Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc.

Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc.
Collection
Supreme Court Judgments
Date
2001-09-13
Neutral citation
2001 SCC 51
Report
[2001] 2 SCR 743
Case number
27324
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Quebec
Subjects
Civil procedure
Courts
Notes
SCC Case Information: 27324
Decision Content
Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc., [2001] 2 S.C.R. 743, 2001 SCC 51
2858-0702 Québec Inc. and Lac d’Amiante du Canada Ltée Appellants
v.
Lac d’Amiante du Québec Ltée Respondent
and
Canadian Broadcasting Corporation, Southam Inc.,
Sun Media Corporation, La Presse Ltée and
Fédération professionnelle des journalistes du Québec Interveners
Indexed as: Lac d’Amiante du Québec Ltée v. 2858-0702 Québec Inc.
Neutral citation: 2001 SCC 51.
File No.: 27324.
2001: January 18; 2001: September 13.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for quebec
Civil procedure — Examination on discovery — Confidentiality — Whether examination on discovery is sitting of courts within meaning of art. 13 C.C.P. — Whether there is implied rule of confidentiality applicable to content of examinations on discovery under Code of Civil Procedure — Extent of rule of confidentiality.
Courts — Quebec rules of civil procedure — Whether Quebec court may create positive rule of civil procedure.
The respondent brought action against the appellants for reimbursement of expenses incurred in defending itself against claims by victims of asbestos exposure. One of the respondent’s senior officials was examined on discovery and during the examination the appellants requested production of a large number of documents. The respondent objected but the Superior Court of Quebec dismissed the objections, the basis of which was that the information requested was not relevant. The respondent compiled the documentation requested and before giving it to the appellants informed them that it wanted to enter into a confidentiality agreement to prevent them from being disclosed or given to third parties. The appellants refused and moved to dismiss the action. The respondent then filed a motion asking the Superior Court to require that anyone to whom the documents would be communicated maintain the confidentiality of the documents. The respondent submitted an inventory showing the documents it regarded as confidential. The Superior Court dismissed the respondent’s motion because, in the view of the trial judge, the general principle that the sittings of the Court are public, absent a decision to the contrary by the court hearing the matter, had to prevail. The majority of the Court of Appeal reversed that judgment and concluded that there is a rule of confidentiality.
Held: The appeal should be dismissed. There is in Quebec an implied rule of confidentiality of the content of examinations for discovery held under the Code of Civil Procedure.
The Code of Civil Procedure contains the statutory organization of the law of trials. Although the rules of Quebec civil procedure originate from differing sources, they are nonetheless codified, written law, governed by a tradition of civil law interpretation. The law is created primarily by the legislature and, in the civil law tradition, the Quebec courts must find their latitude for interpreting and developing the law within the legal framework comprised by the Code and the general principles of procedure underlying it. That civil procedure is also subject to the general principles found in the Civil Code of Québec which comprises the jus commune of Quebec. It must also respect the values expressed in the Quebec Charter of Human Rights and Freedoms, as well as the fundamental constitutional principles in the Canadian Charter of Rights and Freedoms where applicable in a private judicial proceeding.
Applying a civil law method of analysis, an implied rule of confidentiality may be based on the changes that have occurred in the legal framework of the examination on discovery in Quebec civil procedure and on the rules of civil law and the principles of the Quebec Charter concerning the protection of privacy. The changes that have been made to the rules governing examinations on discovery confirm that in Quebec civil procedure that examination has become essentially exploratory and, as a general rule, have made it private. The examination takes place under the control of the parties, outside the court and with no involvement on the part of the court, other than in exceptional cases. Accordingly, with the exception of certain procedural situations, an examination on discovery is not a sitting within the meaning of art. 13 C.C.P. or s. 23 of the Quebec Charter. It is therefore appropriate to recognize that the examination on discovery is subject to an obligation of confidentiality, since the information obtained at an examination remains private at that stage. It does not become a part of the court record and does not enter into the proceedings between the parties as long as the trial has not commenced and the adverse party has not entered it in evidence. The court ultimately still retains control over the proper application of the rule of confidentiality and any problems that arise as a result of such performance.
