminal conviction
will
often mean that industry professionals are likely to vigorously
contest even relatively minor contraventions. Fourth, a criminal
prosecution may not be a suitable enforcement option in respect of
some less serious contraventions, especially those where an
industry
player simply failed to adhere to the rules, as opposed to committing
an offence which is truly deserving of a criminal
sanction.
[25]
Accordingly, for all of the reasons given I take the view that
proceedings before the EC do not lie within the criminal sphere
and
cannot be classified as being criminal in nature. The court below was
accordingly correct in holding that the EC, when imposing
administrative penalties ‘decidedly remains administrative’.
Its conclusion in this regard is consistent with decisions
in this
country by the Competition Appeal Court,
[50]
Tax
Court
[51]
and Labour
Court.
[52]
[26]
Underlying the question of the characterisation of the nature of the
proceedings, are two further contentions advanced on behalf
of the
appellants: first,
if the proceedings before the EC are not to
be regarded as criminal, it is a civil proceeding of such a character
that the criminal
standard of proof should be applied
;
and, second, the proceedings before the EC may result in a penalty or
have a true penal consequence.
As
to the first:
[27]
The appellants place great store by the judgment of this court in
Fakie N.O. v CCII
Systems (Pty) Ltd
.
[53]
That case
concerned the standard to be applied by a court in determining
whether or not to order the imprisonment of a person alleged
to be in
contempt of a civil court order. This court accepted that although
the respondent was not an ‘accused person’
for the
purposes of s 35 of the Bill of Rights,
[54]
the
protection afforded by s 12 of the Bill of Rights ‘not to be
deprived of freedom arbitrarily or without just cause’
[55]
required
proof beyond reasonable doubt before imprisonment for contempt could
be ordered.
[56]
This is
consistent with the approach adopted in
In re
Bramblevale
Ltd
.
[57]
There the Court of Appeal decided that to establish a civil contempt
of court, proof beyond a reasonable doubt was required. This
was
because imprisonment might result. The court pointed out that ‘the
order is made to uphold the peace and so one is immediately
in the
realm of law enforcement in the public rather than a private
interest’. Unlike
Fakie
and
In re Bramblevale Ltd
,
the present matter raises no ‘liberty’ issue. According
to the Supreme Court of Canada, ‘imprisonment is always
a true
penal consequence.
[58]
A provision that includes the possibility of imprisonment will be
criminal no matter the actual sanction imposed.’ Here,
there
is no freedom interest at stake inasmuch as the EC has no power to
order the imprisonment of the appellants. Accordingly this
matter is
entirely distinguishable from
Fakie.
[28]
Section 104 of the Act provides that ‘if a panel is satisfied
that a respondent has contravened or failed to comply with
the Act’,
it must impose an ‘administrative penalty’. The
appellants’ argument that the EC is obliged to
apply the
‘criminal yardstick is, in effect, an argument that the phrase
‘is satisfied’ must be interpreted to
mean ‘is
satisfied beyond a reasonable doubt’.
[29]
To be sure, a generous degree of flexibility is built into the
probability standard.
The
civil standard of proof does not necessarily mean a bare balance of
probability.
The
inherent probability or improbability of an event is a matter to be
taken into account when the evidence is assessed. When assessing
the
probabilities a court will have in mind that the more serious the
allegation, the more cogent will be the evidence required.
As
long ago as 1939, Watermeyer JA in
Gates
v Gates
,
[59]
put the
position thus:
‘
Now
in a civil case the party, on whom the burden of proof (in the sense
of what
Wigmore
calls the risk of non-persuasion) lies, is required to satisfy the
court that the balance of probabilities is in his favour, but
the law
does not attempt to lay down a standard by which to measure the
degree of certainty of conviction which must exist in the
court’s
mind in order to be satisfied. In criminal cases, doubtless,
satisfaction beyond reasonable doubt is required, but
attempts to
define with precision what is meant by that usually lead to
confusion. Nor does the law, save in exceptional cases
such as
perjury, require a minimum volume of testimony. All that it requires
is testimony such as carries conviction to the reasonable
mind.
