Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc., [2001] 2 S.C.R. 743, 2001 SCC 51
2858-0702 Québec Inc. and Lac d’Amiante du Canada Ltée Appellants
v.
Lac d’Amiante du Québec Ltée Respondent
and
Canadian Broadcasting Corporation, Southam Inc.,
Sun Media Corporation, La Presse Ltée and
Fédération professionnelle des journalistes du Québec Interveners
Indexed as: Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc.
Neutral citation: 2001 SCC 51.
File No.: 27324.
2001: January 18; 2001: September 13.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for quebec
Civil procedure — Examination on discovery — Confidentiality — Whether examination on discovery is sitting of courts within meaning of art. 13 C.C.P. — Whether there is implied rule of confidentiality applicable to content of examinations on discovery under Code of Civil Procedure — Extent of rule of confidentiality.
Courts — Quebec rules of civil procedure — Whether Quebec court may create positive rule of civil procedure.
The respondent brought action against the appellants for reimbursement of expenses incurred in defending itself against claims by victims of asbestos exposure. One of the respondent’s senior officials was examined on discovery and during the examination the appellants requested production of a large number of documents. The respondent objected but the Superior Court of Quebec dismissed the objections, the basis of which was that the information requested was not relevant. The respondent compiled the documentation requested and before giving it to the appellants informed them that it wanted to enter into a confidentiality agreement to prevent them from being disclosed or given to third parties. The appellants refused and moved to dismiss the action. The respondent then filed a motion asking the Superior Court to require that anyone to whom the documents would be communicated maintain the confidentiality of the documents. The respondent submitted an inventory showing the documents it regarded as confidential. The Superior Court dismissed the respondent’s motion because, in the view of the trial judge, the general principle that the sittings of the Court are public, absent a decision to the contrary by the court hearing the matter, had to prevail. The majority of the Court of Appeal reversed that judgment and concluded that there is a rule of confidentiality.
Held: The appeal should be dismissed. There is in Quebec an implied rule of confidentiality of the content of examinations for discovery held under the Code of Civil Procedure.
The Code of Civil Procedure contains the statutory organization of the law of trials. Although the rules of Quebec civil procedure originate from differing sources, they are nonetheless codified, written law, governed by a tradition of civil law interpretation. The law is created primarily by the legislature and, in the civil law tradition, the Quebec courts must find their latitude for interpreting and developing the law within the legal framework comprised by the Code and the general principles of procedure underlying it. That civil procedure is also subject to the general principles found in the Civil Code of Québec which comprises the jus commune of Quebec. It must also respect the values expressed in the Quebec Charter of Human Rights and Freedoms, as well as the fundamental constitutional principles in the Canadian Charter of Rights and Freedoms where applicable in a private judicial proceeding.
Applying a civil law method of analysis, an implied rule of confidentiality may be based on the changes that have occurred in the legal framework of the examination on discovery in Quebec civil procedure and on the rules of civil law and the principles of the Quebec Charter concerning the protection of privacy. The changes that have been made to the rules governing examinations on discovery confirm that in Quebec civil procedure that examination has become essentially exploratory and, as a general rule, have made it private. The examination takes place under the control of the parties, outside the court and with no involvement on the part of the court, other than in exceptional cases. Accordingly, with the exception of certain procedural situations, an examination on discovery is not a sitting within the meaning of art. 13 C.C.P. or s. 23 of the Quebec Charter. It is therefore appropriate to recognize that the examination on discovery is subject to an obligation of confidentiality, since the information obtained at an examination remains private at that stage. It does not become a part of the court record and does not enter into the proceedings between the parties as long as the trial has not commenced and the adverse party has not entered it in evidence. The court ultimately still retains control over the proper application of the rule of confidentiality and any problems that arise as a result of such performance.
An implied rule of confidentiality at an examination on discovery may also be found based on the privacy principles recognized in s. 5 of the Quebec Charter and arts. 35 to 37 C.C.Q. The rule of confidentiality seeks to limit the invasion of privacy at the examination on discovery stage by restricting it to what is necessary for the conduct of the proceeding. The rule acknowledges that if the information is relevant and is not protected by some other privilege, it must be communicated to the adverse party. However, the rule prohibits that party from using it for purposes other than preparing for the trial and defending his or her interests at trial, or from disclosing it to third parties, without specific leave from the court. Moreover, using information and documents obtained at an examination on discovery for purposes unrelated to the case may amount to a breach of good faith. The doctrine of abuse of right which is codified in arts. 6 and 7 C.C.Q. would then provide an additional basis to justify recognizing the confidentiality rule in Quebec law.
Despite the fundamental importance of the media’s right of access to information in a modern democracy, it must be consistent with the right to privacy. Because an examination on discovery is not a sitting of the courts, it is legitimate to give greater weight to the privacy interest, by imposing the obligation of confidentiality on information that is disclosed. At the examination on discovery stage, there is no imperative of transparency in the judicial system that would justify taking that information out of the private sphere and making it accessible to the public or the media.
The rule of confidentiality continues to apply, during and after the trial, to information obtained at the examination on discovery which is not used for the purposes of the trial. However, the court will retain the power to relieve the persons concerned of the obligation of confidentiality in cases where it is necessary to do so, in the interests of justice. The rule of confidentiality will apply only to information obtained solely from that examination, however, and not to information that is otherwise accessible to the public.
Cases Cited
Referred to: Goodman v. Rossi (1995), 24 O.R. (3d) 359; Harman v. Secretary of State for the Home Department, [1983] A.C. 280; Scotia McLeod Inc. v. Champagne, J.E. 90-1439; Bourse de Montréal v. Scotia McLeod Inc., [1991] R.D.J. 626; General Instrument Corp. v. Tee-Comm Electronics Inc., [1993] R.D.J. 374; Kyuquot Logging Ltd. v. British Columbia Forest Products Ltd. (1986), 5 B.C.L.R. (2d) 1; Attorney General of Quebec v. Farrah, [1978] 2 S.C.R. 638; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065; Charpentier v. Ville de Lemoyne, [1975] C.A. 870; Canadian Broadcasting Corp. v. Quebec Police Commission, [1979] 2 S.C.R. 618; Verdun (Municipalité de) v. Doré, [1995] R.J.Q. 1321, aff’d [1997] 2 S.C.R. 862; Frenette v. Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647; Sezerman v. Youle (1996), 135 D.L.R. (4th) 266; Aubry v. Éditions Vice-Versa Inc., [1998] 1 S.C.R. 591; Robinson v. Films Cinar Inc., [2001] Q.J. No. 2515 (QL); Mulroney v. Canada (Procureur général), [1996] R.J.Q. 1271; Wirth Ltd. v. Acadia Pipe & Supply Corp. (1991), 79 Alta. L.R. (2d) 345.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms.
Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 5, 23 [am. 1982, c. 17, s. 42; am. 1993, c. 30, s. 17], 24, 52, 53.
Civil Code of Québec, S.Q. 1991, c. 64, arts. 3, 6, 7, 35, 36, 37.
Code of Civil Procedure, R.S.Q., c. C-25, arts. 13 [am. 1982, c. 17, s. 2; am. 1984, c. 26, s. 1; am. 1993, c. 30, s. 1], 20, 46 [am. 1992, c. 57, s. 422], 47, 50 [am. 1992, c. 57, s. 187], 75.1, 331.5, 331.8, 396, 397, 398 [am. 1983, c. 28, s. 13; am. 1984, c. 26, s. 14; am. 1992, c. 57, s. 420], 398.1 [am. 1983, c. 28, s. 14; am. 1984, c. 26, s. 15; am. 1994, c. 28, s. 21], 399.1, 400, 401, 402, 403, 405.
Code of Civil Procedure, S.Q. 1897, c. 48, arts. 286, 286(a) [ad. 1926, c. 65, s. 1; am. 1958, c. 43, s. 1], 288 [am. 1899, c. 52, s. 3], 289 [idem].
