Internal Standard of Review

Suppose there is an administrative decision-maker. Suppose the legislature, in its wisdom, provides for an internal means of appeal. What standard of review should the appellate decision-maker apply to the first-instance decision-maker? And how should a court judge the choice of standard on judicial review?

You Don't Have the Power: Securities Investigations in Québec

In the context of an ongoing investigation of the embattled engineering firm, SNC-Lavalin, Québec's securities regulator compelled an executive to produce certain documents. In the same letter, however, the regulator purported to prevent the executive from telling anyone else about the documents (apart from the company's lawyers). Revealing the existence of an ongoing investigation was permitted, but not any details of the requested documents.

After some back and forth, the prohibition on disclosure was modified somewhat, so as to allow the company to comply with the request. However, the company was forbidden from communicating the details of the requested documents to its auditors. The auditors cried foul, arguing that they could not sign off on the company's books without knowing the details of the investigation, which they could piece together once they had identified the requested documents. On (internal) appeal to the Bureau de décision et révision, the company won, and the auditors had the necessary information (almost) at their fingertips, at which point the regulator too cried foul and appealed to the ordinary courts.

The saga came to an end yesterday (barring the granting of leave to appeal to the Supreme Court of Canada), with defeat for the regulator in Autorité des marchés financiers c. Groupe SNC-Lavalin Inc., 2013 QCCA 204.