The Supreme Court of Canada denied leave to appeal with respect
to the 2014 Quebec Court of Appeal decision requiring in-house
counsel to attend an Autorité des Marchés
Financiers (AMF) investigation into her
By refusing leave to appeal, the Supreme Court of Canada
confirms the Quebec Court of Appeal’s decision in
Autorité des marchés financiers c.
X that recognized the validity of a subpoena
issued to an in-house counsel (Me X) ordering her to testify on
facts in the context of an AMF investigation into Me X’s
employer and a confidentiality order with respect to the
investigation. The challenge, based in substance upon the
application of solicitor-client privilege, was considered premature
given the absence of evidence that the AMF had asked, or was going
to ask, Me X to disclose privileged information. This
decision does not affect the scope of in-house counsel’s
solicitor-client privilege as such privilege can, and very often
does, apply to communications (depending on their nature) between
employers and their in-house counsel. Nor does this decision
prevent Me X from objecting to specific disclosure to the AMF later
on the basis of such privilege. Given this ruling, the involvement
of external counsel early on when such an investigation is
launched, or expected to be launched, would be well advised.
If Me X wished to contest the AMF’s order, she should have
first availed herself of the Bureau de décision et de
révision’s review process provided for in the AMF
legislation. The “privative clauses” contained in
the AMF legislation effectively prohibited a challenge of the kind
initiated by Me X (not a challenge respecting the jurisdiction of
the AMF) to the courts. A privative clause attempts to
protect decisions of administrative tribunals by preventing the
parties’ appealing such decisions to a court, rather than
using the administrative review procedures in the legislation
governing the administrative tribunal’s decisions.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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