Canada: Quebec Superior Court Dismisses Action For Damages Against Autorité Des Marchés Financiers

In Mallat c. Autorité des marchés financiers de France, 2018 QCCS 3867, Cohen J. granted a motion to dismiss an action brought by three Ubisoft executives (Plaintiffs) against the Autorité des marchés financiers de France (AMFF) and the Autorité des marchés financiers du Québec (AMFQ).

Among many demands1, the Plaintiffs requested declarations that the Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information (the MMoU) ‑ to which more than one hundred securities regulators world-wide are parties ‑ was invalid, that the subpoena sent by the AMFQ compelling the testimony of the Plaintiffs was an illegal search and seizure, that the evidence gathered, namely through the compelled interviews, was illegally obtained and abusive and sought $3.2 million in damages.

Cohen J. unequivocally disagreed with all of Plaintiffs' submissions, finding no basis for any of the conclusions sought by them.

Background

On February 21, 2014, pursuant to the terms of the MMoU, the AMFF requested the AMFQ's assistance in connection with an investigation of Ubisoft Montreal employees. The Plaintiffs had allegedly sold Ubisoft shares before an October 2013 public announcement about delays in the delivery dates of Watch Dogs and The Crew, two much-anticipated videogames.

On March 10, 2014, further to a request of the AMFF, the AMFQ sent a subpoena to Plaintiffs requesting the disclosure of documents, including their work emails. In response thereto, to the knowledge of Plaintiffs, Ubisoft France remitted the requested documents to the AMFF directly.

Six month later, the AMFQ informed the Plaintiffs that the AMFF wanted to meet with them on a voluntary basis. The Plaintiffs refused to meet unless compelled to do so. The Plaintiffs were subsequently subpoenaed by the AMFQ. Their examinations were held in the AMFQ's offices in the presence of AMFQ and AMFF investigators. The latter had been designated as AMFQ investigators for the sole purpose of the compelled examinations. The role of the AMFQ investigators was essentially limited to reading them their rights under the Canadian Charter2 and the Quebec Charter Charterwhile the AMFF investigators asked all the questions.3 Following the examinations, the AMFQ closed its investigation file while the AMFF continued on with its investigation.

The AMFF prepared an investigation report which included references to the transcripts of the Plaintiffs' examinations conducted in Quebec as well as their emails and voicemails disclosed by Ubisoft France further to the AMFQ subpoena. On the basis of this investigation report, the College of the AMFF instituted penal proceedings in France against the Plaintiffs for insider trading.

In a December 7, 2016 decision, France's "Commission des sanctions" (Commission) decided that the transcripts of the Plaintiffs' examinations conducted in Quebec should be struck from the record due to violation of French law, namely violation of the protection against self-incrimination4 afforded to Plaintiffs, but nevertheless condemned the Plaintiffs to pay sums of several hundred thousand euros.

The Issues and the Decision

Cohen J. decided numerous issues, her most salient conclusions being the following:

The Quebec Superior Court does not have jurisdiction to determine the constitutionality of the MMoU

Citing art. 529 of the Code of Civil Procedure, Cohen J. determined that the Superior Court of Quebec did not have jurisdiction to declare that a private international accord, such as the MMoU, is invalid because it is neither a law, a regulation or a governmental decree.

The AMFQ's actions did not breach any of Plaintiffs' Charter rights

Relying on the SCC's guidance in Branch5, Cohen J. affirmed that the AMFQ's power to compel testimony and production of documents in the context of securities investigation does not violate articles 7 and 8 of the Canadian Charter.6 The Court held that the AMFQ's conduct was within its competence as prescribed by the Securities Act7 and the MMoU, signed and executed in accordance with article 33 of the Act respecting the Autorité des marchés financiers8 (the LAMF).

The subpoena and seizures were not abusive

The Court declined to recognize the seizures of Plaintiffs' documents as abusive. Indeed, the seizure was done by way of a subpoena as opposed to a search warrant and Plaintiffs had a low expectation of privacy towards their work emails. The Court questioned the Plaintiffs delay in opposing the disclosure of documents. The Court observed that the Plaintiffs only objected to the document subpoena in early 2017, three years after the voluntary delivery of documents to the AMFF.

Cohen J. further reasoned that even if there had been a violation of the Canadian Charterby the AMFQ and AMFF in issuing a subpoena and requesting disclosures, article 24 of the Canadian Chartercould not provide adequate remedies as no further procedures were instituted against the Plaintiffs in Canada.

The compelled examinations did not breach Plaintiffs' right to remain silent

Cohen J. held that Plaintiffs did not have a right to remain silent when questioned by investigators of the AMFQ as its investigation is administrative in nature, as opposed to criminal or penal. Under the Securities Act, a compelled person is obliged to answer questions put to her by AMFQ investigators, failing which the person is in contempt. In return for being so obliged, the person benefits from the protection of Canada's Evidence Act and the person's compelled answer shall not be used or admissible in evidence against her in any criminal trial or other criminal proceeding, other than a prosecution for perjury in the giving of that evidence or for the giving of contradictory evidence. In this instance, no criminal or penal proceedings were ever instituted against the Plaintiffs in Canada.

The AMFQ is protected from any recourse against it by its immunities

The Court recalled articles 283 of the LAMF and 32 of the Securities Act, which grant the AMFQ absolute immunity from proceedings, "no matter the nature of the recourse against it", for official acts done in good faith in the execution of their duties.9 Cohen J. added that articles 240 of the Securities Act and 16 of the Act respecting public inquiry commissions10 afford additional immunity in the context of investigations. The Court found that the AMFQ had acted within its competence and the execution of its duties, and was thus protected by its immunities.

Takeaways

A foreign regulator can request and obtain the assistance of the AMFQ in the context of a foreign securities investigation under the MMoU, which can include (1) the designation of the foreign investigators as AMFQ investigators and (2) the conduct of compelled interviews of targets by these foreign investigators in Québec.

In this instance, the French regulator essentially took advantage of the legal regime in Québec – which prohibits the target of an "administrative securities investigation" to refuse answering questions – to compel the testimony of the Plaintiffs when the French legal regime would have given those targets protection against self-incrimination.

The authors would like to thank Saam Pousht-Mashhad, associate, for his contribution to this article.

Footnotes 

1 For a full list of conclusions sought by the Plaintiffs, see Mallart, para 48.

2 The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11.

3 Charte des droits et libertés de la personne, RLRQ c C-12.

4 Mallat, para 40.

5 British Columbia Securities Commission c. Branch, [1995] 2 R.C.S. 3.

6 Mallat, para 108.

7 CQLR c V-1.1.

8 CQLR c A-33.2.

9 Unofficial translation, Mallat, para 170.

10 CQLR c C-37.


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