2014 QCCA 2332, 2014 QCCA 2332

Société financière Manuvie v. D'Alessandro 2014 QCCA 2332 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUÉBEC N° : 200-09-008343-144 (200-06-000117-096) DATE : December 19, 2014 CORAM : THE HONOURABLE BENOÎT MORIN, J.A. GUY GAGNON, J.A. DOMINIQUE BÉLANGER, J.A. MANULIFE FINANCIAL CORPORATION APPELLANT – Defendant v. DOMINIC D’ALESSANDRO PETER RUBENOVITCH GAIL C.A. COOK-BENNETT ARTHUR R.

SAWCHUK RESPONDENTS – Defendants And LE MOUVEMENT D’ÉDUCATION ET DE DÉFENSE DES ACTIONNAIRES (MEDAC) RESPONDENT – Plaintiff And MARC LAMOUREUX, acting as designated person for the MOUVEMENT D’ÉDUCATION ET DE DÉFENSE DES ACTIONNAIRES (MEDAC) RESPONDENT – Designated person And ATTORNEY GENERAL OF CANADA IMPLEADED PARTY And CANADIAN BANKERS ASSOCIATION CANADIAN LIFE AND HEALTH INSURANCE ASSOCIATION INC.

INSURANCE BUREAU OF CANADA INTERVENERS JUDGMENT [ 1 ] The appellant appeals from a judgment of the Superior Court, District of Quebec (the Honourable Madam Justice Alicia Soldevila), rendered on May 7, 2014, that dismissed its objection to the evidence based on statutory immunity from judicial disclosure, ordered the disclosure of four non-redacted documents and that of 57 other non-redacted documents, subject, in the latter case, to the appellant's right to contest the relevance of some of the information contained therein. [ 2 ] For the reasons of Bélanger, J.A., with which Gagnon, J.A., agrees, THE COURT : [ 3 ] DISMISSES the appeal, with costs. [ 4 ] For other reasons, Morin, J.A., would have allowed the appeal and upheld the appellant’s objection regarding the disclosure to

MEDAC of the information contained in the 63 documents, the whole with costs against MEDAC. BENOÎT MORIN, J.A. GUY GAGNON, J.A. DOMINIQUE BÉLANGER, J.A. Mtre James Woods Mtre Sébastien Richemont Mtre Emmanuelle Demers-Madore Woods, s.e.n.c.r.l. For the appellant Mtre Jean-Michel Boudreau (absent) Irving, Mitchell For the respondent Dominic D’Alessandro Mtre Céline Legendre McCarthy, Tétrault For the respondent Peter Rubenovitch Mtre Tina Hobday Langlois, Kronström For the respondents Gail C.A. Cook-Bennett and Arthur R.

Sawchuk Mtre Éric Lemay Mtre Simon Hébert Mtre Dimitri Lascaris Siskinds, Desmeules For the respondents Le mouvement d’éducation et de défense des actionnaires (MEDAC) and Marc Lamoureux Mtre Geneviève Bourbonnais Mtre Gino Richer Department of Justice Canada For the impleaded party Mtre Guy J.

Pratte Mtre Patrick Plante Borden, Ladner For the intervener Canadian Bankers Association Mtre Claude Marseille Mtre Ariane Bisaillon Blake, Cassels For the interveners Canadian Life and Health Insurance Association Inc. and Insurance Bureau of Canada Date of hearing: October 31, 2014 REASONS OF BÉLANGER, J.A. [ 5 ] This appeal raises the question of whether ss. 2 and 3 of the Supervisory Information (Insurance Companies) Regulations [1] contain a specific and absolute prohibition of disclosure against supervisory information or nothing more than a statutory duty of confidentiality. [ 6 ] The trial judge concluded [2] that the Regulations refer merely to a duty of confidentiality.

She therefore dismissed the objection raised by the appellant and ordered the disclosure of the documents at issue. We note from the outset that the parties have already entered into a confidentiality agreement with respect to this information. [ 7 ] Leave to appeal from this judgment was granted by Gagnon, J.A., who found that the present case [ translation ] "was one of those most exceptional cases where the best interests require that leave be granted". [3]

[ 8 ] The Attorney General of Canada (AGC), acting on behalf of the Office of the Superintendent of Financial Institutions (OSFI), was impleaded. Leave to intervene was also granted to the Canadian Bankers Association (CBA), the Insurance Bureau of Canada (IBC), and the Canadian Life and Health Insurance Association Inc. (CLHIA).

Context [ 9 ] The respondents, the Mouvement d’éducation et de défense des actionnaires (MEDAC) and Marc Lamoureux, were granted leave to institute a class action against the appellant Manulife Financial Corporation and some of its officers. [4] The respondents criticize them, first, for violating their obligation of continuous disclosure under s. 73 of the Securities Act [5] and its related regulations, [6] and, second, for providing inaccurate, false, incomplete, or misleading information about its guaranteed products.

They claim that these faults unfavorably affected investors and the value or price of the appellant's shares. [ 10 ] During the examinations after defense, the appellant objected to the disclosure of 63 internal documents containing information relating to the supervision of insurance companies. [ 11 ] The objection is based on ss. 2 and 3 of the Regulations , which allegedly prohibit the disclosure of such information. We will return to this later.