Code of Civil Procedure of Lower Canada (1867), art. 251(a) [ad. R.S.Q. 1888, s. 5879].
Constitution Act, 1867, ss. 92(13), (14), (16), 96.
Authors Cited
Baudouin, Jean-Louis, et Patrice Deslauriers. La responsabilité civile, 5e éd. Cowansville, Qué.: Yvon Blais, 1998.
Brierley, John E. C., and Roderick A. Macdonald. Quebec Civil Law: An Introduction to Quebec Private Law. Toronto: Edmond Montgomery, 1993.
Brisson, Jean-Maurice. La formation d’un droit mixte: l’évolution de la procédure civile de 1774 à 1867. Montréal: Thémis, 1986.
Brisson, Jean-Maurice. “La procédure civile au Québec avant la codification : un droit mixte, faute de mieux”, dans La formation du droit national dans les pays de droit mixte. Aix-Marseille, France: Presses universitaires d’Aix-Marseille, 1989, 93.
Cudmore, Gordon D. Choate on Discovery, 2nd ed. Scarborough, Ont.: Carswell, 1993 (loose-leaf updated 2001, rel. 1).
Dainow, Joseph. “The Civil Law and the Common Law: Some Points of Comparison” (1967), 15 Am. J. Comp. L. 419.
Deleury, Edith, et Christine Tourigny. “L’organisation judiciaire, le statut des juges et le modèle des jugements dans la province de Québec”, dans H. Patrick Glenn, dir., Droit québécois et droit français: communauté, autonomie, concordance. Cowansville, Qué. : Yvon Blais, 1993, 191.
Ducharme, Léo. L’administration de la preuve, 3e éd. Montréal: Wilson & Lafleur, 2001.
Ducharme, Léo. “La proclamation de l’existence en droit québécois de la règle de common law de l’engagement implicite de confidentialité : Lac d’Amiante, une décision judiciaire erronée” (2000), 79 Can. Bar Rev. 435.
Ducharme, Léo. “Le nouveau régime de l’interrogatoire préalable et de l’assignation pour production d’un écrit” (1983), 43 R. du B. 969.
Ferland, Denis, et Benoît Emery. Précis de procédure civile du Québec, vol. 1, 3e éd. Cowansville, Qué.: Yvon Blais, 1997.
Matthews, Paul, and Hodge M. Malek. Discovery. London: Sweet & Maxwell, 1992.
Popovici, Adrian. “Dans quelle mesure la jurisprudence et la doctrine sont-elles sources de droit au Québec?” (1973), 8 R.J.T. 189.
Sarna, Lazar. “Examination on Discovery: The Full Disclosure Rule” (1984), 44 R. du B. 179.
Stevenson, W. A., and J. E. Côté. Civil Procedure Guide. Edmonton: Juriliber, 1996.
Tancelin, Maurice. “How can a legal system be a mixed system”, in Frederick Parker Walton, The Scope and Interpretation of Civil Code of Lower Canada. Toronto: Butterworths, 1980, 1.
Watson, G. D., et al. Civil Litigation Cases and Materials, 4th ed. Toronto: Edmond Montgomery, 1991.
Wright, Charles Alan, Arthur R. Miller and Richard L. Marcus. Federal Practice and Procedure, 2nd ed., vol. 8. St. Paul, Minn.: West Publishing, 1994.
APPEAL from a judgment of the Quebec Court of Appeal, [1999] R.J.Q. 970, [1999] Q.J. No. 1043 (QL), setting aside a judgment of the Superior Court, [1997] Q.J. No. 3593 (QL). Appeal dismissed.
Philippe Casgrain, Q.C., Gérard Dugré and Catherine Pilon, for the appellants.
James A. Woods, Christopher Richter and Vikki Andrighetti, for the respondent.
Marc-André Blanchard and Judith Harvie, for the interveners.
English version of the judgment of the Court delivered by
LeBel J. —
I. Introduction
1 The issue in this appeal is whether there is an implied rule of confidentiality concerning evidence or information obtained at examinations on discovery under the Quebec Code of Civil Procedure, R.S.Q., c. C-25 (“C.C.P.”). This case, which arose out of a business dispute, raises the problems of the mixed nature of Quebec civil procedure, the sources of that procedure and the power of Quebec courts to create procedural rules. The Court must determine whether this obligation of confidentiality may be created by the courts themselves or be inferred from the structure of the Quebec civil trial, the procedural principles governing it and the rules of substantive law concerning privacy and the confidentiality of personal files.
II. The Origin of the Case: Procedural History
2 The parties were engaged in the production of asbestos in Quebec. Their contractual relationship led to a series of disputes concerning the performance of their obligations. In 1992, the respondent Lac d’Amiante du Québec Ltée brought an action against the two appellants, 2858-0702 Québec Inc. and Lac d’Amiante du Canada Ltée, solidarily. The respondent claimed the sum of $12,298,002, mainly as reimbursement for expenses incurred in defending itself against claims made by victims of asbestos exposure. In 1996, a second action demanded an additional $31,958,888.
3 On December 5, 1996, William Dowd, one of the respondent’s senior officials, was examined on discovery by the appellants. During the examination, they requested production of a large number of documents. The respondent objected. The Superior Court of Quebec dismissed the objections, the basis of which was that the information requested was not relevant.
4 The respondent compiled the documentation requested. Before giving it to the appellants, counsel for the respondent informed counsel for the appellants that their client wanted to enter into a confidentiality agreement to prevent the documents from being disclosed or given to third parties. The appellants rejected that arrangement and on July 14, 1997, they moved to dismiss the action under arts. 75.1 and 398 C.C.P., for failure to produce the documents requested at the examination on discovery. A change of solicitors occurred on July 22, 1997, and the lawyers then retained by the respondent filed a “Motion to Suspend Proceedings or Order Confidential Certain Documents and Information and to Declare that Documents and Information Cannot Be Used for any Other Purposes than the Present Action”.
5 Based on arts. 13, 20, 46 and 331.5 C.C.P., the motion asked the Superior Court to require that anyone to whom the documents would be communicated maintain the confidentiality of the documents. That obligation would prohibit any subsequent use of the information other than for the purposes of the action. Specifically, the motion stated:
20. Since the information and documents to be communicated on discovery will not necessarily be part of the evidence and in the interests of public order, it is appropriate in the circumstances that the Superior Court orders that all information and documents communicated at the discovery stage by Plaintiff be held by the Defendants and the Court subject to an order of confidentiality;
. . .
22. Furthermore, Plaintiff requests, as part of its subsidiary conclusions, a declaration, in conformity with the law of discovery, that all information and documents received at the discovery stage shall not be used for any purpose other than this action;
6 The motion for an order of confidentiality dealt with four types of documents. The first category consisted of accounts submitted by the lawyers who had defended the respondent in its asbestos-related litigation and who had also brought actions against insurers who refused to take up its defence. The second and third categories concerned the settlements reached with the parties who had brought the actions against the respondent and with the insurers against whom it had brought action. The fourth category of documents consisted of various information about the respondent’s employees. Altogether, the documentation filled 14 boxes. There was a lengthy inventory showing two separate lists of documents for each box: those that the respondent regarded as confidential and those it did not. The Superior Court of Quebec then had to rule on the confidentiality of those documents.
