Reasons for Decision: In the Matter of Hamilton Airlines (2000) Inc.

IN THE MATTER OF

THE SECURITIES ACT

R.S.O. 1990, c. S. 5, AS AMENDED

AND

IN THE MATTER OF

HAMILTON AIRLINES (2000) INC.

Hearing: May 3, 2001

Panel: Paul M. Moore, Q.C. - Vice-Chair
Robert W. Davis, FCA - Commissioner
R. Stephen Paddon, Q.C. - Commissioner

Counsel: Tim Moseley - For the Staff of the Ontario Securities Commission

John Castle - For the Respondent

REASONS FOR DECISION

Hearing and Review

This is a hearing and review by the Ontario Securities Commission under subsection 8(2) of the Securities Act (the "Act") of a decision (the "Decision") of the Director dated November 1, 2000 that a revised preliminary prospectus of Hamilton Airlines (2000) Inc. (the "Applicant") does not substantially comply with the requirements of Ontario securities law as to form and content.

Background

This hearing and review was initiated by a request for a hearing and review of the Decision made in an application (the "Application") filed with the Secretary of the Commission on April 19, 2001.

Jurisdiction

Counsel for Staff of the Commission raised the question of the jurisdiction of this tribunal to hold this hearing and review.

Subsection 8(2) of the Act provides that a person is entitled to a hearing and review by the Commission of a decision of the Director where notice in writing requesting a hearing and review is sent to the Commission within 30 days after the mailing of the notice of a decision. Counsel for Staff of the Commission submitted that the Commission has no jurisdiction to hear the Application because the Application was made more than 30 days after the mailing of the notice of the Decision.

Counsel for Staff of the Commission submitted that the Commission has no flexibility to accept jurisdiction in this case. He referred to Rule 1.5(3) of the Commission's Rules of Practice. That reads as follows:

"The Commission may, before or after expiration of a prescribed time period and on such conditions, if any, as it considers advisable, extend or abridge any time prescribed under these Rules."

Counsel for Staff of the Commission pointed out that the flexibility provided by this Rule was only applicable with respect to time periods prescribed by the Rules. It did not apply to time periods prescribed by the Act.

Counsel for the Staff of the Commission also referred us to subsection 4(1) of the Statutory Powers Procedures Act. That subsection reads as follows:

"Any procedural requirement of this Act, or of another Act or a regulation that applies to a proceeding, may be waived with the consent of the parties and the tribunal."

Counsel for Staff of the Commission submitted that this subsection was only available if the Applicant, Commission Staff and the tribunal consented. He stated that Staff of the Commission were not prepared to consent. Therefore, the Commission has no jurisdiction.

Mr. Castles, in reply, submitted that subsection 8(1) of the Act was relevant. That subsection only applies where the Commission forms an intention on its own to hold a hearing and review. That is not the situation in the case before us. Mr. Castle was not able to refer us to any authority suggesting that the Commission has jurisdiction to hear this matter.

Decision

For the reasons submitted by Counsel for Staff of the Commission, the Commission determined that it lacked jurisdiction to conduct a hearing and review of the Decision.

May 18, 2001.

Paul Moore, R. Stephen Paddon, Robert W. Davis