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Fie No. 33718 in the SUPREME COURT of CANADA in THE Fie No. 33718 IN THE SUPREME COURT OF CANADA IN THE MATTER OF Section 53 of the Supreme Court Act, R.S.C. 1985, c. S-26; AND IN THE MATTER OF a Reference by the Governor in Council concerning the proposed Canadian Securities Act, as set out in Order in Council P.C. 2010, dated May 26,2010 FACTUM OF THE ATTORNEY GENERAL FOR SASKATCHEWAN, INTERVENER Fied pursuant to Rule 42 of the Rules of the Supreme Court of Canada ATTORNEYGENERAL COWLING, LAFLEUR, FOR SASKATCHEWAN HENDERSON LLP Constitutional Law Branch 2600 - 160 Elgin Street 820 - 1874 Scarth Street OTTAWA ON KIP 1C3 REGINA SK S4P 4B3 Henry S. Brown, Q.C. Graeme G. Mitchell, Q.C. Tel: (613) 786-0139 Tel: (306) 787-8385 Fax: (613) 563-9869 Fax: (306) 787-9111 Email: henrv.brown@~owlioPs.com Email: Graeme.MitcheU@,eov.sk.ca Ottawa Agent for the Intervener Counsel for the Intewener Attorney General for Saskatchewan Attorney General for Saskatchewan Robert J. Frater Attorney General of Canada Bank of Canada Building 234 Wellington Street, Room 1161 OTTAWA ON KIA OH8 Tel: (613) 957-4763 Fax: (613) 954-1 920 Email: robert.frater@,iustice.pc.ca Counsel for the Attorney General of Canada Jean-Yves Bernard Pierre Landry France Bonsaint Noel & Associb Hugo Jean 11 1, rue Charnplian Bernard, Roy Associb (Justice-Quebec) GATINEAU QC J8X 3R1 8.00 - 1, rue Notre-Dame Est MONTREAL QC H2Y 1B6 Tel: (819) 771-7393 Fax: (8 19) 77 1-5397 Tel: (514) 393-2336 Ext: 51467 Email: p.landry@,noelassocies.com Fax: (514) 873-7074 Email: jvbernard@,iustice.~ouv.qc.ca Correspondant du procureur gh6al du france.bonsaint@,iustice.gouv.qc.ca Quebec hugo.iean@,iustice.gouv.qc.ca Procureur du procureur general du Quebec L. Christine Enns Henry S. Brown, Q.C. Attorney General of Alberta Gowling Lafleur Henderson LLP 4'h Floor, Bowker Bldg. 2600 - 160 Elgin Street 9833 - 109 Street OTTAWA ON KIP 1C3 EDMONTON AB T5J 3S8 Tel: (613) 233-1781 Tel: (780) 422-4850 Fax: (613) 788-3433 Fax: (780) 425-0307 Email: [email protected] Email: christine.enns@,gov.ab.ca Agent for the Attorney General of Counsel for the Attorney General of Alberta Alberta Cabinet du Procureur general Henry S. Brown, Q.C. Direction des services juridiques Gowling Lafleur Henderson LLP ~dificedu Centenaire, Pike 447 2600 - 160 Elgin Street Boite 6000 OTTAWA ON KIP 1C3 FREDERICTON NB E3B 5H1 Tel: (613) 233-1781 Tel: (506) 453-2222 Fax: (613) 788-3433 Fax: (506) 453-3275 Email: he~.brown@,gowlings.com Email: paetan.mimeault@,mb.ca Agent for the intervener, Avocat de l'intervenant, Attorney General of New Brunswick Procureur general du Nouveau-Brunswick Eugene Szach Henry S. Brown, Q.C. Department of Justice Gowling Lafleur Henderson LLP Constitutional Law Branch 2600 - 160 Elgin Street 1205 - 405 Broadway OTTAWA ON Kl P 1C3 WINNIPEG MB R3C 3L6 Tel: (613) 233-1781 Tel: (204) 945-0679 Fax: (613) 788-3433 Fax: (204) 945-0053 Email: henrv.brown@,~owlings.com Counsel for the intervener, Agent for the intervener, Attorney General of Manitoba Attorney General of Manitoba Edward A. Gores, Q.C. Henry S. Brown, Q.C. Attorney General of Nova Scotia Gowling Lafleur Henderson LLP Legal Services Division 2600 - 160 Elgin Street 5 151 Terminal Road, 4'h Floor OTTAWA ON KIP 1C3 P.O. Box 7, Central Station HALIFAX NS B3J 2L6 Tel: (613) 233-1781 Fax: (613) 788-3433 Tel: (902) 424-4024 Email: henrv.brown@.