A. Superior Court of Quebec, [1997] Q.J. No. 3593 (QL)
7 Barbeau J. dismissed the respondent’s motion. In his view, the general principle that the sittings of the courts are public had to prevail, absent a decision to the contrary by the court hearing the matter. All the pleadings and exhibits in the record became public unless persuasive evidence was presented to establish the need to hold an in camera hearing or to restrict the principle of public sittings. He found that the respondent had not succeeded in discharging this burden (at paras. 9-10):
[translation] There is nothing confidential about the documents in question here; they do not reveal any trade secret or manufacturing secret or anything of a similar nature; they do not raise any issue of public order or violate good morals. The argument that access to the documents would prejudice the plaintiff because its strategy to deal with the thousands of lawsuits against it would be disclosed to those plaintiffs cannot succeed: the plaintiff’s witness (Lamontagne), who compiled all the documentation from the plaintiff’s files over a six- or seven-week period, who is herself a lawyer, admitted that even she cannot identify that strategy, although she did add that she had not put her mind to it.
The evidence is that over 140,000 lawsuits have been commenced in the United States; if we add the lawyers in those cases, the witnesses and the experts, we come to the conclusion that a large number of people are already familiar with the documents in the plaintiff`s possession; imposing the obligation of confidentiality sought here on the defendant (and its counsel) in these circumstances is unreasonable; the potential prejudice this could cause includes actions in civil liability arising out of the indiscretion of other persons over whom they have no control, with all the consequences that can readily be imagined.
8 The Superior Court was of the view that the respondent’s fears about the disclosure of trade or personal information could not prevail over the principle that judicial proceedings must be public. Although the judgment does not specifically discuss the recognition of a principle of confidentiality relating to examinations on discovery in Quebec civil procedure, the tenor of the judgment nonetheless confirms that the trial judge believed that the examination on discovery was part of the proceedings. As a general rule, the proceedings remain public unless the need for total or partial confidentiality can be conclusively established.
B. Quebec Court of Appeal, [1999] R.J.Q. 970
9 Despite a strong dissent by Biron J.A., the majority of the Court of Appeal allowed the appeal, concluded that there is a rule of confidentiality and required that the parties to the case comply with that rule. The three judges of the court wrote separate opinions. Mailhot and Fish JJ.A. agreed that the appeal should be allowed. Biron J.A. would have dismissed it.
10 Mailhot J.A. recognized an implied undertaking rule in respect of pre-trial examinations. That implied undertaking rule would automatically classify all the documents that one party is required to disclose to the other prior to the hearing on the merits as confidential, without a request having to be made to the court (at p. 976):
[translation] Under that rule, all the documents that one party is compelled to disclose to the other prior to the hearing on the merits are automatically confidential, at least until trial. It is not necessary for a party to request this of the court. This rule applies only to documents that would ordinarily have remained confidential if the party had not been compelled to produce them. [Emphasis in original.]
11 Mailhot J.A. relied, inter alia, on Goodman v. Rossi (1995), 24 O.R. (3d) 359, in which the Ontario Court of Appeal held that the implied undertaking rule was part of the law in Ontario. She also cited the judgment of the House of Lords in Harman v. Secretary of State for the Home Department, [1983] A.C. 280.
12 Mailhot J.A. was of the view that the rule of confidentiality should be part of Quebec procedural law as it is at common law. She wrote that it has been accepted in English and Canadian common law for some time, and is nothing but beneficial. It would appear to be more economical, in the context of a proceeding, to require that a party that wants to use a document obtained from the adverse party in another case apply to do so, rather than to compel the party making the disclosure to obtain an order prohibiting the use of the document. Mailhot J.A. saw the mixed nature of the sources of civil procedure and the status of the Quebec superior courts as common law courts as allowing her to look to the common law for recognition of the rule of confidentiality in Quebec law (at p. 978):
[translation] According to the appellant, application of the implied undertaking rule in our law is a matter of judicial interpretation and may be inferred from our written law and from case law. Given that the source of the articles in our Code of Civil Procedure concerning examination on discovery is the common law, we should look to the decisions of the common-law courts. . . .
13 In the opinion of Mailhot J.A., that rule does not violate the principle that trials are held in public. It affects only a step prior to the trial: the examinations before and after defence under arts. 398 and 398.1 C.C.P. Moreover, at that point, the evidence or information obtained at the examination is not yet part of the court record, in the case of a civil action (at p. 980):
[translation] In my view, the rule should not be automatic in a civil trial. When a party places documents in support of its arguments in the court file, those documents will be available to anyone who examines the file. But when a party is compelled by the other, at an examination on discovery, to disclose or communicate prior to trial certain private information or documents that are not already public, the rule of an implied undertaking of confidentiality should apply until the information or documents are communicated or introduced at trial.
14 This approach rejects the argument based on trials and proceedings being held in public. Mailhot J.A. also stated that the case may be distinguished, on its facts, from Scotia McLeod Inc. v. Champagne, J.E. 90-1439; Bourse de Montréal v. Scotia McLeod Inc., [1991] R.D.J. 626, and General Instrument Corp. v. Tee-Comm Electronics Inc., [1993] R.D.J. 374, in which the Court of Appeal had concluded that an examination on discovery was part of the proceedings and therefore was, like a trial, public. Since there was no provision in the Code of Civil Procedure to prevent the rule of confidentiality being applied, it could therefore be recognized by the courts and thus become part of the judge-made law governing that preliminary step in the process. Mailhot J.A. would have allowed the appellant’s appeal on that basis, except in respect of the settlements reached in class actions in the United States, given that that information was already public.
15 Fish J.A. wrote a separate opinion that was concurred in by Mailhot J.A. That opinion described the development of civil procedure and the introduction of rules of substantive law concerning protection of privacy. Fish J.A. was of the view that the recognition of a rule of confidentiality was consistent with changes in the procedural framework examination on discovery since 1983. Prior to 1983, depositions taken on discovery were part of the court record. Since that time, only depositions that have been communicated and filed in accordance with the procedure set out in art. 398.1 C.C.P. form part of the record. Since 1983, the examination on discovery has become an exploratory tool. Despite the rule providing that the hearings of the courts are public, there is no provision in the Code of Civil Procedure requiring that the examination and the evidence or information obtained therein become public.
16 Moreover, Fish J.A. was of the view that making the information obtained at examinations on discovery public would be inconsistent with the principles of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12 (“Quebec Charter”), as set out in ss. 5 and 24, and with the provisions of the Civil Code of Québec, S.Q. 1991, c. 64 (“C.C.Q.”), concerning the protection of privacy and the confidentiality of personal files: the applicable principles of substantive law do not allow for general access to private information about other people. That rule is less rigid in the context of a trial because of the requirement for openness of the process. In addition, at the pre-trial stage, arts. 397 and 398 C.C.P. provide that a party may compel the adverse party to testify or to provide any relevant documents. However, public disclosure of private information at this stage of the proceedings would not assist in achieving the objectives of the examination on discovery. Such disclosure would even be a disincentive to candid disclosure and to the possibility of out-of-court settlements.
17 Fish J.A. was of the view that, in any event, examinations on discovery are not sittings of the courts within the meaning of art. 13 C.C.P. and are not part of the proceeding. Therefore the rule that a civil trial is public does not apply (at pp. 994-95):
To begin with, it rests entirely on the literal interpretation of a phrase that was never intended by the legislator to be applied literally, except as a last resort, and in practice never is. Apart from the rarest of exceptions, examinations on discovery in Quebec are not held before a judge or clerk. They instead take place in law offices, in some other private venue, or in Courthouse facilities made available for the purpose.
Examinations on discovery in fact proceed before a judge or clerk only in the sense that they remain subject to judicial intervention in the event of objections or disagreements as to where or how they should proceed. This does not make them “sittings of the courts” within the meaning of article 13 C.C.P., and the entire profession would be utterly astonished to discover that any member of the public can attend any examination on discovery in any law office or boardroom — though the parties have agreed to proceed in private.
Moreover, if examinations on discovery, wherever held, were indeed sittings of the court, their public character would be a matter of public order. The parties could then never proceed in private, in a law office or elsewhere, by consent. Nor could a judge permit them to proceed in private, except on the sole ground contemplated by article 13: “[In] the interests of good morals and public order.” [Emphasis in original.]
