Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc., [2004] 1 S.C.R. 456, 2004 SCC 18
City of Montréal Appellant
v.
Foster Wheeler Power Company Ltd. Respondent
and
Barreau du Québec and Canadian Bar Association Interveners
Indexed as: Foster Wheeler Power Co. v. Société intermunicipale de gestion et d’élimination des déchets (SIGED) inc.
Neutral citation: 2004 SCC 18.
File No.: 28967.
2003: November 12; 2004: March 25.
Present: McLachlin C.J. and Iacobucci, Bastarache, Binnie, Arbour, LeBel and Fish JJ.
on appeal from the court of appeal for quebec
Civil law — Professional secrecy — Lawyers — Obligation of confidentiality — Immunity from disclosure — Means of exercising professional secrecy — Content and scope of obligation of confidentiality.
Civil law — Professional secrecy — Obligation of confidentiality — Waiver — Whether questions asked during examinations on discovery violate lawyer’s obligation of confidentiality — Whether professional secrecy was waived.
Evidence — Professional secrecy — Burden of proof — Whether party invoking professional secrecy has initial burden of proving that information sought is protected by obligation of confidentiality.
The respondent brought an action in damages against the municipal authorities further to the cancellation of a project involving the construction of a solid waste recycling centre and a municipal incinerator and to the resiliation of the contracts related to the project. During examinations on discovery after defence, the appellant’s lawyers wanted to ask questions about information obtained from lawyers retained by the municipal authorities to create the project’s legal framework and obtain the necessary government approvals. The municipal authorities then objected, claiming that the information sought was protected by professional secrecy and could not be disclosed in a judicial proceeding. Initially, objections were made against 43 questions dealing with the nature of the reports on the project allegedly submitted by the lawyers at a meeting held in December 1995 and during the period of time around that meeting. Other questions focussed on documentation available to counsel or on the drafting of resolutions respecting the resiliation of the contracts with the respondent. The trial judge dismissed almost all of the objections on the ground that the questions, as a general rule, sought only factual information not protected by professional secrecy. The Court of Appeal also allowed almost all of the questions, upholding, however, objections to certain questions which violated professional secrecy. It also found that other objections were premature, and that the trial judge would have to examine the documents in question first to determine if they were subject to immunity from disclosure.
Held: The appeal should be dismissed.
The institution of professional secrecy in Quebec civil law has two components: first, an obligation of confidentiality, which imposes a duty of discretion on lawyers and creates a correlative right to their silence on the part of their clients; then, in relation to third parties, an immunity from disclosure that protects the content of information against compelled disclosure, even in judicial proceedings, subject to any other applicable legal rules or principles. Notwithstanding the social importance of professional secrecy in maintaining a properly functioning justice system and preserving the rule of law in Canada, not every aspect of relations between a lawyer and a client is necessarily confidential. The scope and intensity of the protection may vary according to the nature of the duties carried out and the services rendered. When the professional relationship arises out of a complex and prolonged mandate, as here, the limits of the scope of application of the obligation of confidentiality may require the court to take a close look at the relationship between the parties, including the nature and context of the professional services rendered.
As to the burden of proof, the appropriate approach may vary according to the circumstances of a case. In the case of an individual professional act, there would appear to be a need only for simple or summary evidence and the burden of proof could be placed on the person claiming professional secrecy without compromising the exercise and integrity of the institution. In the case of complicated and prolonged mandates, there would be a rebuttable presumption to the effect that all communications between client and lawyer and the information they shared would be considered prima facie confidential in nature. The opposing party would then have to give a specific indication of the nature of the information sought and show that it is subject neither to the obligation of confidentiality nor to immunity from disclosure, or that this is a case where the law authorizes disclosure notwithstanding professional secrecy.
Five of the 43 questions that were initially challenged are still at issue, but they have been profoundly reworked and their scope narrowed over the course of the proceedings. Some questions aim solely to obtain information about two specific facts — the identity of the project submitted to the regulatory approval process and the status of that process — which does not engage an obligation of confidentiality on the part of the lawyer, and the disclosure of which is not prohibited. Any problems raised by or subsequent questions stemming from the answers to these questions could be dealt with by the trial judge. The remaining questions seek the production of various documents, many of which are allegedly covered by an immunity from disclosure, which in Quebec law is roughly equivalent to the common law’s litigation privilege. The Court of Appeal rightly allowed the appeal in part on this point and ordered the trial judge to examine the documents before ruling on whether immunity from judicial disclosure should be accorded. After examining the documents, the trial judge may rule on the admissibility of the request for access. The municipal authorities’ opposition to the trial judge examining these documents is unjustified. Every day, judges must inspect or hear evidence before excluding it, and this duty is an indispensable part of their role in the conduct of civil or criminal trials.
The presence of a professional facilitator hired for the purpose of chairing the December 1995 meeting concerning this project does not imply a waiver of professional secrecy, since the facilitator was a temporary participant in the municipal organization in charge of the project and its deliberations, performing a function necessary for its effective operation. The meeting still took place in camera, with a view to maintaining the confidentiality that was so critical to the participants’ discussions.
Cases Cited
Referred to: Montreal Street Railway Co. v. Feigleman (1912), 22 Que. K.B. 102; Maranda v. Richer, [2003] 3 S.C.R. 193, 2003 SCC 67; R. v. Robillard, [2001] R.J.Q. 1; Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61; R. v. Gruenke, [1991] 3 S.C.R. 263; Frenette v. Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647; R. v. Campbell, [1999] 1 S.C.R. 565; Québec (Sous-ministre du Revenu) v. Legault, [1989] R.J.Q. 229; Smith v. Jones, [1999] 1 S.C.R. 455; R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; Poulin v. Prat, [1994] R.D.J. 301; Sous-ministre du Revenu du Québec v. Fava, [1984] C.A. 639; Société d’énergie de la Baie James v. Lafarge Canada Inc., [1991] R.J.Q. 637; Champagne v. Scotia McLeod Inc., [1992] R.D.J. 247; Lab Chrysotile Inc. v. Société Asbestos Ltée, [1993] R.D.J. 641; Pfieffer et Pfieffer Inc. v. Javicoli, [1994] R.J.Q. 1.