~owlings.com Fax: (902) 424-1730 Agent for the intervener, Counsel for the intervener, Attorney General of Nova Scotia Attorney General of Nova Scotia Janet E. Minor Robert E. Houston, Q.C. Jennifer A. August Burke-Robertson S. Zachary Greet 70 Gloucester Street Minister of the Attorney General of Ontario OTTAWA ON K2P OA2 Constitutional Law Branch 720 Bay Street, 4thFloor Tel: (613) 566-2058 TORONTO ON M5G 2K1 Fax: (613) 235-4430 Email: rhouston~burkerobertson.com Tel: (416) 326-4137 Fax: (416) 326-4015 Agent for the intervener, Email: Janet.Minor@,ontario.ca Attorney General of Ontario Counsel for the intervener, Attorney General of Ontario George Copley, Q.C. Robert E. Houston, Q.C. Ministry of the Attorney General Burke-Robertson Legal Services Branch 70 Gloucester Street 4th& 6thFloor, 1001 Douglas Street OTTAWA ON K2P OA2 P.O. Box 9280, Stn. Prov. Govt. VICTORIA BC V8W 957 Tel: (613) 566-2058 Fax: (613) 235-4430 Tel: (250) 356-8875 Email: rhouston@,burkerobertson.com Fax: (250) 356-9154 Email: peorge.covley@,~ov.bc.ca Agent for the intervener, Attorney General of British Columbia Counsel for the intervener, Attorney General of British Columbia Andrew K. Lokan Martin W. Mason Paliare, Roland, Rosenberg, Rothstein, LLP Gowling Lafleur Henderson LLP 501-250 University Avenue 2600 - 160 Elgin St. TORONTO ON M5H 3E5 OTTAWA ON KIP 1C3 Tel: (41 6) 646-4300 Tel: (613) 786-0159 Fax: (416) 646-4301 Fax: (613) 788-3451 Email: andrew.lokan@,paliareroland.com Email: martin.mason@,gowlings.com Counsel for the intervener, Agent for the intervener, Canadian Foundation for Advancement of Canadian Foundation for Advancement Investor Rights of Investor Rights Luis Sarabia Martin W. Mason Davies Ward Phillips & Vineberg LLP Gowling Lafleur Henderson LLP 1 First Canadian Place 2600 - 160 Elgin St. 44thFloor OTTAWA ON KIP 1C3 TORONTO ON M5X 1B1 Tel: (61 3) 786-0159 Tel: (416) 367-6961 Fax: (613) 788-3451 Fax: (416) 863-0871 Email: martin.mason@~owlings.com Email: lsarabia@,dw~v.com Agent for the intervener, Counsel for the intervener, Canadian Coalition for Good Governance Canadian Coalition for Good Governance Mahmud Jamal Patricia J. Wilson Osler, Hoskin & Harcourt LLP Osler, Hoskin & Harcourt LLP Box 50, 1 First Canadian Place 340 Albert Street, Suite 1900 TORONTO ON M5X 188 OTTAWA ON KlR 7Y6 Tel: (416) 862-6764 Tel: (613) 787-1009 Fax: (416) 862-6666 Fax: (613) 235-2867 Email: [email protected] Email: pwilson@,osler.com Counsel for the intervener, Agent for the intervener, Canadian Bankers Association Canadian Bankers Association Raymond Doray Pierre Landry Lavery, de Billy Noel & Associes 4000 - 1 Place Ville-Marie I 11, rue Champlain MONTREAL QC H3B 4M4 GATINEAU QC J8X 3R1 Tel: (514)871-1522 Tel: (819) 771-7393 Fax: (514) 871-8977 Fax: (819) 771-5397 Email: rdorav@,laverv.ca Email: p.landn/(Si,noelassocies.com Counsel for the intervener, Agent for the intervener, Barreau du Barreau du Quebec Quebec Kelly M. McKinnon Martin W. Mason Gowling Lafleur Henderson LLP Gowling Lafleur Henderson LLP Suite 1600 2600 - 