It
is true that in certain cases more especially in those in which
charges of criminal or immoral conduct are made, it has repeatedly
been said that such charges must be proved by the “clearest”
evidence or “clear and satisfactory” evidence
or “clear
and convincing” evidence, or some similar phrase. There is not,
however, in truth any variation in the standard
of proof required in
such cases. The requirement is still proof sufficient to carry
conviction to a reasonable mind, but the reasonable
mind is not so
easily convinced in such cases because in a civilised community there
are moral and legal sanctions against immoral
and criminal conduct
and consequently probabilities against such conduct are stronger than
they are against conduct which is not
immoral or criminal.’
[30]
The application of the ‘balance of probabilities’
standard of proof by a securities commission exercising an
‘administrative
penalty’ jurisdiction is accepted in
Canada. In
Alberta
Securities Commission v
Brost
,
the Court of Appeal of Alberta observed that the proceedings before
the Securities Commission were regulatory not prosecutorial
in
nature.
[60]
The
Commission applied the balance of probabilities standard of proof
when it considered the allegations against the appellants.
In
rejecting the argument that the Commission could not reasonably make
a determination of fraud if, on the evidence, there was
room for
reasonable doubt, the court held; ‘[w]e disagree that this
standard of proof applies. We see no error in the Commission’s
statement of the appropriate standard’.
[61]
[31]
The same approach is followed in market abuse cases by the United
Kingdom’s FSMT. In
Davidson
v The Financial Services Authority
[62]
the FSMT
analysed the authorities at length, including
Han
,
and reached a conclusion strikingly similar to that of Watermeyer JA
in
Gates
v Gates
:
‘
We
next ask how we should apply the civil standard of proof. In the
light of all the authorities we conclude that there is a single
civil
standard of proof on the balance of probabilities but that it is
flexible in its application. The more serious the allegation,
or the
more serious the consequences if the allegation is proved, the
stronger must be the evidence before we should find the allegation
proved on the balance of probabilities.’
[63]
The
FSMT affirmed this approach in
Parker
v The Financial Services Authority
.
[64]
[32]
In my view, the phrase ‘is satisfied’ in s 104 of the Act
is not reasonably capable of being interpreted to require
proof
beyond a reasonable doubt. That is clearly not what the provision
expressly states and such a meaning, it seems to me, is
also not
necessarily to be implied. There is also no reason why the
Constitution would demand that the phrase ‘is satisfied’
be interpreted as meaning ‘is satisfied on proof beyond
reasonable doubt’. Whilst the presumption of innocence
enshrined
in s 35 of the Constitution requires that an ‘accused
person’ cannot be convicted absent proof beyond reasonable
doubt,
the appellants are not such persons. A respondent in EC
proceedings is not at risk of imprisonment or the deprivation of his
or
her liberty. The consequences are similar to civil proceedings -
the worst case scenario is the loss of money or property. I
accordingly
hold that the applicable standard of proof is the civil
standard.
[33]
Importantly, it is no part of the appellants’ case that the
civil standard was misapplied. Their case is that the criminal
standard ought to have been applied. In this, sight cannot be lost of
the fact that it has been conceded before the EC that in
respect of:
(a) count 1, the journal entries to the value of some R830 000 were
false; and (b) count 2, accounts receivable were
overstated by R1 633
377, capital and reserves by R295 747 and profits after tax by R295
747. Consequently, the profits after tax
for the previous financial
year were also overstated by R711 276. Mr Pather maintained that
Carroll was responsible and that it
was he alone who had contravened
s 76 of the Act. The EC did not agree. After an analysis of the
evidence, it stated:
‘
It
needs to be added that at the very least it was firmly established
that Pather ought to have known of the manipulations of the
books and
documents of the company. He had, together with the other directors,
to be satisfied that the systems employed by the
company, were
reliable. He knew that Carroll was unreliable. He knew that at the
relevant time the company did not have an audit
committee. He should
have known that the discounting system was at odds with the records
of the company.’
