Alteon Senat c. Autorité des marchés financiers, 2021 QCCQ 7090 (CanLII), https://canlii.ca/t/jhnl5

(Available in French only)

Title suggestion: No Stay of Financial Markets Administrative Tribunal Orders Freezing Bank Accounts and Suspending Rights Granted by Registration Pending Appeal

FACTS

After having filed an appeal from orders issued by the Financial Markets Administrative Tribunal (the TMF) freezing their bank accounts for a 12-month period and suspending their rights granted by registration to act as an insurance representative and a mutual fund representative, the appellants applied for a stay of these orders pending their appeal. This application was contested by the Autorité des marchés financiers (the AMF) (the equivalent of Staff in other provinces).

KEY POINTS

Commencement of Delay to Appeal

The Court confirmed that the time for commencing an appeal from a TMF decision runs from the date of receipt of the final decision by the appellants themselves, and not from the date of receipt of the final decision by the appellants' counsel.

Factors to be Considered by the Court in an Application for a Stay of Orders of the TMF

The Court reiterated the five criteria to be met by an applicant seeking a stay of orders issued by the TMF pending an appeal:

  • The spirit of the law (referring to the purpose of the relevant law, as a whole).
  • The apparent weakness of the orders under appeal;
  • The serious and irreparable harm that would be caused to the party asking for the stay if no stay was granted;
  • The balance of convenience; and
  • The existence of exceptional circumstances justifying the stay.

Spirit of the law

The Securities Act, the Act Respecting the Regulation of the Financial Sector and the Act Respecting the Distribution of Financial Products and Services, which are at the heart of decisions of the TMF, all serve to protect the public. As a result, pending an appeal, their enforceability is the rule and their stay is the exception.

Apparent Weakness of the Orders under Appeal

The second criteria, despite its wording, requires an applicant to show the existence of a serious issue concerning the correctness of the orders being challenged. It is a heavy burden to discharge, as decisions of the TMF are presumed valid and must be afforded deference.

Appellants argued that :

  • The TMF orders were not sufficiently motivated

The Court disagreed. In addition to considering the length of the orders under appeal (25 pages, 100 paragraphs), the Court found that the TMF had correctly set out the questions which it had to rule upon and the burden of proof to be discharged by the AMF to obtain the freezing orders and suspension of registration sought.

It added that the TMF was not obliged to address all of the evidence adduced by both sides during the five-day hearing. It could legitimately only address the evidence relevant to its analysis, as it had.

  • The TMF member having issued the orders was not impartial

As the appellants had failed to file the recordings or even transcripts of the hearing before the TMF, the Court was not able to determine if the alleged partiality of the TMF member raised a serious issue or not.

According to the Court, a careful reading of the statement of appeal and the request for a stay essentially invited the Court to review all the evidence adduced before the TMF and draw conclusions and inferences different from those of the TMF. This was not found to meet the second criteria required for a stay.

Serious and Irreparable Harm in the Absence of a Stay

The appellants argued that the freezing orders prevented them from accessing any funds, such that they could not even pay their children's tuition and day to day family expenses. The Court found that whatever prejudice was suffered by the appellants was rather due to their own failure to apply for a full or partial lift of the freezing orders to ensure their family's subsistence, as permitted by the Act Respecting the Distribution of Financial Products and Services and the Securities Act.

The Balance of Convenience

In the absence of a serious issue concerning the correctness of the orders being appealed and the absence of serious and irreparable harm, the Court did not address the balance of convenience, except to say that the private interests of appellants were no match for the public's protection.

The Existence of Exceptional Circumstances

No exceptional circumstances were shown to exist.

As a result, the stay was denied.

The author thanks Hadi Ghobril for their contributions to this article.

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