Canada: AMF Investigations: The Duty To Answer An Investigator And His Jurisdiction To Rule On Objections

Last Updated: July 30 2012
Article by Dina Raphaël

The Securities Act [SA] allows the Autorité des marchés financiers [the "AMF"] to order investigations to ensure compliance with the SA and to repress contraventions which may be committed1 . This is the context in which the Court of Appeal handed down a decision2 on June 22, 2012 going to the very heart of the role played by the AMF's investigators and the scope of their powers during examinations conducted in connection with an investigation.

Gilbert Fournier was summoned to appear by an AMF investigator. The summons had certain information blacked out and did not mention the purpose of the investigation, only giving the number of an account opened with a financial adviser. During the examination, Fournier and his lawyer learned that the investigation involved Dominion Investments. As soon as Fournier was asked the first question, which was whether he had a brokerage account, his lawyer objected on the ground that the question was irrelevant and too broad. Believing that Fournier's lawyer did not have the right to object, the AMF's investigator insisted that Fournier answer, without success. Given the objections raised by the lawyer and Fournier's refusal to answer the questions, the investigator ended the questioning.

The AMF served Fournier with a notice of offence under section 195(4) SA, claiming that he had hindered the investigator's work by refusing to answer the questions. This led the AMF to apply to the Court of Appeal for a ruling against Fournier, following the acquittal rendered by the Court of Québec and affirmed by the Superior Court.

The lower court judgments

Justice Millette, writing for the Court of Québec3, held that the objections of Fournier's lawyer were justified, as the investigator was not willing to reveal either the nature of his mandate or the purpose of the investigation. Holding that there was no proof of actus reus, since Fournier was unaware of the nature of the investigation and therefore unable to determine the relevance of the questions, the Court held that there was no refusal to testify within the meaning of section 195(4) SA and therefore acquitted Fournier.

Justice Paul, writing for the Superior Court4, affirmed Fournier's acquittal on the grounds that [Translation] "a lawyer has a duty to intervene to obtain clarifications and to object if he perceives that the investigation is going off track and is becoming a fishing expedition"5 . Holding that the summons to appear sent to Fournier was incomplete and that the investigator erred when he said that the lawyer could not object to his questions, the Superior Court upheld the Court of Québec decision. The Court expressed its concern that the AMF's investigations could turn into a fishing expedition. The Court was also hesitant to render a penal order against someone who had followed his lawyer's advice.

The Court of Appeal decision

The AMF appealed the Superior Court judgment. In a unanimous decision written by the Honourable Jacques Dufresne, the Court of Appeal allowed the AMF's appeal, quashed the two lower court decisions, convicted Fournier of the offence under section 195(4) SA and returned the case to the Court of Québec for a decision on the sentence to be given to Fournier.

The questions submitted to the Court of Appeal in connection with this appeal are the following:

- Did the Superior Court judge err in law in holding that the respondent's lawyer could object during the examination to the questions of the appellant's investigator and require that his objections be decided?

- Did the Superior Court judge err in law in holding that the respondent's refusal to answer the appellant's investigator's questions when he was legally compelled to do so can be excused by his lawyer's objections?

Before answering these questions, the Court explained the AMF's mission as well as its role of protecting the public and regulating the markets; it recalled the extensive investigative powers conferred on the AMF and its investigators. The Court also described the legislative framework surrounding these powers, noting that certain provisions of the Act respecting public inquiry commissions apply6 , and in particular section 11 of that statute which grants almost complete immunity to a person who is examined, and section 9(2) of the same statute which states that persons who are examined must answer all questions asked of them.

1. The lawyer's right to make objections and demand that they be decided

Fournier argued that the obligation to answer an investigator's questions under section 241 SA only covers questions relating to the purpose of the investigation. Accordingly, the lawyer of a person who is examined may make objections regarding the relevance of questions which do not relate to that purpose and the person being examined may refuse to answer.

The Quebec Bar, which intervened in this matter, was of the opinion that objections should be decided by a reasoned decision by the investigator, so the decision can be reviewed subsequently if necessary. The Quebec Bar also stressed the importance of the right to make objections, an essential right to guarantee the legality of the questions asked and avoid fishing expeditions.

The Court of Appeal held, on the other hand, that a lawyer who assists a person examined as part of an AMF investigation does not have the right to object. According to the Court, to grant this right would contravene section 241 SA which states that a person called upon to testify by an AMF investigator cannot refuse to answer.

The Court was also of the opinion that a person cannot apply to the Superior Court for the sole purpose of having it rule on objections made with respect to the questions of an AMF investigator, [Translation] "without those questions being asked in connection with proceedings of which that court is otherwise seized"7 . Stressing the administrative nature of investigations conducted by the AMF and the non-adversarial nature of such an examination, the Court of Appeal held that deciding on objections is a role of the investigator who, according to the Court, does not have to provide reasons for his decision in this regard.

2. The defence based on advice given by the lawyer

This due diligence defence was rejected by the Court of Appeal, which held that it was not sufficient for a witness to follow his lawyer's advice to avoid being penalized for refusing to answer an investigator's questions. It must also be established that the refusal to answer is justified and that it is based on a valid cause or excuse, which was not the case here. Also, it was not proven that a breach of the rule of law or procedural fairness was committed, nor that the AMF's investigator exceeded his mandate. Accordingly, the Court of Appeal held that, in the absence of valid reasons for refusing to answer the questions, Fournier was penally liable, even though his refusal was as a result of advice given by his lawyer.


People called to testify by an AMF investigator are required to answer his questions. The AMF's investigator therefore has the power to decide on objections raised during such examinations without having to give reasons for his decision. In this case, the Court confirmed the broad investigative powers given to the AMF to enforce compliance with the SA. Referring to a Supreme Court case8 , the Court noted the importance of not complicating the AMF's investigation process and therefore limiting court interventions when investigations are being conducted by that body.


1. Section 239 SA.

2. Autorité des marchés financiers v. Fournier, 2012 QCCA 1179.

3. Unpublished decision.

4. Autorité des marchés financiers v. Fournier, 2010 QCCS 4830.

5. Ibid., par. 14.

6. See sections 240 SA and 14 of the AMF Act.

7. Par. 48 of the judgment in question.

8. Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 SCR 181.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.