2011 QCCA 705, 2011 QCCA 705

Unofficial English Translation Rothmans, Benson & Hedges inc. c. Létourneau 2011 QCCA 705 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-021432-117 (500-06-000070-983 and 500-06-000076-980) DATE: April 8, 2011 PRESIDED BY: THE HONOURABLE JACQUES DUFRESNE, J.A. 500-06-000070-983 ROTHMANS, BENSON & HEDGES INC., IMPERIAL TOBACCO CANADA LIMITED and JTI-MACDONALD CORP. PETIONERS – Defendants – Plaintiffs in warranty v.

CÉCILIA LÉTOURNEAU RESPONDENT – Plaintiff and ATTORNEY GENERAL OF CANADA IMPLEADED PARTY – Impleaded party 500-06-000076-980 ROTHMANS, BENSON & HEDGES INC., IMPERIAL TOBACCO CANADA LIMITED PETITIONERS – Defendants and JTI-MACDONALD CORP. PETITIONERS– Defendants – Plaintiffs in warranty v.

CONSEIL QUÉBÉCOIS SUR LE TABAC ET LA SANTÉ RESPONDENT – Representative – Plaintiff and JEAN-YVES BLAIS RESPONDENT – Designated member and ATTORNEY GENERAL OF CANADA IMPLEADED PARTY – Impleaded party JUDGMENT [ 1 ] The petitioners, defendants in the class action brought by the respondent Cécilia Létourneau (500-06-000070-983) and in that brought by the respondent Conseil Québécois sur le Tabac et la Santé (500-06-000076-980), seek leave to appeal from an interlocutory judgment first rendered on January 19, 2011, by the case management judge in the Superior Court (the Honourable Brian Riordan) and upheld by the same judge on January 23, 2011, following an application for reconsideration. [ 2 ] The interlocutory judgment the petitioners seek to appeal is an order for communication of a list of documents that have remained undisclosed on the ground that they were protected by solicitor-client privilege (professional secrecy).

The trial judge's order, made on January 19, 2011, is worded as follows: [ translation ]

The Court: ORDERS each party to send to the other parties, by February 23, 2011, at the latest, a complete list of documents that it did not disclose during the general exchange of documents because it was of the opinion that they were subject to solicitor-client privilege, including those withheld in the context of the withholding of documents, the said list indicating the following: • the title or description of the document, for example, letter or proceeding (identified) • the name of the author and recipient • the date of the document • the general subject dealt with in the document.

Providing that these items do not breach solicitor-client privilege.

This order is limited to the main action, subject to the rights of the companies to make a motion to this end in the actions in warranty. [ 3 ] On January 23, 2011, the judge, further to a "Motion for reconsideration" pursuant to articles 2, 20, and 46 CCP and after hearing once again the submissions of the parties, upheld his order of January 19, noting that it applied only to the defendants in the main action (the petitioners) and not to the Attorney General of Canada in the action in warranty. [ 4 ] A brief review of the history of the proceedings is perhaps useful here.

The motions for authorization to institute a class action for damages were served and filed at the Superior Court in September and November of 1998, respectively. The respondents were granted authorization to institute their class actions by a judge of the Superior Court on February 21, 2005. [ 5 ] On February 29, 2008, the petitioners filed their written defences. On May 27, 2008, extremely detailed subpoenas duces tecum were served on the petitioners by the respondents. These subpoenas were contested before the parties reached an agreement regarding the disclosure of a considerable number of documents.

So far, the petitioners have apparently filed approximately 250,000 documents, while the Attorney General of Canada, some 330,000. [ 6 ] The parties also proceeded with examinations after defence (article 398 CCP ). [ 7 ] It is common ground that, some time beforehand, the respondents had announced their intention to seek the production of documents that had not been disclosed to them by the petitioners because they believed that they were protected by solicitor-client privilege. The petitioners are well aware of this fact.

