31 May 2018, 11:30
Marie Elaine Farley, president and chief executive officer of the Chambre de la sécurité financière.
Several provisions of bill 141, which relate to the abolition and the integration of the Chamber of financial security to thefinancial markets Authority are contrary to the purposes and legislative policy, or even unconstitutional, says the law firm Lavery.
The Chamber has commissioned the latter to issue a legal opinion on the legality of its abolition, and to identify what would be the administrative difficulties and sources of disputes that it would pose.
Violation of the freedom of association
The opinion of a dozen of pages refers to the violation of the freedom of association of the Chamber, since the abolition has not been the subject of the agreement of the board of directors and of the members, in addition to being » unjustified «.
«The liquidation of the Chamber, in its component associations, does not meet any valid objective or «sufficiently important», the authors indicate Jean Martel and Raymond Doray, lawyers and associates. It is difficult […] to argue that the infringement is reasonable, then, that it contravenes a historic commitment made by the government at the place of the Chamber and its predecessors […]. «
Also, Lavery argues that the mechanism of provisional administration under bill 141 damaging to the reputation of the House, since it could be considered as a trusteeship. The guardian is generally reserved for businesses or organizations that are not able to adequately perform their responsibilities for the protection of the public, or when there is wrongdoing, maladministration, or threat to the protection of the public.
The Chamber is an advocate, while the law firm described the choice to » unusual, inappropriate, and fundamentally vexatious «.
The Authority in a situation of conflict of interest
In addition, Lavery also supports that bill 141 is kind of blurry on the liquidation of the assets of the Chamber, and that the Authority places itself in a conflict of interest by being both the liquidator and the future owner of the property, functions and powers of the House.
The authors suggest even that the permission to the Authority, without judicial authorization, to terminate or resolve any contract to which the Room is part is another situation of conflict of interest. It would be a power » which is purely discretionary with no other objective than to give rise to the eventual windup of the Room that would be afforded to the Authority, the organization that would benefit directly from the liquidation and the cancellation or rescission of contracts awarded previously by the Chamber «.
Inconsistencies in the application
The authors suggest that the bill also provides that the Authority can pick and choose the employees to the Room that she would keep and that they would impose the position and functions by the Authority, which would be contrary to the purposes and legislative policy. They explain that this situation could multiply litigation.
Finally, Lavery argues that the application of the measures would be problematic due to the inconsistency of chronological measures. The bill dictates that the board will cease its existence 30 days after its adoption. However, article 558 of the proposed text says that the winding-up of the Room will only start when the mandates of the disciplinary committee will come to an end, which could take months or even years.
The firm concludes by saying that » the activities of the committees of the disciplines operate in a legal vacuum, at least to finish their job in the month following the sanction of the bill, which does not appear realistic «.