An implied rule of confidentiality at an examination on discovery may also be found based on the privacy principles recognized in s. 5 of the Quebec Charter and arts. 35 to 37 C.C.Q. The rule of confidentiality seeks to limit the invasion of privacy at the examination on discovery stage by restricting it to what is necessary for the conduct of the proceeding. The rule acknowledges that if the information is relevant and is not protected by some other privilege, it must be communicated to the adverse party. However, the rule prohibits that party from using it for purposes other than preparing for the trial and defending his or her interests at trial, or from disclosing it to third parties, without specific leave from the court. Moreover, using information and documents obtained at an examination on discovery for purposes unrelated to the case may amount to a breach of good faith. The doctrine of abuse of right which is codified in arts. 6 and 7 C.C.Q. would then provide an additional basis to justify recognizing the confidentiality rule in Quebec law.
Despite the fundamental importance of the media’s right of access to information in a modern democracy, it must be consistent with the right to privacy. Because an examination on discovery is not a sitting of the courts, it is legitimate to give greater weight to the privacy interest, by imposing the obligation of confidentiality on information that is disclosed. At the examination on discovery stage, there is no imperative of transparency in the judicial system that would justify taking that information out of the private sphere and making it accessible to the public or the media.
The rule of confidentiality continues to apply, during and after the trial, to information obtained at the examination on discovery which is not used for the purposes of the trial. However, the court will retain the power to relieve the persons concerned of the obligation of confidentiality in cases where it is necessary to do so, in the interests of justice. The rule of confidentiality will apply only to information obtained solely from that examination, however, and not to information that is otherwise accessible to the public.
Cases Cited
Referred to: Goodman v. Rossi (1995), 24 O.R. (3d) 359; Harman v. Secretary of State for the Home Department, [1983] A.C. 280; Scotia McLeod Inc. v. Champagne, J.E. 90-1439; Bourse de Montréal v. Scotia McLeod Inc., [1991] R.D.J. 626; General Instrument Corp. v. Tee-Comm Electronics Inc., [1993] R.D.J. 374; Kyuquot Logging Ltd. v. British Columbia Forest Products Ltd. (1986), 5 B.C.L.R. (2d) 1; Attorney General of Quebec v. Farrah, [1978] 2 S.C.R. 638; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Vidéotron Ltée v. Industries Microlec Produits Électroniques Inc., [1992] 2 S.C.R. 1065; Charpentier v. Ville de Lemoyne, [1975] C.A. 870; Canadian Broadcasting Corp. v. Quebec Police Commission, [1979] 2 S.C.R. 618; Verdun (Municipalité de) v. Doré, [1995] R.J.Q. 1321, aff’d [1997] 2 S.C.R. 862; Frenette v. Metropolitan Life Insurance Co., [1992] 1 S.C.R. 647; Sezerman v. Youle (1996), 135 D.L.R. (4th) 266; Aubry v. Éditions Vice-Versa Inc., [1998] 1 S.C.R. 591; Robinson v. Films Cinar Inc., [2001] Q.J. No. 2515 (QL); Mulroney v. Canada (Procureur général), [1996] R.J.Q. 1271; Wirth Ltd. v. Acadia Pipe & Supply Corp. (1991), 79 Alta. L.R. (2d) 345.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms .
Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 5, 23 [am. 1982, c. 17, s. 42; am. 1993, c. 30, s. 17], 24, 52, 53.
Civil Code of Québec, S.Q. 1991, c. 64, arts. 3, 6, 7, 35, 36, 37.
Code of Civil Procedure, R.S.Q., c. C-25, arts. 13 [am. 1982, c. 17, s. 2; am. 1984, c. 26, s. 1; am. 1993, c. 30, s. 1], 20, 46 [am. 1992, c. 57, s. 422], 47, 50 [am. 1992, c. 57, s. 187], 75.1, 331.5, 331.8, 396, 397, 398 [am. 1983, c. 28, s. 13; am. 1984, c. 26, s. 14; am. 1992, c. 57, s. 420], 398.1 [am. 1983, c. 28, s. 14; am. 1984, c. 26, s. 15; am. 1994, c. 28, s. 21], 399.1, 400, 401, 402, 403, 405.
