COURT OF APPEAL FOR BRITISH COLUMBIA  
Citation:  
Lower v. Investment Industry Regulatory  
Organization of Canada,  
2022 BCCA 285  
Date: 20220824  
Docket: CA46649  
Between:  
Scott Lower  
Appellant  
(Plaintiff)  
And  
Investment Industry Regulatory Organization of Canada  
Respondent  
(Defendant)  
Before:  
The Honourable Mr. Justice Fitch  
The Honourable Madam Justice Fisher  
The Honourable Mr. Justice Marchand  
On appeal from: An order of the Supreme Court of British Columbia, dated  
December 19, 2019 (Lower v. Investment Industry Regulatory Organization of  
Canada, 2019 BCSC 2188, New Westminster Docket S197872).  
The Appellant, appearing in person:  
Counsel for the Respondent:  
S. Lower  
S.T.C. Warnett  
S.D. Liesch  
Place and Date of Hearing:  
Place and Date of Judgment:  
Vancouver, British Columbia  
March 2, 2022  
Vancouver, British Columbia  
August 24, 2022  
Written Reasons by:  
The Honourable Mr. Justice Fitch  
Concurred in by:  
The Honourable Madam Justice Fisher  
The Honourable Mr. Justice Marchand  
Lower v. Investment Industry Regulatory Organization of Canada  
Summary:  
Page 2  
The respondent Investment Industry Regulatory Organization of Canada (“IIROC”)  
took disciplinary action against the appellant following his failure to cooperate with  
an investigation into alleged securities-related offences. The appellant did not  
pursue the statutory review procedure available to him at the time. Instead, nearly  
ten years later, he brought a civil claim seeking declaratory relief, alleging that IIROC  
failed to afford him procedural fairness in investigating and taking disciplinary action  
against him. IIROC sought dismissal of the action, which the judge granted on the  
grounds that the action was time-barred by statute, barred by the doctrine of laches,  
and an abuse of process. The appellant submits that the judge committed a number  
of factual and legal errors in dismissing his action on these grounds.  
Held: Appeal dismissed. This appeal can be resolved on consideration of the abuse  
of process issue alone. The determination that an action is an abuse of process is  
generally a discretionary one entitled to deference. The appellant has not  
demonstrated a palpable and overriding error in the judge’s conclusion that he had  
sufficient knowledge in 2009 to advance a procedural fairness claim. She further did  
not err in considering the appellant’s failure to pursue a statutory remedy, his delay  
in bringing the action, the public interest in finality, or the interests of the IIROC as  
factors in concluding that the claim was an abuse of process.  
Reasons for Judgment of the Honourable Mr. Justice Fitch:  
I. Introduction  
[1]  
The self-represented appellant, Scott Lower, appeals from an order made  
following a summary trial dismissing his claim that the Investment Industry  
Regulatory Organization of Canada (“IIROC”) failed to afford him procedural fairness  
when it investigated and took disciplinary action against him in 2008 and 2009.  
IIROC commenced disciplinary proceedings when the appellant refused to comply  
with his obligation to attend an interview during a securities-related investigation into  
his activities.  
[2]  
The claim was not dismissed on its merits but on grounds that the action was  
time barred by statute, barred by the equitable doctrine of laches, and an abuse of  
process.  
[3]  
I would dismiss the appeal. In my view, the trial judge made no error in  
dismissing the claim on abuse of process grounds. Given my conclusion on this  
point, it is unnecessary for this Court to consider whether the trial judge erred in  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 3  
dismissing the claim as being time barred by statute or subject to the equitable  
defence of laches. These two issues raise novel questions of law that need not be  
resolved to dispose of this appeal. In my view, they are best left to be addressed in  
the context of an appeal where both parties are represented.  
II. Overview  
[4]  
In May 2008, the British Columbia Securities Commission (“Commission”)  
recognized IIROC as a self-regulatory organization pursuant to s. 24 of the  
Securities Act, R.S.B.C. 1996, c. 418 (“Act”): Recognition Order, 2008  
BCSECCOM 275.  
[5]  
IIROC’s purpose is to regulate the operations, standards of practice and  
business conduct of its members and their representatives in the security industry,  
with a view to promoting the protection of investors and the public interest in the  
integrity of capital markets. By virtue of s. 26, IIROC is obliged to regulate the  
conduct of its members in accordance with its bylaws, rules, and regulations.  
However, IIROC does not derive authority to regulate its members’ activities in the  
securities market from the Act. Instead, IIROC’s authority stems from each  
member’s contractual obligation to comply with IIROC’s bylaws, regulations, and  
rules: Investment Dealers Association of Canada v. Dass, 2008 BCCA 413 at  
para. 5.  
[6]  
IIROC inherited the investigative and enforcement jurisdiction previously  
exercised by the Investment Dealers Association of Canada (“IDA”). The  
Recognition Order set out criteria that IIROC must meet, which include a  
requirement that IIROC establish a fair and transparent process for discipline.  
[7]  
IIROC’s Investigations and Enforcement Department (“IED”) conducts  
investigations and prosecutions. Its mandate is to conduct objective, efficient and  
effective investigations into allegations of regulatory violations. It follows the policies  
and procedures set out in the Investigations Procedures Manual (“IPM”), which is  
intended to provide guidance to investigators, recognizing that most actions by  
investigators involve the exercise of a high degree of individual analysis, judgment,  
Lower v. Investment Industry Regulatory Organization of Canada  
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and discretion. Only a few of the procedural guidelines set out in the IPM are  
identified as being mandatory.  
[8]  
The appellant highlights the following provisions of the IPM: where an  
investigation is commenced, opening letters, including a description of the matters to  
be investigated, are to be sent to the subject of the investigation, the Commission,  
and others; investigative documents are uploaded to a Central Tracking System  
(“CTS”) which records “tombstone” information; under normal circumstances, within  
five business days of an investigation being approved by management, each party  
involved will be sent a letter advising that an investigation has been opened; and,  
one of the objectives of the IED is to keep subjects informed of significant events in  
the progress of the investigation.  
[9]  
The appellant worked as a registered representative in the securities industry  
with Global Securities Corporation (“Global”), a brokerage firm with an office in  
Vancouver. At all relevant times, the appellant was an “approved person” subject to  
regulatory supervision by IDA or its successor, IIROC.  
[10] In 2008, IIROC began an investigation into the appellant’s alleged  
involvement in matched trades (a form of market manipulation) and the payment of  
secret commissions. The conduct underlying the investigation was alleged to have  
occurred in 2007 and 2008.  
[11] IIROC accepts that it owed a duty of procedural fairness to the appellant at  
the investigative and disciplinary stages. It notes that at the investigative stage the  
duty is attenuated and, in this context, did not require disclosure of the fruits of the  
investigation to the appellant. Rather, IIROC was obliged only to advise the  
appellant of the matters under investigation.  
