Vauclair, Sansfaçon, Cournoyer

Appeal from a Superior Court judgment granting an application for confidentiality and non-disclosure orders and a publication ban. Allowed in part.

In the context of an application for authorization to institute a class action on behalf of all Indigenous persons who claim they were discriminated against by one or more Sûreté du Québec officers, the respondent filed an application for confidentiality and non-disclosure orders and for a publication ban on the identity of the impleaded party and the members. The appellant contests the confidentiality order rendered by the trial judge concerning the identity of the impleaded party and the members and the order imposing conditions on the disclosure of the impleaded party’s identity to the appellant. 

The judge erred in law by drawing from the principles applicable to the open court principle the right to impose conditions on the appellant’s access to the impleaded party’s identity. This issue instead concerns the right to make a full answer and defence and litigation privilege, not the disclosure of confidential information to a party to the dispute, as was the case in Glegg v. Smith & Nephew Inc. (S.C. Can., 2005-05-20), 2005 SCC 31, SOQUIJ AZ-50314388, J.E. 2005-994, [2005] 1 S.C.R. 724, and Imperial Oil v. Jacques (S.C. Can., 2014-10-17), 2014 SCC 66, SOQUIJ AZ-51115718, 2014EXP-3212, J.E. 2014-1833, [2014] 3 S.C.R. 287, cited by the judge.

In this case, the conditions imposed by the judge on the disclosure of the impleaded party’s identity to the appellant directly infringe the appellant’s right not to disclose to the opposing party or the judge the identity of the people the appellant plans to meet with to prepare for litigation, information that is protected by litigation privilege.

Once information is recognized as being protected by this privilege, it is necessary to verify whether one of the specific exceptions to this privilege applies. In Lizotte v. Aviva Insurance Company of Canada (S.C. Can., 2016-11-25), 2016 SCC 52, SOQUIJ AZ-51344860, 2016EXP-3687, J.E. 2016-2030, [2016] 2 S.C.R. 521, the Supreme Court of Canada held that the exceptions that apply to the privilege of professional secrecy of lawyers are all applicable to litigation privilege. Other exceptions may be identified in the future, but they will always be based on narrow classes that apply in specific circumstances. 

In this case, neither the respondent nor the impleaded party have established that the facts gave rise to one of the exceptions to litigation privilege. The impleaded party’s identity should therefore be disclosed to the appellant without conditions.

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