Code of Civil Procedure, S.Q. 1897, c. 48, arts. 286, 286(a) [ad. 1926, c. 65, s. 1; am. 1958, c. 43, s. 1], 288 [am. 1899, c. 52, s. 3], 289 [idem].
Code of Civil Procedure of Lower Canada (1867), art. 251(a) [ad. R.S.Q. 1888, s. 5879].
Constitution Act, 1867, ss. 92(13) , (14) , (16) , 96 .
Authors Cited
Baudouin, Jean-Louis, et Patrice Deslauriers. La responsabilité civile, 5e éd. Cowansville, Qué.: Yvon Blais, 1998.
Brierley, John E. C., and Roderick A. Macdonald. Quebec Civil Law: An Introduction to Quebec Private Law. Toronto: Edmond Montgomery, 1993.
Brisson, Jean-Maurice. La formation d’un droit mixte: l’évolution de la procédure civile de 1774 à 1867. Montréal: Thémis, 1986.
Brisson, Jean-Maurice. “La procédure civile au Québec avant la codification : un droit mixte, faute de mieux”, dans La formation du droit national dans les pays de droit mixte. Aix-Marseille, France: Presses universitaires d’Aix-Marseille, 1989, 93.
Cudmore, Gordon D. Choate on Discovery, 2nd ed. Scarborough, Ont.: Carswell, 1993 (loose-leaf updated 2001, rel. 1).
Dainow, Joseph. “The Civil Law and the Common Law: Some Points of Comparison” (1967), 15 Am. J. Comp. L. 419.
Deleury, Edith, et Christine Tourigny. “L’organisation judiciaire, le statut des juges et le modèle des jugements dans la province de Québec”, dans H. Patrick Glenn, dir., Droit québécois et droit français: communauté, autonomie, concordance. Cowansville, Qué. : Yvon Blais, 1993, 191.
Ducharme, Léo. L’administration de la preuve, 3e éd. Montréal: Wilson & Lafleur, 2001.
Ducharme, Léo. “La proclamation de l’existence en droit québécois de la règle de common law de l’engagement implicite de confidentialité : Lac d’Amiante, une décision judiciaire erronée” (2000), 79 Can. Bar Rev. 435.
Ducharme, Léo. “Le nouveau régime de l’interrogatoire préalable et de l’assignation pour production d’un écrit” (1983), 43 R. du B. 969.
Ferland, Denis, et Benoît Emery. Précis de procédure civile du Québec, vol. 1, 3e éd. Cowansville, Qué.: Yvon Blais, 1997.
Matthews, Paul, and Hodge M. Malek. Discovery. London: Sweet & Maxwell, 1992.
Popovici, Adrian. “Dans quelle mesure la jurisprudence et la doctrine sont-elles sources de droit au Québec?” (1973), 8 R.J.T. 189.
Sarna, Lazar. “Examination on Discovery: The Full Disclosure Rule” (1984), 44 R. du B. 179.
Stevenson, W. A., and J. E. Côté. Civil Procedure Guide. Edmonton: Juriliber, 1996.
Tancelin, Maurice. “How can a legal system be a mixed system”, in Frederick Parker Walton, The Scope and Interpretation of Civil Code of Lower Canada. Toronto: Butterworths, 1980, 1.
Watson, G. D., et al. Civil Litigation Cases and Materials, 4th ed. Toronto: Edmond Montgomery, 1991.
Wright, Charles Alan, Arthur R. Miller and Richard L. Marcus. Federal Practice and Procedure, 2nd ed., vol. 8. St. Paul, Minn.: West Publishing, 1994.
APPEAL from a judgment of the Quebec Court of Appeal, [1999] R.J.Q. 970, [1999] Q.J. No. 1043 (QL), setting aside a judgment of the Superior Court, [1997] Q.J. No. 3593 (QL). Appeal dismissed.
Philippe Casgrain, Q.C., Gérard Dugré and Catherine Pilon, for the appellants.
James A. Woods, Christopher Richter and Vikki Andrighetti, for the respondent.
Marc-André Blanchard and Judith Harvie, for the interveners.
