Questions and Answers: Procedural Fairness

In Barreau du Québec c. Khan, 2011 QCCA 792, the Québec Court of Appeal held that a student who failed a bar exam was entitled to look over her exam, answer booklet, answer key and correction grid and to take notes while doing so.

With its decision in Ordre des infirmières et infirmiers du Québec c. Ngoya Tupemunyi, 2013 QCCA 134, the Court has gone even further. The issue was whether procedural fairness required the disclosure of an exam and answer key to allow the individual concerned to properly respond to the recommendations of disciplinary inquiry.

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.

Some Recent Decisions on Regulators' Investigative Powers

A helpful way to keep up with recent legal developments in Canada is to follow the output of the country's leading law firms.