2022 QCCA 135, 2022 QCCA 135

Emera inc. c. Minogue Medical inc. 2022 QCCA 135 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029813-219 (500-17-115702-212) DATE: January 27, 2022 BEFORE THE HONOURABLE GUY COURNOYER, J.A. EMERA INC. APPLICANT – Plaintiff v. MINOGUE MEDICAL INC.

RESPONDENT – Defendant JUDGMENT [ 1 ] Emera seeks leave to appeal from a decision rendered on November 15, 2021, [1] from the Superior Court (the Honourable Judge Marc St-Pierre) denying its petition for a safeguard order to obtain from Respondent Minogue Medical Inc. (“Minogue”) a mirror copy of emails extracted from one of Emera’s directors’ email box found at Minogue’s place of business and from which allegedly privileged documents and information belonging to Emera were retrieved by Minogue without notice, permission or any precaution. [ 2 ] The application provides a useful

summary of the relevant facts for a proper understanding of the situation even if some of the facts and their

interpretation are the subject of debate between the parties [2] . [ 3 ] On August 9, 2019, Lynn Loewen, a member of the board of directors of Emera since 2013, and the former CEO of Minogue, filed an Originating Motion for a Judicial Application in respect of a Matter relative to Employment, alleging that she was terminated without cause by Minogue. [ 4 ] On July 23, 2020, Minogue filed a Statement of Plea and Cross Application in the Employment Dispute and notably alleges that Loewen devoted a considerable amount of Minogue working days to Emera’s affairs. [ 5 ] Minogue supports this allegation with Emails which were received from or sent to Emera’s representatives by Loewen from her email box at Minogue and expressly reserves its right to produce in the Court record each and every or any of the said emails, if necessary. [ 6 ] According to Emera, some of the Emails are privileged to Emera or contain Emera’s privileged documents or information and Emera has never renounced this privilege either implicitly or explicitly. [ 7 ] Emera claims that although Minogue knew of Loewen’s directorship with Emera, it retrieved the Emails from Loewen’s email box at Minogue without any prior notice to or authorization from Emera and without any precaution with respect to privileged emails, documents or information belonging to Emera. [ 8 ] According to Emera, looking at its own incomplete internal records, it has so far been able to list 41 privileged Emails, but is unable to trace back all the emails sent to or received from Loewen’s email address at Minogue. [ 9 ] It requested that Minogue provides a mirror copy of the Emails in order to assess which other emails, documents or information might be privileged so as to notify Minogue of the existence of these privileged documents. [ 10 ] Emera submits that up until now Minogue has refused to provide Emera with a mirror copy of the Emails, claiming that it is entitled to keep a copy of all Emails, documents or information and even to use them in Court proceedings. [ 11 ] On December 16, 2020, Emera filed a Declaration of Voluntary Intervention for Conservatory Purposes in the Employment Dispute, with which it sought limited intervention status to protect the confidential or privileged character of some of the Emails that Minogue might want to use in defending the Employment Dispute. [ 12 ] Emera’s Intervention indicated that it might wish, amongst other things, to later present an application for a confidentiality order in due time, and “if necessary, to file an

Application for a Safeguard Order to seek the appropriate orders to preserve its privileged information, documents and communications contained in the 2,083 emails alleged by Minogue [...]”. [ 13 ] The intervention, however, did not address nor did it purport to deal with the issue of the continuous possession and review of Emera’s privileged documents by Minogue.

Moreover, it did not contain any request for any safeguard order whatsoever. [ 14 ] Minogue opposed the intervention and, on January 15, 2021, after having heard the parties, Justice Nollet authorized the intervention in part, ordered Minogue and Loewen to provide Emera with a prior notice of 10 days before filing any of the Emails into evidence, allowing Emera to object to the production or the filing of the Emails upon receiving such notice. The judge summarily dismissed the other procedural conclusions sought by Emera. [ 15 ] On February 23, 2021, Emera filed an Originating Application, seeking orders to

i) allow it to identify all privileged information retrieved by Minogue and ii) obtain the return of such privileged information without further delay.

Emera offered to keep such privileged information available for any claim Minogue might wish to advance with respect to the privileged character of the information. [ 16 ] Justice St-Pierre dismissed Emera’s application for a preliminary order to seek a mirror copy of the Emails on the grounds that there is res judicata with Justice Nollet’s decision. [ 17 ] Without expressing any views, I consider that Emera puts forward an arguable case that res judicata was inapplicable. [ 18 ] Further, while I am fully aware that the respondent has presented serious arguments that they are in good faith possession of the Emails and that there is no serious risk of disclosure of privileged or confidential information, I am of the view that the case raises important issues of principles which must be properly considered and adjudicated considering to potential irremediable prejudice to privileged or confidential information.

FOR THESE REASONS, THE UNDERSIGNED: [ 19 ] GRANTS the application for leave to appeal; [ 20 ] GRANTS leave to appeal from the November 15, 2021, judgment; [ 21 ] STAY the proceedings; [ 22 ] AUTHORIZES the parties to file memoranda not exceeding 15 pages; [ 23 ] GRANTS each of the parties 45 minutes for their oral submissions; [ 24 ] REFERS the timetable for the filing of the memoranda and setting the date of the hearing to the clerk of the Court; [ 25 ] THE WHOLE , with costs to follow the outcome of the appeal. GUY COURNOYER, J.A.

Mtre Jean Lortie Mtre David Boie-Schuwab MCCARTHY TÉTRAULT For the Applicant Mtre Raphaël Buruiana Mtre Dominique Monet FASKEN MARTINEAU DUMOULIN For the Respondent Date of hearing: January 13, 2022