English version of the judgment of the Court delivered by
LeBel J. —
I. Introduction
1 The issue in this appeal is whether there is an implied rule of confidentiality concerning evidence or information obtained at examinations on discovery under the Quebec Code of Civil Procedure, R.S.Q., c. C-25 (“C.C.P.”). This case, which arose out of a business dispute, raises the problems of the mixed nature of Quebec civil procedure, the sources of that procedure and the power of Quebec courts to create procedural rules. The Court must determine whether this obligation of confidentiality may be created by the courts themselves or be inferred from the structure of the Quebec civil trial, the procedural principles governing it and the rules of substantive law concerning privacy and the confidentiality of personal files.
II. The Origin of the Case: Procedural History
2 The parties were engaged in the production of asbestos in Quebec. Their contractual relationship led to a series of disputes concerning the performance of their obligations. In 1992, the respondent Lac d’Amiante du Québec Ltée brought an action against the two appellants, 2858-0702 Québec Inc. and Lac d’Amiante du Canada Ltée, solidarily. The respondent claimed the sum of $12,298,002, mainly as reimbursement for expenses incurred in defending itself against claims made by victims of asbestos exposure. In 1996, a second action demanded an additional $31,958,888.
3 On December 5, 1996, William Dowd, one of the respondent’s senior officials, was examined on discovery by the appellants. During the examination, they requested production of a large number of documents. The respondent objected. The Superior Court of Quebec dismissed the objections, the basis of which was that the information requested was not relevant.
4 The respondent compiled the documentation requested. Before giving it to the appellants, counsel for the respondent informed counsel for the appellants that their client wanted to enter into a confidentiality agreement to prevent the documents from being disclosed or given to third parties. The appellants rejected that arrangement and on July 14, 1997, they moved to dismiss the action under arts. 75.1 and 398 C.C.P., for failure to produce the documents requested at the examination on discovery. A change of solicitors occurred on July 22, 1997, and the lawyers then retained by the respondent filed a “Motion to Suspend Proceedings or Order Confidential Certain Documents and Information and to Declare that Documents and Information Cannot Be Used for any Other Purposes than the Present Action”.
5 Based on arts. 13, 20, 46 and 331.5 C.C.P., the motion asked the Superior Court to require that anyone to whom the documents would be communicated maintain the confidentiality of the documents. That obligation would prohibit any subsequent use of the information other than for the purposes of the action. Specifically, the motion stated:
20. Since the information and documents to be communicated on discovery will not necessarily be part of the evidence and in the interests of public order, it is appropriate in the circumstances that the Superior Court orders that all information and documents communicated at the discovery stage by Plaintiff be held by the Defendants and the Court subject to an order of confidentiality;
. . .
22. Furthermore, Plaintiff requests, as part of its subsidiary conclusions, a declaration, in conformity with the law of discovery, that all information and documents received at the discovery stage shall not be used for any purpose other than this action;
6 The motion for an order of confidentiality dealt with four types of documents. The first category consisted of accounts submitted by the lawyers who had defended the respondent in its asbestos-related litigation and who had also brought actions against insurers who refused to take up its defence. The second and third categories concerned the settlements reached with the parties who had brought the actions against the respondent and with the insurers against whom it had brought action. The fourth category of documents consisted of various information about the respondent’s employees. Altogether, the documentation filled 14 boxes. There was a lengthy inventory showing two separate lists of documents for each box: those that the respondent regarded as confidential and those it did not. The Superior Court of Quebec then had to rule on the confidentiality of those documents.
A. Superior Court of Quebec, [1997] Q.J. No. 3593 (QL)
7 Barbeau J. dismissed the respondent’s motion. In his view, the general principle that the sittings of the courts are public had to prevail, absent a decision to the contrary by the court hearing the matter. All the pleadings and exhibits in the record became public unless persuasive evidence was presented to establish the need to hold an in camera hearing or to restrict the principle of public sittings. He found that the respondent had not succeeded in discharging this burden (at paras. 9-10):
[translation] There is nothing confidential about the documents in question here; they do not reveal any trade secret or manufacturing secret or anything of a similar nature; they do not raise any issue of public order or violate good morals. The argument that access to the documents would prejudice the plaintiff because its strategy to deal with the thousands of lawsuits against it would be disclosed to those plaintiffs cannot succeed: the plaintiff’s witness (Lamontagne), who compiled all the documentation from the plaintiff’s files over a six- or seven-week period, who is herself a lawyer, admitted that even she cannot identify that strategy, although she did add that she had not put her mind to it.