Statutes and Regulations Cited
Act respecting the Barreau du Québec, R.S.Q., c. B-1, ss. 128, 129, 131.
Act respecting the Ministère du Revenu, R.S.Q., c. M‑31, s. 53.1.
By-laws of the Bar (Quebec) (1955), s. 66(21).
Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 9.
Civil Code of Québec, S.Q. 1991, c. 64, art. 2858.
Code of Civil Procedure (1867), art. 275.
Code of Civil Procedure (1897), art. 332.
Notarial Act, S.Q. 1952-53, c. 54, s. 50.
Professional Code, R.S.Q., c. C-26, s. 60.4.
Quebec Act, 1774, R.S.C. 1985, App. II, No. 2.
Quebec Medical Act, R.S.Q. 1941, c. 264, s. 60(2).
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 30.04(6).
Rules of Court (New Brunswick), r. 31.04(4).
Rules of Practice of the Superior Court of Québec in Civil Matters, R.R.Q. 1981, c. C-25, r. 8, s. 15.
Authors Cited
Baudouin, Jean-Louis. Secret professionnel et droit au secret dans le droit de la preuve. Paris: Librairie générale de droit et de jurisprudence, 1965.
Brierley, John E. C., and Roderick A. Macdonald. Quebec Civil Law: An Introduction to Quebec Private Law. Toronto: Emond Montgomery, 1993.
Cardinal, Alain. “Quelques aspects modernes du secret professionnel de l’avocat” (1984), 44 R. du B. 237.
Morissette, Yves-Marie, et Daniel W. Shuman. “Le secret professionnel au Québec: une hydre à trente-neuf têtes rôde dans le droit de la preuve” (1984), 25 C. de D. 501.
Royer, Jean-Claude. La preuve civile, 3e éd. Cowansville, Qué.: Yvon Blais, 2003.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.
Walton, Frederick Parker. The Scope and Interpretation of the Civil Code of Lower Canada. Toronto: Butterworths, 1980.
APPEAL from a judgment of the Quebec Court of Appeal, [2001] R.J.Q. 2461, [2001] Q.J. No. 4823 (QL), reversing in part decisions of the Superior Court dismissing in whole or in part objections raised by the appellant during examinations on discovery after defence. Appeal dismissed.
Réal Forest, Claude Marseille and Enrico Forlini, for the appellant.
Olivier F. Kott, Bernard P. Quinn and Mercedes Glockseisen, for the respondent.
Giuseppe Battista, for the intervener Barreau du Québec.
Denis Jacques, for the intervener the Canadian Bar Association.
English version of the judgment of the Court delivered by
LeBel J. —
I. Introduction
1 This appeal is incidental to an action for damages brought by the respondent, Foster Wheeler Power Company Ltd. (“Foster”), against the appellant, the City of Montréal (the “City”), further to the cancellation of a project involving the construction of a solid waste recycling centre and a municipal incinerator (the “project”). During examinations on discovery after defence, Foster’s lawyers and lawyers representing some of the interveners wanted to ask witnesses questions about information related to certain aspects of the project that was obtained from lawyers representing the municipal authorities in the matter of that project. Although the appellant objected that these questions violated professional secrecy, the Quebec Superior Court and the Quebec Court of Appeal allowed a certain number of these questions. This appeal concerns the scope of professional secrecy in Quebec civil law and the means of exercising it, specifically with respect to one of its components, namely, the immunity from disclosing confidential information to others in a judicial proceeding. For the reasons I shall give here, I would dismiss the appeal and uphold the Court of Appeal’s disposition with respect to the admissibility of the questions at issue between the parties.
II. Origin of the Case
2 The case arises out of a major project involving the construction of a recycling centre and a garbage incinerator on the Island of Montréal. When the planning stage of the project began, the merger of the Island’s municipalities had not yet taken place. Two intermunicipal bodies, the Régie intermunicipale de gestion des déchets sur l’île de Montréal (the “Régie”) and the Société intermunicipale de gestion et d’élimination des déchets Inc. (the “SIGED”), were given responsibility for preparing and carrying out the project. The complex nature of the project, the environmental problems it could raise and the demanding review and approval process to which it would be subject made it less than certain that the project would actually be carried out.
3 In this context, contracts for the preparation and eventual construction of the project were signed between the SIGED and Foster. The Régie acted as guarantor with regard to the SIGED’s commitments. Because of the inherent uncertainty involved in the government approval process, the agreements were based on a mutual commitment to cooperating on efforts to obtain the required authorizations and go ahead with construction. The Régie and the SIGED retained Pierre Meunier and Daniel Picotte, two lawyers from the firm of Fasken, Martineau (Martineau, Walker at the time) in Montreal, to create the project’s legal framework and obtain the necessary approvals.
4 Despite years of work, the project ran into opposition. Disputes broke out among representatives of the Island of Montréal’s municipalities. On December 2, 1995, the project was reviewed at a raucous meeting of the Régie. On December 7, 1995, the Régie’s executive came under the control of the project’s adversaries, including Messrs. Bossé and Zampino, both mayors of municipalities on the Island of Montréal. A few months later, the contracts with Foster were resiliated, and the project was cancelled.
5 Foster then filed suit against the SIGED and the Régie. Foster alleged a breach of their obligation to co-operate in good faith and of having deliberately scuttled the project. Foster claimed $62,951,393 in damages. The defendants contested the claim and retained the firm of Fasken, Martineau to represent them. Some municipalities whose representatives had supported the project joined the case as interveners. After the defence was filed, Foster’s lawyers and those of the interveners began a series of examinations on discovery of the defendants’ representatives, including Messrs. Bossé and Zampino and Ms. Méthot, Director General of the Régie. Foster’s lawyers hoped to uncover evidence showing that the mayors were well aware of the nature and state of the project and had tried to halt it, specifically by inciting government authorities to block the issuance of certain crucial permits and authorizations.