The judgment a quo [ 12 ] The judge considered that the debate on the content of the information in the requested documents was highly relevant to the dispute. [7] [ 13 ] Her analysis of the scope of the non-disclosure begins with a statement of principle, which has previously been stated by this Court in these terms: [ translation ] "[i]n a civil lawsuit, the parties are entitled to the disclosure of documents, even confidential ones, when they are relevant to the matter". [8] After reviewing the law, she analyzed Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. [9] and Jeffery v.

London Life Insurance Company. [10] The judge agreed with these judgments and concluded that ss. 2 and 3 of the Regulations provided merely for a duty of confidentiality on the part of the companies. The Superintendent is already subject to such duty under s. 672 I.C.A. and s. 22 of the Office of the Superintendent of Financial Institutions Act . [11] The judge noted that s. 39.1 O.S.F.I.A. , adopted in 2012, addresses only the fact that the Superintendent may not be compelled to testify.

Parliament did not include a similar prohibition respecting companies in the Regulations . [ 14 ] Finally, the judge examined a sample of six non-redacted documents. It was her opinion that two of these documents, despite containing information protected by ss. 2 and 3 of the Regulations , were not relevant to the case. As for the redacted passages in the other four documents, the judge found that they contained information covered by s. 2 of the Regulations and appeared to be relevant. She ordered their disclosure.

Similarly, in accordance with the terms of the confidentiality protocol entered into by the parties, she ordered the disclosure of non-redacted versions of the 57 other documents, subject to a future debate regarding their relevance . Issue [ 15 ] Do ss. 2 and 3 of the Regulations constitute a specific and absolute prohibition on the disclosure of supervisory information normally destined for the OSFI or a statutory duty of confidentiality instead?

Parties’ submissions [ 16 ] The appellant contends that ss. 2 and 3 of the Regulations create a [ translation ] "specific and absolute prohibition of disclosure" and not a mere duty of confidentiality. The clear wording of the Regulations or its

interpretation according to the modern approach, on the one hand, and the public interest objectives pursued by Parliament in the financial sector, on the other, confirm this assumption.

In this regard, the appellant argues that the judgment a quo jeopardizes the quality of the exchanges between the Superintendent and companies, undermines the confidence that these companies have in the confidential disclosure scheme under the Act and, ultimately, negatively impact the effectiveness of the regulatory control over the Canadian financial system, which control managed to adequately protect Canada from the effects of the 2008 economic crisis. [ 17 ] The appellant adds that, as soon as the prohibition is considered absolute, there is no need to analyze the relevance of the documents.

Finally, it argues that the prohibition under ss. 2 and 3 of the Regulations must benefit from a protection that is superior or at least equal to that of public interest privileges , [12] which apply here. [ 18 ] The impleaded party and the three interveners argue essentially the same position as the appellant. The impleaded party points out that the trial judge failed to differentiate the obligations at issue.

The interveners BAC and CLHIA argue that s. 3 of the Regulations does not contain any exception of the [ translation ] "except as may be required by law or a court" variety, a fact that confirms the absolute nature of the prohibition on judicial disclosure. Finally, the intervener CBA addresses the applicability of a public interest privilege to this case, before coming to the same conclusion as the appellant. [ 19 ] The respondents argue instead that ss. 2 and 3 of Regulations create a mere duty of confidentiality.

They reiterate the importance of the right to the truth and the principle of freedom of evidence in Quebec civil law. They add that the argument relating to public interest privileges was not debated at trial or referred to in the motion for leave to appeal and would moreover require supplementary evidence . Analysis General Principles

[ 20 ] In principle, the rule of relevancy governs the disclosure of "... any document relating to the issue". [13] Determining the relevance of a document is part of the duties of trial judges, who are, a priori , in the best position to do so. This is especially true in the context of class actions, where the judge, as is the case here, managed this particular case from its very outset, and therefore had a thorough knowledge of all its aspects. [ 21 ] In Imperial Oil v.

Jacques , [14] LeBel and Wagner J.J., writing for the majority of the Supreme Court, recently reiterated that the search and discovery of the truth, subject to the objectives of proportionality and efficiency, "[...] remain[s] the cardinal principle in civil proceedings".

They also reaffirmed the principle of freedom of evidence during examinations on discovery. [15] [ 22 ] It has long been recognized that, at the stage of examinations on discovery, one must favor the most complete disclosure of evidence . [16] On this subject, Proulx J.A., in Westinghouse , established the factors that must govern the disclosure of evidence: [ translation ] 1. at the stage of discovery, either before or after defense, one must favor the most complete disclosure of evidence; 2. since the evidence is only disclosed at that stage, it will be adduced at trial only at the discretion of the parties; 3. the defendant must satisfy the court not that the evidence is relevant in the traditional sense of the word in the context of a trial, but that disclosure of the document will be useful, appropriate, likely to contribute to furthering the debate, based on an acceptable objective that he or she seeks to attain in the case, and that the document to be disclosed is related to the dispute; 4. that such disclosure does not constitute a fishing expedition; 5. that the document is likely to constitute evidence in itself. [ 23 ] The fact remains that an [ translation ] “objection to disclosure can also be based on an immunity from disclosure that is either judge-made or statutory”. [17] [ 24 ] I am nevertheless of the opinion that such immunity from disclosure is not found in the Regulations under consideration.