In
that, the EC cannot be faulted. In any event, s 104(1) provides that
a panel must impose an administrative penalty if it ‘is
satisfied’ that the respondent concerned has contravened or
failed to comply with the Act. Thus, provided the EC is ‘satisfied’
in a manner which is not reviewable on any of the grounds provided
for in s 6 of the Promotion of Administrative Justice Act, 3
of 2000
(PAJA), it is a matter for the EC – not a court – to
decide whether the evidence before it is sufficiently
cogent for it
to be so satisfied.
As
to (b):
[34]
This question looks to the nature of the penalty. The appellants
contend that notwithstanding the fact that the penalty does
not
constitute a deprivation of liberty, it is intended to punish and
deter in a manner characteristic of a criminal charge.
The
issue of whether a person, who is the subject of an ostensibly
administrative regime, is in reality ‘charged with an
offence’
is addressed by the second test in
Guindon
- does the sanction impose a true penal consequence?
[65]
According to
Guindon,
a
monetary penalty may or may not be a true penal consequence. It will
be so when it is, in purpose or effect, punitive. That falls
to be
assessed by looking at considerations such as the magnitude of the
fine, to whom it is paid, whether it is determined by
regulatory
considerations rather than principles of criminal sentencing and
whether stigma is associated with the penalty.
[66]
This is not
to say that very large monetary penalties cannot be imposed under
administrative monetary penalty regimes. Sometimes
significant
penalties are necessary in order to deter non-compliance with an
administrative scheme
[67]
and these
have been upheld where it is demonstrated that the penalty serves
regulatory purposes.
[68]
The relevant
question is not the amount of the penalty in absolute terms, it is
whether the amount serves regulatory rather than
penal purposes.
[69]
The fact
that the penalty is intended to have a deterrent effect does not mean
it is not administrative in nature,
[70]
because
deterrence ‘may serve civil as well as criminal goals’.
Accordingly, to hold that the mere presence of a deterrent
purpose
renders such sanctions ‘criminal’ for double jeopardy
purposes would severely undermine the Government’s
ability to
effectively regulate institutions.
[35]
In
Rowan
v Ontario Securities Commission
,
[71]
the Court of
Appeal for Ontario was confronted with a challenge to the
constitutionality of a provision that allowed the Ontario
Securities
Commission to impose administrative monetary penalties. The argument
advanced was that because the maximum penalty of
$1 million could be
imposed for each transaction in a single course of infractions, the
potential size of the penalty was so large
as to amount to a penal
sanction. In the result, so it was contended, a party who was subject
to such a penalty was a person ‘charged
with an offence’
within the meaning of s 11 of the Charter. The challenge failed. The
court held:
[72]
‘
Penalties
at the level of $1 million almost certainly have a deterrent purpose,
but that does not make them penal in nature. As
the Supreme Court of
Canada held in
Re:
Cartaway
Resources
Corp
.,
2004 SCC 26
[2004] 1 SCR 672
, in carrying out the regulatory and
preventative mandate provincial securities commissions may
legitimately consider deterrence
when imposing a monetary penalty’.
[36]
Little remains of second and third contentions. Both accordingly
invite a brief response. As far as the second contention
goes:
the submission is that inasmuch as ss 102 to 105 of the Act empower
the EC to impose a penalty, those provisions contravene
s 35(3) of
the Constitution. Our Constitution deals separately in ss 33 and 35
with the procedural guarantees applicable to administrative
and
criminal proceedings. The former guarantees to everyone the right to
administrative action that is lawful, procedurally fair
and
reasonable. The latter grants to arrested, detained and accused
persons a range of fair trial rights.
[37]
Given the conclusion to which I have already arrived that both the
proceedings before the EC and penalty imposed are administrative
in
nature, it follows that constitutionality must be assessed with
reference to s 33. The protection conferred by the Constitution
is
that administrative decisions may be reviewed in a court on grounds
of unlawfulness, procedural unfairness or unreasonableness.
These
rights are fleshed out in PAJA. Persons in the position of the
appellants are given protection by s 33 and PAJA, not s 35.
The
Canadian jurisprudence shows that persons subject to administrative
financial penalties for contraventions of securities laws
are not
persons ‘charged with an offence’ within the meaning of
the opening words of s 11 of the Canadian Charter of
Rights and
Freedoms. The same reasoning leads to the conclusion that the
appellants are not ‘accused persons’. Section
35(3) of
the Constitution accordingly has no application to them.
[38]
Insofar as the third contention, namely that the EC lacked
jurisdiction, is concerned: Section 79(1) of the Act provides:
‘
Only
a High Court or a regional court has jurisdiction to try any offence
referred to in s 73, 75 and 76 and to impose a penalty
up to the
maximum set out in s 115(
a
).’
According
to s 115 of the Act,
‘
A
person who –
(a)
commits an offence referred to in s 73, 75 or 76 is liable on
conviction to a fine
not exceeding R50 million or to imprisonment for
a period not exceeding 10 years or to both such fine and
imprisonment; . . .’
[39]
The appellants submitted that these sections mean that contraventions
of, or failures to comply with, s 76 can only be prosecuted
in the
High Court or a regional court. Although the present appeal relates
only to the jurisdiction of the EC in respect of a contravention
or
failure to comply with s 76 (false statements), the appellants’
argument must logically apply as well to s 73 (insider
trading) and s
75 (prohibited trading practices). If that argument were correct, the
EC would have no jurisdiction to impose an
administrative penalty for
a contravention or failure to comply with any of those sections. The
power of a High Court or regional
court ‘to try any offence
referred to in s 73, 75 and 76’ and to impose a fine as
contemplated in s 115(a) does not
imply that the EC is precluded from
imposing an administrative penalty for a contravention or failure to
comply with ss 73,75 or
76. The EC does not purport to, nor does it
in fact, ‘try an offence’ or for that matter impose a
criminal penalty
contemplated in s 115(a). The criminal jurisdiction
and the administrative penalty jurisdiction co-exist.
[40]
The appellants, rightly appreciating that they could not support an
argument which would render the EC provisions in the Act
nugatory,
contended that the exclusive jurisdiction of the criminal courts in
terms of s 76 does not apply to contraventions
of the (repealed)
Insider Trading Act or the (repealed) s 440F of the Companies
Act 61 of 1973 so that the EC would have jurisdiction
in regard to
these latter contraventions. This argument presupposes that the
lawmaker introduced the whole panoply of EC provisions
in the Act
solely to deal with legacy contraventions under repealed legislation.
Apart from the absurdity of imputing such an intention
to the
lawmaker, the argument overlooks that the Insider Trading Act itself
contains in s 9 an exclusive jurisdiction
provision in
identical terms to s 76, which would apply to legacy offences
governed by the Insider Trading Act. So if the
appellant’s
argument were right in relation to s 76 of the Act, the argument
would also apply to s 9 of the Insider
Trading Act and thus
remove the EC’s jurisdiction in respect of legacy offences
governed by the Insider Trading Act.
[41]
It follows that the appeal must fail and in the result it is
dismissed with costs, including the costs of two counsel.
_________________
V
M Ponnan
Judge
of Appeal
APPEARANCES:
For
Appellants:
A Subel SC (with him J J Meiring)
Instructed
by:
Stand
Fanaroff & Associates, Johannesburg
Phatshoane
Henney Inc, Bloemfontein
For
First Respondent:
A
Freund SC (with him C Tabata)
Instructed
by:
Jay
Mothobi Inc, Johannesburg
EG
Cooper Majiedt Inc, Bloemfontein
For
Third Respondent:
M Moerane SC (with him L Gcabashe SC and R Tshetlo)
Instructed
by:
The
State Attorney, Pretoria
The
State Attorney, Bloemfontein
[1]
The FSB is an independent body established by the Financial Services
Board Act 97 of 1990 (the FSB Act) to oversee the South
African
non-banking financial services industry in the public interest.
[2]
Sections 73
and 74.
[3]
Section 75.
[4]
Section 76.
[5]
Section
6A(1)(
a
)
of the FI Act provides: ‘Despite anything to the contrary in
any other law, if a registrar is of the opinion tht a person
has
contravened a provision of a law in respect of which the registrar
is not authorized to impose a penalty or a fine, the registrar
may
refer the alleged contravention to the enforcement committee
.’