6 Difficulties arose during these examinations. Foster’s lawyers and those of the interveners asked a series of questions about information that Messrs. Meunier and Picotte had apparently given to their clients and about various aspects of the documentation they had compiled for the project. The defendants’ lawyers objected, claiming that the information sought was protected by professional secrecy and could not be disclosed in a judicial proceeding.
III. Judicial History
7 The appeal record indicates that the parties could not agree on the admissibility of 43 questions. Most of these questions deal with the nature of the reports on the project allegedly submitted by Messrs. Meunier and Picotte at the meeting of December 2, 1995 and during the period of time around that meeting. Other questions focussed on documentation available to counsel or on the drafting of resolutions respecting the resiliation of the contracts with Foster.
8 The parties submitted the questions and the objections to Normand J. of the Superior Court, who dismissed almost all of the objections. In his opinion, as a general rule, research information was not protected by the immunity from disclosing confidential information covered by professional secrecy. He held that the questions sought factual information not protected by professional secrecy.
9 The defendants then appealed this decision to the Quebec Court of Appeal. Although they agreed that the appeal should be allowed in part, Rochette and Pelletier JJ.A. nevertheless wrote separate opinions in which they set out conceptions of the exercise of professional secrecy that were, in part, divergent. Deschamps J.A. concurred with the reasons for judgment of Rochette J.A. The judgment upheld objections to certain questions which, according to the Court of Appeal, violated professional secrecy and touched on information that could not be disclosed at trial. In other cases, the Court of Appeal essentially found that the objections were premature, and that the trial judge would have to examine the documents in question first to determine if they were subject to immunity from disclosure. The Court of Appeal nevertheless allowed almost all of the questions, as their subject matter did not, in that court’s opinion, fall within the ambit of professional secrecy ([2001] R.J.Q. 2461). The defendants were given leave to appeal that judgment. Foster did not dispute the conclusions which upheld certain objections in whole or in part. In the meantime, the merger of the Island of Montréal’s municipalities became a reality. The City succeeded to the rights of the SIGED and the Régie. The intervener cities were thus absorbed into the City’s legal personality and, for this reason, disappeared from the legal debate, leaving only the City and Foster as parties.
IV. Issues Before the Supreme Court
10 The manner in which the dispute arose and was brought before this Court poses an initial difficulty, that is, the problem of correctly identifying the nature of the issues we must now examine. The parties’ factums and oral arguments revealed that the questions objected to had in reality been rephrased and limited by Foster’s lawyers to such a degree that, in my opinion, the questions appearing in the appeal record no longer accurately reflect the nature of the legal debate subsisting in this appeal. I shall therefore turn to the task of characterizing the real issues still in dispute and their limits, giving particular attention to the admissions and concessions made by Foster’s counsel in their factum and at the hearing.
11 The appellant’s record contains a table of 43 distinct questions that were submitted to Normand J. in the Superior Court. The Quebec Court of Appeal had upheld objections to five of these questions. The respondent does not contest this decision. Still at issue, however, are the 38 other questions. Having examined the record and heard the parties’ submissions, we now have a substantially different picture of the dispute. There are actually five questions still at issue, but Foster’s counsel have profoundly reworked and narrowed the scope of these questions over the course of proceedings before the Superior Court, the Court of Appeal and this Court. These five questions bring into play the problems of defining and applying professional secrecy as they pertain to this case, but in a much narrower and better defined framework than it would appear in the appellant’s pleadings.
12 At discovery, most of the contentious questions were originally asked by lawyers representing interveners who are no longer involved in this case. Counsel for Foster emphasized that they would not ask these questions again and that they would be limiting themselves to the five questions that they themselves had formulated and then redefined. The appellant argued that this Court should nevertheless rule on all 38 questions under appeal, since the judge at discovery or at trial could feel bound by the decisions rendered in this regard. I do not think that this Court needs to give particular attention to a series of questions that have been abandoned because of the advancement of proceedings and that the respondent does not accept as its own. Moreover, any issues of principle they might raise will be examined and resolved when we address the five questions that the respondent still intends to put to Messrs. Zampino and Bossé and Ms. Méthot.
13 These five questions were substantially rethought and circumscribed, such that their true substance, as counsel for Foster described it, corresponded only partially with their initial formulation. The real dispute between the parties must therefore be situated within this context and not be limited exclusively to the questions’ initial wording.
14 These five questions, in their original formulation, are as follows:
[translation]
4. |
Georges Bossé Oct. 22, 1998 Obj. No. 4 |
At the meeting (of December 2, 1995), what questions did Mr. Bossé ask about the project? |
8. |
Josée Méthot Feb. 23, 1999 Obj. Nos. 21, 22, 23 and 25 |
Could you describe the presentation given by Mr. Meunier? Could you describe Mr. Picotte’s presentation? How long did each of these presentations last? |
19. |
Georges Bossé Oct. 22, 1998 Eng. UGB-16
|
Produce any documents reporting on dealings with the Ministère de l’Environnement et de la Faune that were submitted by Josée Méthot or Pierre Meunier to the executive committee of the Régie or to the SIGED. |
20. |
Frank Zampino Jan. 27, 1999 Obj. No. 25 |
[text] “And they (Martineau Walker) were available to answer your questions concerning the discussions between the Régie and the government concerning the project?” |
23. |
Georges Bossé Oct. 22, 1998 Eng. UGB-18 |
(A) Give the names of persons consulted from December 7, 1995 to March 18, 1996 before coming to the decision to resiliate the contracts.