[12] Pursuant to the former IIROC Dealer Member Rule 19.5, which was in force  
at the relevant time and which formed part of the parties’ contract, “[a]ny person  
subject to an investigation…shall be advised in writing of the matters under  
investigation…”. In addition, Rule 19.5 authorized IIROC to require an approved  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 5  
person like the appellant to attend before investigators to give information respecting  
the matters under investigation. Where IIROC exercises this power, the person  
subject to IIROC’s regulatory authority is obliged to attend the interview (the  
“Compelled Interview”).  
[13] The appellant refused to attend the Compelled Interview. As a result, IIROC  
commenced disciplinary proceedings. On May 21, 2009, IIROC issued a Notice of  
Hearing alleging that the appellant breached Rules 19.5 (by failing to attend the  
Compelled Interview) and 29.1 (by committing conduct unbecoming an approved  
member). The Notice of Hearing also indicated to the appellant that if he failed to  
attend the hearing, the Hearing Panel could proceed with the hearing, accept as  
proven the facts and contraventions alleged in the Notice of Hearing, and impose  
penalties against him including a fine and a permanent ban on registration in any  
capacity with IIROC.  
[14] Upon delivery of the Notice of Hearing, IIROC was required by its  
Enforcement Disclosure Policy to observe the requirements of R. v. Stinchcombe,  
[1991] 3 S.C.R. 326 and, upon request, disclose to the appellant all relevant  
information in its possession. While I do not wish to descend into a discussion of the  
merits of the claim, I would note that, for disclosure purposes, relevance takes its  
meaning from context. The focus of the disciplinary hearing was not on the merits of  
the matters for which the appellant was being investigated, but on his failure to  
attend the Compelled Interview.  
[15] Rule 10 of IIROC’s Rules of Practice and Procedure was also applicable upon  
issuance of the Notice of Hearing. It required IIROC to provide the appellant with a  
copy of all documents it would rely on at the hearing no later than 14 days prior to  
the hearing date. IIROC provided the appellant with some—the appellant says  
incomplete and inadequate—disclosure in advance of the hearing.  
[16] The disciplinary hearing was set for August 11, 2009. The appellant did not  
file a Response to the Notice of Hearing, nor did he attend the disciplinary hearing in  
person or by counsel despite being duly served with the notice.  
Lower v. Investment Industry Regulatory Organization of Canada  
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[17] In reasons for decision dated August 12, 2009 (“Disciplinary Decision”) the  
Hearing Panel concluded that the appellant deliberately refused to comply with  
Rule 19.5 and, in so doing, obstructed and compromised IIROC’s ability to conduct  
the investigation and perform its regulatory function. The Hearing Panel made no  
finding in relation to the alleged contravention of Rule 29.1.  
[18] In sanctioning the appellant, the Hearing Panel noted that a member’s  
obligation to cooperate in an investigation is fundamental to maintaining the integrity  
of the securities system and protecting the public interest. The appellant was  
permanently banned from being registered with IIROC, fined $50,000 and ordered to  
pay costs.  
[19] The Disciplinary Decision was provided to the appellant on September 1,  
2009. The appellant has not paid the penalties imposed on him by the Hearing  
Panel.  
[20] It was open to the appellant to apply to the Commission within 30 days to  
review the Disciplinary Decision: Rule 33.1; s. 28 and ss. 165(3) of the Act. The  
appellant did not apply to the Commission to challenge the findings made or  
sanctions imposed by the Hearing Panel.  
[21] Sometime in 2014, approximately five years after the Disciplinary Decision,  
the appellant was offered a directorship with a public company. However, because  
of the Disciplinary Decision, the appellant was refused regulatory approval to act as  
a director or officer of an exchange listed company and was required to resign.  
[22] On August 12, 2015, approximately six years after the Disciplinary Decision,  
the appellant applied to the Commission for a review of the decision.  
[23] For reasons given December 3, 2015 (indexed as 2015 BCSECCOM 433),  
the Commission declined to hold a hearing to review IIROC’s decision, finding there  
was no statutory provision in place at the time that authorized the Commission to  
extend the time limit for the initiation of a review. On January 5, 2016, IIROC  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 7  
published a news release on its website with links to the Disciplinary Decision and  
the ruling of the Commission.  
[24] The appellant was entitled to seek leave to appeal the decision of the  
Commission to this Court: s. 167 of the Act. He did not do so.  
[25] On January 5, 2018, approximately two years after the dismissal of his  
application to the Commission for a review of the Disciplinary Decision, the appellant  
commenced a civil action in the Supreme Court alleging that IIROC breached its  
contract with him by acting in a procedurally unfair manner and in bad faith when it  
investigated him in 2008 and disciplined him in 2009.  
[26] Distilling the claim to its essence, the appellant pleads that IIROC failed in its  
duty to provide him: at the investigative stage, with information respecting the  
matters under investigation; and, once disciplinary proceedings were commenced,  
with adequate disclosure prior to the hearing before the Hearing Panel. He claims to  
seek only declaratory relief, including that the decision made by the Hearing Panel is  
ultra vires and invalid, and that IIROC acted in a manner that denied him procedural  
fairness in its conduct of the investigation and disciplinary proceedings.  
[27] If he is successful in the claim, the appellant plans on using the declarations  
to resurrect his career by persuading the stock exchange to grant him regulatory  
approval to serve as an officer or director of a publicly traded company.  
[28] By notice of application brought pursuant to R. 9-7 of the Supreme Court Civil  
Rules, B.C. Reg. 168/2009 (Summary Trial) IIROC sought to have the appellant’s  
action dismissed on three alternative grounds: first, that the claim was time barred  
by statute; second, that the claim was barred by the doctrine of laches; and third,  
that the claim was an abuse of process or an impermissible collateral attack on the  
Discipline Decision.  
[29] In reasons for judgment indexed as 2019 BCSC 2188, the summary trial  
judge dismissed the appellant’s claim, accepting IIROC’s position on all three  
grounds.  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 8  
[30] The appellant alleges multiple errors in relation to the judge’s factual findings  
and legal analysis on each of the grounds upon which the claim was dismissed. To  
succeed on appeal, he must persuade this Court that the trial judge committed  
reversible errors on all three grounds.  
[31] As previously noted, the appellant alleges that IIROC breached its disclosure  
obligation once disciplinary proceedings were commenced by not disclosing to him  
relevant information in advance of the hearing. He pleads that the existence of  
relevant, undisclosed information only became known to him through discovery after  
he filed his civil claim. He seeks an order allowing the appeal, setting aside the order  
dismissing his claim, and granting the declarations he seeks. In the alternative, he  
seeks a new trial.  