18 Fish J.A. then discussed the advantages of recognizing the rule of confidentiality in Quebec civil procedure, which he thought it wise and opportune to do. In his view, the experience of the other Canadian provinces that have adopted a similar rule confirms that it has not caused any major problems. He therefore held that a relaxed rule of confidentiality should be applied. It would bind the parties and their counsel to undertake to not use information otherwise than for the purposes of the proceedings in relation to which the examinations were conducted. It would permit broader use of the information for any purpose, with leave of the court, if it were shown to be otherwise accessible to the public. With leave of the court, again, information acquired could be used in other proceedings raising substantially the same issues between the same parties. In a case where the interests of justice outweighed any prejudice that would result from disclosure, the court could order disclosure subject to any conditions it deemed appropriate and accordingly the implied undertaking of confidentiality would not apply.
19 Accordingly, the approach adopted by Fish J.A. would create a rule of partial confidentiality, the rigidity of which could be relaxed on a case-by-case basis by the courts. However, confidentiality would still be the first principle.
20 In his dissenting opinion, Biron J.A. first questioned the advisability of introducing such a rule. He stated that he shared the reservations regarding the rule expressed by McLachlin J.A. of the British Columbia Court of Appeal (as she then was) in Kyuquot Logging Ltd. v. British Columbia Forest Products Ltd. (1986), 5 B.C.L.R. (2d) 1. However, Biron J.A. did not base his opinion primarily on that ground. Rather, he relied on the nature of Quebec civil procedure and the role of the courts in that procedure.
21 Biron J.A. pointed out that under Quebec law, civil procedure is codified and is found primarily in the Code of Civil Procedure. The Code governs both the conduct of trials and the rules of practice, which may be made by a majority of the judges of each court, under art. 47 C.C.P. Article 20 C.C.P. also provides for additional rules to be made to govern the exercise of a right where the Code contains no provision for exercising the right. The court therefore fills the gap in the law by permitting any procedure that is consistent with the rules in the Code or with any other statutory provision. That being the case, there is no authority to create judge-made rules of procedure that, if breached, might lead to a finding of contempt of court, as would be the case with the obligation of confidentiality.
22 Biron J.A. also pointed out that both the Code of Civil Procedure and the Quebec Charter adopted the principle that judicial proceedings are public. In his view, the examination on discovery forms part of those public hearings. It was his opinion that there was no support in the Code of Civil Procedure for the implied obligation of confidentiality, which is a rule of the common law, and that obligation was inconsistent with the previous decisions of the Quebec Court of Appeal that had defined the examination on discovery as a sitting for purposes of trials being public. Therefore, in the opinion of Biron J.A., the Quebec courts may not import or adopt rules of procedure on their own initiative as is done in the common law jurisdictions, outside the framework defined by the Code of Civil Procedure.
23 The appellants were given leave to appeal the judgment of the Court of Appeal. A group of media organizations then intervened in the case, primarily on the problems associated with the rule that civil trials are public under the procedural law of Quebec.
III. Relevant Statutory Provisions
24 Code of Civil Procedure, R.S.Q., c. C‑25
13. The sittings of the courts are public wherever they may be held, but the court may order that they be held in camera in the interests of good morals or public order.
However, in family matters, sittings in first instance are held in camera, unless the court, upon application, orders that, in the interests of justice a sitting be public. Any journalist who proves his capacity is admitted to sittings held in camera, without further formality, unless the court considers his presence detrimental to a person whose interests may be affected by the proceedings. This paragraph applies notwithstanding section 23 of the Charter of human rights and freedoms (R.S.Q., chapter C-12).
The rules of practice may determine the conditions and modalities relating to sittings in camera in respect of advocates and articled students within the meaning of the Act respecting the Barreau du Québec (R.S.Q., chapter B‑1).
20. Whenever this Code contains no provision for exercising any right, any proceeding may be adopted which is not inconsistent with this Code or with some other provision of law.
46. The courts and the judges have all the powers necessary for the exercise of their jurisdiction. They may, in the cases brought before them, even of their own motion, pronounce orders or reprimands, suppress writings or declare them libellous, and make such orders as are appropriate to cover cases where no specific remedy is provided by law.
50. Anyone is guilty of contempt of court who disobeys any process or order of the court or of a judge thereof, or who acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the court.
In particular, any officer of justice who fails to do his duty, and any sheriff or bailiff who does not execute a writ forthwith or does not make a return thereof or, in executing it, infringes any rule the violation whereof renders him liable to a penalty, is guilty of contempt of court.
398. After defence filed, any party may, after one clear day’s notice to the attorneys of the other parties, summon to be examined before the judge or clerk upon all facts relating to the issues between the parties or to give communication and allow copy to be made of any document relating to the issue:
(1) any other party, agent, employee or officer;
(2) any person mentioned in paragraphs 2 and 3 of article 397;
(3) with the permission of the court and on such conditions as it may determine, any other person.
The defendant cannot, however, without permission of the judge or, in the case referred to in subparagraph 3 of the first paragraph, the court, examine under this article any person whom he has already examined under article 397.
398.1. A party having examined witnesses under article 397 or 398 may introduce as evidence the whole or abstracts only of the depositions taken, provided they have been communicated and filed in the record in accordance with the provisions of Sections I and II of Chapter I.1 of this Title.
However, on the motion of any other party, the court may order any abstract of the deposition which, in its opinion, cannot be dissociated from the abstracts already filed, to be added to the record.
Civil Code of Québec, S.Q. 1991, c. 64
3. Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of the person, and the right to the respect of his name, reputation and privacy.
These rights are inalienable.
6. Every person is bound to exercise his civil rights in good faith.
7. No right may be exercised with the intent of injuring another or in an excessive and unreasonable manner which is contrary to the requirements of good faith.
35. Every person has a right to the respect of his reputation and privacy.
No one may invade the privacy of a person without the consent of the person or his heirs unless authorized by law.
36. The following acts, in particular, may be considered as invasions of the privacy of a person:
(1) entering or taking anything in his dwelling;
(2) intentionally intercepting or using his private communications;
(3) appropriating or using his image or voice while he is in private premises;
(4) keeping his private life under observation by any means;
(5) using his name, image, likeness or voice for a purpose other than the legitimate information of the public;
(6) using his correspondence, manuscripts or other personal documents
37. Every person who establishes a file on another person shall have a serious and legitimate reason for doing so. He may gather only information which is relevant to the stated objective of the file, and may not, without the consent of the person concerned or authorization by law, communicate such information to third persons or use it for purposes that are inconsistent with the purposes for which the file was established. In addition, he may not, when establishing or using the file, otherwise invade the privacy or damage the reputation of the person concerned.
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12
5. Every person has a right to respect for his private life.
23. Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him.
The tribunal may decide to sit in camera, however, in the interests of morality or public order.
24. No one may be deprived of his liberty or of his rights except on grounds provided by law and in accordance with prescribed procedure.
IV. Analysis
A. The Positions of the Parties
25 The appellants submit that the judgment of the Court of Appeal is inconsistent with both the letter and the spirit of the enactments governing Quebec civil procedure. The rule of confidentiality is not based on any enactment, whereas civil procedure in Quebec is codified. Absent some statutory authority, the Quebec courts may not introduce a new procedural rule by judicial fiat. Moreover, the rule violates the principle that judicial proceedings are public, which is established in the Code of Civil Procedure and the Quebec Charter. The appellants’ final point is that it is not appropriate to introduce a new rule which is difficult to define and to implement.
26 The appellants’ position is supported, in part, by a group of print and electronic media organizations. In challenging the validity of a rule of confidentiality, these interveners rely on the principle that trials and court files are public in Quebec civil law, and on society’s interest in the transparency of judicial proceedings, as guaranteed by the Quebec Charter and the Canadian Charter of Rights and Freedoms. These interveners therefore strongly oppose the recognition or introduction of a rule of confidentiality.