The evidence is that over 140,000 lawsuits have been commenced in the United States; if we add the lawyers in those cases, the witnesses and the experts, we come to the conclusion that a large number of people are already familiar with the documents in the plaintiff`s possession; imposing the obligation of confidentiality sought here on the defendant (and its counsel) in these circumstances is unreasonable; the potential prejudice this could cause includes actions in civil liability arising out of the indiscretion of other persons over whom they have no control, with all the consequences that can readily be imagined.
8 The Superior Court was of the view that the respondent’s fears about the disclosure of trade or personal information could not prevail over the principle that judicial proceedings must be public. Although the judgment does not specifically discuss the recognition of a principle of confidentiality relating to examinations on discovery in Quebec civil procedure, the tenor of the judgment nonetheless confirms that the trial judge believed that the examination on discovery was part of the proceedings. As a general rule, the proceedings remain public unless the need for total or partial confidentiality can be conclusively established.
B. Quebec Court of Appeal, [1999] R.J.Q. 970
9 Despite a strong dissent by Biron J.A., the majority of the Court of Appeal allowed the appeal, concluded that there is a rule of confidentiality and required that the parties to the case comply with that rule. The three judges of the court wrote separate opinions. Mailhot and Fish JJ.A. agreed that the appeal should be allowed. Biron J.A. would have dismissed it.
10 Mailhot J.A. recognized an implied undertaking rule in respect of pre-trial examinations. That implied undertaking rule would automatically classify all the documents that one party is required to disclose to the other prior to the hearing on the merits as confidential, without a request having to be made to the court (at p. 976):
[translation] Under that rule, all the documents that one party is compelled to disclose to the other prior to the hearing on the merits are automatically confidential, at least until trial. It is not necessary for a party to request this of the court. This rule applies only to documents that would ordinarily have remained confidential if the party had not been compelled to produce them. [Emphasis in original.]
11 Mailhot J.A. relied, inter alia, on Goodman v. Rossi (1995), 24 O.R. (3d) 359, in which the Ontario Court of Appeal held that the implied undertaking rule was part of the law in Ontario. She also cited the judgment of the House of Lords in Harman v. Secretary of State for the Home Department, [1983] A.C. 280.
12 Mailhot J.A. was of the view that the rule of confidentiality should be part of Quebec procedural law as it is at common law. She wrote that it has been accepted in English and Canadian common law for some time, and is nothing but beneficial. It would appear to be more economical, in the context of a proceeding, to require that a party that wants to use a document obtained from the adverse party in another case apply to do so, rather than to compel the party making the disclosure to obtain an order prohibiting the use of the document. Mailhot J.A. saw the mixed nature of the sources of civil procedure and the status of the Quebec superior courts as common law courts as allowing her to look to the common law for recognition of the rule of confidentiality in Quebec law (at p. 978):
[translation] According to the appellant, application of the implied undertaking rule in our law is a matter of judicial interpretation and may be inferred from our written law and from case law. Given that the source of the articles in our Code of Civil Procedure concerning examination on discovery is the common law, we should look to the decisions of the common-law courts. . . .
13 In the opinion of Mailhot J.A., that rule does not violate the principle that trials are held in public. It affects only a step prior to the trial: the examinations before and after defence under arts. 398 and 398.1 C.C.P. Moreover, at that point, the evidence or information obtained at the examination is not yet part of the court record, in the case of a civil action (at p. 980):
[translation] In my view, the rule should not be automatic in a civil trial. When a party places documents in support of its arguments in the court file, those documents will be available to anyone who examines the file. But when a party is compelled by the other, at an examination on discovery, to disclose or communicate prior to trial certain private information or documents that are not already public, the rule of an implied undertaking of confidentiality should apply until the information or documents are communicated or introduced at trial.