According
to s 1 of the FI Act:
‘
Law’,
for the purposes of s 6, means –
‘
(i)
this Act;
(ii)
the Financial Services Board Act, 1990;
(iii)
the Inspection of Financial Institutions Act, 1998 (Act 80 of 1998);
(iv)
the Financial Services Ombud Schemes Act, 2004 (Act 37 of 2004);
(v)
an Act referred to in the definition of ‘financial
institution’ in s 1 of the Financial Services Board Act, 1990;
(vi)
the Medical Schemes Act, 1998 (Act 131 of 1998), and any subordinate
legislation, enactment or measure made under these Acts.’
[6]
Section 102(2).
[7]
Section
104(6) reads: ‘The enforcement committee may not impose a
penalty contemplated in this section if the respondent
has been
charged with a criminal offence in respect of the same set of
facts.’
[8]
Section
104(7) reads: ‘If a court assesses the penalty to be imposed
on a person convicted of an offence in terms of this
Act, the court
must take into account any administrative penalty imposed under this
section or s 103(1)(
a
)
in respect of the same set of facts.’
[9]
Section
104(8) reads: ‘An administrative penalty imposed and paid in
terms of this section does not constitute a previous
conviction as
contemplated in Chapter 27 of the Criminal Procedure Act.’
[10]
Sections 98(1) and (2).
[11]
Section 100(3).
[12]
Sections 100(4) and (5).
[13]
Section 26A(2)(
a
)
of the FSB
Act.
[14]
Davidson
& Tatham v Financial Services Authority
[2006]
UKFSM 31.
[15]
Ibid
para
197.
[16]
Han v Customs and Excise
Commissioners
[2001] EWCA
Civ 1040.
[17]
Article 6(2) enshrines the presumption of innocence in criminal
matters as follows:
‘
Everyone
charged with a criminal offence shall be presumed innocent until
proven guilty according to law.’
[18]
Article 6(3) provides further ‘minimum rights’ for those
facing criminal charges as follows:
‘
Everyone
charged with a criminal offence has the following minimum rights:
(a)
to be informed promptly, in a language which he understands and in
detail, of the nature and cause of the accusation against
him;
(b)
to have adequate time and facilities for the preparation of his
defence;
(c)
to defend himself in person or through legal assistance of his own
choosing or, if he has not sufficient means to pay for
legal
assistance, to be given it free when the interests of justice so
require;
(d)
to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf
under the same
conditions as witnesses against him;
(e)
to have the free assistance of an interpreter if he cannot
understand or speak the language used in court.’
[19]
Engel & others v The
Netherlands
[1976] 1 EHHR
647 para 81.
[20]
AP, MP & TP v
Switzerland
[1998] 26 EHRR
541
para 39.
[21]
Engel
supra
fn 17 para
26.
[22]
Ibid p
ara
65.
[23]
Regina
(McCann & others) v Crown Court at Manchester and another
[2002] UKHL 39
para 57D.
[24]
Han
supra fn 16
p
ara
65.
[25]
Ibid p
ara
67.
[26]
Ibid para 68.
[27]
Koon Wing Yee v Insider
Dealing Tribunal
[2008]
HKCFA 21.
[28]
Article 10
of the Bill of Rights provides: ‘ In the determination of any
criminal charge against him, or of his rights and
obligations in a
suit at law, everyone shall be entitled to a fair and public hearing
by a competent, independent and impartial
tribunal established by
law.’
Article
11 provides:
‘
(1)
Everyone charged with a criminal offence shall have the right to be
presumed innocent until proved guilty according to law;
(2)
In the determination of any criminal charge against him, everyone
shall be entitled to the following minimum guarantees, in
full
equality –
.
. .
(g)
not to be compelled to testify against himself or to confess guilt.’
[29]
Koon Wing Yee
supra
fn 25 para 24.
[30]
Ibid para 91.
