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.
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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.