Ontario Court of Appeal narrows summons powers of securities commission investigators in Binance Holdings

In November 2025, the Ontario Court of Appeal released a decision quashing a summons issued by an investigator appointed by the Ontario Securities Commission, holding that the summons was unconstitutionally overbroad, contrary to the Canadian Charter of Rights and Freedoms. Successful Charter challenges in the securities regulatory proceedings are relatively uncommon. The Court of Appeal’s ruling in Binance Holdings could meaningfully reshape regulatory investigative practices, particularly against the backdrop of increasingly expansive production demands.

Background

In May 2023, following protracted compliance discussions and an undertaking by Binance Holdings Limited to wind down Ontario operations, Commission staff obtained an investigation order. A Commission investigator then issued a summons under section 13 of the Securities Act compelling the production of extensive documents and communications. Binance challenged the summons before the Capital Markets Tribunal, the Divisional Court, and the Commission itself. Both the Commission and the Divisional Court refused to consider the merits of its constitutional challenge to the summons. 

Binance appealed both the Divisional Court’s refusal to hear its Charter arguments and the OSC’s decision that it had no section 144(1) jurisdiction to vary or revoke the summons to the Court of Appeal. 

Key jurisdictional rulings

The Court of Appeal confirmed the Commission does not have jurisdiction under section 144(1) of the Ontario Securities Act to vary or revoke a section 13 summons issued by an investigator. 

As the court explained, a section 13 summons is the decision of the appointed investigator, not “a decision of the Commission,” and the statute’s language and structure draw a deliberate separation between investigative functions (by appointed persons) and the Commission’s regulatory role. ¹

However, the court also held that Divisional Court erred in principle by declining judicial review on the mere possibility that an alternative remedy might exist at the Commission, without determining that such a remedy was in fact available and adequate.² It then considered the question on the merits itself.   

Section 8: Relevance limits in regulatory investigations

The central constitutional challenge in Binance concerned Section 8 of the Charter, which provides the constitutional right to be secure against unreasonable search or seizure. 

Despite acknowledging Binance had a low expectation of privacy in the records given, among other things, its participation in highly regulated capital markets,³ the court held that a seizure that purports to compel the production of documents without a reasonable foundation for relevance will nonetheless be considered overbroad and unreasonable, contrary to s. 8 of the Charter.⁴

Writing for the court, Paciocco J.A. emphasized the importance of having a reasoned basis to believe the documents to be seized will be relevant, stating, “I cannot conceive that it would be reasonable for the Commission to demand an overbroad array of documents to enable it to conduct a fishing expedition of the entire business in a speculative search for documents where there is no reasoned basis for believing that they may be relevant to the inquiry that is being undertaken.”⁵

Turning to the summons at issue, which compelled the production of “all communications” among Binance, its personnel, and related entities “regarding Ontario (or Canada generally)” over more than two years, the court held that its scope was “staggering in breadth” and made “without apparent concern about the relevance of what was being demanded.”⁶

Accordingly, the court set aside the summons, ordered the Commission to return documents produced under the invalid summons and declined to allow the regulator to retain or review them pending reissuance. The decision is without prejudice to the investigator issuing a Charter compliant summons.⁷

Why this decision matters for investigations 

The Court of Appeal’s decision clarifies that the Commission’s section 13 powers are constitutionally restrained by relevance, even in the low privacy context of securities regulation. Investigators must therefore anchor summons to the inquiry’s purpose and avoid overbroad and unduly burdensome requests. Procedurally, the ruling also limits reliance on internal Commission review mechanisms and affirms courts should not decline judicial review on speculative alternative remedies.