27 The respondent replies that the implied rule of confidentiality is accepted in common law jurisdictions throughout Canada, and that introducing that rule in Quebec civil law would be useful to facilitate the conduct of examinations. In addition, it says that support for the rule is found in the changes that have occurred in civil procedure and in principles of substantive law. The respondent asserts that because legislative framework governing examinations on discovery has been altered, they are no longer part of the sitting within the meaning of art. 13 C.C.P. and therefore, as such, are no longer subject to the general rule that civil trials are public. The respondent’s final point is that this rule protects the privacy and confidentiality interests already recognized by the Quebec Charter and the Civil Code of Québec.
B. The Sources of Quebec Civil Procedure
28 The conflict between the arguments put forward by the parties derives from the problem of the sources and the nature of Quebec civil procedure. This is a complex subject. Certain aspects of the problem fall within established principles of Quebec law. Constitutionally, civil procedure in the Quebec courts is a provincial matter because of the province’s jurisdiction over property and civil rights, the administration of justice and matters of a merely local or private nature. (See ss. 92(13), 92(14) and 92(16) of the Constitution Act, 1867.)
29 In addition, the organization of the courts has historically derived from British tradition, and it reflects Canadian constitutional values and arrangements. (See J. E. C. Brierley and R. A. Macdonald, Quebec Civil Law: An Introduction to Quebec Private Law (1993), at pp. 49-54; E. Deleury and C. Tourigny, “L’organisation judiciaire, le statut des juges et le modèle des jugements dans la province de Québec”, in H. P. Glenn, ed., Droit québécois et droit français: communauté, autonomie, concordance (1993), 191.) The existence of that tradition and of the values it reflects therefore limits the legislative initiatives that may be taken in respect of the organization of the courts and procedure.
30 The Superior Court is therefore the court of original general jurisdiction in Quebec. Moreover, constitutional principles prohibit the provinces from taking certain essential powers away from the courts established under s. 96 of the Constitution Act, 1867. (See, for example, Attorney General of Quebec v. Farrah, [1978] 2 S.C.R. 638; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, at p. 740.) The structure of the courts and a number of the fundamental rules in the Code of Civil Procedure reflect this constitutional requirement.
31 There are other restrictions on the powers of Parliament and of the legislatures with respect to courts, to safeguard the independance of the judiciary. (See Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3.) In addition, a number of federal statutes establish procedural rules, such as the legislation respecting bankruptcy and divorce. Accordingly, the form of organization of the Quebec courts that apply the trial law of Quebec has been profoundly influenced by British court structure and its constitutional and legal traditions.
32 The rules of Quebec civil procedure themselves reveal the mixed nature of their sources. As Professor Tancelin points out, part of that civil procedure derives from the former French law. Prior to 1867, the codifiers given the task of preparing the Civil Code of Lower Canada and Code of Civil Procedure of Lower Canada had in fact been instructed to base their work on the contemporary French codes. (See the introduction of M. Tancelin, “How can a legal system be a mixed system?”, in F. P. Walton, The Scope and Interpretation of the Civil Code of Lower Canada (1980), 1, at pp. 1, 9 and 10; also J.-M. Brisson, La formation d’un droit mixte: l’évolution de la procédure civile de 1774 à 1867 (1986), at pp. 32-33.)
33 In addition, civil trials in Quebec are conducted within a framework that has been influenced by the common law courts. Characteristics such as the adversarial nature of the proceeding, the roles assigned to lawyers and judges, the direct examination of witnesses before the court and, now, the use of examinations on discovery, all demonstrate how significant this contribution to the civil procedure of Quebec has been. (See Brierley and Macdonald, supra, at pp. 52-53; also Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065, at pp. 1080-82, per Gonthier J.)
34 Thus the form that the civil trial has now taken in Quebec makes it markedly different from the continental European model. In this way, the Code of Civil Procedure, reflects the diversity and complexity of the society for which it provides the structure within which judicial proceedings are conducted.
C. The Effect of Codifying Procedure
35 The rules of Quebec civil procedure, which originate from widely differing sources, make up a Code of Civil Procedure. As such, they are part of a legal tradition that is different from the common law. The fundamental law concerning civil procedure is the law enacted by the National Assembly. The rules of that law are found in a code that is expressed in general terms. The law is therefore created primarily by the legislature.
36 The Code of Civil Procedure contains the statutory organization of the law of trials. First, it lays down all of the main rules of civil procedure governing the jurisdiction of the courts, the institution of judicial proceedings, readiness for trial, the conduct of the hearing, judgment and execution of the judgment. That framework allows for the regulatory power provided in art. 47 C.C.P. to be exercised by the courts, which allows the judges of the different courts to adopt rules of practice, provided that they fit within the general framework defined by the statute. (See Charpentier v. Ville de Lemoyne, [1975] C.A. 870; also D. Ferland and B. Emery, Précis de procédure civile du Québec (3rd ed. 1997), vol. 1, at p. 68.)
37 Moreover, the procedural law recognizes the courts’ inherent powers to deal with situations not provided for in the law or the rules of practice. (See Canadian Broadcasting Corp. v. Quebec Police Commission, [1979] 2 S.C.R. 618.) In addition, decisions may have to be made on a case-by-case basis to deal with unusual situations that arise. However, these inherent or ancillary powers, that were established by arts. 20 and 46 C.C.P., only give the courts a secondary or interstitial function in defining procedure in Quebec. The codified law is paramount. The courts must base their decisions on it. Without denying the importance of the case law, this system does not give it the status of a formal source of the law, legitimate as a creative interpretation in determining the intention of the legislature, as expressed or implied in the statutes, may be. (See J. Dainow, “The Civil Law and the Common Law: Some Points of Comparison” (1967), 15 Am. J. Comp. L. 419, at pp. 424 and 426; A. Popovici, “Dans quelle mesure la jurisprudence et la doctrine sont-elles sources de droit au Québec?” (1973), 8 R.J.T. 189, at pp. 193 and 199.)
38 Accordingly, the Quebec legislature has not given the courts the same latitude as the legislatures in the other provinces. Civil procedure is found primarily in the Code. Although the scope of the rules of practice has been gradually broadened, they are nonetheless made under the authority of the Code and within the general framework defined by it.
39 A Quebec court may not create a positive rule of civil procedure simply because it considers it appropriate to do so. In this respect, a Quebec court does not have the same creative power in relation to civil procedure as a common law court, although intelligent and creative judicial interpretation is often able to ensure that procedure remains flexible and adaptable. Although Quebec civil procedure is mixed, it is nonetheless codified, written law, governed by a tradition of civil law interpretation. (See J.-M. Brisson, “La procédure civile au Québec avant la codification: un droit mixte, faute de mieux”, in La formation du droit national dans les pays de droit mixte (1989), 93, at pp. 93 to 95; also by the same author: La formation d’un droit mixte: l’évolution de la procédure civile de 1774 à 1867, supra, at pp. 32-33.) In the civil law tradition, the Quebec courts must find their latitude for interpreting and developing the law within the legal framework comprised by the Code and the general principles of procedure underlying it. The dissenting opinion written by Biron J.A. quite correctly reminds us of these characteristics of a codified legal system and accurately identifies the nature of the method of analysis and examination that applies in this case.
40 However, this cursory review would be incomplete if we did not point out the links between civil procedure and Quebec law as a whole. That civil procedure is subject to the general principles found in the Civil Code of Québec. The preliminary provision of the Code, the significance of which has been pointed out by the courts in the past (see Verdun (Municipalité de) v. Doré, [1995] R.J.Q. 1321 (C.A.), affirmed by this Court at [1997] 2 S.C.R. 862), states that the Civil Code comprises the jus commune of Quebec. Civil procedure must therefore take these principles into account. Even apart from the Civil Code, it must also respect the values expressed in the Quebec Charter, s. 52 of which provides that it will prevail in respect of matters within the legislative authority of the National Assembly of Quebec. In addition, s. 53 sets out a principle of interpretation that favours application of the Charter in the event of doubt. The final point is that in an area such as the public nature of trials, the fundamental constitutional principles in the Canadian Charter of Rights and Freedoms also come into play where applicable in a private judicial proceeding.