III. Background Facts  
[32] Beginning in 2006 and continuing into 2008, the appellant was targeted with  
an undercover investigation into alleged securities-related offences. On several  
occasions, the police intercepted and recorded the appellant’s private  
communications, including communications believed to involve his co-venturers.  
[33] The relevant background facts, including those pertaining to the appellant’s  
non-disclosure claims, were thoroughly canvassed by the trial judge and are not in  
issue. I set them out below:  
15.  
On July 9, 2008, the Integrated Market Enforcement Team (“IMET”) of  
the RCMP delivered a letter (“Information Letter”) to IIROC advising that it  
was conducting an investigation into activities of certain persons, one of  
whom was Mr. Lower. The letter provides particulars of three alleged  
matched trades of specific shares below market value on three specific dates,  
and of alleged secret commissions made in September and October 2007.  
The letter states the information could not be shared or acted upon without  
prior written consent in order to protect the ongoing investigation and the  
safety of witnesses.  
16.  
In response to the Information Letter, IIROC opened a file (“July File”).  
IIROC has a computer program called the Central Tracking System (“CTS”)  
where all investigations are entered for monitoring. The July File was entered  
into the CTS.  
17.  
Subsequently, in July 2008 Mr. Ferguson, one of the IIROC  
investigators, wrote to IMET requesting a copy of audio/video tapes or  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 9  
transcripts. He noted that IIROC had opened an investigation file but no  
action would be taken until IMET's approval was obtained. In response, IMET  
forwarded electronic copies of six transcripts of police recorded conversations  
involving an undercover agent. Two of these transcripts (“Transcripts”)  
involved Mr. Lower. The police again stated the information could not be  
shared without prior written consent.  
18.  
In late July 2008, Mr. Ferguson sent an e-mail to enforcement staff  
indicating that “opening letters” were ready to be sent. The opening letters  
refer to the advice in writing that is required by Rule 19.5 when an  
investigation is commenced. An opening letter was not sent to Mr. Lower.  
19.  
IIROC investigators took other steps on the July File; they had further  
discussions with IMET and contact with the Commission.  
20. In August 2008, the Toronto office of IIROC made a compliance  
inquiry to Mr. Zwarich, another IIROC investigator, regarding the July File. He  
advised that “by agreement with RCMP, no further work will be undertaken by  
IIROC until such time as RCMP gives approval to proceed”. Subsequently, at  
the direction of Mr. Funt, one of IIROC's vice presidents, Mr. Ferguson closed  
the July File and moved it to a watch brief (“Watch Brief”). A watch brief is a  
file that is being held in abeyance. In late August 2008, IIROC deleted the  
July File from its CTS. The note on closing indicated that further investigation  
was contingent on completion of the investigations by IMET and another  
agency.  
21.  
On September 9, 2008, Mr. Funt wrote an email to Mr. Bourque, a  
senior vice president with IIROC, in which he referred to IMET's investigation  
which he expected to soon become public. He stated “I think we do have  
enough to keep him [Mr. Lower] out of the industry or at least under strict  
supervision”, and later stated “[a]ll of this is very preliminary and needs to be  
properly verified and considered”.  
22.  
On September 11, 2008, the RCMP arrested Mr. Lower at Global  
Securities. He was taken to the police station, questioned and shortly  
thereafter released without being charged. While at the police station,  
Mr. Lower was able to speak to counsel who cautioned him not to answer  
questions on the basis of his right to remain silent.  
23.  
Global Securities suspended Mr. Lower's employment the same day.  
Global Securities informed the Toronto office of IIROC that Mr. Lower had  
been arrested. In response, the Toronto IIROC office notified Mr. Zwarich that  
an investigation file had to be opened. Shortly thereafter, IIROC closed the  
Watch Brief and opened another file (“September File”).  
24.  
IIROC investigators took other steps on the Watch Brief; they spoke  
with Mr. Lower's supervisor at Global Securities and with the RCMP after  
Mr. Lower was arrested.  
25.  
On September 18, 2008, IIROC received from IMET a copy of a 28-  
page Information to Obtain a Production Order (“ITO”). The ITO sets out  
detailed information regarding alleged trades, conversations, and secret  
commissions. IMET advised the information should not be disseminated  
without prior written consent. In the ITO, the detective stated she had  
reasonable grounds for suspecting that Mr. Lower had committed offences  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 10  
against s. 426 and s. 465 of the Criminal Code, R.S.C. 1985, c. C-46, by  
conspiring to give four secret commissions and giving three secret  
commissions to an agent. I note here that Mr. Lower has never been charged  
with these alleged offences and Mr. Lower denies any wrongdoing.  
26.  
On September 18, 2008, Mr. Ferguson became aware that Mr. Lower  
had been suspended and wished to return to work. Mr. Ferguson also knew  
Mr. Lower had maintained his right to remain silent upon his arrest. Mr. Lower  
states he received a phone call from Mr. Zwarich indicating he wished to  
speak with him to carry out an assessment of his “character” to determine  
whether IIROC was comfortable with him returning to work. He agreed to a  
meeting the following day. When he arrived the next day, he learned the  
interview was to be video and audio recorded.  
27.  
On September 18, 2008, IIROC sent a letter by registered mail to  
Mr. Lower notifying him of the investigation (“September 18 Letter”). The  
September 18 Letter contains the following notice:  
The Enforcement Department of the Investment Industry Regulatory  
Organization of Canada has begun an investigation into your conduct  
while you were employed at Global Securities Corporation. This  
investigation will include, but not necessarily be limited to, all matters  
associated with your arrest on September 11, 2008.  
28.  
The materials do not disclose when the registered letter was received  
by Mr. Lower by mail, but Mr. Lower states, and I accept, that a copy was  
given to him "minutes" prior to the commencement of the interview.  
29.  
On September 19, 2008, Mr. Lower attended the interview (“Voluntary  
Interview”) with Mr. Zwarich and Mr. Ferguson. During the Voluntary  
Interview, Mr. Lower declined to answer some questions.  
30.  
At the conclusion of the Voluntary Interview, one of the investigators  
gave Mr. Lower a letter dated September 19, 2008, (“September 19 Letter”)  
requiring him to attend a compelled interview pursuant to IIROC Rule 19.5  
(“Compelled Interview”) the next business day. The Compelled Interview was  
subsequently adjourned at the request of Mr. Lower's counsel. The  
September 19 Letter contains the following notice:  
As you are aware, the Enforcement Department of the Investment  
Industry Regulatory Organization of Canada (IIROC) has opened an  
investigation into your conduct while you were employed by Global  
Securities Corporation.  
31.  
On September 23, 2018, Global reinstated Mr. Lower and he returned  
to work.  