14 This approach rejects the argument based on trials and proceedings being held in public. Mailhot J.A. also stated that the case may be distinguished, on its facts, from Scotia McLeod Inc. v. Champagne, J.E. 90-1439; Bourse de Montréal v. Scotia McLeod Inc., [1991] R.D.J. 626, and General Instrument Corp. v. Tee-Comm Electronics Inc., [1993] R.D.J. 374, in which the Court of Appeal had concluded that an examination on discovery was part of the proceedings and therefore was, like a trial, public. Since there was no provision in the Code of Civil Procedure to prevent the rule of confidentiality being applied, it could therefore be recognized by the courts and thus become part of the judge-made law governing that preliminary step in the process. Mailhot J.A. would have allowed the appellant’s appeal on that basis, except in respect of the settlements reached in class actions in the United States, given that that information was already public.
15 Fish J.A. wrote a separate opinion that was concurred in by Mailhot J.A. That opinion described the development of civil procedure and the introduction of rules of substantive law concerning protection of privacy. Fish J.A. was of the view that the recognition of a rule of confidentiality was consistent with changes in the procedural framework examination on discovery since 1983. Prior to 1983, depositions taken on discovery were part of the court record. Since that time, only depositions that have been communicated and filed in accordance with the procedure set out in art. 398.1 C.C.P. form part of the record. Since 1983, the examination on discovery has become an exploratory tool. Despite the rule providing that the hearings of the courts are public, there is no provision in the Code of Civil Procedure requiring that the examination and the evidence or information obtained therein become public.
16 Moreover, Fish J.A. was of the view that making the information obtained at examinations on discovery public would be inconsistent with the principles of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12 (“Quebec Charter”), as set out in ss. 5 and 24, and with the provisions of the Civil Code of Québec, S.Q. 1991, c. 64 (“C.C.Q.”), concerning the protection of privacy and the confidentiality of personal files: the applicable principles of substantive law do not allow for general access to private information about other people. That rule is less rigid in the context of a trial because of the requirement for openness of the process. In addition, at the pre-trial stage, arts. 397 and 398 C.C.P. provide that a party may compel the adverse party to testify or to provide any relevant documents. However, public disclosure of private information at this stage of the proceedings would not assist in achieving the objectives of the examination on discovery. Such disclosure would even be a disincentive to candid disclosure and to the possibility of out-of-court settlements.
17 Fish J.A. was of the view that, in any event, examinations on discovery are not sittings of the courts within the meaning of art. 13 C.C.P. and are not part of the proceeding. Therefore the rule that a civil trial is public does not apply (at pp. 994-95):
To begin with, it rests entirely on the literal interpretation of a phrase that was never intended by the legislator to be applied literally, except as a last resort, and in practice never is. Apart from the rarest of exceptions, examinations on discovery in Quebec are not held before a judge or clerk. They instead take place in law offices, in some other private venue, or in Courthouse facilities made available for the purpose.
Examinations on discovery in fact proceed before a judge or clerk only in the sense that they remain subject to judicial intervention in the event of objections or disagreements as to where or how they should proceed. This does not make them “sittings of the courts” within the meaning of article 13 C.C.P., and the entire profession would be utterly astonished to discover that any member of the public can attend any examination on discovery in any law office or boardroom — though the parties have agreed to proceed in private.
Moreover, if examinations on discovery, wherever held, were indeed sittings of the court, their public character would be a matter of public order. The parties could then never proceed in private, in a law office or elsewhere, by consent. Nor could a judge permit them to proceed in private, except on the sole ground contemplated by article 13: “[In] the interests of good morals and public order.” [Emphasis in original.]
18 Fish J.A. then discussed the advantages of recognizing the rule of confidentiality in Quebec civil procedure, which he thought it wise and opportune to do. In his view, the experience of the other Canadian provinces that have adopted a similar rule confirms that it has not caused any major problems. He therefore held that a relaxed rule of confidentiality should be applied. It would bind the parties and their counsel to undertake to not use information otherwise than for the purposes of the proceedings in relation to which the examinations were conducted. It would permit broader use of the information for any purpose, with leave of the court, if it were shown to be otherwise accessible to the public. With leave of the court, again, information acquired could be used in other proceedings raising substantially the same issues between the same parties. In a case where the interests of justice outweighed any prejudice that would result from disclosure, the court could order disclosure subject to any conditions it deemed appropriate and accordingly the implied undertaking of confidentiality would not apply.
19 Accordingly, the approach adopted by Fish J.A. would create a rule of partial confidentiality, the rigidity of which could be relaxed on a case-by-case basis by the courts. However, confidentiality would still be the first principle.
20 In his dissenting opinion, Biron J.A. first questioned the advisability of introducing such a rule. He stated that he shared the reservations regarding the rule expressed by McLachlin J.A. of the British Columbia Court of Appeal (as she then was) in Kyuquot Logging Ltd. v. British Columbia Forest Products Ltd. (1986), 5 B.C.L.R. (2d) 1. However, Biron J.A. did not base his opinion primarily on that ground. Rather, he relied on the nature of Quebec civil procedure and the role of the courts in that procedure.
21 Biron J.A. pointed out that under Quebec law, civil procedure is codified and is found primarily in the Code of Civil Procedure. The Code governs both the conduct of trials and the rules of practice, which may be made by a majority of the judges of each court, under art. 47 C.C.P. Article 20 C.C.P. also provides for additional rules to be made to govern the exercise of a right where the Code contains no provision for exercising the right. The court therefore fills the gap in the law by permitting any procedure that is consistent with the rules in the Code or with any other statutory provision. That being the case, there is no authority to create judge-made rules of procedure that, if breached, might lead to a finding of contempt of court, as would be the case with the obligation of confidentiality.
22 Biron J.A. also pointed out that both the Code of Civil Procedure and the Quebec Charter adopted the principle that judicial proceedings are public. In his view, the examination on discovery forms part of those public hearings. It was his opinion that there was no support in the Code of Civil Procedure for the implied obligation of confidentiality, which is a rule of the common law, and that obligation was inconsistent with the previous decisions of the Quebec Court of Appeal that had defined the examination on discovery as a sitting for purposes of trials being public. Therefore, in the opinion of Biron J.A., the Quebec courts may not import or adopt rules of procedure on their own initiative as is done in the common law jurisdictions, outside the framework defined by the Code of Civil Procedure.
23 The appellants were given leave to appeal the judgment of the Court of Appeal. A group of media organizations then intervened in the case, primarily on the problems associated with the rule that civil trials are public under the procedural law of Quebec.
III. Relevant Statutory Provisions
24 Code of Civil Procedure, R.S.Q., c. C‑25
13. The sittings of the courts are public wherever they may be held, but the court may order that they be held in camera in the interests of good morals or public order.
However, in family matters, sittings in first instance are held in camera, unless the court, upon application, orders that, in the interests of justice a sitting be public. Any journalist who proves his capacity is admitted to sittings held in camera, without further formality, unless the court considers his presence detrimental to a person whose interests may be affected by the proceedings. This paragraph applies notwithstanding section 23 of the Charter of human rights and freedoms (R.S.Q., chapter C-12).
The rules of practice may determine the conditions and modalities relating to sittings in camera in respect of advocates and articled students within the meaning of the Act respecting the Barreau du Québec (R.S.Q., chapter B‑1).
20. Whenever this Code contains no provision for exercising any right, any proceeding may be adopted which is not inconsistent with this Code or with some other provision of law.
46. The courts and the judges have all the powers necessary for the exercise of their jurisdiction. They may, in the cases brought before them, even of their own motion, pronounce orders or reprimands, suppress writings or declare them libellous, and make such orders as are appropriate to cover cases where no specific remedy is provided by law.
50. Anyone is guilty of contempt of court who disobeys any process or order of the court or of a judge thereof, or who acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the court.
In particular, any officer of justice who fails to do his duty, and any sheriff or bailiff who does not execute a writ forthwith or does not make a return thereof or, in executing it, infringes any rule the violation whereof renders him liable to a penalty, is guilty of contempt of court.
398. After defence filed, any party may, after one clear day’s notice to the attorneys of the other parties, summon to be examined before the judge or clerk upon all facts relating to the issues between the parties or to give communication and allow copy to be made of any document relating to the issue:
(1) any other party, agent, employee or officer;
(2) any person mentioned in paragraphs 2 and 3 of article 397;
(3) with the permission of the court and on such conditions as it may determine, any other person.