D. The Basis for a Rule of Confidentiality
41 Applying a civil law method of analysis, that rule of confidentiality may be based on the changes that have occurred in the legal framework of the examination on discovery in Quebec civil procedure and on the rules of civil law and the principles of the Quebec Charter concerning the protection of privacy.
42 Initially, however, there needs to be agreement as to what the nature of a rule of confidentiality with respect to information obtained at an examination on discovery would be. Even if files or information are confidential or private, a party who institutes a legal proceeding waives his or her right to privacy, at least in part. This may be true even of matters as sensitive as the contents of medical and hospital records. (See Frenette v. Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647; art. 399.1 and art. 400 C.C.P.) When legal proceedings are instituted, they necessarily set in motion the process for verifying allegations and information presented unilaterally by one party. The rule of confidentiality, however, seeks to limit the invasion of privacy at the examination on discovery stage by restricting the scope of the examination to what is necessary for the conduct of the proceeding. The rule acknowledges that if the information is relevant and is not protected by some other privilege, it must be communicated to the adverse party. However, the rule prohibits that party from using it for purposes other than preparing for the trial and defending his or her interests at trial, or from disclosing it to third parties, without specific leave from the court.
43 When the case reaches the trial stage, the effectiveness of the application of this rule is no doubt limited and temporary; examination on discovery is of course only one step in the conduct of a civil trial. If the adverse party chooses to use the evidence or information obtained on discovery at the hearing on the merits and files it in the court record for that purpose, any expectation of confidentiality disappears. Only exceptional grounds such as, for example, the interest of one party in protecting trade secrets or specially privileged information, such as professional privilege or in camera hearings concerning individuals’ conditions, will result in the court maintaining the partial or complete secrecy of certain information, during the trial and in the court records. Therefore, the obligation of confidentiality will sometimes be no more than just one phase in the gradual disclosure of information that was originally private. We now need to examine how the procedural framework of the examination on discovery has changed, and what impact it has on the recognition of am implied obligation of confidentiality.
E. Changes in the Procedural Framework of the Examination on Discovery
44 The 1867 Code of Civil Procedure of Lower Canada made no mention of examinations on discovery. This practice was introduced in Quebec law by amendments enacted in 1888. Article 251(a) was then added to the Code of Civil Procedure of Lower Canada by art. 5879 of the Revised Statutes of Quebec of 1888. The parties could be examined as witnesses once the pleas were filed, upon the facts in issue as then joined. That provision did not permit a third party to be examined, nor did it provide for the depositions to be entered in the court record. As a result, the procedure was entirely exploratory in nature.
45 With the enactment of the Code of Civil Procedure of 1897, art. 251(a) became art. 286, which continued to restrict the examination to the adverse party or his or her representative:
286. At any time before trial but after defence filed, any party may summon any of the following persons to answer as a witness, before the judge or the prothonotary, upon all facts relating to the action or the defence:
1. The opposite party;
2. When the opposite party is a corporation, the president, manager, treasurer, or secretary of such corporation;
3. When the opposite party is a foreign firm or corporation doing business in this Province, the agent of such firm or corporation.
46 For the first time, art. 288, which was a new law, permitted the use of depositions in the cause on the merits. However, it required that the witness be examined in court if he or she were still available in the province at the time of the trial:
288. The deposition taken by virtue of the preceding Articles may be used as evidence in the cause; but if the party examined as a witness is still in the Province, and can be produced at the trial, he must be examined again, and the deposition taken before the trial can no longer be used as evidence.
47 The 1897 codification also added art. 289 concerning the production of documents. This provision allowed a party to obtain documents in the control of the adverse party, with leave of the court:
289. Upon the application of any party, the judge may, at any time after defence filed and before trial, order the opposite party to exhibit any object, or to give communication or furnish a copy or allow a copy to be made of, any book or document in his control, relating to the action or the defence, at such times and places, under such conditions and in such manner as are deemed proper.
48 Article 288 was substantially amended in 1899 (S.Q. 1899, c. 52, s. 3). The testimony and depositions obtained at the examination on discovery were now automatically entered in the court record and could be used as evidence at trial:
288. The deposition taken by virtue of the preceding Articles shall be used as evidence in the case; but if the party examined as a witness is still in the Province and can be produced at the trial, he may be examined again.
The deposition taken before the trial shall, in any case, form part of the record, and the cost thereof shall enter into taxation.
49 In 1926, the legislature also permitted the examination on discovery of the plaintiff before defence filed, with leave of the court (new art. 286(a), enacted by S.Q. 1926, c. 65, s. 1). The questions asked were limited to the facts relating to the action. In 1958, a further amendment abolished the requirement for leave of the court (S.Q. 1958, c. 43, s. 1). However, as in the case of examination after defence filed, the transcript of the examination became part of the court record.
50 The 1965 Code of Civil Procedure, S.Q. 1965, c. 80, made minor amendments to reorganize the rules concerning examination on discovery. First, arts. 396, 397 and 398 C.C.P. carried the rules concerning examination on discovery forward from the 1897 Code. Under art. 396, the examination continued to form part of the court record:
396. The depositions taken by virtue of this chapter form part of the record; but if the witness is in the province and can be produced at the trial, he may be examined again, if any party so requires.
51 Articles 401 and 402 made changes to the provisions concerning the communication of documents. Article 402 now permitted a third party to be summoned to produce a document. Article 401 abolished the requirement for leave of the court to compel the production of a document by the adverse party.
52 Major amendments to the rules governing examinations on discovery occurred in 1983 (S.Q. 1983, c. 28, s. 14), when art. 398.1 was added, making it optional now to file information obtained at an examination on discovery in the court record. That article now reads as follows:
398.1 A party having examined witnesses under article 397 or 398 may introduce as evidence the whole or abstracts only of the depositions taken, provided they have been communicated and filed in the record in accordance with the provisions of Sections I and II of Chapter I.1 of this Title.
However, on the motion of any other party, the court may order any abstract of the deposition which, in its opinion, cannot be dissociated from the abstracts already filed, to be added to the record.
53 The party who conducts the examination thus decides whether it will be filed in the record, in whole or in part. If only part of it is filed, the adverse party, with leave of a judge, is entitled to add to the record any abstract that cannot be dissociated from what has already been filed. As well, art. 401 concerning the communication of documents was repealed. The rules governing examinations on discovery include both the examination of witnesses and the production of documents. Communication of documents is now to take place in the course of the examinations held before or after defence filed. Before defence filed, the information demanded must relate to what is set out in the claim. After defence filed, the information must relate to the issue between the parties as a whole. (See, on these amendments, L. Ducharme, “Le nouveau régime de l’interrogatoire préalable et de l’assignation pour production d’un écrit” (1983), 43 R. du B. 969; L. Sarna, “Examination on Discovery: The Full Disclosure Rule” (1984), 44 R. du B. 179.) A further amendment in 1984 permitted a party to examine any other person on discovery and to obtain documents from that person, in addition to the parties or their representatives, with leave of the court. (See L. Ducharme, L’administration de la preuve (3rd ed. 2001), at pp. 271 et seq.)
54 Strictly speaking, under art. 397 C.C.P., the examination on discovery is held under the direction of the judge or an officer of the court. As Fish J.A. pointed out in his opinion, however, it is common knowledge that in practice these examinations usually take place in private, not in the presence of a judge or a court official. The only time when the court must be involved is to dispose of objections raised at the examination.