(B) Provide all documents pertaining to the project that were received by Mr. Bossé or any other member of the Régie’s executive committee. |
15 The appellant objected to each of these questions on the grounds that they were covered by immunity from disclosure, one of the components of professional secrecy under Quebec civil law. Questions 19 and 23(B) appear to raise the issue of the application of the immunity from disclosing documents prepared for the purposes of a trial, which corresponds to the common law concept of litigation privilege (J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at pp. 745-46; J.-C. Royer, La preuve civile (3rd ed. 2003), at pp. 868-72). The Superior Court dismissed the objections to these two questions. The Court of Appeal rendered a more subtly qualified decision. It upheld the objection in part, ruling that the trial judge should have examined the documents before rendering a decision. The appellant still maintains that the Superior Court should have upheld the objection without reviewing the documents. The respondent had no objections to the solution adopted by the Court of Appeal. With respect to the other questions still in issue, the objections were rejected unreservedly. Nevertheless, the respondent still argues that the presence of a third party, a facilitator who chaired the meeting of December 2, 1995, amounted to an implied waiver of professional secrecy.
16 As general and preliminary as these questions may have appeared, we must now clarify the content ascribed to them by the respondent since the outset of this matter. In this action for damages, we must bear in mind that Foster alleged that the City had breached its obligation to cooperate in carrying out the project and that municipal officials had acted in bad faith, deliberately blocking construction. During discovery, counsel for Foster tried to secure admissions from the mayors of certain Island of Montréal municipalities that they were familiar with the nature and status of the project and had received a large amount of information from a variety of sources. According to Mr. Kott’s arguments before this Court, the examinations of Messrs. Zampino and Bossé had been difficult and not terribly productive. The witnesses maintained that they had had little knowledge of the nature and status of the project during its lifespan, particularly at the time of the meeting of December 2, 1995. In order to verify these claims, a series of questions about information they had received from their lawyers before, during and after the meeting, was put to these two witnesses. As indicated in the declaration of inscription on the roll for hearing submitted by Foster pursuant to s. 15 of the Rules of Practice of the Superior Court of Québec in Civil Matters, R.R.Q. 1981, c. C-25, r. 8, Foster planned to call Meunier and Picotte as witnesses at trial and question them, if necessary, about information communicated to their client. Foster also wanted them to produce all documents relating to the project’s preparation, to dealings with government authorities responsible for approving the project and to the resiliation of the contracts.
17 The original questions were very broad in scope, probably too broad, eliciting equally broad objections. These objections are completely understandable, however, given their possible repercussions on relations between municipal entities and their lawyers. At any rate, it is now known that Foster is not seeking information on opinions provided by the appellant’s lawyers, billing information, draft resolutions prepared for the Régie or other subjects of a similar nature. Essentially, the questions were designed to have the witnesses say whether Messrs. Meunier and Picotte had clearly explained the nature of the project and talked about the status of dealings relating to the project’s approval and to make the witnesses describe the nature of the information they received regarding these aspects of the case. Foster also wanted to obtain a set of documents that neither this Court nor the Superior Court has had the opportunity to examine. We must now decide whether, under the law of evidence applicable to civil cases in Quebec, this information is confidential and thus subject to immunity from disclosure pursuant to the legal rules governing professional secrecy in Quebec. We must also investigate whether the manner in which the meeting of December 2, 1995 was structured and carried out constitutes an implied waiver of professional secrecy, as the Quebec Court of Appeal held, because a third party was present to chair the meeting.
V. Legal Framework of Professional Secrecy in Quebec Legislation
18 Any study of professional secrecy, its scope and its application requires a careful examination of the legislative framework that has gradually been put in place in Quebec. Despite its diverse sources, professional secrecy is now governed by a set of superimposed statutes with a common objective of securing the recognition and protection of professional secrecy.
19 The most important provision is now found in the Charter of Human Rights and Freedoms, R.S.Q., c. C-12. Section 9 of the Charter declares professional secrecy to be a fundamental human right:
9. Every person has a right to non-disclosure of confidential information.
No person bound to professional secrecy by law and no priest or other minister of religion may, even in judicial proceedings, disclose confidential information revealed to him by reason of his position or profession, unless he is authorized to do so by the person who confided such information to him or by an express provision of law.
The tribunal must, ex officio, ensure that professional secrecy is respected.
20 The Professional Code, R.S.Q., c. C-26, requires all members of professional orders, not just lawyers and notaries, to uphold professional secrecy (see: Y.-M. Morissette and D. W. Shuman, “Le secret professionnel au Québec: une hydre à trente‑neuf têtes rôde dans le droit de la preuve” (1984), 25 C. de D. 501, at p. 505). Section 60.4 of the Professional Code defines the obligation to uphold professional secrecy in the following terms:
60.4. Every professional must preserve the secrecy of all confidential information that becomes known to him in the practice of his profession.
He may be released from his obligation of professional secrecy only with the authorization of his client or where so ordered by law.
The professional may, in addition, communicate information that is protected by professional secrecy, in order to prevent an act of violence, including a suicide, where he has reasonable cause to believe that there is an imminent danger of death or serious bodily injury to a person or an identifiable group of persons. However, the professional may only communicate the information to a person exposed to the danger or that person’s representative, and to the persons who can come to that person’s aid. The professional may only communicate such information as is necessary to achieve the purposes for which the information is communicated.
21 Although the Professional Code imposes an obligation to uphold professional secrecy on all professionals, including lawyers, s. 131 of the Act respecting the Barreau du Québec, R.S.Q., c. B-1, also addresses this issue. This section reaffirms the right to professional secrecy while setting out some of its limits, as the corresponding provision in the Professional Code also does:
131. (1) An advocate must keep absolutely secret the confidences made to him by reason of his profession.
(2) Such obligation, however, shall not apply when the advocate is expressly or implicitly relieved therefrom by the person who made such confidences to him or where so ordered by law.
(3) An advocate may, in addition, communicate information that is protected by professional secrecy, in order to prevent an act of violence, including a suicide, where the advocate has reasonable cause to believe that there is an imminent danger of death or serious bodily injury to a person or an identifiable group of persons. However, the advocate may only communicate the information to a person exposed to the danger or that person’s representative, and to the persons who can come to that person’s aid. The advocate may only communicate such information as is necessary to achieve the purposes for which the information is communicated.
