Plus Ça Change: Lundin Mining Corp. v. Markowich, 2025 SCC 39

Towards the end of 2025, the Supreme Court of Canada released another decision on the interpretation of statutes in a regulatory context: Lundin Mining Corp. v. Markowich, 2025 SCC 39. Lundin can be read alongside the earlier 2025 decision in Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15, where the majority rejected the argument that the term “transmission line” in the Telecommunications Act, SC 1993, c 38 should be interpreted dynamically so as to include 5G transmission antennae that did not exist at the time the statute was adopted. In Lundin, by contrast, the majority interpreted the term “material change” in Ontario’s Securities Act, RSO c S5 broadly, with a view to implementing the purposes of the regulatory regime. As I have observed before, there are competing approaches to interpreting statutes in Canada (see here) and although the ‘text as anchor’ approach is currently in the ascendancy, it does not command universal allegiance, as Lundin illustrates.

The underlying issue in Lundin was the point in time at which a mining company should have disclosed pit wall instability and a consequent rockslide at its most important mine. The timing depended on whether the instability and rockslide amounted to “material fact[s]” or “material change[s]”. A material fact need only be disclosed periodically. But a material change must be disclosed “forthwith” (Securities Act, s. 75(1)). A material fact is defined in s. 1(1) as “a fact that would reasonably be expected to have a significant effect on the market price or value of the securities”. A material change is “a change in the business, operations or capital of the issuer that would reasonably be expected to have a significant effect on the market price or value of any of the securities of the issuer”. As the Supreme Court has previously noted, there are two components to this definition: a change that is material (Theratechnologies Inc. v. 121851 Canada Inc., 2015 SCC 18, [2015] 2 SCR 106, at para. 40).

Here, the company did not disclose the instability and rockslide immediately. M was the lead plaintiff in a class action seeking almost $200m in damages, alleging amongst other things a breach of the statutory duty to make timely disclosure of material changes.

Cutting against the grain of the jurisprudence (Douglas Sarro, “Material Change Standards in Securities Law” (2025), 69 Can. Bus. L.J. 1), the first-instance judge found that immediate disclosure was unnecessary: these were material facts, not a material change. The Court of Appeal reversed: “a change is a change and it should be defined broadly…” (2023 ONCA 359, at para. 82, per Favreau J).

The Supreme Court dismissed the appeal. As Jamal J summarized his reasons:

…the motion judge erred by relying on restrictive definitions of “change”, “business”, “operations”, and “capital”, and then erred by applying those definitions to determine whether there was a reasonable possibility that there had been a material change. The Ontario legislature intentionally left these terms undefined to allow the legislation to be applied flexibly and contextually to a wide range of industries and corporate structures. The disclosure standards in the Securities Actshould be applied to promote the statutory purpose of preventing and deterring informational asymmetry between issuers and investors, while recognizing that the statutory terms at issue acquire meaning by being applied in concrete factual circumstances. By contrast, adopting rigid definitions would ossify the Securities Act and would frustrate the statutory purpose (at para. 6).

The Court also addressed the test for leave under the Securities Act, explaining (on this point unanimously: see para. 262) that the required “plausible analysis” is “not a plausible statutory interpretation, but rather a plausible application of the legislation to the facts” (at para. 7, emphasis original). I will not say anything more about this aspect of the decision.

Interestingly, even though the Supreme Court has insisted in a number of recent decisions that the legislative text is the “anchor” of the statutory interpretation analysis (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43, at para. 24), Jamal J began with the four purposes of the Securities Act regime — investor protection, well-functioning capital markets, capital formation and market stability — each of which is “promoted by the foundational role of disclosure in securities regulation” (at para. 33). In particular, Jamal J agreed with Professor Sarro that the “core policy goal” of securities legislation is “preventing and deterring informational asymmetry between investors and issuers” (at para. 36). Hence in the so-called secondary market for securities (i.e. resale/trading after an initial public offering of shares) “ongoing disclosure” is essential (at para. 40).

Jamal J then teased out the meaning to be given to “material change” by focusing on the distinction between “material change” and “material fact” given the underlying policy considerations:

The distinction between a material fact and a material change “is perhaps best understood from the perspective of the evolution of an issuer’s disclosure record” (Crawford Report, at p. 142). To illustrate, recall the role of a prospectus as a base disclosure document that must contain full, true, and plain disclosure of all material facts relating to the securities issued or proposed to be issued. Any fact will be a material fact, whether or not it is related to the issuer, if it would reasonably be expected to have a significant effect on the market price or value of the securities being issued. After a preliminary prospectus has been filed, the issuer must update its disclosure whenever there is a material change in its business, operations or capital (p. 142; see also Dey Remarks, at p. 2368) (at paras. 48-49).

In addition, Jamal J noted, a material change must be internal to the issuer (at para. 56). There are two policy reasons for this. For one thing, “the distinction balances the burdens that disclosure places on issuers with the need for investors to be informed on a timely basis of material developments in an issuer’s affairs” (at para. 57). For another thing, “[r]equiring timely disclosure of a material change … helps level the informational playing field between issuers and investors” (at para. 58).