32.  
On September 24, 2008, Mr. Lower's counsel wrote to IIROC and  
requested, pursuant to IIROC Rule 19.5, “a written statement of the matters  
under investigation”. There is no evidence of a response to this letter until  
after October 22, 2008.  
33.  
On October 21, 2008, an RCMP officer wrote to Mr. Zwarich  
confirming the RCMP's consent to Mr. Lower reading the Transcripts, and  
advising IIROC could share other information if it notified the police in  
advance so the police could seek a publication ban if necessary.  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 11  
34.  
On October 22, 2008, Mr. Funt wrote an email to IIROC's enforcement  
department after the Vancouver Sun ran a story on the RCMP investigation  
and naming Mr. Lower and others. He noted it was up to the courts to decide  
whether this was criminal activity, but also stated, “We do believe that the  
transcripts justify a conduct unbecoming charge on their own. It will be  
difficult for Lower to explain his action”. He also states, “We are asking Global  
what they plan on doing next now that more information is available to them”.  
On the same day in an email exchange between Mr. Bourque, Mr. Funt, and  
the IIROC investigators, Mr. Bourque referred to IIROC's “objective” of  
“getting [Mr. Lower] out of the industry”.  
35.  
On October 23, 2008, IIROC received from the RCMP two transcripts  
from interviews of two witnesses (“Witness Statements”) who were principles  
of the company whose shares were alleged to have been traded.  
36.  
The Compelled Interview was eventually set for November 12, 2008.  
37.  
On October 27, 2008 and November 4, 2008, IIROC provided  
Mr. Lower with further letters which repeated the information in the  
September 18 Letter and the September 19 Letter, and added the following  
notice:  
For your information, some of our questions may relate to matters  
raised during your interview on September 19, 2008 and others may  
relate to matters raised during police recorded conversations that you  
participated in on August 13, 2007 and January 17, 2008. Staff have  
arranged for you to attend at our office to read transcripts of your  
earlier interview and each of these recorded conversations.  
38.  
On October 28, 2008, Mr. Lower resigned from Global Securities and  
from being an approved person with IIROC.  
39. On November 5, 2008, Mr. Lower and his counsel attended IIROC's  
offices to review the Transcripts [of the intercepts involving the appellant] and  
the transcript of the Voluntary Interview. They were not permitted to make  
any notes or take copies. The transcripts are 85, 75 and 44 pages in length.  
Mr. Lower and his counsel were given two days to review the transcripts; they  
attended for 2.5 hours.  
40.  
On November 7, 2008, Mr. Lower's counsel wrote to IIROC and  
advised that Mr. Lower would not be attending the Compelled Interview.  
Counsel's letter states:  
The recent conflicting decisions of the Ontario Superior Court of  
Justice in Taub v. Investment Dealers' Assn. of Canada, [2008] O.J.  
No. 2778, and the Court of Appeal of British Columbia in Dass v.  
Investment Dealers' Assn. of Canada, [2008] B.C.J. No. 1987, have  
put the law with respect to the jurisdiction of IIROC to prosecute  
former members in doubt. It is our understanding that both cases are  
under appeal. As such, we are not in position to properly instruct our  
client regarding his attendance at an interview with IIROC until after  
the law in this area is clarified.  
In addition, we have certain concerns regarding the inadmissibility at a  
subsequent nonregulatory proceeding of any statement that would be  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 12  
provided by Mr. Lower to IIROC. What is of further concern is the  
apparent exchange of information, including wiretap transcripts,  
between IMET and the FBI on the one hand and IIROC.  
Given the concerns raised in this letter, we ask that you do not take  
Mr. Lower's non-attendance at an interview at this time as a sign that  
he is being uncooperative with your investigation; especially as he  
attended a non-compelled interview with you and Tim Ferguson on  
September 19, 2008.  
41.  
The B.C. Court of Appeal decision in Dass had actually just been  
given, and is not supportive of Mr. Lower's position that IIROC did not have  
jurisdiction.  
…
43.  
Mr. Lower did not attend the Compelled Interview on November 12,  
2008.  
44.  
As a result of Mr. Lower not attending the Compelled Interview, IIROC  
commenced discipline proceedings. On April 23, 2009, IIROC provided  
Mr. Lower with a draft Notice of Hearing. On May 21, 2009, IIROC formally  
commenced discipline proceedings. The hearing ("Discipline Hearing") was  
set for August 11, 2009.  
45.  
The Notice of Hearing alleges that Mr. Lower failed to attend the  
Compelled Interview contrary to Rule 19.5 and Rule 29.1. The latter Rule  
requires that IIROC members observe high standards of ethics and conduct  
in the transaction of their business, and not engage in business conduct that  
is unbecoming or detrimental to the public interest. The Notice of Hearing  
also advises Mr. Lower of his right to attend the Discipline Hearing, to be  
represented by counsel, and to make submissions. It outlines the potential  
consequences of failing to attend.  
46.  
In a letter dated May 22, 2009, IIROC asked Mr. Lower's counsel  
whether he “would like to receive disclosure of all relevant information that is  
in our possession”. On May 27, 2009, Mr. Lower's counsel wrote to counsel  
for IIROC requesting “disclosure of all information that is in your possession  
pertaining to this matter”.  
47.  
On May 29, 2009, counsel for IIROC produced a “Disclosure Index”,  
which lists 14 documents, along with a copy of those documents. Seven of  
these documents are correspondence between IIROC and Mr. Lower or his  
counsel with respect to the Compelled Interview. The ITO was disclosed, but  
none of the other information IIROC obtained in its investigation of Mr. Lower.  
IIROC produced an “investigator's log”, but this had redacted portions. The  
portions which were not redacted concern interactions between IIROC and  
Mr. Lower or his counsel. Subsequent production in this litigation has shown  
the portions which were redacted concern notes regarding IIROC's  
notification from IMET starting in July 2008, the July File, the Watch Brief,  
and some of the steps IIROC took in its investigation, including receipt of the  
Global Records, up to the time of the Discipline Hearing.  
48.  
On June 2, 2009, Mr. Lower's counsel notified IIROC that he was no  
longer retained to act for Mr. Lower. Mr. Lower states “albeit only a few  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 13  
weeks prior the Discipline Hearing” he contacted his lawyer about defending  
him at the Discipline Hearing. On July 31, 2009, his lawyer informed him that  
at this late stage he would not be able to attend. On August 4, 2009, counsel  
confirmed to IIROC that he was not retained and that Mr. Lower had  
instructed him to advise IIROC that it was Mr. Lower's present intention not to  
attend the Discipline Hearing.  
49.  