22 For its part, the Civil Code of Québec, S.Q. 1991, c. 64, reinforces the obligation to uphold professional secrecy. In a title of the C.C.Q. respecting the law of evidence, art. 2858 provides that a judge must, ex officio, raise any breech of professional secrecy and exclude any evidence obtained as a result of that breach:
2858. The court shall, even of its own motion, reject any evidence obtained under such circumstances that fundamental rights and freedoms are breached and that its use would tend to bring the administration of justice into disrepute.
The latter criterion is not taken into account in the case of violation of the right of professional privilege.
23 This legislative framework attempts to organize an area of Quebec civil law and procedure that traces its origins to diverse sources in legislation and case law, in both the French civil law and English common law traditions. These mixed origins are without doubt at the root of the semantic, if not conceptual problems that continue to affect this field of law.
24 In a doctoral thesis written several years before the enactment of the Quebec Charter and the Professional Code, Jean-Louis Baudouin (now a judge of the Quebec Court of Appeal) gave an excellent account of the complexity of the sources of the law of evidence in Quebec (J.-L. Baudouin, Secret professionnel et droit au secret dans le droit de la preuve (1965)). For many years, under France’s ancien régime, royal orders had recognized the existence of an obligation to maintain confidentiality in relations between clients and lawyers and established an immunity from disclosure to protect those relations. These orders were part of the law of New France before it was ceded to the British Crown. In the common law, case law had established a [translation] “procedural privilege connected with the conduct of trials” that forbade the disclosure of confidential information obtained by lawyers in their relations with clients (Baudouin, supra, at pp. 8-9). Even after the Quebec Act, 1774, R.S.C. 1985, App. II, No. 2, restored the civil law, the law of evidence as applied in Quebec was still very much influenced by common law practices because of the establishment of a judicial structure and trial procedures patterned after the British model, such as with the formal adoption of the English law of evidence in commercial matters before the end of the 18th century, as Walton reminds us (F. P. Walton, The Scope and Interpretation of the Civil Code of Lower Canada (1980), at p. 47; see also J. E. C. Brierley and R. A. Macdonald, Quebec Civil Law: An Introduction to Quebec Private Law (1993), at pp. 687-89).
25 Quebec’s first legislation on professional secrecy exemplified this common law influence. Legislation enacted in the 19th century effectively approached professional secrecy as a procedural problem by recognizing, as the common law did, the existence of a privilege protecting clients against the disclosure of communications between them and their legal advisers. Article 275 of the Code of Civil Procedure of 1867 and art. 332 of the Code of 1897 both used this technique (A. Cardinal, “Quelques aspects modernes du secret professionnel de l’avocat” (1984), 44 R. du B. 237, at p. 246). According to this author, in the early 20th century, the Quebec Court of Appeal used this same method to recognize the existence in Quebec’s law of evidence of a “litigation privilege” designed to protect the confidentiality of documents prepared by lawyers for the purposes of a contemplated or ongoing litigation (Cardinal, supra, at p. 266; Montreal Street Railway Co. v. Feigleman (1912), 22 Que. K.B. 102, at p. 118). Thus, before addressing the subject matter of professional secrecy, the Quebec legislature contented itself with according professional secrecy a judicial protection connected with the exigencies of the adversarial civil trial process.
26 A different approach, one centred on the creation of an obligation of silence and the resulting right to its protection, did not appear until later, in statutes governing the organization of professions, such as those of lawyer, notary and doctor (see Notarial Act, S.Q. 1952-53, c. 54, s. 50; Quebec Medical Act, R.S.Q. 1941, c. 264, s. 60(2)). In the case of lawyers, this legal framework was instead found in the professional order’s ethics regulations, which imposed an obligation of confidentiality on lawyers (By-laws of the Bar (1955), s. 66(21); Baudouin, supra, at p. 9).
27 This ad hoc legislative and regulatory approach gave way to the complex legal framework described above. This framework seeks to extend and regulate professional secrecy as a substantive fundamental right designed to protect the client. Professional secrecy has two components that form the basis for its creation and protection. The first component recognizes the confidentiality of information generated by the lawyer-client relationship. Clients have the right to expect their legal advisers to remain silent about such information. This obligation of confidentiality gives rise to an immunity from disclosure which, except in limited circumstances, protects clients against the disclosure of that information, particularly in judicial proceedings (Royer, supra, at pp. 907-9).
28 The dual origins of the principle of professional secrecy in Quebec law and the use of a legislative technique to shape the creation of the substantive right, the protection of its content against disclosure and the exceptions within the same texts help explain the semantic difficulties encountered in the case law, especially when transferring the relevant concepts from French into English. These difficulties can be particularly acute in some very key areas of law, such as criminal law, because the common law continues to apply and uses the traditional categories of privileges that are limited to specific categories or situations (Maranda v. Richer, [2003] 3 S.C.R. 193, 2003 SCC 67, at para. 11). This coexistence of different vocabularies and legal institutions organized according to different legal methods can sometimes lead to uncertainty in the terminology, as is evidenced by the confusion surrounding the proper use of the terms solicitor-client privilege, professional secrecy, confidentiality and immunity from disclosure, a situation decried by Proulx J.A. of the Quebec Court of Appeal in R. v. Robillard, [2001] R.J.Q. 1, at para. 30:
[translation] The appellant’s argument demonstrates a confusion between professional secrecy and solicitor-client privilege. I can hardly blame appellant’s counsel for this, as the terms are frequently confused in the French translations of judgments of the Supreme Court of Canada rendered in English, as well as in some provisions of the Criminal Code. For example, in Smith v. Jones (the French translation of the opinion of Cory J.), the words “secret professionnel” are used to translate “solicitor-client privilege”. However, and this is most relevant to the case at bar, in Part VI (ss. 183-196) of the Criminal Code, which concerns “Invasion of Privacy”, the Code refers to the protection of “communications sous le sceau du secret professionnel entre l’avocat et son client” (s. 186(3)), whereas the English version uses the words “privileged communications”, without referring to “solicitor‑client privilege”. To add to the confusion, in the provisions dealing with the seizure of documents in the possession of a lawyer, Parliament limited lawyers’ ability to oppose such seizures to cases where “solicitor-client privilege” is claimed. This time, “solicitor-client privilege” is translated as “privilège des communications entre client et avocat” (s. 488.1(2)).
