Case information

Civil procedure ? Motion to dismiss ? Declinatory exception ? Application unfounded in law ? Lack of jurisdiction ? Immunity of agency of foreign state ? Immunity of investigator from provincial institution ? Action for judicial review, constitutional review and damages brought against foreign institution and provincial institution ? Whether independent entity of foreign state, such as Autorité des marchés financiers de France, can be considered “agency of foreign state” within meaning of s. 2 of State Immunity Act even though it is not subject to principles of government subordination and hierarchy or to any organic, functional or financial control by foreign state ? If so, whether exceptions provided for in State Immunity Act apply because of circumstances of this case, including fact that such entity acted directly on Canadian soil and was given powers arising from Canadian laws ? In context where application for judicial or constitutional review is brought at same time as proceedings in foreign country, whether concept of “reasonable time” in art. 529 of Code of Civil Procedure must be assessed and adapted to take account of these special circumstances, including stage of foreign proceedings at which actual prejudice or significant or irremediable consequences may occur ? Whether there is exception to immunity of superior court judges ? If so, what are circumstances in which exception applies ? Code of Civil Procedure, CQLR, c. C 25.01, art. 529 ? Act respecting public inquiry commissions, CQLR, c. C 37, s. 16 ? State Immunity Act, R.S.C. 1985, c. S 18, ss. 2, 3(1), 4(2), 6(b) ? Securities Act, CQLR, c. V-1.1, ss. 240, 283 ? Act respecting the regulation of the financial sector, CQLR, c. E 6.1, s. 32.

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In February 2014, the respondent Autorité des marchés financiers de France (AMFF) decided to initiate an investigation in France concerning the financial information and market for the stock of Ubisoft Entertainment S.A. (Ubisoft France) because of transactions involving the sale of shares by employees of its Canadian subsidiary (Ubisoft Canada) prior to an announcement on October 15, 2013 that the release of a game was being postponed. Under the OICV IOSCO Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information, the AMFF sent a request for assistance to the respondent and applicant on cross-appeal, the Autorité des marchés financiers of the province of Quebec (AMF), in order to obtain the complete mailboxes of Ubisoft Canada employees, including the applicants and respondents on cross-appeal, Mr. Mallat, Mr. Paris and Mr. Baillet. Further to that request, the AMF opened an investigation file and, by summons in March 2014, required Ubisoft Canada to provide information and documents concerning the applicants. Those documents were sent to the AMFF in France through Ubisoft France. After the applicants refused to meet voluntarily with the AMFF investigators, the AMF sent them a summons to appear for an examination at the AMF’s offices in October 2014, pursuant to the Securities Act. Following the examinations by the AMFF, the AMF, which had been present at them, gave the AMFF copies of the recording or transcript of the examinations, informed the applicants of their fundamental rights, and then closed the file without taking any action against the applicants. However, the AMFF continued the investigation in France. In December 2016, the AMFF’s Enforcement Committee imposed financial penalties on the applicants. It also declared the examinations conducted in Quebec with the AMF’s assistance to be null. In December 2016, the applicants filed an application in the Superior Court against the AMF and the AMFF for [TRANSLATION] “judicial review, constitutional review and damages”. The Superior Court allowed the applications to dismiss filed by the AMF and the AMFF and dismissed the application for judicial review, constitutional review and damages. The appeal against the AMFF was dismissed, and the appeal against the AMF was allowed in part.