On August 5, 2009, six days prior to the Discipline Hearing, IIROC  
counsel provided Mr. Lower with a copy of an affidavit of Mr. Zwarich which  
would be filed at the Discipline Hearing. Mr. Zwarich's affidavit swears to the  
particulars in the Notice of Hearing and attaches the ITO and correspondence  
between the parties.  
[34] At no point did the appellant or his counsel advise IIROC that he would refuse  
to attend the Compelled Interview because of concerns about the lack of procedural  
fairness at the investigative stage. Further, at no point prior to the Disciplinary  
Hearing did the appellant take issue with the adequacy of the disclosure or inquire  
why disclosure had not been made of documents shown as having been redacted  
on the investigator’s log.  
[35] Pursuant to IIROC Rule 20.7(1), IIROC lost jurisdiction over the appellant five  
years from the date of the termination of his membership. The appellant resigned as  
an approved person in October 2008. Notwithstanding the expiry of the time set out  
in Rule 20.7(1), IIROC may commence an enforcement hearing against a former  
approved person who re-applies for membership: Rule 20.7(2). Notably, the  
appellant has not re-applied to IIROC for membership approval. As noted earlier, he  
has, instead, filed the civil claim against IIROC seeking, among other things, a  
declaration that the discipline decision of the hearing panel is ultra vires and invalid  
to the end of persuading the stock exchange to allow him to serve as an officer or  
director of a publicly traded company. IIROC has no jurisdiction over the appellant  
now and will have no jurisdiction over him if he is successful in his claim unless and  
until he re-applies to IIROC for membership approval.  
[36] The appellant was never charged with any offence arising out of the  
investigations of the RCMP and IIROC.  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 14  
IV. The Appellant’s Claim  
[37] The appellant alleges that IIROC breached the contract, failed to afford him  
procedural fairness, and acted in bad faith in its investigation when it failed, among  
other things, to: notify him it had opened the July File, closed that file, deleted it from  
the CTS, and opened the Watch Brief; investigate the matter objectively instead of  
prejudging his case to the end of getting him out of the industry; advise him in writing  
of the “matters under investigation” before the Voluntary or Compelled Interview; and  
provide him with adequate disclosure before those interviews.  
[38] The appellant also alleges that IIROC breached the contract, failed to afford  
him procedural fairness, and acted in bad faith in its conduct of the disciplinary  
proceeding when it failed, among other things, to provide him with all relevant  
documents prior to the hearing, including: the referral letter IIROC received from the  
RCMP; documents relating to the opening, closing and deleting of the July File;  
Global records; witness statements; and internal IIROC emails which the appellant  
says demonstrate that the investigation was not conducted through an objective  
lens.  
[39] The appellant sought declarations that: the Disciplinary Decision is ultra vires  
and invalid; IIROC acted in a manner that denied him procedural fairness at the  
investigative and disciplinary hearing stages; IIROC improperly and without lawful  
authority issued the News Release on January 5, 2016; IIROC acted in bad faith  
towards him; and IIROC failed to act with integrity, transparency, and fairness in the  
course of its investigation and disciplinary proceedings.  
V. IIROC’s Summary Trial Application and the Appellant’s Response  
[40] By notice of summary trial application filed November 9, 2018, and except for  
the declaration concerning the news release, IIROC sought dismissal of the  
appellant’s claim on grounds that it was statute barred.  
[41] IIROC argued that, properly characterized, the appellant’s action was a claim  
for remedial relief, not a proceeding in which only declaratory relief was sought. The  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 15  
characterization of the claim was important because s. 2(1) of the Limitation Act,  
S.B.C. 2012, c. 13 (the “Current Limitation Act”) provides that its provisions do not  
apply to a court proceeding in which the only relief sought is a declaration. IIROC  
also argued that the appellant’s claim is a “pre-existing claim” within the meaning of  
s. 30(1) that was discovered before this provision of the Current Limitation Act came  
into force on June 1, 2013. As such, the former Limitation Act, R.S.B.C. 1996, c. 266  
(the “Former Limitation Act”) applied. IIROC submitted that the appellant discovered  
the claim by the date he received the Discipline Decision—September 1, 2009. As a  
result, he was required under s. 3(5) of the Former Limitation Act to commence his  
action within six years, or September 1, 2015. The claim was not filed until  
January 5, 2018, three years out of time.  
[42] The appellant argued he was seeking declarations only. In the alternative, the  
appellant argued that he did not discover the claim within the meaning of s. 8 of the  
Current Limitation Act before June 1, 2013, as he was unaware of the alleged  
disclosure breaches until well after that date. The appellant submits that, in  
accordance with s. 6(1) of the Current Limitation Act, he commenced the action  
within two years of discovering the claim.  
[43] In the alternative, IIROC argued that the appellant’s claim is barred by the  
doctrine of laches. IIROC submitted that, considering his extraordinary delay, it  
would be unjust to permit the appellant to pursue the claim now when enforcement  
jurisdiction has been lost over him.  
[44] In response, the appellant submitted, among other things, that a laches  
defence should not prevail in circumstances where IIROC denied him procedural  
fairness by failing to disclose relevant information. In short, the appellant submitted  
that much of the delay flows from IIROC’s own conduct and that they did not come  
to the summary trial with “clean hands”.  
[45] In the further alternative, IIROC submitted that the action should be dismissed  
as an abuse of process because, among other things, the appellant failed to avail  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 16  
himself in a timely way of relief available to him under the Act and waited more than  
eight years from the date of the disciplinary decision to commence his civil action.  
[46] In his detailed response, the appellant submitted, among other things, that he  
was not required to pursue remedies under the Act and that the mere provision of a  
statutory remedy is not sufficient to oust the jurisdiction of the court for an otherwise  
valid private law claim. Further, the appellant argued that he did not deliberately  
circumvent the statutory scheme. Rather, IIROC’s non-disclosure, along with other  
personal extenuating circumstances, prevented him from pursuing remedies  
available to him under the statutory regime.  
VI. Reasons for Judgment  
[47] As I propose addressing this appeal solely on the appellant’s contention that  
the trial judge erred in dismissing his claim on abuse of process grounds, I will say  
nothing about the judge’s analysis on whether the appellant’s claim is barred by  
either a statutory limitation period or the doctrine of laches. Suffice it to say that the  
judge largely agreed with IIROC’s position on both points.  
[48] In addressing IIROC’s contention that the appellant’s claim should be  
dismissed as an abuse of process, the judge made what I consider to be significant  
factual findings. Most significantly, the judge rejected the appellant’s claim that  
in 2008 and 2009 he was only “minimally aware” of the alleged procedural  
unfairness underlying his claim.  