Here is why. Background [ 25 ] In 1987, Parliament created the OSFI with the mandate of assuming oversight of all federally regulated financial institutions. Its aim in doing so was to contribute to public confidence in the Canadian financial system. [18] The Superintendent’s supervisory mandate states that it must ensure that the regulated corporations are in good financial health and comply with laws. Therefore, the OSFI must promptly notify any institutions that it believes are in a poor financial situation or that are non-compliant.

If necessary, it can take steps to compel them to correct a situation. [19] [ 26 ] In 1991, as part of the regulatory reform of financial institutions, Parliament passed the Insurance Companies Act , [20] which contains s. 672, a provision similar to s. 22 O.S.F.I.A. [ 27 ] This provision states that information obtained by the Superintendent under its oversight mandate is confidential: 672.

(1) Sous réserve de l’article 673, sont confidentiels et doivent être traités comme tels les renseignements concernant l’activité commerciale et les affaires internes de la société ou concernant une personne faisant affaire avec elle et obtenus par le surintendant ou par toute autre personne agissant sous ses ordres, dans le cadre de l’application d’une loi fédérale, de même que ceux qui sont tirés de tels renseignements. […] 672.

(1) Subject to

section 673, all information regarding the business or affairs of a company, society, foreign company or provincial company, or regarding a person dealing with any of them, that is obtained by the Superintendent, or by any person acting under the direction of the Superintendent, as a result of the administration or enforcement of any Act of Parliament, and all information prepared from that information, is confidential and shall be treated accordingly. … [ 28 ] Indeed, as part of its duties, the Superintendent obtains from the reporting corporation certain "information concerning the business or affairs" that it must provide. [21] This information, like the information that derives therefrom, is protected by a statutory duty of confidentiality under subsection 672(1) I.C.A. [ 29 ] Certain exceptions to the Superintendent's duty of confidentiality authorize the disclosure of the information, however, for example to other regulatory bodies, if it is satisfied that the information will be treated as confidential, [22] or to the general public, when deemed necessary by the Minister of Finance. [23] [ 30 ] From a regulatory control perspective, which, it must be remembered, aims to "contribute to public confidence in the Canadian financial system", this duty of confidentiality certainly promotes exchanges between the Superintendent and the reporting corporations.

The information derived from the information obtained through these exchanges constitutes a variation of the latter and is also subject to the duty of confidentiality. [ 31 ] In the context of s. 672 O.S.F.I.A. , the duty of confidentiality is imposed upon the Superintendent for the benefit of the reporting corporations that have submitted documents that may admittedly contain sensitive information. [ 32 ] In 1999, the I.C.A. and the O.S.F.I.A. were amended and the power to make regulations prohibiting or restricting reporting corporations from disclosing supervisory information was introduced: 672.1 The Governor in Council may make regulations prohibiting, limiting or restricting the disclosure by companies, societies, foreign companies or provincial companies of prescribed supervisory information. (Emphasis added.) [ 33 ] It is therefore through the implementation of the Regulations in 2001 that a prohibition and restriction on disclosure of supervisory information were imposed upon the companies: RENSEIGNEMENTS 2.

(1) Pour l’application de l’

article 672.1 de la

Loi sur les sociétés d’assurances , les renseignements relatifs à la supervision ou toute

partie de ceux-ci exercée par le surintendant à l’égard d’une société sont les suivants :

a) toute cote attribuée par le surintendant à la société pour évaluer sa situation financière ainsi que toute autre cote d’évaluation de sa situation financière fondée en grande

partie sur des renseignements obtenus du surintendant;

b) tout niveau d’intervention attribué à la société : (

i) dans le cas d’une société d’assurance- vie, aux termes du Guide de surveillance s’appliquant aux sociétés d’assurance-vie assujetties à la réglementation fédérale , (ii) dans le cas d’une société d’assurances multirisques ou d’une société d’assurance maritime, aux termes du Guide de surveillance s’appliquant aux sociétés d’assurances assujetties à la réglementation fédérale ;

c) toute ordonnance prise à l’égard de la société en vertu des paragraphes 515(3) , 516(4) , 608(4) ou 609(2) de la

Loi sur les sociétés d’assurances , tout accord prudentiel conclu par elle aux termes de l’article 675.1 de cette loi et toute décision prise à son égard en vertu de l’article 676 de la même loi;

d) tout rapport établi par le surintendant ou à sa demande ou toute recommandation formulée par celui-ci au terme d’une inspection annuelle ou spéciale de la société ou de tout autre examen PRESCRIBED SUPERVISORY INFORMATION 2.