160 Elgin Street 1 First Canadian Place OTTAWA ON KIP 1C3 TORONTO ON M5X 1G5 Tel: (613) 786-0159 Tel: (416) 862-4432 Fax: (613) 788-3451 Fax: (416) 862-7661 Email: martin.mason@,gowlin~s.com Email: Kellev.mckinnon@aowlin~s.com Agent for the intervener, Counsel for the intervener, Ontario Ontario Teachers' Pension Plan Board Teachers' Pension Plan Board Guy Paquette Paquette Gadler Inc. 300 Place d'Youville, bureau B-10 MONTREAL QC H2Y 2B6 Tel: (514) 849-0771 Fax: (514) 849-4817 Email: [email protected] Counsel for the intervener, Mouvement d'~ducationet de Dkfense des Actionnaires John B. Laskin Martin W. Mason Torys LLP Gowling Lafleur Henderson LLP 3000 Maritime Life Tower, TD Centre 2600 - 160 Elgin Street 79 Wellington Street West OTTAWA ON Kl P 1C3 TORONTO ON M5K 1N2 Tel: (613) 786-0159 Tel: (416) 865-7317 Fax: (613) 788-3451 Fax: (416) 865-7380 Email: martin.mason@,gowlings.com Email: [email protected] Agent for the intervener, Counsel for the intervener, Investment Industry Association of Canada Investment Industry Association of Canada Skbastien Grarnmond Thomas A. Houston Fraser Milner Casgrain s.r.1. Fraser Milner Casgrain LLP 1, Place Ville-Marie 99 Bank Street Bureau 3900 Suite 1420 Montreal, Quebec H3B 4M7 Ottawa, Ontario KIP 1H4 Tel: (514) 878-8893 Tel: (613) 783-9600 Fax: (5 14) 866-2241 Fax: (613) 783-9690 Email: [email protected] Agent for the intervener, Counsel for the intervener, Institut sur la Gouvernance d'organisations Institut sur la Gouvemance d'organisations privkes et publiques privkes et publiques TABLE OF CONTENTS I. OVERVIEW AND FACTS A. Overview B. Facts 11. POINT IN ISSUE 111. ARGUMENT A. Federalism and the Requirement of Balance B. Introduction to The Pith and Substance Inquiry C. How the Trade and Commerce Power Should Be Applied in this Reference D. Identifying the Pith and Substance of the Proposed Act E. Application of the General Motors Criteria to the Proposed Act E.l The First Two Criteria - Regulatory Scheme and Oversight E.2 The Third Criterion - Trade as A Whole Instead of a Single Industry E.3 The Fourth Criterion - Provincial Incapacity E.4 The Fifth Criterion - The Need for All Provinces to Participate F. A Single Nation Securities Regulator - An Achievement of 21* Century Co-operative Federalism IV. COSTS V. NATURE OF ORDER SOUGHT VI. LIST OF AUTHORITIES PART I OVERVIEW AND FACTS A. Overview 1. By any measure, Canada's economy weathered the recent global financial crisis better than most, if not all, of the industrialized nations in the Western World. Through the collaborative efforts of both the federal and provincial levels of government, Canada managed to stimulate the economy, protect jobs and counter the effects of the worst recession since the Second World War. The nation's financial system suffered only modest repercussions in large measure because of close regulation of its banking system and other areas of the financial sector. Capital markets including the trading in securities were subject to strict regulatory monitoring including a co-ordinate system of securities regulation achieved through the co-operation of the thirteen provincial and territorial securities commissions.
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