Vauclair, Schrager, Baudouin

Appeal from a judgment of the Superior Court that allowed the use of sealed documents and released the respondent from an undertaking of confidentiality. Dismissed.

The appeal arises from the intervention of the respondent, the assistant syndic of the Ordre des ingénieurs du Québec, in a dispute between the impleaded party Metso Minerals Canada Inc. and the appellant, after the parties had reached a settlement that put an end to the dispute. In the context of a disciplinary proceeding arising from an application for inquiry filed by Metso against the appellant and the impleaded party Tarnowski, the assistant syndic sought authorization to access sealed documents in the Court record that were obtained under an Anton Piller order, as well as the pre-trial examinations.

The trial judge granted Metso’s application to use the sealed documents and released Metso and the assistant syndic from the implicit undertaking of confidentiality regarding the pre-trial examinations of the impleaded parties Heath and Tarnowski.

In this case, Metso’s disclosure of the documents to the assistant syndic does not violate the restricted use of information like that at issue in Celanese Canada Inc. v. Murray Demolition Corp. (S.C. Can., 2006-07-27), 2006 SCC 36, SOQUIJ AZ-50385000, J.E. [2006] 2 S.C.R. 189 obtained through an Anton Piller order. In addition, the sealing order made by the Superior Court at the end of the dispute prohibits access by third parties to the exhibits filed in the record, but certainly does not prevent the owner of those exhibits from using them. Although this issue does not seem to have drawn the attention of the courts, the Court is of the view that the practice of including a restriction on the use of the information is above all intended to protect the privacy of the party targeted by the Anton Piller order, given the sometimes intrusive nature of such an order and its application. Such a restriction must meet the specific circumstances of each case. It cannot be a condition that bars all use of the documents, regardless of their nature and of the circumstances. In this case, the information of interest to the assistant syndic does not originate from the appellant, and the appellant cannot claim any violation of privacy in this respect. The orders rendered sought to protect the interests of Metso, who was always free to waive that protection.

Regarding the notes from the examinations of Heath and Tarnowski, Metso was right to seek authorization from the Court, but this application became moot once the holders of the privilege – in this case Heath and Tarnowski – waived it. The fact that consent was expressed after the notes were given to the assistant syndic changes nothing. Finally, the redaction ordered was pointless in this context.

In his concurring reasons, Schrager J.A. revisited the issue of the disclosure of the documents and the sending of the examination transcripts. On the first issue, he stated that the unsealing of the documents was useful to the respondent because it was a way to adduce before the disciplinary body the fact that they were seized from the appellant. On the second issue, Schrager J.A. stated that the need to obtain judicial authorization and to require the redaction of certain passages can be questioned in the circumstances. That said, it is not a reviewable error in the exercise of the trial judge’s discretion.

Text of the decision: http://citoyens.soquij.qc.ca