(1) For the purposes of

section 672.1 of the Insurance Companies Act , the following information or any component of that information is prescribed supervisory information in relation to a company: (

a) any rating assigned by the Superintendent to the company to assess its financial condition and any other such rating that is substantially based on information obtained from the Superintendent; (

b) any stage of intervention assigned to the company (

i) in the case of a life company, under the Supervisory Guide Applicable to Federally Regulated Life Insurance Companies , and (ii) in the case of a property and casualty company or a marine company, under the Supervisory Guide Applicable to Federally Regulated Insurance Companies ; (

c) any order made in respect of the company under subsection 515(3) , 516(4) , 608(4) or 609(2) of the Insurance Companies Act , any prudential agreement entered into by the company under

section 675.1 of that Act or any direction issued to it under

section 676 of that Act; and (

d) any report prepared by or at the request of the Superintendent or any recommendation made by the Superintendent as a result of an annual or special examination or other supervisory review of the company, including any related correspondence to or from the directors or officers of the company.

relatif à sa supervision, y compris la correspondance échangée à cet égard avec ses administrateurs ou ses dirigeants. e) [Abrogé, DORS/2011-196, art. 20] (2) […] COMMUNICATION INTERDITE 3. S ous réserve des articles 4 et 5, il est interdit à toute société de communiquer à quiconque, directement ou indirectement, des renseignements visés à l’article 2. COMMUNICATION RESTREINTE 4.

La société peut communiquer les renseignements visés à l’article 2 aux entités de son groupe de même qu’à son actuaire et ses administrateurs, dirigeants, employés, vérificateurs, souscripteurs à forfait et conseillers juridiques, et à ceux des entités de son groupe, si elle veille à ce que les renseignements demeurent confidentiels.

La société ou une entité de son groupe peut communiquer les renseignements visés à l’alinéa 2(1)

c) si elle conclut qu’ils comportent un fait ou changement important dont la communication est exigée par les lois sur les valeurs mobilières du territoire compétent. ( e ) [Repealed, SOR/2011-196, s. 20] (2) … PROHIBITED DISCLOSURE 3. Subject to sections 4 and 5, a company shall not, directly or indirectly, disclose information referred to in

section 2. LIMITED DISCLOSURE 4. A company may disclose information referred to in

section 2 to its affiliates or to its directors, officers, employees, auditors, securities underwriters or legal advisors, or to those of its affiliates, if the company ensures that the information remains confidential. 5. A company or any of its affiliates may disclose information referred to in paragraph 2(1)(

c) if the company or affiliate considers the information to contain a material fact or material change that is required by the securities laws of the relevant jurisdiction to be disclosed. [ 34 ] For reporting corporations, the Regulations create a prohibition on disclosing supervisory information. In some ways, this information constitutes the record compiled by the Superintendent regarding a reporting company and contains all the decisions taken with respect to it.

It should be noted that supervisory information consists of the rating and level of intervention ascribed to the reporting companies, as well as orders, reports or recommendations issued by the Superintendent concerning them. [ 35 ] The Regulations provide for some exceptions. The disclosure of otherwise confidential information to a restricted circle of persons, who are also bound by the same duty of confidentiality is expressly authorized.

In addition, a company could disclose such information to a prospective buyer, subject to certain conditions. [ 36 ] Broadly, we understand that the prohibition on the disclosure of supervisory information, including the rating, the level of intervention and any order issued by the OSFI with respect to a reporting corporation, serves a specific purpose: ➢ Promote the implementation of the Superintendent's oversight mandate by allowing an effective exchange of information between the Superintendent and reporting companies; ➢ Avoid negative public reaction toward the institution before corrective measures are implemented, a situation which could have a detrimental effect on the stability of the financial system as a whole; [24] and ➢ Prevent a reporting corporation from using, for promotional purposes, positive reports it received. [ 37 ] Despite the existence of this privileged communication channel between the reporting companies and the Superintendent, some elements suggest that we are not dealing with an absolute prohibition on disclosure for the reporting companies. [ 38 ] This is also the conclusion reached by the Ontario courts in Jeffery .

It is useful to note, however, that the request for disclosure of documents in that case was directed at the Superintendent itself, which objected, based on the deliberative process privilege. [ 39 ] That being said, Soldevila J. was right to assert that it is not because a statutory provision sets up a confidentiality scheme that one must necessarily conclude that Parliament intended to impose an absolute prohibition on disclosure, including judicial disclosure. [25]

2012 Amendment: Superintendent is Granted Immunity from Disclosure [ 40 ] In 2012, Parliament intervened again when it adopted s. 39.1 O.S.F.I.A , this time to create a real immunity from disclosure in favor of the Superintendent and its staff: [26] 39.1.

Le surintendant, les surintendants adjoints, les dirigeants et employés du Bureau, de même que les personnes agissant sous les ordres du surintendant, ne sont pas des témoins contraignables dans le cadre de toute procédure civile en ce qui touche les questions venues à leur connaissance dans l’exercice des attributions que leur confère la présente loi ou toute loi mentionnée à l’annexe. 39.1.

The Superintendent, any Deputy Superintendent, any officer or employee of the Office or any person acting under the direction of the Superintendent, is not a compellable witness in any civil proceedings in respect of any matter coming to their knowledge as a result of exercising any of their powers or performing any of their duties or functions under this Act or the Acts listed in the schedule. [ 41 ] This legislative amendment followed the Jeffery [27] case, in which examinations of members of the OSFI were authorized in the first instance, a decision that the Court of Appeal for Ontario upheld for the most part. [28] It will be recalled that the Court of Appeal for Ontario confirmed that two people from the OSFI were compellable witnesses, rejecting the Attorney General of Canada's argument on that point.