This is evidenced in the detailed transcripts of the case management hearing on October 21 and November 16, 2010, and in the transcript from January 19, 2011, which directly addresses the issue of the respondents' intention to obtain the documents, or a list of the documents, that the petitioners characterize as privileged in order to debate the privilege invoked by the petitioners. [ 8 ] The timetable established on April 14, 2010, [1] specifies that the Attorney General of Canada would not be required to disclose any list of documents protected by solicitor-client privilege.

This timetable, however, is mute with respect to the petitioners' obligations in this regard. [ 9 ] The petitioners have consistently refused to produce the documents that they believe are protected by solicitor-client privilege. They insist that the respondents proceed in accordance with the provisions of the Code of Civil Procedure governing the disclosure of documents and that they present a motion identifying the documents sought. [ 10 ] They maintain that the 2008 agreement with the respondents regarding production sealed the judicial contract binding the parties with regard to the production of documents.

Because this agreement in no way contemplates the production of privileged documents or a list thereof, they argue that the respondents should have proceeded by way of a motion in writing. [ 11 ] According to the petitioners, the judge was wrong to ignore the need for a specific and detailed motion. By requiring the petitioners to create a list of privileged documents, he was drawing on common law rules (Schedule

B) instead of those set out in the Code of Civil Procedure. They do not argue, however, that the drawing up of such a list and the information it would contain would breach solicitor-client privilege. Finally, if the judge was justified in proceeding as he did, he should, in the interest of fairness, have imposed the same obligation on the party impleaded in the action in warranty. [ 12 ] The judge rejected the petitioners' arguments. Further to the petitioners' motion for reconsideration, he upheld the reasons that had led him, on January 19, 2011, to make the order.

He explained his decision as follows: [ translation ] [6] The parties addressed the issue of such a list during the Timetable negotiations. This is clearly apparent in paragraph 4 ["The AGC will not have to communicate any list of documents, including a list of documents covered by solicitor-client, litigation or settlement privilege or under the Canada Evidence Act" ].

If the Companies had agreed that such a thing would never be asked of them, they surely would have included a clause to this effect in the Timetable. [7] Thus, by all indications, the Order is not inconsistent with the negotiations of the Agreement. The case law cited by Mtre Reno, however, remains to be considered. [8] In this case, I do not believe that these decisions can hamper the process adopted in the Order. While the Code of Civil Procedure does not contemplate this manner of proceeding, it does not forbid it either. Moreover, it has no effect on the fundamental rights of the parties .

[9] More importantly, and this is what I base my decision on, the process ordered is the logical extension of the one adopted by theparties themselves with respect to the communication of documents. In fact, it would be nearly unimaginable to proceed otherwise,absent acquiescence to this effect. Let us recall that the period covered in the main actions is close to fifty years. [10] Of course, if the Order represented a threat to the right to privilege, it would be a whole other story. But that is not the case, and it isnot what the Companies allege.

On the contrary, in our view, it is the surest way of ensuring that privilege is maintained.

The alternative,which would be to send omnibus subpoenas and to undertake a long debate on the objections regarding the lawfulness of the service –rather than on the nature of the document itself – would be contrary to the interests of justice and to proportionality. [Emphasis added.] [13] The process to which the judge refers consists of entrusting the task of examining the documents on the list to a judge otherthan himself because, once his role as case management judge is fulfilled, he will be the one to hear the cases on their merits.

Thus, hewill not be the one to decide whether the documents on the list to be submitted by the petitioners are protected by solicitor-clientprivilege.

This process means that the respondents will debate the documents contained in the list without knowing what they contain.Only the judge appointed to this task will have access to the documents on the list in order to decide whether they are protected bysolicitor-client privilege. [14] In Lac d'Amiante du Québec Ltée,[2] LeBel J. notes that the Quebec rules of civil procedure are contained in a procedural codeand, as such, form part of a legal tradition that is distinct from the common law.