With this purposive scaffolding in place, Jamal J proceeded to elucidate the meaning of “material change”, weaving it into the overall scheme of the Securities Act.

First, it was inappropriate to rely on dictionary definitions in this context (at paras. 66-69, a striking contrast with the 5G antenna case, where dictionary definitions played an important role in the majority’s analysis). Here, the legislature had “intentionally” left “change” undefined (at para. 70), meaning it should retain “its ordinary meaning” (at para. 71) and take its colour from its purpose and context: “the purpose of continuous disclosure obligations is to level the informational playing field between issuers and investors. The word “change” takes meaning from this context, the facts of each case, and the relevant industry norms, rather than from a strict legal formula” (at para. 72). Moreover, a rigid definition would compromise the effectiveness of the Securities Act in applying to different commercial settings (at para. 73). Lastly, interpretive guidance by securities regulators “collectively help illustrate the meaning of the expression” (at para. 74).

Second, the first-instance judge had wrongly “incorporated statements from lower court cases requiring a change to be “important and substantial” into the definition of “change” itself, without grounding the interpretation in the purpose of securities legislation to address informational asymmetries between issuers and investors” (at para. 63). In part, the first-instance judge’s approach collapsed the distinct questions of change and materiality (at para. 80) but more generally, Jamal J held, a broader disclosure approach “is sound as a matter of policy because it promotes the fundamental purposes of the Securities Act” (at para. 85) and consistent with regulatory guidance that “in borderline cases, an issuer should err on the side of disclosure” (at para. 86).

Third, the first-instance judge wrongly interpreted the terms “business”, “operations” and “capital” restrictively. For these are not “rigid statutory definitions” (at para. 92) and were intentionally left undefined by the legislature”: “Leaving the terms undefined allows courts and regulators to apply the legislation broadly and flexibly as the context and circumstances require” (at para. 93). Moreover, it is wrong to look at the three terms individually rather than holistically: “That standard must be applied based on the purpose of disclosure requirements to level the informational asymmetry between issuers and investors, rather than by parsing each element separately” (at para. 94).

This is difficult to reconcile with the ‘text as anchor’ approach the Supreme Court has promoted in recent cases. ‘Text as anchor’ posits that legislative intention is revealed by statutory language, with any purposive analysis being limited to purposes that are anchored in the text. On this view, there is a fact of the matter as to the intention the legislature wished to convey and it is the job of the court, as faithful agent of the elected representatives, to give effect to that intention. Recourse to dictionaries, which contain facts about how language is understood, is a natural first step in any interpretive process that places facts of the matter about legislative intent front and centre.

By contrast, Jamal J’s approach seeks to make sense of “material change” given the purpose of the regulatory scheme, the overall scheme of the legislation and the background context, including regulatory guidance, with a view to establishing a definition that is coherent with all of the relevant materials. This might be called ‘coherence as anchor’, “a truly purposive and contextual approach … that weaves the fundamental principles” of securities law into the interpretation of the Securities Act (Michel v. Graydon, 2020 SCC 24, [2020] 2 SCR 763, at para. 71 per Martin J). Here, there is no supposed fact of the matter about legislative intention but, rather, an appreciation that elected representatives legislate to achieve coherence between statutory text, their policy goals and the fundamental principles of the legal system. As Lord Steyn once put it, “Parliament does not legislate in a vacuum”, but for a “liberal democracy founded on the principles and traditions of the common law” (R v. Secretary of State for the Home Department, ex parte Pierson, [1998] AC 539, at p. 587).

True, in Lundin, the word “change” is vague (whereas in the 5G antennae case, “transmission line” arguably had greater specificity). Does the approach in Lundin not simply reflect the need to give meaning to a vague statutory provision? But even vague terms can be subject to the ‘text as anchor’ approach. In that regard, there is a notable methodological difference between Jamal J’s approach and that of Côté J in dissent, who zeroed in on the language of the statutory definition of “material change”, focusing heavily on its textual association with “business”, “operations” and “capital”. Invoking ‘text as anchor’ (at paras. 212, 221), she concluded that the majority approach “would ignore clear legislative intent, intrude on careful policy balancing, undermine key purposes of the Act’s disclosure regime, and potentially override the valuable judicially recognized exclusions [from disclosure]” (at para. 211). In particular, “change” had to be interpreted by reference to “the constituents of immediate context” (at para. 212), namely “business”, “operations” and “capital” (at paras. 214-219): noscitur a sociis! Put very simply, any vagueness in “change” can be resolved by reference to surrounding statutory context. The difference between the majority and dissent is, therefore, in the methodology used to resolve vagueness, not the existence of vagueness. (And, at the risk of flogging a dead horse, in the 5G antennae case, the term was, in fact, vague due to the open texture of language revealed by technological development.)

In my view, there is much to be said for Jamal J’s approach: seeking coherence is what lawyers are trained to do; and in many cases, especially difficult ones, unduly emphasizing text may stand in the way of interpreting statutes in a way that coheres with the relevant legal materials. Lundin gives very useful guidance for those who seek to knit statutory definitions into the existing fabric of the law and stands as a counterpoint to the ‘text as anchor’ approach.

This content has been updated on January 7, 2026 at 16:08.