Behroyan v. Financial Services Tribunal
 In para. 24 of the Remedy Procedure Decision Mr. Tourigny expressly noted
that he was dealing with “the rather unique circumstance of … a bifurcated appeal”.
The outcome of the liability phase of the appeal necessitated a reconsideration by
the Council of its earlier Penalty Decision and a somewhat “elastic” interpretation of
s. 242.2(11) of the FIA was employed to accomplish that result. This, in my opinion,
is the explanation advanced in paras. 132 and 133 of the Penalty Reconsideration
Appeal Decision under review. I find both the technique and the reasoning to be
eminently reasonable in the circumstances.
 Quite apart from this characterisation of events, however, I entirely agree with
the Superintendent that the Court should generally not entertain arguments made for
the first time on judicial review, and particularly so when the petitioner is now urging
a statutory interpretation that is the exact opposite of what he urged to the FST as
part of his submissions leading to the Remedy Procedure Decision.
 The FST Liability Appeal Decision noted at paras. 292–293 that the decision
reducing the number of professional misconduct findings raised “issues as to the
appropriate way to move … the penalty portion of the hearing … forward”.
Mr. Tourigny noted he had not received submissions on remedy applicable to the
circumstances of his findings and decided, “as a matter of procedural fairness”, to
invite submissions on “how to proceed with the penalty portion of the appeal”.
 In the Remedy Procedure Decision, Mr. Tourigny describes Mr. Behroyan’s
submissions as follows:
 [Mr. Behroyan] submits that because the Panel made its Penalty
Decision on the basis of five findings of professional misconduct, and given
two of the five findings against him have now been set aside, as a matter of
fairness the issue of the appropriate penalty should be remitted to a new
panel of Council for a new, independent finding with “full appeal rights as
afforded by statute”. [Mr. Behroyan] argues no one can know what the
principal factors were that led to the Panel’s Penalty Decision. [Mr. Behroyan]
submits that if the Tribunal were to proceed to decide the appeals from the
Penalty Decision now, this would impair his statutory rights of appeal.
 Mr. Tourigny accepted Mr. Behroyan’s submissions, along with those of the
Superintendent, and directed the penalty reconsideration by the Council “as a matter