Executive Summary: Key Legal and Evidentiary Issues

• Judicial review sought of an interlocutory TMF ruling excluding a defence expert report in AMF conservatory-measures proceedings regarding alleged crypto-asset manipulation.
• Scope of Superior Court intervention over interlocutory administrative decisions, including the strict exceptions for premature judicial review, is central to the outcome.
• Admissibility of expert evidence assessed under Mohan and White Burgess, focusing on necessity, independence, impartiality, and the risk of usurping the tribunal’s role.
• Tribunal administratif des marchés financiers’ own expertise in securities and crypto-asset practices weighed against the alleged need for expert assistance.
• Characterization of the expert report as legal argument and advocacy, rather than neutral technical assistance, undermines its admissibility.
• Alleged breach of procedural fairness is rejected where the parties retain other avenues to adduce factual evidence and challenge the AMF case despite exclusion of the expert report.

Factual background

Alexandre Gagnon and 9452-7538 Québec inc. were under investigation by the Autorité des marchés financiers (AMF) for their activities in the crypto-asset space. According to the AMF, between January and July 2023, Gagnon, using various pseudonyms and operating through a website and social media group pages, allegedly manipulated or attempted to manipulate the price or value of at least thirty crypto-asset tokens using a promotion-and-dump strategy. The AMF maintained that, for each token analyzed to date, the elements of an “investment contract” existed from the time of their marketing, within the meaning of section 1 of the Loi sur les valeurs mobilières. It further alleged that Gagnon offered two types of investment contracts to the public: one in which he would trade tokens on behalf of investors for remuneration, and another in which he would sell buy and sell signals on tokens he had identified. In light of these concerns, on 28 November 2024, the AMF filed before the Tribunal administratif des marchés financiers (TMF) an application for conservatory measures under the Loi sur les valeurs mobilières. The AMF argued that urgent orders were required to prevent Gagnon from continuing apparently unlawful activities and to preserve assets subject to potential freezing orders, so that any eventual monetary sanctions would not be rendered ineffective by dissipation of assets.

Procedural history before the TMF

In preparation for the hearing on conservatory measures, the applicants (Gagnon and his company) filed an expert report on 14 March 2025 under the TMF’s Règlement sur les règles de preuve et de procédure. The AMF responded on 7 April 2025 with a motion asking the TMF to reject the expert report, and that motion was heard on 15 April 2025. On 25 April 2025, the TMF issued its interlocutory decision excluding the expert report from the evidence. The applicants then sought judicial review of that interlocutory ruling before the Superior Court of Quebec.

The TMF’s reasons for excluding the expert report

Applying the framework for expert evidence established by the Supreme Court of Canada in R. v. Mohan and White Burgess Langille Inman v. Abbott and Haliburton Co., the TMF rejected the expert report on three principal grounds. First, regarding the Mohan criterion of necessity to assist the trier of fact, the TMF found that it already possessed significant technical expertise in cryptocurrencies and extensive experience with various schemes used to contravene securities legislation, so the report was not necessary to understand or determine the issues. Second, the TMF concluded that the expert strayed into the tribunal’s adjudicative role. The report contained numerous analyses akin to legal analysis, including interpretations of securities regulation in Canada and the United States and the suggestion that a particular exemption would apply to the activities alleged against the applicants. This encroachment on the tribunal’s sovereign domain raised concerns about whether the expert remained independent and impartial. Third, the TMF characterized the report as heavily infused with advocacy, legal argument, and partisan framing, such that the risks associated with admitting it and hearing the expert outweighed any potential probative value. In light of these factors, and guided by the balancing approach set out in White Burgess, the TMF exercised its discretion to exclude the report.

Judicial review and the issue of prematurity

Before the Superior Court, the applicants asked that the TMF’s interlocutory decision be quashed on judicial review. The Superior Court, however, first addressed whether it was appropriate to intervene at this stage. The Court recalled that, as a general rule, judicial review of interlocutory decisions by administrative tribunals is discouraged, subject only to narrow, strictly construed exceptions. Those exceptions arise where there is (1) a clearly inadmissible proceeding before the tribunal, (2) an interlocutory decision causing serious and irreparable consequences that the final decision cannot cure, or (3) a fundamental question that the legislature did not intend to leave to the administrative decision-maker. This restraint applies even where the interlocutory ruling concerns an objection to evidence. The applicants relied on the second exception, arguing that the TMF’s decision prevented them from presenting essential evidence and, being non-appealable in itself, inflicted irreparable procedural prejudice that a later appeal of the final decision could not remedy. The Superior Court rejected this argument, finding that exclusion of the expert report did not create important and irreparable consequences. The applicants retained the ability to present relevant facts by other means, such as ordinary fact witnesses and cross-examination of AMF witnesses. The conservatory measures application itself might still be dismissed on the merits, and even if granted, it would be subject to an appeal in which the exclusion of the expert report could be raised as an appellate ground. On this basis, the Court held that the application for judicial review was premature.

Alleged breach of procedural fairness

The Court nonetheless went on to consider, in the alternative, the applicants’ argument that the TMF’s decision violated their right to procedural fairness. The applicable standard for assessing a breach of procedural fairness is correctness, but the Court emphasized that a measure of deference is still warranted, especially in matters of hearing management. Quebec jurisprudence cautions reviewing courts against routinely reweighing administrative case-management decisions—particularly on evidentiary relevance, production of documents, and witness management—under the guise of enforcing procedural fairness. The Court cited guidance that not every erroneous evidentiary ruling amounts to a breach of natural justice; only where exclusion of relevant evidence so seriously undermines the fairness of the process should the reviewing court intervene. Applying these principles, the Superior Court found that the TMF, as the specialized body seized of the conservatory measures application, was best placed to assess the utility and necessity of the expert evidence. Its conclusion that the report was unnecessary, given its own expertise and knowledge of securities practices, warranted deference. The Court also accepted the TMF’s view that the expert had usurped the decision-maker’s role and appeared insufficiently independent and impartial, and that the report’s structure and content resembled partisan advocacy more than neutral expert assistance. In this context, it was reasonable and procedurally fair for the TMF to exercise its discretionary “gatekeeping” function to exclude the report after weighing potential benefits against risks of confusion, prejudice, or role substitution.

Availability of alternative means of defence

An important element of the Court’s fairness analysis was the TMF’s explicit statement that, although the report would not be admitted as expert evidence, the applicants’ counsel remained free to rely on its content as a basis for legal argumentation, to use the expert to assist in preparing cross-examinations, and even to treat the report as akin to notes and authorities. The Superior Court noted that this preserved significant room for the applicants to structure and present their defence. At the same time, the TMF’s decision did not restrict their ability to call factual witnesses or to challenge the AMF’s evidence through cross-examination. In these circumstances, the Court held that the exclusion of the expert report did not deprive the applicants of a meaningful opportunity to be heard or to present their case.

Outcome and implications

Ultimately, the Superior Court concluded that the TMF’s interlocutory decision did not infringe the applicants’ right to procedural fairness and that there was no justification for early judicial intervention. The application for judicial review was therefore dismissed, with costs (“avec les frais de justice”) against the applicants. The judgment confirms the high threshold for overturning an administrative tribunal’s discretionary decision on expert evidence and reinforces the limited scope for judicial review of interlocutory rulings in ongoing administrative proceedings. In practical terms, the successful parties in this decision are the TMF, whose ruling is upheld, and, indirectly, the AMF, whose objection to the expert report stands. The judgment orders costs against the applicants but does not specify any exact amounts for costs, damages, or other monetary relief, so the total monetary award in favor of the successful parties cannot be determined from this decision alone.