55 For proceedings commenced after October 1, 1995, the procedure for filing exhibits must also be taken into account. Technically, they are filed only at the hearing, after a disclosure notice to that effect has been sent within the time prescribed by art. 331.8 C.C.P. Under those rules, even if a party intends to file the deposition, it will not become part of the record until the hearing. (See Ducharme, L’administration de la preuve, supra, at pp. 296-98.)
F. The Exploratory Nature of the Examination on Discovery
56 The changes that have been made to these rules confirm that in Quebec civil procedure, the examination on discovery has become essentially exploratory, despite some opinions to the contrary. (See in particular L. Ducharme, “La proclamation de l’existence en droit québécois de la règle de common law de l’engagement implicite de confidentialité: Lac d’Amiante, une décision judiciaire erronée” (2000), 79 Can. Bar Rev. 435.) Examination on discovery in Quebec civil law has thus become very similar to the common law “discovery”.
57 Common law discovery, like the Quebec procedure, allows the adverse party to obtain information about the case so that he or she can take a position regarding the claim that has been filed. The parties may also try to obtain admissions from their opponents regarding certain aspects of the case.
58 There are procedural rules regarding discovery in every Canadian province, as well as in the Federal Court. The content of the rules is equivalent, with minor variations.
59 First there is what is called the “examination for discovery” that takes place after the exchange of pleadings. This procedure is widespread, particularly in the United States and in the Canadian common law provinces. Elsewhere in the Commonwealth, it is available only with a court order. (See G. D. Watson et al., Civil Litigation Cases and Materials (4th ed. 1991), at pp. 793-95.) A second form of discovery relates to documents. Each party must prepare a sworn statement listing all documents relevant to the proceedings which the party has in its control or possession. Any adverse party may demand full access to those documents. With the exception of objections based on certain privileges prohibiting disclosure, it appears that a broad range of information may be demanded. (See Watson et al., supra, at p. 829.)
60 On the whole, this procedure does not differ substantially from what now exists in Quebec law. It appears that the preferred approach is a far-reaching and liberal exploration that allows the parties to obtain as complete a picture of the case as possible. In return for this freedom to investigate, an implied obligation of confidentiality has emerged in the case law, even in cases where the communication is not the subject of a specific privilege. (See in particular W. A. Stevenson and J. E. Côté, Civil Procedure Guide (1996), at p. 816.) The aim is to avoid a situation where a party is reluctant to disclose information out of fear that it will be used for other purposes. The aim of this procedure is also to preserve the individual’s right to privacy. (See P. Matthews and H. M. Malek, Discovery (1992), at p. 252; Goodman v. Rossi, supra; see also Sezerman v. Youle (1996), 135 D.L.R. (4th) 266 (N.S.C.A.), at p. 275; see also, generally, G. D. Cudmore, Choate on Discovery (2nd ed. (loose-leaf)), at pp. 3-16 to 3-16.8.)
61 It should be noted that this implied obligation of confidentiality does not seem to exist in the United States. Consequently, under American law, the use of documents obtained on discovery is not limited to the proceeding in which the examination was held. A party has a right to disclose them or use them for other purposes, unless the party who communicated them has obtained a court order specially prohibiting such use. (See C. A. Wright, A. R. Miller and R. L. Marcus, Federal Practice and Procedure (2nd ed. 1994), vol. 8, at pp. 542-56.)
G. The Concept of a Sitting and the Development of Quebec Civil Procedure
62 From the review of the changes that have occurred in the examination on discovery, we get a better idea of the nature of the first objection to recognizing an implied rule of the confidentiality of evidence or information obtained on examinations in Quebec civil procedure. That objection is based on the principle that trials are public. The Code of Civil Procedure provides that the sittings of the courts are public unless the court orders that they be held in camera in the interests of good morals or public order (art. 13). Moreover, s. 23 of the Quebec Charter recognizes the right of every person to a public hearing of his or her case. The principle that the proceedings of the courts are public is unquestionably one of the fundamental values of Canadian procedural law. This case does not question that fundamental principle of procedural law and civil liberties. The problem here is to determine whether an examination on discovery is always a sitting of the court.
63 In concluding that an examination on discovery is part of a sitting within the meaning of art. 13 C.C.P. and must therefore continue to be public, the appellants rely on a group of decisions from the Quebec Court of Appeal. (See Scotia McLeod v. Champagne, supra; Bourse de Montréal v. Scotia McLeod, supra; General Instrument Corp. v. Tee-Comm Electronics Inc., supra.) While there certainly are judgments of the Court of Appeal to that effect, the need for a different solution is apparent from the changes that have occurred in civil procedure, which have expanded the exploratory nature of the examination on discovery procedure and, as a general rule, have made it private. The examination takes place under the control of the parties, outside the court and with no involvement on the part of the court, other than in exceptional cases. The rule providing for an implied undertaking of confidentiality recognizes that the examination on discovery corresponds to a period when there is limited disclosure of information, which remains private at that stage.
64 When an examination on discovery is held, confidentiality is weakened. The information becomes accessible to the adverse party. However, it does not become a part of the court record and does not enter into the proceedings between the parties as long as the trial has not commenced and the adverse party has not entered it in evidence. It is therefore appropriate to recognize that the examination is subject to an obligation of confidentiality, which is binding on the party who obtains the information, for the protection of the opposing party. That confidentiality governs the stage prior to the court record being created, in respect of both the opposing party and the court, which in this context must be able to rely on the proper application of the rule of confidentiality (Robinson v. Films Cinar Inc., [2001] Q.J. No. 2515 (C.A.) (QL)). The court ultimately still retains control over the performance of the undertaking and any problems that arise as a result of such performance. In extreme cases, breach of this obligation may lead to a penalty being imposed for contempt of court, after the necessary proceedings are instituted to establish that a breach of the confidentiality rule has occurred or to prevent or stop such a breach.
65 Adopting this rule means that although confidentiality is compromised to some extent at the stage of examination on discovery, there is still a degree of protection of privacy. If the trial never takes place, the information remains confidential. Moreover, when the party who has conducted an examination decides not to use the evidence or information obtained for the purposes of the trial, a right to complete confidentiality remains, except for what may be the practical consequences of communicating the information. Because Quebec civil procedure provides for this phase to take place outside the public sphere, the principle of limited confidentiality is consistent with the nature and the purpose of the transmission of information that takes place at the examination.
66 Although the examination is no longer a sitting within the meaning of art. 13 C.C.P. or s. 23 of the Quebec Charter, it may occasionally take on that nature in certain procedural situations. First, it must always be acknowledged that an examination may take place under the direct control of a judge, as permitted by art. 397 C.C.P. (For an example of this kind of situation, see: Mulroney v. Canada (Procureur général), [1996] R.J.Q. 1271.) Second, information obtained at an examination may become part of the court record if objections are made and are then argued before the court. In those cases, the portion of the examination on discovery in question is part of the sitting. Information that is revealed when this happens is therefore not subject to the obligation of confidentiality.
67 Similarly, information obtained in the course of the proceedings provided for in art. 403 C.C.P. (admissions of genuineness or correctness of an exhibit) or art. 405 C.C.P. (interrogatories upon articulated facts) is not subject to the obligation of confidentiality, because it is part of the sitting. The purpose of those proceedings is to obtain evidence to be used at trial, and they are held under the direct control of the court and its officers. (For more information on these proceedings, see Ferland and Emery, supra, at pp. 512-15 and 517-19.) On the other hand, documents obtained from a third party under art. 402 C.C.P. are subject to the rule of confidentiality because they are not disclosed at a sitting, like documents communicated under arts. 397 and 398 C.C.P.
