Savard, Marcotte, Healy

Appeal from a judgment of the Superior Court granting the application to dismiss of the Autorité des marchés financiers (AMF) and dismissing an application for judicial review. Dismissed.

Apple Canada Inc. filed an application for judicial review of the AMF’s decision to investigate its insurance and financial products distribution activities in connection with its AppleCare+ protection plan and to issue subpoenas ordering it to provide various information and documents for the purposes of this investigation. Apple asked the Superior Court to declare that the AppleCare+ plan is not an insurance contract within the meaning of the Insurers Act (CQLR, c. A-32.1) and the Civil Code of Québec (S.Q. 1991, c. 64).

The trial judge did not err in applying the reasonableness standard. The decision to order an investigation into compliance with the rules regarding financial products and the issuance of subpoenas for the purposes of the investigation fall within the exclusive jurisdiction of the AMF, which is protected by a full privative clause and requires deference. Moreover, none of the exceptions raised in Canada (Minister of Citizenship and Immigration) v. Vavilov, (S.C. Can., 2019-12-19), 2019 SCC 65, SOQUIJ AZ-51654335, 2020EXP-27, [2019] 4 S.C.R. 653, can be used to set aside the presumed application of this standard. The mere hypothesis that the AppleCare+ plan may be considered an additional warranty and be the subject of a parallel investigation by the Office de la protection du consommateur does not create an operational conflict that could give rise to the application of the correctness standard.

The AMF’s decision to conduct an in camera investigation to determine whether the Insurers Act or the Act respecting the distribution of financial products and services (CQLR, c. D-9.2) were contravened arises from the exercise of the discretionary power conferred on it by section 12 of the Act respecting the regulation of the financial sector (CQLR, c. E-6.1). The judge did not err in finding this decision reasonable as it appears justified in view of the applicable legislative scheme. In addition, the investigators may issue subpoenas and require the communication of information or documents in connection with the subject of the investigation or considered essential to discovering the truth. This criterion is interpreted flexibly in the case law and was complied with in this case. The fact that Apple is required to communicate information and documents [translation] “of a sensitive and exclusive nature” is not in itself prejudicial in the context of an in camera investigation, no more than is being investigated by a body whose mission is to protect the public.

Moreover, the judge did not err in refusing to characterize the AppleCare+ plan as an insurance contract or an additional warranty. The existence of reasonable grounds to believe that the law was contravened is what permits the AMF to open an investigation, not the legal characterization of the product. The investigation will allow the AMF to determine whether the AppleCare+ plan is an insurance contract.

Last, there is reason to presume that by granting the AMF the power to supervise and control insurance business in Quebec, the legislature wanted it to interpret the statutes it administers, such as the Insurers Act. The definition of “insurance product” within the meaning of that Act therefore falls within the exclusive jurisdiction of the AMF.

Text of the decision: http://citoyens.soquij.qc.ca