He states: 37 Moreover, the procedural law recognizes the courts’ inherent powers to deal with situations not provided for in the law or the rules ofpractice. (See Canadian Broadcasting Corp. v. Quebec Police Commission, (SCC), [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 ancillarypowers, that were established by arts. 20 and 46 C.C.P., only give the courts a secondary or interstitial function in defining procedure inQuebec. The codified law is paramount.

The courts must base their decisions on it. [3] [15] He adds: 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, aQuebec court does not have the same creative power in relation to civil procedure as a common law court, although intelligent andcreative judicial

interpretation is often able to ensure that procedure remains flexible and adaptable. Although Quebec civil procedure ismixed, it is nonetheless codified, written law, governed by a tradition of civil law

interpretation. In the civil law tradition, the Quebeccourts must find their latitude for interpreting and developing the law within the legal framework comprised by the Code and the generalprinciples of procedure underlying it.[4] [16] In Foster Wheeler,[5] LeBel J., this time dealing with requests for confidential information protected by solicitor-clientprivilege, states that the verification of whether the information or documents are privileged must not be carried out blindly.

Heexpresses himself as follows: 41 In the case of complicated and prolonged mandates, the obligation of justifying each case as one where confidentiality and, byextension, immunity from judicial disclosure apply is poorly adapted to the nature of professional relationships and the safeguardsrequired to maintain secrecy in an effective manner. In a case such as the one before this Court, the client and lawyer would be expectedto dissect all facets of their relationship in order to characterize them and consequently invoke immunity from disclosing some elements,but not others (Québec (Sous-ministre du Revenu) v.

Legault, supra, at p. 231). Proceeding in this manner multiplies the risks ofdisclosing confidential information and further weakens professional secrecy, an institution that the legislature and the courts haveafforded strong and generous protection (Poulin v. Prat, (QC CA), [1994] R.D.J. 301 (C.A.), p. 307; McClure, supra,at para. 33). 42 In such cases, a different method would be preferable.

It would be enough to have the party invoking professional secrecy establishthat a general mandate had been given to a lawyer for the purpose of obtaining a range of services generally expected of a lawyer in hisor her professional capacity. At this stage, there would be a presumption of fact, albeit a rebuttable one, to the effect that allcommunications between client and lawyer and the information they shared would be considered prima facie confidential innature.

Although the case concerned a different field of law, namely criminal procedure, this Court recommended an analogous methodin the initial steps of the examination of difficulties arising out of potential conflicts between solicitor-client privilege in the common lawand the need to protect the presumption of innocence (McClure, supra, at paras. 46-51).

The opposing party would then have to give aspecific indication of the nature of the information sought and show that it is subject neither to the obligation of confidentiality nor toimmunity from disclosure, or that this is a case where the law authorizes disclosure notwithstanding professional secrecy. This methodwould have procedural consequences. The opposing party would be obliged to ask precise and limited questions about the informationsought.

This sort of question would better take into account the sensitive nature of any line of questioning regarding professionalrelationships between clients and lawyers and the need to minimize violations of professional secrecy. This would prevent “fishingexpeditions” in which lawyers, through the files they handle and reports they prepare for their clients, are used as a source of informationfor building cases against their own clients. One would also hope that every effort would first be made to obtain the information fromavailable sources other than lawyers.

A sound judicial policy, mindful of the social importance of lawyers’ professional secrecy and theneed to protect it, should certainly not attempt to facilitate this sort of questioning, but rather restrain it as much as possible.[6] [17] It is always perilous to stray from the rules of civil procedure, even for reasons of efficiency. That said, so long as the process isbased on the Code of Civil Procedure and remains fair for the parties, it is not for the Court to interfere with the progress of the case.