[49] As the judge noted, the appellant deposed in his fifth affidavit that given the  
vague language of the September 18, 2008 letter concerning the nature of the  
investigation and the fact that it was only given to him minutes before the  
commencement of the Voluntary Interview, he left that interview “troubled and of the  
firm view that the IIROC investigators [had] not been transparent or fair in the  
circumstances of the interview, and in failing to adequately disclose the purpose of  
the…interview…beforehand when seeking my agreement to attend their offices…”.  
The appellant deposed that he did not attend the Compelled Interview because, “I  
was not being treated in a fair and transparent manner by the IIROC”.  
Lower v. Investment Industry Regulatory Organization of Canada  
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[50] The judge also noted that the appellant’s claim he was only minimally aware  
of the facts underlying his action is belied by the content of his original notice of civil  
claim, which was filed before the appellant says he discovered the central features  
of his claim. In the original claim, the appellant pleaded that IIROC carried out an  
investigation based on allegations not disclosed to him. He asserted that the  
September 18, 2008 letter failed to provide particulars of the allegations and did not  
disclose the Information to Obtain (“ITO”). He alleged that RCMP and IIROC  
investigators agreed to withhold from him information contained in the ITO. He  
alleged that in its conduct of the investigation, “IIROC did not act in an impartial  
manner or with transparency, even-handedness and fairness”. He asserted that  
IIROC investigators fraudulently concealed evidence by redacting records disclosed  
to him in advance of the disciplinary hearing. Indeed, it is not contentious that on  
May 29, 2009—2 ½ months before the disciplinary hearing—IIROC disclosed to the  
appellant a disclosure index. As the judge noted, included in the disclosure was the  
ITO. In addition, IIROC disclosed to the appellant an “investigator’s log” which  
redacted reference to undisclosed documents. Accordingly, it must have been clear  
to the appellant in the spring of 2009 that certain documents relating to the  
investigation had not been disclosed to him.  
[51] Taking these facts into account, the judge said this:  
98.  
Mr. Lower also argues that he did not fully know of the alleged  
breaches of procedural fairness until after discovery in this action. However,  
that argument is weakened considerably by the original pleadings in this  
action prior to any discovery. While his current notice of civil claim has  
broadened the specific allegations of lack of procedural fairness, the nature of  
the allegations in the original notice of civil claim is the same. In the original  
notice of civil claim, he alleges he was not given adequate notice of the  
investigation, and was not given the ITO prior to the Compelled Interview.  
While Mr. Lower may now have more evidence which he alleges supports his  
arguments of procedural unfairness, I find he knew of the basis of his current  
allegations by the time of the Discipline Hearing. He relies upon these as the  
reason he did not attend the Discipline Hearing. I find that by September 1,  
2009, Mr. Lower had knowledge of the alleged acts or omissions by IIROC  
which allegedly caused him loss…  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 18  
[52] The judge reiterated these factual findings later in her judgment when  
addressing the defence of laches:  
112. … As discussed previously, I find that Mr. Lower had knowledge of  
potential procedural fairness arguments, but neither he nor his counsel raised  
them prior to the Compelled Interview or at the Discipline Hearing. I also find  
that he had capacity and freedom. His personal circumstances are not  
sufficient to prevent him from raising those issues. He alleges he did not have  
counsel, but that is not a sufficient reason. Shortly prior to the Discipline  
Hearing, his counsel wrote to IIROC advising that it was Mr. Lower's intention  
not to attend. Mr. Lower could have sought an adjournment or made the  
arguments himself.  
113. Due to the passage of time, IIROC has been deprived of the  
opportunity to remedy any procedural defects. Mr. Lower resigned from being  
an approved person in October 2008. Five years later IIROC lost disciplinary  
jurisdiction over him. As a result of Mr. Lower's delay in raising the allegations  
he now makes, IIROC has been put in a position where it would be unjust  
and unreasonable for Mr. Lower to now seek declarations that IIROC was  
acting in a procedurally unfair manner.  
…
116. Part of Mr. Lower's allegation is that IIROC concealed documents and  
therefore he did not know of them. If established, that would be a factor  
against a finding of laches. However, as discussed above, I have found  
Mr. Lower was aware he did not receive certain documents such as the ITO  
prior to the Compelled Interview. He knew that because he received the ITO  
prior to the Discipline Hearing. He could have raised that issue in 2009.  
Mr. Lower has not persuaded me that IIROC has unclean hands such that  
laches should not apply.  
[53] The judge noted that abuse of process is a flexible doctrine designed to guard  
against the misuse of the court’s procedure in a way that would be manifestly unfair  
to a party to the litigation or in some other way bring the administration of justice into  
disrepute: Behn v. Moulton Contracting Ltd., 2013 SCC 26 at para. 40 [Behn]; Lamb  
v. Canada (Attorney General), 2018 BCCA 266 at paras. 48–50 [Lamb].  
[54] The judge rejected IIROC’s position that failure to pursue a prescribed  
statutory right of review is dispositive. She concluded that this was simply “a factor”  
for the court to consider in determining whether an action is an abuse of process.  
The judge did say that courts are generally reluctant to interfere with the decision of  
a voluntary contractual association when internal remedies have not been  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 19  
exhausted. She found guidance in this Court’s judgment in Shuswap Lake Utilities  
Ltd. v. British Columbia (Comptroller of Water Rights), 2008 BCCA 176 [Shuswap].  
[55] The judge concluded that IIROC had established the appellant’s civil action  
was an abuse of process. She said:  
126. … I come to this conclusion for the following reasons:  
a)  
Mr. Lower waited more than eight years to file a civil action  
alleging lack of procedural fairness and bad faith. He knew the basis  
of those arguments in 2008 and 2009. He did not raise those  
arguments at any time prior to the Compelled Interview or at the  
Discipline Hearing. He did not attend the Discipline Hearing;  
b)  
there is a comprehensive statutory review process through  
the Securities Act, to a specialized tribunal, which he failed to pursue.  
While Mr. Lower is pursuing a breach of contract claim, case  
authorities establish that the failure to pursue the statutory remedy  
militates against a civil action. There is no compelling reason why he  
did not pursue the alternate statutory remedies;  
c)  
years after the events, IIROC has unnecessarily been put to  
the expense of defending this action, including pleadings, discovery  
and examinations for discovery; and  
d)  
the delay has effectively thwarted IIROC's ability to remedy  
any alleged procedural defects.  
127. Seeking a declaration of invalidity of the Discipline Decision is a  
misuse of court procedure. It is manifestly unfair to IIROC and offends the  
principle of finality.  
128. It follows that even if Mr. Lower's action for the declarations (except  
the declaration concerning the News Release) is not barred by a limitation  
defence or laches, I dismiss it as an abuse of process. I need not go further  
and decide whether Mr. Lower's action also meets the criteria for a collateral  
attack on the Discipline Decision.  
