BCCA Upholds Use of Retroactive Enforcement Tools Under the Securities Act

In Pasquill v. British Columbia (Securities Commission), the Court of Appeal for British Columbia (BCCA) confirmed that the British Columbia Securities Commission could amend its pleadings to rely on retroactive statutory collection remedies introduced in 2020, without being barred by the six-year limitation period in subsection 159(1) of the British Columbia Securities Act (the Act).

This decision confirms the scope of the Commission’s enhanced collection powers under Part 18.1 of the Act and clarifies that amendments grounded in the same factual matrix as earlier claims will not be treated as “new causes of action” for limitation purposes.

Background

In 2015, the Commission ordered Earle Pasquill to pay C$36.7-million in respect of a fraudulent scheme, including C$21.7-million in disgorgement under paragraph 161(1)(g) of the Act. Nearly the entire debt remains unpaid.

To recover assets, the Commission launched a civil action in 2018 (Collections Action) targeting property worth over C$17-million that Mr. Pasquill had transferred to his wife, Vicki Pasquill, and her company, Vicker Holdings Ltd. (the Appellants). The claims were framed in knowing receipt, unjust enrichment, fraudulent conveyance and fraudulent preference.

In 2020, the Legislature introduced Part 18.1 of the Act, giving the Commission expanded powers to recover “claimable property” transferred to family members or third parties. The provisions are expressly retroactive, applying even to pre-enactment transfers and orders.

The Appellants applied in 2021 to strike the pleadings. The British Columbia Supreme Court struck most of the original claims but gave leave to the Commission to re-plead under Part 18.1. In March 2023, the Commission amended its claim accordingly. The Appellants appealed the Supreme Court’s order to the BCCA.

Reasons

On appeal, the Appellants argued that the amendments advanced a “new cause of action,” equivalent to commencing a fresh proceeding, and were therefore barred by the six-year limitation in subsection 159(1) of the Act. They emphasized that the earlier claims had been “struck in [their] entirety” and described as “radically defective, on multiple grounds, including jurisdiction, standing and temporal possibility.”

The BCCA rejected this argument, stressing that parties must read the Supreme Court’s order striking the pleading in full and in context. The order expressly contemplated the Commission re-pleading under Part 18.1 and therefore did not extinguish the Collections Action.

Crucially, the BCCA held that a limitation analysis turns on factual continuity, not legal theory. It reaffirmed that a new cause of action is not asserted if the amendment pleads an alternative claim for relief out of the same facts previously pleaded or reflects different legal conclusions drawn from the same set of facts.

The Commission had already pleaded the essential facts: Mr. Pasquill’s liability, the transfers to his wife and her company, and the Commission’s effort to recover those assets. The amendments merely recast those facts under the 2020 statutory framework, with additional particulars that the BCCA agreed are typical of complex fraud and collection proceedings.

On this basis, the BCCA confirmed that subsection 159(1) did not bar the Commission’s claim. The amendments were not a “new cause of action” but a continuation of the same factual matrix.

Key Takeaways

1. Statutory collection remedies under Part 18.1 of the Act can be retroactively applied to family members and recipients of fraud proceeds, even where earlier equitable claims failed.
2. Families, spouses and closely held corporations of individuals facing securities penalties are now firmly within the Commission’s reach.
3. Arguments that amended pleadings plead “new” claims that are statute-barred will likely fail where the factual foundation overlaps with the original claim.

For more information, please contact the authors or any other member of our Securities Litigation group.