2017 QCCA 1543, 2017 QCCA 1543

M.Bl. c. R.B. 2017 QCCA 1543 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026483-164 (500-17-078987-131) MINUTES OF THE HEARING DATE: September 29, 2017 CORAM: THE HONOURABLE MARIE ST-PIERRE , J.A. MARK SCHRAGER , J.A. PATRICK HEALY , J.A. APPELLANT COUNSEL M. BL. Mtre JEAN-FRANÇOIS ROUSSEAU (Rousseau Boyce s.a.) (Absent) RESPONDENTS COUNSEL R. B. Mtre DAVID GROSSMAN (IMK, s.e.n.c.r.l.) (Absent) S. E. F. M. Mtre BRYAN-ÉRIC LANE (Lane, avocats et conseillers d’affaires inc.) (Absent) MELVIN KRONISH Mtre MARIE-JOSÉE BÉLAINSKY (Fonds d’assurance responsabilité professionnelle) (Absent)

JEAN-GUY BERGERON Mtre PASCALE CARON (Donati Maisonneuve s.e.n.c.r.l.) (Absent) IMPLEADED PARTIES COUNSEL SANDOR STEINBERG Mtre PASCALE CARON (Donati Maisonneuve s.e.n.c.r.l.) (Absent) [Company A] Not represented On appeal from a judgment rendered on November 22, 2016 by the Honourable Justice Jean-François Michaud of the Superior Court, District of Montreal DESCRIPTION : Professional secrecy – Notary – Objection to evidence – Examination out of court Clerk: Philippe Dupont Courtroom: Antonio-Lamer HEARING 9 h 32 Continuation of the hearing of September 27, 2017.

Counsel have been excused from appearing in Court this morning. Commencement of the hearing. BY THE COURT: Judgment – see page 3. 9 h 33 Conclusion of the hearing. Clerk BY THE COURT

JUDGMENT [ 1 ] This is an appeal of the judgment rendered in the course of a proceeding on November 22, 2016 by the Superior Court, District of Montreal (the Honourable Jean-François Michaud), which relieved a notary of his obligation of professional secrecy regarding communications with Respondents S. E. and F. M. on the one hand, and Appellant M. Bl., for his own account and as the representative of Impleaded Party [Company A] on the other hand.

The notary’s mandate concerned a deed of hypothec entered into between these parties on June 7, 2013. [ 2 ] Appellant was not present nor represented at the hearing in first instance. [ 3 ] Respondents E. and M. requested that the notary be relieved of his obligation of professional secrecy prior to an examination on discovery in anticipation of an objection.

They renounced to the benefit of professional secrecy and the judge based his decision on such renunciation given that it was E. and M. who were parties to the deed together with [Company A] and Appellant and whom all, jointly, instructed the notary. [ 4 ] As observed by one judge, the Respondent R.

B. and Appellant are parties to “acrimonious” divorce proceedings. [1] In the instant proceeding, in the lower Court, Respondent seeks redress with respect to the ownership of and equity in the former family residence of the couple. [ 5 ] The Respondent B. has alleged in first instance that, through a series of three notarial deeds executed and registered without her knowledge, Appellant caused title to the family home to be transferred to him.

He then transferred the house to [Company A], his holding company, which in turn executed three deeds of hypothec to secure loans including one of $600,000 advanced by E. and M.. [ 6 ] The latter had instructed the impleaded party Notary Steinberg to examine title and prepare a deed of hypothec.

Prior to conducting an examination on discovery of Notary Steinberg, the attorney of E. and M. served a case management notice seeking a ruling with a view to relieving the notary of his obligations to respect professional secrecy regarding communications between him and all the foregoing parties. [ 7 ] Given the renunciation to professional secrecy by E. and M. and since they, together with Appellant and his holding company, had jointly instructed the notary, the judge held that the notary was relieved of his obligation to respect professional secrecy with regard to any communications related to the deed of hypothec executed by the parties. [ 8 ] The judge relied on two authorities: 1) Jean-Louis Baudouin, Secret professionnel et droit au secret dans le droit de la preuve , Paris, 1965, par. 103; et 2) Léo Ducharme, L’administration de la preuve , 4 e édition, Wilson & Lafleur, Montréal, 2006, par. 457. [ 9 ] Appellant submits that the judge’s error in law is twofold: 1) he should have followed the procedure set down in the judgment of the Supreme Court in the matter of Foster Wheeler [2] and first considered the evidence that could be adduced through Notary Steinberg prior to making a decision on its confidential nature; 2) the judge should have made an initial determination as to whether it was necessary that the evidence be adduced through the notary – i.e. whether it could be entered into the record in another manner, without engaging considerations of professional secrecy. [3] [ 10 ] With respect, we are of the opinion that the judge erred by concluding without qualification or further inquiry, that the waivers of professional secrecy by E. and M. operated as a complete waiver.

