Appeal Court ruling on privilege ‘reminds us of the importance of professional secrecy’: lawyer

By Luis Millán

Law360 Canada (November 17, 2022, 11:35 AM EST) -- A voluntary disclosure of a report protected by privilege to assist police in a criminal investigation does not quash the privileges attached to the document, held the Quebec Court of Appeal in overturning a lower court decision, the latest indication that case law surrounding privilege continues to evolve, according to a legal expert.

In a decision that reviews and revisits Quebec case law surrounding privilege, the Quebec Appeal Court held that it would be contrary to public policy for the disclosure of privileged documents in criminal proceedings to “somehow” have the effect removing privileges attached to those documents. The waiver of lawyer-client privilege must be clear and unequivocal, added the Appeal Court in Centre universitaire de santé McGill c. Lemay, 2022 QCCA 1394.

Disclosure to a third party information protected by solicitor-client privilege in principle entails waiver of the privilege but the Quebec Court of Appeal emphasizes that context must be considered, which must take into account all the circumstances in the case, noted Laurence Bich-Carrière, a Montreal litigator with Lavery de Billy LLP, who recently published an article titled “Professional secrecy and testimonial immunity” for the legal encyclopedia JurisClasseur Québec.

Laurence Bich-Carrière, Lavery de Billy LLP

Laurence Bich-Carrière, Lavery de Billy LLP

“This is probably the first time that this type of issue has made it this far up the hierarchy of Quebec courts,” said Bich-Carrière, a member of the Quebec bar and Law Society of Ontario. “A waiver should not be taken lightly. It must be assessed in the light of the circumstances in order to verify whether or not there is really a waiver. And that is in the essence of the Appeal Court’s message. It reminds us of the importance of professional secrecy and its protection.”

The decision also provides some assurance to companies “as to the preservation” of legal privileges when they need to disclose certain privileged information to third parties, such as their external auditors, co-wrote Montreal lawyer Charles-Antoine Péladeau of Norton Rose Fulbright in a legal bulletin.

The case stems from a 2012 search warrant carried out by a specialized anti-corruption unit (UPAC, the French acronym for the Unité permanente anticorruption) seeking evidence of collusion and corruption in the awarding of construction contracts. The McGill University Health Centre (MUHC), a massive super hospital that was built by a private-public venture and scene of what has been described as the biggest fraud and corruption investigation in Canadian history, retained a lawyer to advise it over what steps it should take. Yves Dubois, a Montreal lawyer with Borden Ladner Gervais LLP then gave a mandate for forensic accounting assistance to PricewaterhouseCoopers (PwC), which prepared a preliminary report. The report was handed to Dubois and the hospital’s president and chief executive officer at the time, Normand Rinfret, who in turn presented it but did not give a copy of the review to members of the MUHC’s audit committee. Instructions around the confidentiality of the information contained in the report, labelled as “DRAFT Privileged and Confidential For Discussion Only,” were issued to members who attended the meeting.

At the end of this meeting, Rinfret informed committee members that he intended to forward the report to UPAC as he wanted to collaborate, “in the interests of transparency,” with UPAC’s investigation, something that was done by BLG lawyer Dubois in November 2013. Several months later, in May 2014, a journalist made an access to information request to the MUHC to obtain a copy of the report.

The Quebec Access to Information Commission turned down the request, holding that the mandate given by Dubois to PwC was itself part of the broader mandate given to Dubois himself, therefore part of the privileged relationship between the lawyer and his client. Since solicitor-client privilege extends to all documents prepared for the purposes of legal advice, including expert reports, the report in question falls within the limits of solicitor-client privilege, held the commission in Pailliez c. Centre universitaire de santé McGill, 2018 QCCAI 40. The commission, following guidance from one of its own decisions issued in 2014, also held that forwarding the report to UPAC does not necessarily amount to a waiver of the lawyer-client privilege. It also held that the act of providing privileged information to police is a moral obligation — all of which were findings that were upheld by the Court of Quebec in August 2019.

But in February 2021, Quebec Superior Court Justice Marc St-Pierre in a judicial review overturned the lower court’s decision, holding that communication of privileged information to third parties “is equivalent to a disclosure entailing the waiver of professional secrecy.” Justice St-Pierre in Lemay c. Cour du Québec — division administrative et d'appel, 2021 QCCS 1963 also refuted the conclusion by the commission and the Court of Quebec that disclosure in the context of a police investigation does not necessarily entail a waiver of solicitor-client privilege as there is “nothing in the case law cited by the Court of Quebec or the parties (that) supports such an exception.”

The Appeal Court, in reversing the Quebec Superior Court and upholding the ruling by the commission and the Court of Quebec, found that a disclosure restricted to a specific third party does not necessarily imply a waiver to all third parties. “It all depends on the contextual analysis, which must take into account all the circumstances involved in each case,” said Appeal Court Justice Robert Mainville in a decision issued on Oct 17, and for reasons concurred by Justices Sophie Lavallée and Peter Kalichman.

The Appeal Court noted that the reasons provided by the commission and the Court of Quebec are similar, if not identical, to the ones offered by the England Court of Appeal’s decision in British Coal Corpn v Dennis Rye Ltd (No. 2), [1988] 3 All ER 816, the principles of which have been applied in Canadian law. In that case, the judge found that it would be contrary to public policy to conclude that the disclosure of privileged documents in criminal proceedings “had the effect of automatically removing the cloak” of privilege in civil proceedings. While “one must be careful not inappropriately import” common law rules into the interpretation of the scope of privilege in Quebec law, Justice Mainville nevertheless found that there is “no obstacle in Quebec law to the reasoning adopted in British Coal.”

According to Bich-Carrière, it is neither atypical nor surprising that “in the absence of similar decisions and respecting the hierarchy of the courts in Quebec or elsewhere in Canada, British case law was used.”

At a time when a slew of legislative tools and programs exist to promote co-operation with criminal investigations, “it will be interesting to see what this impact this decision will have in years to come,” wrote Péladeau.

Bich-Carrière viewed this decision “as a further illustration of how to preserve, or not, the confidentiality of documents when there is indeed a will to keep it secret.”

Lawyers for the parties either declined or did not respond to requests for comment.