Inmy view, that is the case here. [18] The order rendered on January 19 and upheld on February 23, 2011, is without question unusual – much like the case in somerespects, if only due to the sheer scope of the class actions and the length of proceedings, which began in 1998. But does the order reallybreach the rules of the Code of Civil Procedure governing the communication of documents? I do not believe so since, in the presentcase, the respondents made an oral request for the production of relevant documents which have not been communicated to them on

grounds of solicitor-client privilege and which they debated before the judge ever ruled on the matter. [ 19 ] The petitioners see this order as a copy of

Schedule B, expressed as a common law rule. While such a connection may be easy to make, in this case the order is actually grounded in the Code and is more easily understood in the very specific context of the present actions. [ 20 ] Although I do not agree with all of the judge's reasons, I find that the order he made falls within the exercise of discretionary power conferred on him by

article 1045 CCP , which states that "[t]he court may, at any stage of the proceedings in a class action, prescribe measures designed to hasten their progress and to simplify the proof, if they do not prejudice a party or the members ... ". This provision, applicable in class actions, is analogous to

article 151.13 CCP , which states that the judge presiding over a pre-trial conference "issues any appropriate orders".

Article 279 CCP confers the same flexibility on the judge in management matters. Finally, the second paragraph of

article 4.1 CCP , which is even more general in application, states that "[t]he court sees to the orderly progress of the proceeding and intervenes to ensure proper management of the case". [ 21 ] In this case, the judge who rendered the order at the origin of the motion has been the case management judge for a long time now. He is the best placed to render interlocutory decisions.

A reading of the detailed minutes of the management conferences held in the ongoing cases reveals the number of decisions that have been made to ensure proper management and the readying of the case for trial. [ 22 ] In such a complex case, where hundreds of thousands of documents totalling millions of pages have been communicated, the order for communication of a list of documents that to date have been withheld by the petitioners because they believe them to be protected by solicitor-client privilege can only accelerate the procedure set out in the Code . [ 23 ] Indeed, if the respondents were to proceed by motion, the terms in which it would be drafted would be so general, since they do not know how many confidential documents have been kept secret or what they contain, that the cases could easily become involved in gruelling and ultimately pointless discussions regarding precision. [ 24 ] Moreover, while the order appears to reverse the roles by requiring that the petitioners first produce the list of relevant documents they believe to be protected by solicitor-client privilege, the process selected by the management judge in this case nevertheless confers on the parties the same guarantees that a more usual application of the Code of Civil Procedure would, especially since the petitioners do not impugn the trial judge's determination that, in this case, the creation of this list and its contents do not breach professional secrecy.

What is more, the judge's order included a significant condition regarding the protection of professional secrecy, where he stated that the information to be provided in the list is required only [ translation ] "providing that these items do not breach solicitor-client privilege". [ 25 ] The fact that the screening will be carried out by a judge who will not hear the case on its merits and that the opposing parties (the respondents) will not have access to the confidential documents provides a sufficient guarantee here: the petitioners may argue the privileged nature of the documents they wish to remain confidential, and the respondents may seek access before an informed judge.

The process is not without its hazards; nevertheless, in my view, the recommended order should not be seen as a precedent but primarily as an exceptional measure taken in a case with an extraordinarily complex procedural history. [ 26 ] Although the order rendered – or at least the part of the order requiring the creation of a list of privileged documents – is subject to

article 29 CCP , I find that the ends of justice do not require that leave be granted. As for the refusal to subject the impleaded party to the obligation to provide a list of similar documents in the action in warranty, the decision in this respect is not subject to

article 29 CCP , in that the situation may always be remedied if the circumstances so justify. [ 27 ] FOR THESE REASONS , the motion for leave to appeal is dismissed, with costs. JACQUES DUFRESNE, J.A. Mtre François Grondin Borden Ladner Gervais For the applicant JTI-Macdonald Corp. Mtre Kristian Brabander McCarthy Tétrault For the petitioner Rothmans, Benson & Hedges Inc. Mtre Karim Renno Osler, Hoskin & Harcourt For the petitioner Imperial Tobacco Canada Limited Mtre André Lespérance Lauzon Bélanger Lespérance inc.

For the respondents Jean-Yves Blais and the Conseil Québécois sur le Tabac et la Santé and Cécilia Létourneau Mtre Nathalie Drouin Joyal Leblanc, Justice Canada For the impleaded party

Date of hearing: March 30, 2011