[56] Finally, the judge dismissed on its merits the appellant’s claim that IIROC  
improperly issued the news release on January 5, 2016. I do not understand the  
appellant to take issue with this determination.  
VII. Analysis  
1. Additional Issues  
[57] Before turning to address the appellant’s submission that the judge erred in  
dismissing his claim on abuse of process grounds, I would note that some of the  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 20  
appellant’s submissions address matters going to the merits of his claim. As the  
merits of the appellant’s claim are not before us, I need not address these  
submissions.  
[58] In addition, the appellant submitted that the summary trial was unfair because  
the judge: (1) relied on authorities not referred to by the parties; (2) permitted IIROC  
to open and close its case on the summary trial; and (3) improperly admitted into  
evidence transcripts of the intercepted private communications for a hearsay  
purpose.  
[59] There is no merit in any of these complaints. On the first issue, the judge was  
entitled to have regard to additional authorities mentioned in cases and secondary  
sources to which she was taken. In any event, the judge did not, in her abuse of  
process analysis, rely on any authority not mentioned by the parties. On the second  
issue, IIROC was permitted to open and reply because it was its summary trial  
application. On the third issue, the intercepts were not admitted for the truth of their  
content—to establish the appellant’s involvement in market manipulation. Rather,  
the intercepts were admitted solely for the purpose of explaining what information  
IIROC had in 2008 and what they did in pursuit of the investigation.  
2. Abuse of Process: Standard of Review  
[60] The parties agree that in applying the abuse of process doctrine, judges  
exercise a discretion generally entitled to deference: Krist v. British Columbia, 2017  
BCCA 78 at para. 53. The way in which the discretion is exercised will often be the  
product of a fact-intensive inquiry in respect of which the “palpable and overriding  
error” standard of review applies.  
[61] However, as with all discretionary decisions, appellate intervention will be  
warranted where the judge is shown to have proceeded on a wrong principle or  
failed to give weight, or sufficient weight, to relevant considerations: Timberwolf Log  
Trading Ltd. v. British Columbia (Forests, Lands and Natural Resource Operations),  
2013 BCCA 24 at para. 19, citing Stone v. Ellerman, 2009 BCCA 294. Intervention  
will also be appropriate where the judge made a palpable and overriding error in the  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 21  
assessment of the facts or misdirected herself as to the applicable law. A failure to  
apply the applicable legal criteria for the exercise of a judicial discretion, or a  
misapplication of them, raises questions of law: Cliffs Over Maple Bay (Re), 2011  
BCCA 180 at para. 24; British Columbia (Minister of Forests) v. Okanagan Indian  
Band, 2003 SCC 71 at para. 43 [Okanagan]. Finally, appellate intervention will be  
justified where the way the discretion was exercised is so clearly wrong as to  
amount to an injustice: Gonzalez v. Gonzalez, 2016 BCCA 376 at para. 16.  
3. General Principles Underlying the Abuse of Process Doctrine  
[62] Judges have an inherent and residual discretion to prevent an abuse of the  
court’s process: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 at  
paras. 33–37; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para. 35  
[C.U.P.E.]; Behn at para. 39.  
[63] Abuse of process is a flexible doctrine. As noted by the judge, it may be  
invoked to prevent misuse of the court’s procedure in circumstances where it would  
be manifestly unfair to a party to the litigation before it or would in some way bring  
the administration of justice into disrepute: Canam Enterprises Inc. v. Coles, 51 O.R.  
(3d) 481, 94 D.L.R. (4th) 648 (C.A.) at paras. 55–56, Goudge J.A. dissenting (rev’d  
2002 SCC 63 for the reasons of Goudge J.A.). The doctrine focuses less on the  
interests of the parties and more on the integrity of the administration of justice:  
C.U.P.E. at para. 43. Excessive delay and promoting the public interest in finality  
may be factors to be considered in applying the abuse of process doctrine: C.U.P.E.  
at para. 55; Shuswap at para. 62.  
4. Application to the Case at Bar  
[64] The appellant submits that the judge erred in her abuse of process analysis  
by, among other things: concluding that the “threshold” for an abuse of process  
finding was met; applying the doctrine for reasons not relied on by IIROC at trial;  
overlooking material evidence in concluding that he was aware of the substance of  
the procedural unfairness arguments that lie at the root of his claim long before he  
initiated that claim and discovered additional documents in 2019; concluding that the  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 22  
existence of a comprehensive statutory review procedure effectively ousted the  
jurisdiction of the court; considering delay as an aspect of the inquiry; focusing on  
unfairness to IIROC if the claim proceeded, as opposed to the repute of the  
administration of justice; considering the public interest in finality in circumstances  
where there has been no judicial determination of the merits of the claim; and, failing  
to appreciate that she had no discretion to refuse to adjudicate a justiciable issue.  
[65] I am unable to accept the appellant’s contention that the judge committed  
reversible error in determining that the “threshold” for application of the abuse of  
process doctrine was met. In my view, the appellant’s submission ignores the  
discretionary nature of the remedy and the deferential standard of review that  
generally applies. This Court cannot simply substitute its discretion for that which  
was exercised by the judge below. Recall that for the appellant to prevail on this  
issue he must establish that the judge erred in principle, failed to consider or weigh  
all relevant circumstances, clearly and demonstrably misconceived the evidence, or  
made an order resulting in a clear injustice: Okanagan at para. 43.  
[66] Similarly, I am unable to accept the appellant’s contention that the judge  
overlooked material evidence in concluding he was generally aware in 2009—almost  
a decade before the civil claim was filed—of the existence of the procedural  
unfairness grounds that lie at the root of his claim. The judge did not overlook the  
appellant’s evidence to the contrary. Rather, she rejected it.  
[67] Factual findings are subject to a highly deferential standard of review and I  
can see no basis upon which this Court could conclude that the findings underlying  
the judge’s conclusion on this point are the product of palpable and overriding error.  
In my view, there was a basis in the evidence upon which the judge could  
reasonably come to this conclusion. Further, she did not suggest that the appellant  
had access in 2009 to all the documents he obtained after commencing the claim.  
Plainly, he did not. Rather, she found that the appellant had knowledge of potential  
procedural unfairness arguments in 2009 but declined to seek further disclosure  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 23  
(knowing that some documents had been withheld) or raise procedural fairness  
concerns at the appropriate time.  
[68]  
I accept the proposition relied on by the appellant that material  
non-disclosure may, in appropriate circumstances, be a factor that works to prevent  
the doctrine of abuse of process from being applied in an unjust or unfair way:  
C.U.P.E. at para. 53. But I do not see how this proposition assists the appellant  
given the trial judge’s factual finding that he had sufficient information and  
knowledge in 2009 to advance his procedural unfairness claim if he wished to do so.  