29 To avoid this type of problem, we must always bear in mind the rich and diverse content of the concept of professional secrecy and know how to distinguish the components touched upon by the specific issues referred to the courts. Instead of speaking about professional secrecy in indiscriminately and carelessly chosen terms, we must first determine whether we are concerned with the obligation of confidentiality or the right to silence, or with the immunity from disclosing confidential information, or with both. In the context of Quebec’s statutory framework, the term “professional secrecy” refers to this institution in its entirety. Professional secrecy includes an obligation of confidentiality, which, in areas where it applies, imposes a duty of discretion on lawyers and creates a correlative right to their silence on the part of their clients. In relation to third parties, professional secrecy includes an immunity from disclosure that protects the content of information against compelled disclosure, even in judicial proceedings, subject to any other applicable legal rules or principles. Therefore, in this appeal, in order to rule on the admissibility of the questions put to the witnesses summoned by Foster, we must examine the two components of professional secrecy in turn, first the scope of the lawyer’s obligation of confidentiality and then the application of the immunity from disclosure designed to protect that confidentiality.
VI. Analysis
A. Content of the Lawyer’s Obligation of Confidentiality
30 Before determining the effects of immunity from judicial disclosure, we must first define the content and scope of the lawyer’s obligation of confidentiality. This exercise itself requires an examination of the methods to be used to establish the true content of professional secrecy in the context of actual lawyer-client relationships. At this stage, some delicate problems may arise, as illustrated by the debate in this case, in establishing the burdens of proof required to invoke professional secrecy or limit its scope.
31 The dispute arises in the context of a longstanding relationship between the City, including the municipal entities to which it succeeded, and the firm of Fasken, Martineau. For many years, lawyers from that firm were retained to represent the SIGED in its dealings with Foster, establish the contractual framework for their joint project and obtain the necessary authorizations from regulators. According to the record now before this Court, this mandate later extended to the legal problems leading up to and following the resiliation of the agreements with the respondent. From that point on, the mandate included defending the appellant in the action brought by Foster.
32 The length and apparent complexity of these mandates make a delicate task of determining what information is in fact protected by the obligation of confidentiality and, by extension, immunity from judicial disclosure. Although they concurred in their disposition of the case, Rochette and Pelletier JJ.A. adopted different approaches to determine what information was covered by the obligation of confidentiality and what was protected by immunity from disclosure. In essence, Rochette J.A. held that the party invoking professional secrecy should have the initial burden of proving that the information sought is prima facie within the ambit of a lawyer’s mandate and confidential in nature. For his part, Pelletier J.A. instead recognized the existence of a presumption of confidentiality. He held that the party requesting the information should have to demonstrate that the information was prima facie not covered by the lawyer’s duty of professional secrecy.
33 In a context such as this, the choice of an appropriate solution to the problem of applying professional secrecy must be rooted first and foremost in a concern for the social importance that the case law, including that of this Court, attaches to professional secrecy for its role in maintaining a properly functioning justice system and preserving the rule of law in Canada. Any solution must also take into account the evolving nature of the legal profession, in which lawyers are increasingly called upon to provide services in fields well beyond their traditional sphere of practice.
34 Although the relevant jurisprudence consists for the most part of criminal law cases, it still clearly establishes the fundamental importance of solicitor-client privilege as an evidentiary rule, a civil right of supreme importance and a principle of fundamental justice in Canadian law that serves to both protect the essential interests of clients and ensure the smooth operation of Canada’s legal system, as stressed by Arbour J. in Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61, at para. 49 (see also Maranda, supra, at para. 11). The lawyer’s obligation of confidentiality is necessary to preserve the fundamental relationship of trust between lawyers and clients. Protecting the integrity of this relationship is itself recognized as indispensable to the continued existence and effective operation of Canada’s legal system. It ensures that clients are represented effectively and that the legal information required for that purpose can be communicated in a full and frank manner (R. v. Gruenke, [1991] 3 S.C.R. 263, at p. 289, per Lamer C.J.; Royer, supra, at pp. 891-92).
35 Under s. 9 of the Quebec Charter, lawyers enjoy the same protection with respect to professional secrecy as the members of any of the other professional orders governed by the Professional Code. However, the scope and intensity of the protection recognized under that provision will vary according to the nature of the duties carried out by the members of the various professional orders and the services they are called upon to render, as well as the other components of the legal schemes governing them (see Frenette v. Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647, at pp. 673-75, per L’Heureux-Dubé J.). In this context, the general principles of public law laid down by the case law of this Court with regard to the importance of professional secrecy and the particularly sensitive nature of the solicitor-client relationship must not be overlooked when applying this provision and those of the Act respecting the Barreau du Québec, which also addresses this subject. Moreover, certain aspects of Quebec tax legislation emphasize the especially critical importance to society and the justice system of professional secrecy between lawyers and clients by strengthening its protection. For example, s. 53.1 of the Act respecting the Ministère du Revenu, R.S.Q., c. M‑31, gives Quebec tax officials the right to examine documents held by professionals, even if this could result in the disclosure of confidential information, except in cases of documents held by a lawyer or a notary (see Royer, supra, at p. 977).
