Canada: The Limited Role Of Lawyers In Investigations By Quebec’s Securities Regulator

On June 22, 2012, the Quebec Court of Appeal (QCA) issued a decision confirming the significant powers of compulsion that are available to Quebec's securities regulator, the Autorité des marchés financiers (AMF), in investigations. In Autorité des marchés financiers c. Fournier,1 the QCA overturned two previous judgments and declared the respondent, Gilbert Fournier, guilty of an offence under Section 195(4) of the Quebec Securities Act2 (QSA) for refusing to answer an AMF investigator's questions on the advice of his attorney.


On January 26, 2006, the AMF launched an investigation into the activities of Martin Tremblay, Dominion Investments Ltd., Dominion Investments (Nassau) Ltd. and companies related to Dominion Investments (Nassau) Ltd. pursuant to Sections 239 and following QSA. On January 14, 2008, Fournier was served a summons by Gaétan Paul, one of the AMF investigators assigned to the case, compelling him to appear for examination and to bring documents relating to an account identified in the summons. The summons did not otherwise specify the scope of the AMF's investigation or the identities of the individuals or entities targeted by the summons. On February 14, 2008, Fournier came to the AMF's offices with his lawyer to be examined by the investigator.

The investigator began by informing Fournier that the investigation concerned Dominion Investments Ltd., and by providing Fournier's attorney with a redacted copy of the AMF decision that had launched the investigation. When Paul asked his first question—whether Fournier held a brokerage account—Fournier's attorney objected on grounds of irrelevancy. The investigator told Fournier's attorney that he could not object to the questions, and that Fournier had to answer them. Fournier's attorney told the investigator that he intended to submit his objections to a justice of the Superior Court. The investigator refused to suspend the examination and the examination went ahead despite the attorney's protest. Fournier continued to refuse to answer the investigator's questions, and the investigator, unable to get answers to his questions because of the lawyer's instructions to Fournier, terminated the examination. On March 12, 2008, Fournier was served a statement of offence for refusing to testify, in contravention of Section 195(4) QSA.3 

Prior judgments

On October 28, 2009, Claude Millette, J.C.Q., acquitted Fournier, finding no evidence of the actus reus – i.e. the material elements of the offence – as the investigator had not disclosed the purpose of his investigation and Fournier could not assess the relevancy of the questions that he was being asked.4

The AMF appealed this initial decision and, on June 16, 2010, Réjean Paul, J.S.C., confirmed Fournier's acquittal.5 He determined that the summons, because it did not indicate the purpose of the investigation, was deficient, and objections could be made to the questions. Justice Paul insisted on the right, if not duty, of the lawyer to intervene during his client's examination to object to the investigator's questions when warranted.


First, Jacques Dufresne, J.C.A., giving the reasons for the Court of Appeal, reiterated the AMF's mission. Relying on Supreme Court of Canada case law relating to provincial securities authorities, he pointed out that, in view of the AMF's objective of protecting the public, the lawmakers gave the regulator broad investigative powers.

As to the matter of knowing whether the lawyer of the person examined by the AMF investigator can object to the questions that are asked and demand a ruling on such objections, Justice Dufresne stated from the outset that the right to the presence of a lawyer was not being challenged. However, he concluded that a lawyer accompanying a person summoned to appear cannot formulate objections because Section 241 QSA states that no person called upon to testify in the course of an investigation or being examined under oath may refuse to answer or to produce any document on the ground that he might thereby be incriminated or exposed to a penalty or civil proceedings. According to Justice Dufresne, the lawyer may, if he deems it in his client's interests, recommend that the client refuse to answer certain questions asked by the investigator; however, in doing so, he exposes the client to the possibility of being served a notice of offence. Justice Dufresne also explained that it would not be possible to have a justice of the Superior Court rule on the objections because the type of examination involved is not usually related to any proceeding pending before the courts.

The Court of Appeal nonetheless identified two possible remedies for a person examined by an AMF investigator. First, if the person examined feels that the investigator went beyond his or her mandate or jurisdiction or that there is a breach of the rules of natural justice or procedural fairness, he or she could institute an action before the Superior Court pursuant to the general principles of administrative law and apply to have the examination suspended. This avenue may however be complicated in practice because of the criteria established by case law for this type of remedy.

The second option corresponds to the remedy used by Fournier, i.e. go before the Court of Quebec to contest the notice of offence arising from the refusal to testify. It is difficult to consider this remedy an attractive option because, the lawyer in such a case exposes his or her client to penal proceedings. While it is true that to defend him- or herself with respect to a charge, the witness may establish that his or her refusal to testify was based on a just cause or excuse, i.e. on reasonable diligence, it is not enough, as in the case of Fournier, to argue that a refusal to answer on the grounds that an objection was made by the attorney constitutes such a valid excuse. In fact, the Court of Appeal found that such an error of law did not constitute a just excuse.

This Court of Appeal decision has sparked a great deal of discussion in legal circles and will, no doubt, change the way lawyers proceed in AMF investigations.


1 2012 QCCA 1179, Duval Hesler, Pelletier and Dufresne JJ.

2 RSQ, c. V-1.1.

3 195. It is an offence [...] (4) to fail to appear after summons, to refuse to testify or to refuse to send or remit any document or thing required by the Authority or an agent appointed by it in the course of an investigation.

4 Unreported decision

5 2010 QCCS 4830, Paul J.

Norton Rose Group

Norton Rose Group is a leading international legal practice. We offer a full business law service to many of the world's pre-eminent financial institutions and corporations from offices in Europe, Asia, Australia, Canada, Africa, the Middle East, Latin America and Central Asia.

Knowing how our clients' businesses work and understanding what drives their industries is fundamental to us. Our lawyers share industry knowledge and sector expertise across borders, enabling us to support our clients anywhere in the world. We are strong in financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and pharmaceuticals and life sciences.

We have more than 2900 lawyers operating from 43 offices in Abu Dhabi, Almaty, Amsterdam, Athens, Bahrain, Bangkok, Beijing, Bogotá, Brisbane, Brussels, Calgary, Canberra, Cape Town, Caracas, Casablanca, Dubai, Durban, Frankfurt, Hamburg, Hong Kong, Johannesburg, London, Melbourne, Milan, Montréal, Moscow, Munich, Ottawa, Paris, Perth, Piraeus, Prague, Québec, Rome, Shanghai, Singapore, Sydney, Tokyo, Toronto and Warsaw; and from associate offices in Dar es Salaam, Ho Chi Minh City and Jakarta.

Norton Rose Group comprises Norton Rose LLP, Norton Rose Australia, Norton Rose Canada LLP, Norton Rose South Africa (incorporated as Deneys Reitz Inc), and their respective affiliates.

On January 1, 2012, Macleod Dixon joined Norton Rose Group adding strength and depth in Canada, Latin America and around the world. For more information please visit

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions