Case information

Access to information — Professional secrecy of lawyers — Waiver of professional secrecy of lawyers — Document covered by professional secrecy of lawyers sent to third party in context of criminal investigation — Whether moral obligation to cooperate with police and duty of police to respect confidentiality are determinative factors in assessing whether professional secrecy of lawyers is waived when beneficiary of privilege gives privileged document to police voluntarily and with no restrictions.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Several articles were published in newspapers concerning allegations of collusion and corruption in awarding contracts for the project to build the new McGill University Health Centre (“MUHC”). Following the publication of those articles, the MUHC retained a lawyer, who hired PricewaterhouseCoopers (“PwC”) to provide forensic accounting assistance. The work to be done by PwC involved conducting an investigation and producing a preliminary report. The MUHC eventually sent the report to the permanent anti-corruption unit. In May 2014, Caroline Pailliez filed an access to information request with the MUHC in order to obtain a copy of the report, but the request was denied. She then applied to Quebec’s Commission d’accès à l’information for a review of the MUHC’s decision. The Commission found that the preliminary report was protected by the professional secrecy of lawyers and that sending the report to the permanent anti-corruption unit did not necessarily amount to a waiver of such secrecy. It therefore dismissed the application for review. Ms. Pailliez appealed the Commission’s decision, but the Court of Québec dismissed the appeal. Acting in continuance of the proceeding for Ms. Pailliez, Éric Yvan Lemay applied for judicial review of the Court of Québec’s judgment. The Quebec Superior Court, ruling only on the issue of waiver of the professional secrecy of lawyers, held that the MUHC had waived such secrecy by sending the report to the permanent anti-corruption unit. It therefore allowed the application for judicial review and remitted the case to the Commission for a decision on the other grounds relied on by the MUHC for denying access to the report. The MUHC appealed the Superior Court’s judgment. Finding that the MUHC had not waived the professional secrecy of lawyers by sending the report to the permanent anti-corruption unit, the Quebec Court of Appeal allowed the appeal, set aside the Superior Court’s judgment and restored the Court of Québec’s judgment upholding the Commission’s decision.