36 We must also bear in mind that lawyers’ functions and professional qualifications have evolved dramatically. Lawyers’ professional activities extend beyond those which are their exclusive prerogative as defined in s. 128 of the Act respecting the Barreau du Québec, and s. 129 acknowledges this situation. Lawyers still litigate, represent, advise and draft, but they must often assume other duties in areas where they find themselves competing with other professionals. The mandates themselves may include a variety of acts and duties that are not always normally associated with the activities of a lawyer in the traditional sense of the term, as pointed out by Binnie J. in R. v. Campbell, [1999] 1 S.C.R. 565, at para. 50:
It is, of course, not everything done by a government (or other) lawyer that attracts solicitor-client privilege. While some of what government lawyers do is indistinguishable from the work of private practitioners, they may and frequently do have multiple responsibilities including, for example, participation in various operating committees of their respective departments. Government lawyers who have spent years with a particular client department may be called upon to offer policy advice that has nothing to do with their legal training or expertise, but draws on departmental know-how. Advice given by lawyers on matters outside the solicitor-client relationship is not protected.
(See also Québec (Sous-ministre du Revenu) v. Legault, [1989] R.J.Q. 229 (C.A.), at p. 231.)
37 However, as important as professional secrecy may be, it does have its limits. Not every aspect of relations between a lawyer and a client is necessarily confidential. The exigencies of other values and concern for competing interests may sometimes necessitate the disclosure of confidential information, as provided for under s. 9 of the Quebec Charter (see Smith v. Jones, [1999] 1 S.C.R. 455, at para. 51; R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14, at para. 34, per Major J.).
38 This appeal does not require us to examine potential conflicts between the obligation of confidentiality and the exercise of competing rights. Apart from the collateral issue of waiver, the issues in dispute here are limited to identifying the content of the obligation of confidentiality and, above all, determining the methodology for defining and then giving effect to the immunity from judicial disclosure. Even with these limits, the issue remains a sensitive and complex one in practice. It would be inaccurate to reduce the content of the obligation of confidentiality to opinions, advice or counsel given by lawyers to their clients. While this is, on many occasions, the main goal in creating a professional relationship with a lawyer, it is often the case that this relationship can also entail some highly diverse activities, such as representing clients before various tribunals or administrative bodies, negotiating or drawing up contracts, preparing reports, filling out various forms and having discussions with members of governing bodies of public entities or private corporations. In the course of carrying out these mandates, lawyers receive and send out a wide range of information. Some of these activities, such as the filing of pleadings or representing a client in court, pose few difficulties because of their public nature. However, when the professional relationship arises out of a complex and prolonged mandate, as in the case at bar, the limits of the scope of application of the obligation of confidentiality can sometimes only be arrived at after the court has taken a close look at the relationship between the parties, including the nature and context of the professional services rendered.
39 Despite the intense nature of the obligation of confidentiality and the importance of professional secrecy, not all facts and events that lawyers deal with in the execution of their mandates are covered by professional secrecy, nor does the legal institution of professional secrecy exempt lawyers from testifying about facts involving their clients in all situations. To illustrate, let us take the case of a lawyer who holds discussions with a client while riding as a passenger in the client’s car. In the event of an accident, the lawyer would not be competent to testify about the opinion he or she was giving the client at the time of the incident, but could be forced to answer questions regarding whether the car was travelling above the speed limit. We must use an analytical method that upholds professional secrecy while allowing us to resolve difficulties of this sort.
40 It is unrealistic to expect that we could set absolutely clear and simple rules and tests that would leave trial courts with no margin of uncertainty or individual discretion in such matters. Solutions will vary and must be tailored to the circumstances of a case. In the case of an individual professional act, the person claiming professional secrecy would without doubt need only simple or summary evidence to show the confidentiality of the information sought and his or her right to immunity from disclosure. The burden of proof can thus be placed on the professional without compromising the exercise and integrity of the institution.
41 In the case of complicated and prolonged mandates, the obligation of justifying each case as one where confidentiality and, by extension, immunity from judicial disclosure apply is poorly adapted to the nature of professional relationships and the safeguards required to maintain secrecy in an effective manner. In a case such as the one before this Court, the client and lawyer would be expected to dissect all facets of their relationship in order to characterize them and consequently invoke immunity from disclosing some elements, but not others (Québec (Sous-ministre du Revenu) v. Legault, supra, at p. 231). Proceeding in this manner multiplies the risks of disclosing confidential information and further weakens professional secrecy, an institution that the legislature and the courts have afforded strong and generous protection (Poulin v. Prat, [1994] R.D.J. 301 (C.A.), at p. 307; McClure, supra, at para. 33).
42 In such cases, a different method would be preferable. It would be enough to have the party invoking professional secrecy establish that a general mandate had been given to a lawyer for the purpose of obtaining a range of services generally expected of a lawyer in his or her professional capacity. At this stage, there would be a presumption of fact, albeit a rebuttable one, to the effect that all communications between client and lawyer and the information they shared would be considered prima facie confidential in nature. Although the case concerned a different field of law, namely criminal procedure, this Court recommended an analogous method in the initial steps of the examination of difficulties arising out of potential conflicts between solicitor-client privilege in the common law and the need to protect the presumption of innocence (McClure, supra, at paras. 46-51). The opposing party would then have to give a specific indication of the nature of the information sought and show that it is subject neither to the obligation of confidentiality nor to immunity from disclosure, or that this is a case where the law authorizes disclosure notwithstanding professional secrecy. This method would have procedural consequences. The opposing party would be obliged to ask precise and limited questions about the information sought. This sort of question would better take into account the sensitive nature of any line of questioning regarding professional relationships between clients and lawyers and the need to minimize violations of professional secrecy. This would prevent “fishing expeditions” in which lawyers, through the files they handle and reports they prepare for their clients, are used as a source of information for building cases against their own clients. One would also hope that every effort would first be made to obtain the information from available sources other than lawyers. A sound judicial policy, mindful of the social importance of lawyers’ professional secrecy and the need to protect it, should certainly not attempt to facilitate this sort of questioning, but rather restrain it as much as possible.