The Court then specified that the witnesses could be examined on the facts of the case as long as deliberative secrecy was preserved. [ 42 ] Therefore, this new immunity from disclosure is added to the statutory duty of confidentiality imposed on the Superintendent since 2001. It is worth noting that, prior to 2001, the OSFI did not disclose performance ratings to reporting companies.

Following a recommendation from the Auditor General of Canada, the OSFI began to disclose to reporting companies the ratings they had been attributed, to inform them as to how they were perceived by the regulatory body. [ 43 ] The legislative amendment of 2012 did not transform the duty of confidentiality imposed on reporting companies into an absolute prohibition on disclosure. Had this been Parliament's intent, it would have been clearly expressed.

Instead, there is every reason to believe that the sole purpose of the amendment was to avoid the Superintendent and his staff being summoned to court. [ 44 ] However, there is nothing to indicate that the immunity granted to the Superintendent and his staff should be extended to reporting companies. [ 45 ] If Parliament had intended to implement an absolute prohibition, it would have specified that any disclosure, [ translation ] "even in judicial proceedings," is prohibited. A similar drafting technique that it has used in other statutes.

Soldevila J. cited the Statistics Act , [29] as an example where Parliament provided that certain documents are "[...] privileged and shall not be used as evidence in any proceedings whatever". [ 46 ] To conclude on this point, I note the opinion expressed by professors Ducharme and Panaccio, who correctly assert that [ translation ] "[w]here a statute states only that a document is confidential, one must ... assume that such confidentiality applies only in an extrajudicial context like a duty of discretion, unless it is clearly the intent of Parliament to confer immunity from judicial disclosure”. [30] [ 47 ] I find that this case is not one of those rare cases where Parliament clearly intended to confer immunity from disclosure, even in judicial proceedings.

The Right to Disclosure of documents [ 48 ] In principle, the rule of relevance ensures that, except in those cases under art. 2858 of the Civil Code of Québec , when a party is in possession of documents relevant to the dispute, it must disclose them to the other party.

If it appears that these documents are confidential, not only are the parties bound by an obligation of confidentiality regarding all matters related to the documents of the same nature obtained at the discovery stage, [31] but they may also set up additional measures to ensure their confidentiality, a practice that is now common before the various Quebec courts. [ 49 ] In this regard, the parties have in fact set up such a confidentiality agreement in respect of the information in question and there is no indication that these measures are insufficient to achieve the sought-after confidentiality.

For example, only four named lawyers, their experts and the MEDAC's representative will have access to the documents. These people have undertaken to respect the confidentiality of the documents to the utmost degree. Moreover, they cannot reproduce the documents without the consent of the appellant or the Court, and if MEDAC wishes to use the confidential documents in the context of this case, it undertakes to give the appellant a thirty-day prior notice, giving the latter the opportunity to seek additional conservatory measures, if need be.

Finally, MEDAC and its legal counsel undertake to return all copies of confidential documents to the appellant's legal counsel at the end of the dispute. [ 50 ] I mention in passing that neither party has claimed that these measures were insufficient to achieve the sought-after objective of confidentiality. [ 51 ] That being said, "... if there are reasons why he or she should not do so," [32] a judge may refuse to order the disclosure of supervisory information, given the importance ascribed by Parliament to the duty of confidentiality.

This might be the case, for example, where the public interest in maintaining the confidentiality of information is greater than the importance of disclosure for the administration of justice.

[ 52 ] As decided in Globe and Mail , [33] under art. 46 of the Code of Civil Procedure Quebec, courts and judges have all the powers necessary for the exercise of their jurisdiction, including the power to prevent disclosure of relevant documents in particular or exceptional cases where their disclosure could run afoul of Parliament’s objectives. [ 53 ] As there is no evidence that this is the case here, especially given that the information in question dates back several years (2004 to 2009), the judge's decision to order disclosure was well founded. [ 54 ] It should also be pointed out that even the disclosure of information may be ordered at a preliminary stage, it is still possible, though only exceptionally, for the Court to make an order at trial to keep such information secret, in whole or in part, either by ordering that the hearing be held in camera or by means of a publication ban. [34] [ 55 ] I would therefore dismiss the appeal, with costs.

DOMINIQUE BÉLANGER, J.A.

REASONS OF MORIN, J.A. [ 56 ] I have read the reasons of my colleague Bélanger, J.A., and, with respect, I cannot agree with her. [ 57 ] As correctly noted by my colleague, the Supervisory Information (Insurance Companies) Regulations [35] ( Regulations ) were enacted pursuant to s. 672.1 of the Insurance Companies Act , [36] which reads as follows: 672.1 Le gouverneur en conseil peut, par règlement, interdire ou restreindre la communication par les sociétés des renseignements relatifs à la supervision exercée par le surintendant qui sont précisés par règlement. 672.1 The Governor in Council may make regulations prohibiting, limiting or restricting the disclosure by companies, societies, foreign companies or provincial companies of prescribed supervisory information. [ 58 ] This provision, whose constitutionality is not at issue, clearly gives the government the power to enact regulations prohibiting the disclosure of information specified therein by insurance companies. [ 59 ] It should be noted that the French version uses the words " interdire ou restreindre " while the English one uses the words "prohibiting, limiting or restricting".