[31]
In that
regard para 65 of the judgment reads: I note that para 15 of General
Comment No 32, published by the United Nations Human
Rights
Committee (‘the Committee”) at its 90
th
session in July 2007, relating to article 14 of the ICCPR (article
10 and 11 of the Bill of Rights), stated: “Criminal
charges
relate in principle to acts declared to be punishable under domestic
criminal law. The notion may also extend to acts
that are criminal
in nature with sanctions that, regardless of their qualification in
domestic law, must be regarded as penal
because of their purpose,
character or severity.”’
[32]
Koon Wing Yee
supra
fn 25 para 35.
[33]
Han
supra fn 16 para 66.
[34]
Koon Wing Yee
supra
fn 25 para 28.
[35]
Regina
(McCann & others)
supra fn 21
at 21.
[36]
B v Chief Constable of Avon
[2011] 1 WLR 340
para 28.
[37]
Hudson v
United States
522
US 93
(1997).
[38]
The Double
Jeopardy Clause provides that no ‘person [shall] be subject
for the same offence to be twice put in jeopardy
of life or limb’.
[39]
R v
Wigglesworth
[1987] 2 SCR 541.
[40]
Martineau
v MNR
[2004] 3 SCR 737.
[41]
Section 11(
c
)
provides that a ‘person charged with an offence’ cannot
be compelled to be a witness ‘in proceedings against
that
person in respect of the offence’.
[42]
Guindon
v Canada
2015
SCC 41.
[43]
Ibid para 25.
[44]
Ibid para 46.
[45]
Ibid para 51.
[46]
Proprietary
Articles Trade Association v Attorney General for Canada
[1931] AC 310, 324.
[47]
Customs
and Excise Comrs v City of London Magistrates’ Court
[2000] 1 WLR 202, 2025.
[48]
As it was
put in in McCann: ‘Where a limited group of persons
possessing a special status is involved the conclusion
is more
readily drawn that the proceedings are disciplinary’.
[49]
Martineau
supra
fn 37 para 45.
[50]
In
Federal
Mogul Aftermarket Southern Africa (Pty) Ltd v Competition Commission
& another
2005 (6) BCLR 613
(CAC) the court found that s 35(3) of the
Constitution is not applicable to the imposition of administrative
penalties under
the Competition Act. Section 59 provides that the
Competition Tribunal may impose an administrative penalty for
certain specified
offences created by the Competition Act.
[51]
In Case No
11641
[2007] JOL 19881
(ITC) the Tax Court held that additional tax
imposed under s 76(1) of the Income Tax Act No 58 of 1962 is a
penalty of an administrative
nature which cannot be equated with a
fine imposed by a criminal court.
[52]
In
Director-General,
Department of Labour v Win-Cool Industrial Enterprises (Pty) Ltd
2007
28 ILJ 1774 (LC) the court had to consider the imposition of
penalties for the contravention of the affirmative action provisions
of the Employment Equity Act No 55 of 1998 (EEA). The court
concluded that: the
relevant provision does not create an offence but a contravention
for which a penalty is payable;
the
department bears the civil standard of proving all the elements of
the contravention on a balance of probabilities; and,
civil
procedure for enforcement was justifiable taking into consideration
our constitutional values and the purpose of the affirmative
action
provisions in the EEA and the scheme adopted to implement and
enforce them.
[53]
Fakie N.O. v CCII Systems
(Pty) Ltd
2006 (4) SA 326
(SCA).
[54]
Ibid
at
339 B-C.
[55]
Ibid at 339 C-D.
[56]
Ibid at 342B.
[57]
In re
Bramblevale Ltd
[1970] Ch 128.
[58]
Guindon
supra
fn 39 para 75.
[59]
Gates v
Gates
1939
AD 150
at 154-5.
[60]
Ibid para
36.
[61]
Ibid para
51.
[62]
Fn 14 above, paras 175-200.
[63]
Ibid para
198.
[64]
[2006] UKFSM 37
paras 13-23.
[65]
Guindon
supra
fn 39 para 75.
[66]
Ibid para 76.
[67]
Ibid para 77.
[68]
Ibid para 80.
[69]
Ibid para 81.
[70]
Ibid para 83.
[71]
Rowan v Ontario Securities
Commission
2012 ONCA 208
(CanLII).
[72]
Ibid para 51.