[69] I would also reject the appellant’s position that the judge erred by concluding  
that his failure to avail himself of a statutory review procedure ousted the jurisdiction  
of the court. The judge said no such thing. Rather, she determined that the existence  
of an unpursued statutory review procedure was simply a factor the court could  
consider in determining whether the appellant’s civil action was an abuse of process:  
122. I agree with Mr. Lower that the cases cited by IIROC (Shuswap Lake  
Utilities Ltd., Kelly, and Hrappstead) involve decisions made by statutory  
tribunals where there is a statutory right of appeal. In none of those cases  
was there a contractual relationship as there is here. However, in my view,  
the fact there is a statutory review procedure which was not pursued is a  
factor the court may consider in determining whether the civil action is an  
abuse of process.  
…
126. In my view, IIROC has established that Mr. Lower’s action for the  
declarations (except the declaration concerning the News Release) is an abuse of  
process. I come to this conclusion for the following reasons:  
…
b)  
there is a comprehensive statutory review process through  
the Securities Act, to a specialized tribunal, which he failed to pursue.  
While Mr. Lower is pursuing a breach of contract claim, case  
authorities establish that the failure to pursue the statutory remedy  
militates against a civil action. There is no compelling reason why he  
did not pursue the alternate statutory remedies…  
[Emphasis added.]  
[70] I agree with IIROC’s position that the judge regarded failure to pursue an  
available statutory remedy as a non-determinative factor in the analysis. Nowhere in  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 24  
her reasons did the judge say that failure to pursue a statutory remedy, standing  
alone, barred the appellant from access to the court. I see no error in principle in her  
approach to this issue. The case at bar is, in some respects, analogous to Shuswap  
at para. 59, where it was held that it is not an abuse of process per se for a party to  
challenge the decision of an administrative body in a civil proceeding where a  
statutory right of appeal is available. The reasons for judgment in the case at bar do  
not stand on a contrary and, therefore, faulty premise.  
[71] I see nothing wrong with the judge considering delay and the public interest in  
finality as considerations properly forming part of her abuse of process analysis.  
Indeed, I do not see how the judge could properly ignore these considerations in the  
context of this case: C.U.P.E. at para. 55; Shuswap at para. 62.  
[72] I do not agree with the appellant that the judge erred in principle by focusing  
on the interests of IIROC rather than on the integrity of the administration of justice.  
[73] First, I note that the judge cited Behn and Lamb in discussing the foundational  
principles of the abuse of process doctrine. Both cases emphasize that the doctrine  
is focused on the integrity of the administration of justice, not the interests of the  
parties per se. In addition, the judge relied heavily on Shuswap where the focus of  
the analysis was squarely on misuse of the process of the court. Put simply, there is  
no merit to the appellant’s contention that the judge failed to appreciate the proper  
focus of the abuse of process inquiry. Relatedly, there is no merit to the notion that  
the judge misunderstood the focus of the doctrine in her application of it. As she put  
it, seeking a declaration of invalidity in relation to the Discipline Decision “is a misuse  
of court procedure…”.  
[74] Second, while it is true that the judge considered, as one factor in her  
analysis, that IIROC no longer has enforcement jurisdiction over the appellant  
because of his extraordinary delay, she was entitled to view IIROC not as an  
ordinary private litigant aggrieved by the appellant’s conduct, but as a protector of  
the public interest in the integrity of the capital markets.  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 25  
[75] Viewed in this context, the appellant is attempting to invoke the assistance of  
the court by obtaining an order declaring invalid the Disciplinary Decision  
permanently banning him from being registered in any capacity with IIROC—a  
sanction the Hearing Panel determined to be required in the public interest. If he is  
successful, the appellant intends to lever the declaration to obtain approval to serve  
as a director of a publicly traded company. In short, the appellant seeks to access  
the courts to obtain the same or similar relief that could have been sought almost a  
decade ago had he engaged in the regulatory process that governed his status as  
an approved member, including by exercising his statutory remedies.  
[76] In addition, the appellant attempts to invoke the assistance of the court in  
circumstances where his failure to cooperate was found by the Hearing Panel to  
have “totally obstructed and compromised IIROC’s ability to properly conduct its  
investigation into [his] activities, and subverted IIROC’s ability to perform its  
regulatory function.” Because of the appellant’s inaction and delay and absent a  
reapplication for approval, there is nothing IIROC can do now to remedy any  
procedural unfairness arising from its investigative conduct or enforcement action.  
Further, there is nothing IIROC can do now to reopen its investigation as an aspect  
of fulfilling its mandate to serve the public interest in safeguarding individual  
investors and market integrity.  
[77] Finally, I see no merit in the appellant’s contention that the judge found an  
abuse of process on “her own theories” as opposed to on grounds advanced by  
IIROC at trial. I am satisfied the appellant has had ample opportunity to respond to  
the grounds upon which the claim was dismissed as an abuse of process. For  
clarity, nothing in these reasons should be taken as endorsing the proposition that  
judges are straight jacketed by positions advanced by the parties or confined to the  
authorities they rely on. Judges have an overriding obligation to correctly apply the  
law. While I accept that procedural fairness concerns could conceivably arise in this  
context, no such concerns arise in this case.  
Lower v. Investment Industry Regulatory Organization of Canada  
Page 26  
[78] Taking all the relevant circumstances into account, I am of the view that it was  
open to the judge to conclude that permitting the appellant to proceed with his civil  
claim at this late stage would bring the administration of justice into disrepute.  
Indeed, I do not see how she could have come to a different conclusion on the  
factual findings she made. I am not persuaded that the appellant has shown any  
error in principle or other justification for appellate intervention.  
[79] Although Shuswap was decided in a slightly different factual and legal  
context, the observations of Ryan J.A. in that case are apposite:  
62.  
… the appellants were seeking to set aside orders that went back ten  
years. Rather than appeal the orders in a timely way, the appellants did  
nothing. Many years beyond the statutory appeal periods, they sought to  
resurrect their cause through a declaratory judgment. By filing an action  
rather than pursuing an appeal they put the respondent to the unnecessary  
burden of pleadings and discovery. The appellants offered no explanation for  
this inordinate delay or for choosing to file an action. In my view, given these  
facts and all the others mentioned by the chambers judge, he could have  
come to no other conclusion than that the process of the court was not being  
fairly used. In other words, it was plain and obvious that the appellants' action  
constituted an abuse of process.  
VIII. Disposition  
[80] For the foregoing reasons, I would dismiss the appeal.  
“The Honourable Mr. Justice Fitch”  
I agree:  
“The Honourable Madam Justice Fisher”  
I agree:  
“The Honourable Mr. Justice Marchand”  


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