It shows that the legislature distinguishes regulations that prohibit the disclosure of information from those that only restrict it. [ 60 ] There does not appear to be anything in

section 672.1 that would allow the prohibition of disclosure of the intended information to be characterized as relative rather than absolute. [ 61 ] It might be argued that the prohibition is relative in that it applies only to information relating to the oversight by the Superintendent of Financial Institutions of the financial institutions identified by regulation (prescribed supervisory information). It is, however, an outright prohibition regarding such information. [ 62 ] What information are we speaking of? In this case, it is the information referred to paragraph 2(1) of the Regulations :

(1) Pour l’application de l’

article 672.1 de la Loi sur les sociétés d’assurances , les renseignements relatifs à la supervision ou toute

partie de ceux-ci exercée par le surintendant à l’égard d’une société sont les suivants :

a) toute cote attribuée par le surintendant à la société pour évaluer sa situation financière ainsi que toute autre cote d’évaluation de sa situation financière fondée en grande

partie sur des renseignements obtenus du surintendant;

b) tout niveau d’intervention attribué à la société : (

i) dans le cas d’une société d’assurance-vie, aux termes du Guide de surveillance s’appliquant aux sociétés d’assurance-vie assujetties à la réglementation fédérale , (ii) dans le cas d’une société d’assurances multirisques ou d’une société d’assurance maritime, aux termes du Guide de surveillance s’appliquant aux sociétés d’assurances assujetties à la réglementation fédérale ;

c) toute ordonnance prise à l’égard de la société en vertu des paragraphes 515(3) , 516(4) , 608(4) ou 609(2) de la

Loi sur les sociétés d’assurances , tout accord prudentiel conclu par elle aux termes de l’article 675.1 de cette loi et toute décision prise à son égard en vertu de l’article 676 de la même loi;

d) tout rapport établi par le surintendant ou à sa demande ou toute recommandation formulée par celui-ci au terme d’une inspection annuelle ou spéciale de la société ou de tout autre examen relatif à sa supervision, y compris la correspondance échangée à cet égard avec ses administrateurs ou ses dirigeants. 2.

(1) For the purposes of

section 672.1 of the Insurance Companies Act , the following information or any component of that information is prescribed supervisory information in relation to a company: (

a) any rating assigned by the Superintendent to the company to assess its financial condition and any other such rating that is substantially based on information obtained from the Superintendent; (

b) any stage of intervention assigned to the company (

i) in the case of a life company, under the Supervisory Guide Applicable to Federally Regulated Life Insurance Companies , and (ii) in the case of a property and casualty company or a marine company, under the Supervisory Guide Applicable to Federally Regulated Insurance Companies; (

c) any order made in respect of the company under subsection 515(3) , 516(4) , 608(4) or 609(2) of the Insurance Companies Act , any prudential agreement entered into by the company under

section 675.1 of that Act or any direction issued to it under

section 676 of that Act; and (

d) any report prepared by or at the request of the Superintendent or any recommendation made by the Superintendent as a result of an annual or special examination or other supervisory review of the company, including any related correspondence to or from the directors or officers of the company. [ 63 ] Also, ss. 3 to 5 of the Regulations specify how this information should be treated:

Sous réserve des articles 4 et 5, il est interdit à toute société de communiquer à quiconque , directement ou indirectement, des renseignements visés à l’article 2.

La société peut communiquer les renseignements visés à l’article 2 aux entités de son groupe de même qu’à son actuaire et ses administrateurs, dirigeants, employés, vérificateurs, souscripteurs à forfait et conseillers juridiques, et à ceux des entités de son groupe, si elle veille à ce que les renseignements demeurent confidentiels .

La société ou une entité de son groupe peut communiquer les renseignements visés à l’alinéa 2(1)

c) si elle conclut qu’ils comportent un fait ou changement important dont la communication est exigée par les lois sur les valeurs mobilières du territoire compétent. 3. Subject to sections 4 and 5, a company shall not, directly or indirectly, disclose information referred to in

section 2. 4. A company may disclose information referred to in

section 2 to its affiliates or to its directors, officers, employees, auditors, securities underwriters or legal advisors, or to those of its affiliates, if the company ensures that the information remains confidential. 5. A company or any of its affiliates may disclose information referred to in paragraph 2(1)(

c) if the company or affiliate considers the information to contain a material fact or material change that is required by the securities laws of the relevant jurisdiction to be disclosed [ 64 ]

Section 3 provides for an outright prohibition on disclosing the information referred to in s. 2, adding that this prohibition applies to direct and indirect communications. [ 65 ] I note that this

section must be interpreted in light of s. 11 of the

Interpretation Act : [37] 11. L’obligation s’exprime essentiellement par l’indicatif présent du verbe porteur de sens principal et, à l’occasion, par des verbes ou expressions comportant cette notion. L’octroi de pouvoirs, de droits, d’autorisations ou de facultés s’exprime essentiellement par le verbe « pouvoir » et, à l’occasion, par des expressions comportant ces notions. 11. The expression “shall” is to be construed as imperative and the expression “may” as permissive. [ 66 ] In my view, neither the French nor the English version of s. 11 can serve to mitigate the prohibition under s. 3 of the Regulations . [ 67 ]

Section 4, for its part, states an exception to the prohibition by specifying that the information referred to in s. 2 may be disclosed to certain entities or persons listed therein. Marc Lamoureux and Mouvement d’éducation et de défense des actionnaires (MEDAC) are not included among these entities or persons. [ 68 ] As for s. 5, it concerns a situation that does not apply to the documents whose disclosure was sought by Marc Lamoureux and MEDAC in the court below. [ 69 ] In paragraph 30 of her judgment, the trial judge relied, inter alia , on Transamerica Life Insurance Company of Canada v.

