Philip Anisman, a prominent Toronto securities lawyer who advised the government panel that recommended a national regulator in 2008, said the ruling does not mean the door is closed for good.
Mr. Anisman, who first took on the issue as a summer student working for the government in 1966 and later actually produced draft legislation for Ottawa in 1979, said the Supreme Court’s ruling actually does uphold federal jurisdiction in certain areas, for example, the regulation of “systemic risk.”
And it leaves open the idea that the provinces and Ottawa could co-operatively come up with a new national regulatory regime on their own, he said. Under such a scheme, the provinces would maintain their jurisdiction of securities regulation, but could delegate it to a newly created body.
“The court isn’t saying that the federal government has no jurisdiction,” Mr. Anisman said. “So it doesn’t put an end to it.”
The dean of Toronto’s Osgoode Hall Law School, Lorne Sossin, said the ruling presented a narrow, backward-looking view of federalism and sent a message that the court does not take capital markets seriously.
“I think the Constitution, for the last 80 years or so, we’ve been saying is a living tree. This looks more like a view of the Constitution that’s likely to wither on the vine,” Mr. Sossin said.
He said the court clearly thought it needed to send a message to Ottawa that it should seek to engage in “co-operative federalism” with the provinces, and negotiate a new regulator rather than impose one.
With files from Rhéal Séguin in Quebec City, Carrie Tait in Calgary and Jeff Gray and Karen Howlett in Toronto