The parties to the litigation include Respondent B. who is not a party to the deed. Thus, the renunciation to professional secrecy of E. and M. may not bind Bl. vis-à-vis Respondent B.: [4] Ducharme 457.- Lorsque deux personnes ou plus consultent conjointement un avocat, chacune est titulaire du secret professionnel. Dans le cadre d’un litige entre les titulaires conjoints du secret , chacun possède le droit d’y renoncer. Mais, dans le cadre d’un litige entre l’un des titulaires et un tiers, le consentement de tous serait requis pour qu’il y ait renonciation.

Il y a lieu de souligner qu’il a été jugé que, lorsqu’une personne confie à un avocat le mandat de rédiger une convention, seule cette personne est titulaire du secret professionnel, à l’exclusion des autres parties à cette convention. [5] [Emphasis added] [ 11 ] Even in the absence of Appellant before the judge, the issue of privilege was raised by counsel. The purpose of the examination on discovery, as stated by the attorney of Respondents E. and M. to the judge, was to enquire as to whether any information was communicated to the notary about the state of Appellant’s and Respondent B.’s marriage.

Ultimately, this could be relevant to the knowledge, if any, of E. and M., and would weigh on the determination of their good faith in entering into the transaction of loan and hypothec. [ 12 ] A client’s right that the professional he consults keep secret the confidences communicated to him is recognized in Quebec law as a fundamental right [6] to be protected by judges even in the absence of objection by counsel. [7] [ 13 ] The benefit of professional secrecy arises where a witness who is bound to professional secrecy exchanges communications of a confidential nature.

The communications must be communicated to the witness because of his profession and with a view to obtaining professional services. [8]

[ 14 ] Notary Steinberg is bound to professional secrecy because of his profession; [9] the possibility of a party who benefits from such professional secrecy renouncing to it is specifically foreseen in the Notarial Act and obviously any communication under scrutiny here involves the notary’s mandate to examine title and to prepare and register a deed of hypothec.

Were the communications with him confidential? [ 15 ] Clearly, any communication, the content of which was destined to be incorporated into the deed of hypothec, a public document, would not be subject to professional secrecy as such information is not communicated in confidence. [10] As well, any information communicated by E. and M. or to them by the notary would not be protected by professional secrecy as they have renounced.

Thus, the only communication that is of possible concern would be communication made by Appellant Bl. to the notary, in confidence, if any, and neither published in the deed nor communicated to E. and M. with Bl.’s consent.

In the context of the specific facts before us and from a practical as well as a legal point of view, on application of the guidance in Foster Wheeler , it would have been appropriate to inquire (either directly with the notary or through counsel appointed for him) as to his relationship with the respective parties (E. and M., on the one hand, and Bl., on the other hand) and whether any communication, verbal or written, was neither incorporated into the deed or divulged to E. and M. with Bl.’s consent.

This could have been done by having counsel provide the specific questions or at least a detailed outline containing the content of the proposed questions. [11] This could have ended the matter. If any confidential communication does exist between Bl. and the notary, then the judge could have ruled on the professional secrecy.

However, an inquiry in the manner herein proposed may well have obviated the necessity of any such ruling. [ 16 ] Though the Courts should be circumspect before relieving a professional of the effects of secrecy at the discovery stage, [12] there is an obvious and immediate interest in obtaining the information here without delay as the good faith of E. and M. would appear to be pivotal in B.’s case against them. The determination of such questions prior to the deposition was not only permitted in law but commendable.

However, in the present circumstances, in order to move the matter forward, we believe that the file should be returned to the Superior Court so that the examination of Notary Steinberg take place. Any and all objections to specific questions on the basis of professional secrecy can then be noted by the stenographer and submitted for adjudication to a judge of the Superior Court, if the party conducting the examination so requires. Any such question can be answered subsequently, or not, according to the judgment.

Obviously, the present judgment should be considered in the process. [ 17 ] Accordingly, the judgment in first instance should be overturned and the matter sent back to be dealt with in the manner described above.

FOR THESE REASONS, THE COURT: [ 18 ] ALLOWS the appeal; [ 19 ] REVERSES the judgment of the Superior Court of November 22, 2016; [ 20 ] RETURNS the matter to the Superior Court in order that the examination of Notary Steinberg take place and that any objections on the basis of professional secrecy be identified and adjudicated thereafter by a judge of the Superior Court, if required; [ 21 ] THE WHOLE without legal costs, given the subject matter of the dispute. MARIE ST-PIERRE, J.A. MARK SCHRAGER, J.A. PATRICK HEALY, J.A.