The Canada Life Assurance Company . [38] It is worth noting that this decision was rendered on December 15, 1995, when neither s. 672.1 of the Insurance Companies Act nor the Regulations existed; in fact, these provisions were subsequently enacted to counter the effects of that judgment. [ 70 ] Furthermore, again in paragraph 30 of her judgment, the judge quoted from a judgment rendered by the Superior Court of Ontario on October 13th, 2009, in Jeffery v.

London Life Insurance Company. [39] This judgment, however, considers neither s. 672.1 of the Insurance Companies Act nor the Regulations . [ 71 ] To understand the context in which that judgment was rendered, it seems appropriate to reproduce below its paragraphs 1, 2, 27 and 60: [1] The Attorney General of Canada (a non party to this class action) has brought a motion seeking an order quashing the following: (

i) summons to Witness pursuant to Rule 53.07 (Calling an Adverse Party as Witness) issued on July 13 th , 2009 by the plaintiffs on the Superintendent of Financial Institutions, Julie Dickson; (ii) summons to Witness pursuant to Rule 53.07 (Calling an Adverse Party as Witness) issued on July 13 th , 2009 by the plaintiffs on a current employee of the Office of the Superintendent of Financial Institutions (“OSFI”), Jean-Guy Lapointe; and (iii) Summons to Witness served by the defendants on or about August 10th, 2009 on the former Superintendent of Financial Institutions, Nick Le Pan; (iv) In the alternative, pursuant to

section 37 of the Canada Evidence Act, R.S.C. 1985, c. C-5 an order that the individuals under

summons be prohibited, in the public interest, from providing either through oral evidence or documentary disclosure any evidence respecting any “advice or recommendations to government” or other deliberations made in respect to the acquisition of the London Insurance Group Inc., including the approval to acquire a significant interest granted by the Secretary of State (International Financial Institutions) on November 4th, 1997. [ 2 ]

Section 37 of the Canada Evidence Act, R.C.S. 1985, c. C-5 permits the Government of Canada to object to the disclosure of information based on a specified public interest.

Once an objection is made (as it is made here), the Court must ensure that the information sought to be disclosed does not encroach on the specified public interest and if so, whether the public interest in disclosure outweighs in importance the specified public interest. … [27] OSFI, in its amended Notice of Motion, takes the position that s. 672(1) of the Insurance Companies Act [ICA] and s. 22(1) of the Office of the Superintendent of Financial Institutions Act [OSFIA] prevent the Crown from disclosing confidential information. The plaintiffs take the opposite position.

They point to s. 672(2) of the ICA and s. 22(2) of the OSFIA that specifically permit disclosure. Further, the plaintiffs assert that even if this court finds that the ICA imposes confidentiality on the information sought, such a finding does not preclude OFSI from giving testimony in the common issues trial. … [60] I am persuaded that the plaintiffs’ position should prevail. Trial fairness and the transparency of the administration of justice is at the foundation of our justice system.

Further, to borrow the terminology of the Supreme Court in Carey , the interest sought to be protected is one regarding information of a “purely commercial transaction” – obviously different from matters of national security. [ 72 ] In fact, the debate in that case was primarily concerned with the application of subsections 37(1) and 37(5) of the Canada Evidence Act : [40] 37.

(1) Sous réserve des articles 38 à 38.16, tout ministre fédéral ou tout fonctionnaire peut s’opposer à la divulgation de renseignements auprès d’un tribunal, d’un organisme ou d’une personne ayant le pouvoir de contraindre à la production de renseignements, en attestant verbalement ou par écrit devant eux que, pour des raisons d’intérêt public déterminées, ces renseignements ne devraient pas être divulgués. [ … ]

(5) Si le tribunal saisi conclut que la divulgation des renseignements qui ont fait l’objet d’une opposition au

titre du paragraphe (1) est préjudiciable au regard des raisons d’intérêt public déterminées, mais que les raisons d’intérêt public qui justifient la divulgation l’emportent sur les raisons d’intérêt public déterminées, il peut par ordonnance, compte tenu des raisons d’intérêt public qui justifient la divulgation ainsi que de la forme et des conditions de divulgation les plus susceptibles de limiter le préjudice au regard des raisons d’intérêt public déterminées, autoriser, sous réserve des conditions qu’il estime indiquées, la divulgation de tout ou

partie des renseignements, d’un résumé de ceux-ci ou d’un aveu écrit des faits qui y sont liés. 37.