43 Having laid down these principles, I now turn to an examination of Foster’s questions in their reworked and clarified form. Despite the preliminary nature of the questions, their initial, overly general form could easily raise serious concerns about the potential for massive violations of professional secrecy. They inevitably provoked the appellant’s total and uncompromising, yet in the circumstances of the case completely understandable, opposition. However, now that questions 4, 8, 20 and 23(A) have been reformulated by counsel for Foster, they aim solely to obtain information about two specific facts: the identity of the project submitted to the regulatory approval process and the status of that process. In both cases, this sort of information does not engage an obligation of confidentiality on the part of the lawyer, and the disclosure of this information is not prohibited. As the Court of Appeal concluded, these questions could, within the limits of the new formulation given to them by counsel for the respondent, be asked in the context of discovery. Any problems raised by or subsequent questions stemming from the answers to these questions could be dealt with by the trial judge.
B. Production of Documents
44 A problem remains concerning questions 19 and 23(B). These questions seek the production of various documents. The City maintains its objection to these questions, claiming that the documents sought are confidential. Many of these documents are alleged to be covered by an immunity from disclosure, which in Quebec civil law is roughly equivalent to the common law’s litigation privilege. This privilege protects documents prepared by a lawyer for the purposes of contemplated or ongoing litigation. Although originating in the common law, litigation privilege is now being absorbed into the Quebec civil law concept of professional secrecy. In Quebec’s law of evidence in civil matters, these documents are effectively treated as being confidential and protected by an immunity from disclosure (see Royer, supra, at p. 868; Sous-ministre du Revenu du Québec v. Fava, [1984] C.A. 639; Société d’énergie de la Baie James v. Lafarge Canada Inc., [1991] R.J.Q. 637 (C.A.), at pp. 645 and 653).
45 The trial judge rejected the objection. The Court of Appeal allowed the appeal in part on this point and ordered the Superior Court to examine the documents before ruling on whether immunity from judicial disclosure should be accorded.
46 The City was unhappy with this part of the Court of Appeal’s decision, as the City still wished to prohibit the production of documents it claimed to be covered by professional secrecy. The City opposed even allowing the trial court to examine these documents.
47 The City’s attitude is without doubt motivated by a cautious tactical strategy which seeks to avoid allowing the trial judge to be influenced by the content of documents the City alleges are inadmissible. These concerns, while common, are unjustified. We must remember that every day judges must rule on the admissibility of evidence that they must inspect or hear before excluding, and that this duty is an indispensable part of their role in the conduct of civil or criminal trials. Judges understand that they must disregard any evidence that they deem inadmissible and base their judgments solely on the evidence entered into the court record. Seen in this light, the appellant’s argument would have us ask judges not to carry out one of their core functions in the consideration of evidence, based on the unverified and unverifiable statement of the appellant’s counsel. I would very much like to take the appellant’s counsel at their word and trust in their oath of office, but the courts do not even have at their disposal a sworn statement identifying the documents in dispute and giving a summary of the nature of their content and of the reasons for objecting to their production. In these circumstances, the City is asking the courts to abdicate their traditional role of ruling on the admissibility and relevance of evidence that is always accorded them, with certain exceptions, under the applicable law of evidence in Canada. The fate of these objections cannot be decided on the mere basis of one party’s unilateral declaration. The judge must carry out the function of verifying these documents, as the Court of Appeal rightly decided (see Champagne v. Scotia McLeod Inc., [1992] R.D.J. 247 (C.A.); Lab Chrysotile Inc. v. Société Asbestos Ltée, [1993] R.D.J. 641 (C.A.)). After examining the documents, the judge may rule on the admissibility of the request for access. It is also worth noting that the rules of practice in some provinces expressly recognize this critical component of judges’ duties (see Rule 30.04(6) of the Rules of Civil Procedure of Ontario, R.R.O. 1990, Reg. 194; Rule 31.04(4) of the Rules of Court of New Brunswick).
C. Waiver of Confidentiality
48 Before I conclude, despite the rejection of the City’s objections, I believe it would still be useful to comment on one of the reasons given by the Court of Appeal for allowing the questions about the December 2, 1995 meeting of the SIGED. The Court of Appeal’s conclusions on this point could affect the conduct of the parties’ examinations on discovery, if not the evidence at trial. The Court ruled that the mere presence of a professional facilitator hired for the purpose of chairing that meeting implied a waiver of professional secrecy, given that a third party attended the meeting in question.
49 This conclusion is incorrect, given the circumstances of this case. The meeting was held with a view to maintaining confidentiality. The intensity of the political conflict within the municipal body prevented the chair from carrying out his duties. To maintain order at the meeting in every aspect, including with respect to the reports to be tabled by public servants or lawyers, the Régie had hired an independent person to moderate the proceedings as if she were the Chair. The presence of this facilitator was not only helpful but necessary. Under these conditions, the facilitator’s presence did not imply a waiver of professional secrecy (Pfieffer et Pfieffer Inc. v. Javicoli, [1994] R.J.Q. 1 (C.A.), at pp. 6 and 8). The facilitator was a temporary participant in the organization and its deliberations, performing a function necessary for its effective operation. The meeting still took place in camera, with a view to maintaining the confidentiality that was so critical to the participants’ discussions, despite the presence of opposing factions within the organization and divergent views on the desirability and the execution of the project in question. The nature of the meeting and the discussions remained the same. In these circumstances, we cannot infer from this procedure an implied waiver of professional secrecy with regard to communications made by the lawyers who took part in the meeting in the capacity of legal advisers of the SIGED and the Régie.
VII. Conclusion
50 For these reasons, I would dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Fasken Martineau DuMoulin, Montréal.
Solicitors for the respondent: Ogilvy Renault, Montréal.
Solicitors for the intervener Barreau du Québec: Shadley Battista, Montréal.
Solicitors for the intervener the Canadian Bar Association: Grondin Poudrier Bernier, Québec.