H. The Substantive Authority for the Rule of Confidentiality
68 In addition to the authority for the obligation of confidentiality provided by the structure of the Code of Civil Procedure, recognition of that obligation is justified by the substantive legal rules set out in the Quebec Charter and the Civil Code of Québec. Section 5 of the Quebec Charter expresses a general recognition of the right to the protection of privacy interest; the importance of that right was affirmed by this Court in Aubry v. Éditions Vice-Versa Inc., [1998] 1 S.C.R. 591. In addition, art. 35 C.C.Q. states this principle when it recognizes that every person has a right to the respect of his privacy. Article 36 C.C.Q. protects the privacy of a person against the unauthorized use of his or her correspondence and manuscripts by other persons. And art. 37 C.C.Q. governs the establishment of files on any person. That article requires that there be a serious reason for establishing a file on another person and that the person establishing the file have the consent of the person concerned or authorization by law:
37. Every person who establishes a file on another person shall have a serious and legitimate reason for doing so. He may gather only information which is relevant to the stated objective of the file, and may not, without the consent of the person concerned or authorization by law, communicate such information to third persons or use it for purposes that are inconsistent with the purposes for which the file was established. In addition, he may not, when establishing or using the file, otherwise invade the privacy or damage the reputation of the person concerned.
69 Examination on discovery is a procedure by which a file is established on a person. It allows for information and documents that are still private at that point to be obtained from a party. There is a reason for doing this. The reason arises from the commencement of the legal proceeding, in which a litigant has a right to defend himself or herself effectively, in accordance with the applicable legal rules. At the same time, both art. 37 and the other relevant provisions of the Civil Code of Québec and the Quebec Charter emphasize that the fact that a party may have a valid reason for establishing a file does not mean that the right to protection of the privacy or confidentiality of documents completely disappears. It continues to exist to the extent possible, subject to communication of the information needed for the conduct of the judicial proceeding. The examination on discovery is therefore subject to privacy principles and to an implied obligation of confidentiality.
70 Of course, the right to confidentiality will end if the adverse party decides to actually use the evidence or information obtained on discovery, when that party chooses to use all or part of it in his or her own case. The legislative intent that information be communicated in a civil trial will then prevail, to ensure that the system is transparent. On the other hand, at the examination on discovery stage, concern for transparency is not an issue because the examination is not a sitting of the courts. It is therefore legitimate in that case to give greater weight to the privacy interest, by imposing the obligation of confidentiality on information that is disclosed.
71 Privacy may also be set up against the argument made by the appellants and the interveners representing the media regarding freedom of information. In their view, imposing a rule of confidentiality on examinations on discovery would violate freedom of the press and of information, as guaranteed by the Constitution. However, their argument does not challenge the statutory rules governing examinations on discovery on any constitutional grounds, and relates only to the interpretation of the enactments and the definition of the legal principles governing examinations on discovery.
72 Despite the fundamental importance of the media’s right of access to information in a modern democracy, it must be consistent with the principle of respect for privacy. As we have seen, an examination on discovery is not part of either the court record or a trial. The content of the examination is therefore not accessible to the public, because it is still, as a general rule, in the private sphere. At that stage, there is no imperative of transparency in the judicial system that would justify taking that information out of the private sphere and making it accessible to the public or the media. It will also be recalled that once the trial begins, and except for the limited number of cases held in camera or subject to a publication ban, the media will have broad access to the court records, exhibits and documents filed by the parties, as well as to the court sittings. They have a firm guarantee of access, to protect the public’s right to information about the civil or criminal justice systems and freedom of the press and freedom of expression.
73 There is an additional statutory foundation that may be cited as authority for the implied obligation of confidentiality in Quebec law. As the respondent in this case argued, using information and documents obtained at an examination on discovery for purposes unrelated to the case may amount to a breach of good faith. The doctrine of abuse of right which is codified in arts. 6 and 7 C.C.Q. would then provide an additional basis to justify recognizing the confidentiality rule in Quebec law. (On the doctrine of abuse of right, see J.-L. Baudouin and P. Deslauriers, La responsabilité civile (5th ed. 1998), at p. 127.)
74 There are other judicial policy reasons why it is legitimate to recognize the confidentiality rule. As we have seen, examination on discovery is an exploratory proceeding. As Fish J.A. pointed out in his reasons, the purpose of the examination is to encourage the most complete disclosure of the information available, despite the privacy imperative. On the other hand, if a party is afraid that information will be made public as a result of an examination, that may be a disincentive to disclose documents or answer certain questions candidly, which would be contrary to the proper administration of justice and the objective of full disclosure of the evidence. Recognizing the implied obligation of confidentiality will reduce that risk, by protecting the party concerned against disclosure of information that would otherwise not have been used in the case in which the examination was held and the information was disclosed.
75 In addition, it is sometimes difficult for a party, at the examination on discover stage, to assess whether information is useful or relevant to the outcome of the case. This creates a problem for the people who are compelled to disclose personal information that is potentially damaging to their interests. It would therefore be surprising if damaging personal information that was communicated at an examination could be used for purposes unrelated to the case, without being used in that case. This is of even greater concern with respect to third parties who are compelled to reveal information at examinations held under art. 398, para. 3 C.C.P. when they are not even directly involved in the trial. The rule of confidentiality minimizes those risks and problems.
I. The Scope of the Rule of Confidentiality
76 Before concluding, it would seem to be in order to comment on the scope of the rule of confidentiality. The rule applies during the case to both a party and the party’s representatives, and it remains applicable after the trial ends. However, there must be some limits on the rule. For instance, the court will retain the power to relieve the persons concerned of the obligation of confidentiality in cases where it is necessary to do so, in the interests of justice. However, the courts will avoid exercising that power too routinely, as to do so would compromise the usefulness of the rule, if not its very existence. For example, the exceptions to the rule of confidentiality must not be used, where a party has obtained information at an examination to enable the party to use that information virtually automatically in other court proceedings. That practice would be contrary to the public interest and would amount to an abuse of process.
77 The courts must therefore assess the severity of the harm to the parties involved if the rule of confidentiality were to be suspended, as well as the benefits of doing so. In cases where the harm suffered by the party who disclosed the information seems insignificant, and the benefit to the opposing party seems considerable, the court will be justified in granting leave to use the information. Before using information, however, the party in question will have to apply for leave, specifying the purposes of using the information and the reasons why it is justified, and both sides will have to be heard on the application. The court will determine whether the interests of justice in the information being used in the relations between the parties and, where applicable, in respect of other persons, outweigh the right to keep the information confidential. A number of factors, which cannot be listed exhaustively, will be taken into consideration. Disclosure of all or part of an examination, or of exhibits produced during an examination, may then be approved, in cases where there is an interest at stake that is important to the justice system or the parties. This might be the case, for example, where a party wishes to establish in another trial that a witness has given inconsistent versions of the same fact. (For comparison, see Wirth Ltd. v. Acadia Pipe & Supply Corp. (1991), 79 Alta. L.R. (2d) 345 (Q.B.).)
78 The rule of confidentiality will apply only to information obtained solely from that examination, however, and not to information that is otherwise accessible to the public. If the information is available to the public from other sources, a party should not be given the burden of applying to the court for leave before using it merely because it was also communicated at an examination on discovery. The obligation of confidentiality applies only to information that would have remained confidential if the examination on discovery had not taken place.
V. Conclusion
79 An implied rule of confidentiality at an examination on discovery may therefore be found in Quebec procedural law, based on the changes that have taken place in the institutions of the civil procedure and on privacy principles. The rule of confidentiality, the effects of which are analogous to the principles developed by the common law, may be recognized in Quebec in accordance with the techniques of civil law analysis, based on the fundamental principles around which the civil law and judicial procedure are organized. I would therefore dismiss the appeal and affirm the decision of the Court of Appeal, with costs to the respondent.
Appeal dismissed with costs.
Solicitors for the appellants: Fraser, Milner, Casgrain, Montréal.
Solicitors for the respondent: Woods & Partners, Montréal.
Solicitors for the interveners: Gowling, Lafleur, Henderson, Montréal.