(1) Subject to sections 38 to 38.16, a Minister of the Crown in right of Canada or other official may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest. …

(5) If the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public interest, but that the public interest in disclosure outweighs in importance the specified public interest, the court may, by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any encroachment upon the specified public interest resulting from disclosure, authorize the disclosure, subject to any conditions that the court considers appropriate, of all of the information, a part or

summary of the information, or a written admission of facts relating to the information. [ 73 ] Moreover, the judge of the Superior Court of Ontario referred to s. 672 of the Insurance Companies Act but not to s. 672.1 or to the Regulations . [ 74 ] That judgment was appealed to the Court of Appeal for Ontario, whose judgment [41] states: [ 1 ] The Attorney General of Canada seeks to set aside paragraphs three to five of the trial judge’s order dated October 13, 2009 (the “Order”) on the grounds that the two witnesses in question – Messrs.

Lapointe and Le Pan – are not compellable witnesses under the summons issued by the parties and, further, that the trial judge erred by concluding that the public interest in disclosure of the information to which the Attorney objected outweighed deliberative secrecy relating to that information. …

[ 5 ] We do not agree with the trial judge’s conclusion, expressed in paragraph five of her Order, that “the public interest in disclosure outweighs in importance the specified public interest”, that is, deliberative secrecy, in respect of the information to which objection was made by the Attorney. … [ 9 ] In the result, the appeal is allowed in part, paragraph five of the Order is set aside and an Order in accordance with these reasons is substituted in its stead.

This is not an appropriate case for an award of costs. [ 75 ] As was the case before the Superior Court, the application of s. 672.1 of the Insurance Companies Act and the Regulations was not raised before the Court of Appeal for Ontario, which nonetheless reversed the Superior Court judgment in part. [ 76 ] Ultimately, I am of the view that the judgments of the Superior Court of Ontario rendered on December 15, 1995, and October 13, 2009, do not constitute precedents on which the judgment a quo , rendered on May 7th, 2014, may rely. [ 77 ] Finally, as emphasized by Bélanger, J.A., following the judgment rendered on October 13, 2009, in Jeffery , the Parliament of Canada amended the Office of the Superintendent of Financial Institutions Act [42] by adding s. 39.1: 39.1 Le surintendant, les surintendants adjoints, les dirigeants et employés du Bureau, de même que les personnes agissant sous les ordres du surintendant, ne sont pas des témoins contraignables dans le cadre de toute procédure civile en ce qui touche les questions venues à leur connaissance dans l’exercice des attributions que leur confère la présente loi ou toute loi mentionnée à l’annexe. 39.1 The Superintendent, any Deputy Superintendent, any officer or employee of the Office or any person acting under the direction of the Superintendent, is not a compellable witness in any civil proceedings in respect of any matter coming to their knowledge as a result of exercising any of their powers or performing any of their duties or functions under this Act or the Acts listed in the

schedule [ 78 ] From the enactment of this provision, my colleague seems to draw a demonstration, a contrario , that representatives of insurance companies could not invoke s. 672.1 of the Insurance Companies Act and the Regulations to refuse to disclose before a court the information referred to in paragraph 2 of the Regulations .

I do not agree with such proposal. [ 79 ] First, I note that the judgment of the Superior Court of Ontario rendered on October 13, 2009, dealt with the possibility of calling as witnesses the Superintendent of Financial Institutions, or one of its employees, as opposed to a representative of an insurance company. However, the Superintendent and its employees did not benefit from provisions such as s. 672.1 of the Insurance Companies Act and the Regulations to justify a refusal to testify.

In fact, s. 672 of the Insurance Companies Act and s. 22 of the Office of the Superintendent of Financial Institutions Act merely recognize the confidential nature of certain information held by the Office, without prohibiting the Superintendent and its employees from disclosing such information. [ 80 ] Also, it is difficult to imagine how a provision similar to s. 39.1 of the Office of the Superintendent of Financial Institutions Act could render representatives of insurance companies non-compellable in civil lawsuits pertaining to matters that become known to them in the performance of their duties. [ 81 ] Finally, the reasoning of the trial judge deprives s. 39.1 of the Office of the Superintendent of Financial Institutions Act of any real effect.

Indeed, calling the representative of an insurance company as a witness would suffice to obtain information, the disclosure of which s. 39.1 was designed to prevent. [ 82 ] Such an

interpretation runs afoul of the principle of coherence between statutes, on which the Professor Pierre-André Côté wrote the following: [43] Different enactments of the same legislature are deemed to be as consistent as the provisions of a single enactment. All the legislation of a legislature is deemed to make up a coherent system. Thus,

interpretations favouring harmony between statutes should prevail over those favouring conflict, because the former are presumed to better represent the thought of the legislature. This presumption of coherence in enactments of the same legislature is even stronger when they relate to the same subject matter, in pari materia .

When conflicts between statutes do arise, however, they should be resolved in such a way as to re-establish the desired harmony. [ 83 ] For these reasons, I would allow the appeal and sustain the objection raised by the appellant with respect to the disclosure to the MEDAC of the information contained in the 63 disputed documents in file No. 06- 200 000117-096, the whole, with costs against the MEDAC, both in the first instance and on appeal. BENOÎT MORIN, J.A.