The defendant cannot, however, without permission of the judge or, in the case referred to in subparagraph 3 of the first paragraph, the court, examine under this article any person whom he has already examined under article 397.
398.1. A party having examined witnesses under article 397 or 398 may introduce as evidence the whole or abstracts only of the depositions taken, provided they have been communicated and filed in the record in accordance with the provisions of Sections I and II of Chapter I.1 of this Title.
However, on the motion of any other party, the court may order any abstract of the deposition which, in its opinion, cannot be dissociated from the abstracts already filed, to be added to the record.
Civil Code of Québec, S.Q. 1991, c. 64
3. Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of the person, and the right to the respect of his name, reputation and privacy.
These rights are inalienable.
6. Every person is bound to exercise his civil rights in good faith.
7. No right may be exercised with the intent of injuring another or in an excessive and unreasonable manner which is contrary to the requirements of good faith.
35. Every person has a right to the respect of his reputation and privacy.
No one may invade the privacy of a person without the consent of the person or his heirs unless authorized by law.
36. The following acts, in particular, may be considered as invasions of the privacy of a person:
(1) entering or taking anything in his dwelling;
(2) intentionally intercepting or using his private communications;
(3) appropriating or using his image or voice while he is in private premises;
(4) keeping his private life under observation by any means;
(5) using his name, image, likeness or voice for a purpose other than the legitimate information of the public;
(6) using his correspondence, manuscripts or other personal documents
37. Every person who establishes a file on another person shall have a serious and legitimate reason for doing so. He may gather only information which is relevant to the stated objective of the file, and may not, without the consent of the person concerned or authorization by law, communicate such information to third persons or use it for purposes that are inconsistent with the purposes for which the file was established. In addition, he may not, when establishing or using the file, otherwise invade the privacy or damage the reputation of the person concerned.
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12
5. Every person has a right to respect for his private life.
23. Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights and obligations or of the merits of any charge brought against him.
The tribunal may decide to sit in camera, however, in the interests of morality or public order.
24. No one may be deprived of his liberty or of his rights except on grounds provided by law and in accordance with prescribed procedure.
IV. Analysis
A. The Positions of the Parties
25 The appellants submit that the judgment of the Court of Appeal is inconsistent with both the letter and the spirit of the enactments governing Quebec civil procedure. The rule of confidentiality is not based on any enactment, whereas civil procedure in Quebec is codified. Absent some statutory authority, the Quebec courts may not introduce a new procedural rule by judicial fiat. Moreover, the rule violates the principle that judicial proceedings are public, which is established in the Code of Civil Procedure and the Quebec Charter. The appellants’ final point is that it is not appropriate to introduce a new rule which is difficult to define and to implement.
26 The appellants’ position is supported, in part, by a group of print and electronic media organizations. In challenging the validity of a rule of confidentiality, these interveners rely on the principle that trials and court files are public in Quebec civil law, and on society’s interest in the transparency of judicial proceedings, as guaranteed by the Quebec Charter and the Canadian Charter of Rights and Freedoms . These interveners therefore strongly oppose the recognition or introduction of a rule of confidentiality.
27 The respondent replies that the implied rule of confidentiality is accepted in common law jurisdictions throughout Canada, and that introducing that rule in Quebec civil law would be useful to facilitate the conduct of examinations. In addition, it says that support for the rule is found in the changes that have occurred in civil procedure and in principles of substantive law. The respondent asserts that because legislative framework governing examinations on discovery has been altered, they are no longer part of the sitting within the meaning of art. 13 C.C.P. and therefore, as such, are no longer subject to the general rule that civil trials are public. The respondent’s final point is that this rule protects the privacy and confidentiality interests already recognized by the Quebec Charter and the Civil Code of Québec.
B. The Sources of Quebec Civil Procedure
28 The conflict between the arguments put forward by the parties derives from the problem of the sources and the nature of Quebec civil procedure. This is a complex subject. Certain aspects of the problem fall within established principles of Quebec law. Constitutionally, civil pr