Publication
title
Supreme Court of Canada clarifies the scope of lawyers' professional secrecy obligations
DATE
June 2, 2004
EXPERTISE
Information exchanged between lawyer and client is not automatically protected by the Quebec civil law concept of professional secrecy. The scope of the protection may vary according to the nature of the duties carried out and the services rendered by the lawyer concerned. Where disclosure of a lawyer-client communication is sought in the context of judicial proceedings, the nature of the communication must be examined in order to determine whether it is subject to professional secrecy and to immunity from judicial disclosure.
Such is the conclusion of a recent decision of the Supreme Court of Canada in Foster Wheeler Power Co. v. Société intermunicipale de gestion et d'élimination des déchets (SIGED) Inc., 2004 SCC 18. This litigation arose as a result of a decision by the municipal authorities to cancel a project for the construction of integrated solid waste disposal and recycling facilities and terminate the contracts signed with the plaintiff to build and operate these facilities.* The plaintiff contends that the municipal authorities breached their obligation to cooperate in good faith and deliberately scuttled the project. More specifically, the plaintiff is seeking to establish that the municipal authorities tried to halt the project by inducing the government authorities to block issuance of the required permits and authorizations. During the examinations on discovery after defence, certain key witnesses denied having had knowledge of the status of the project. Counsel for the plaintiff put a number of questions to these witnesses about information and documentation apparently given to them by lawyers for the municipal authorities whose services had been engaged by the municipal authorities to create the legal structure for the project and obtain the necessary permitting and approvals. An objection was raised on the grounds that such information is protected by professional secrecy applicable to lawyers under Quebec law. The Quebec Superior Court and Court of Appeal were of the opinion that the information concerned is not confidential or privileged and overruled the objection. The matter was appealed to the Supreme Court of Canada.
The Supreme Court acknowledged that lawyers today are called upon to provide a wide variety of services, not all of which correspond to duties associated with the activities of a lawyer in the traditional sense. In such a context, not all lawyer-client exchanges are confidential or privileged. When the professional relationship arises out of a complex and prolonged mandate, the scope of professional secrecy can sometimes only be determined following close judicial examination of the relationship between the parties. The Supreme Court held that where a mandate falls in this category, there is a rebuttable presumption to the effect that all communications between client and lawyer are, prima facie , confidential in nature. The opposing party must then 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. Such a method limits as much as possible any line of questioning about professional relationships between lawyer and client by obliging the party to formulate questions that are specific and restricted to the information it wishes to obtain.
However, this method does not apply where the lawyer-client relationship arises in connection with an individual professional act. In such cases, the person claiming professional secrecy must present simple or summary evidence establishing that the information sought is confidential and entitled to immunity from disclosure. In this context, the burden of proof can, in the Court's view, be placed on the person claiming professional secrecy without compromising the exercise and integrity of the right to such secrecy.
In all cases, the trial judge may examine the documents concerned in order to decide whether or not they are confidential and entitled to immunity from disclosure.
Applying this analysis to the facts of the case, the Supreme Court found that the information the plaintiff is seeking to obtain is neither confidential nor subject to immunity from disclosure and dismissed the objection based on professional secrecy.
* Ogilvy Renault represents the plaintiff Foster Wheeler Power Company Ltd. in this litigation.
The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault or any member of the Firm on the points of law discussed.
©OGILVY RENAULT 2004 - All Rights Reserved
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