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Conseil québécois sur le tabac et la santé c. JTI-MacDonald Corp.

2012 QCCS 2181

 

JR1353

 
SUPERIOR COURT

(Class Action Division)

 

CANADA

PROVINCE OF QUÉBEC

DISTRICT OF MONTREAL

 

N° :

500-06-000076-980

500-06-000070-983

 

DATE :

May 17, 2012

_______________________________________________________________

PRESIDING:     THE HONORABLE BRIAN RIORDAN, J.S.C.

_______________________________________________________________

No 500-06-000076-980

CONSEIL QUÉBÉCOIS SUR LE TABAC ET LA SANTÉ

and

JEAN-YVES BLAIS

Plaintiffs

v.

JTI-MACDONALD CORP. ("JTI")

and

IMPERIAL TOBACCO CANADA LTÉE ("ITL")

and

ROTHMANS, BENSON & HEDGES INC. ("RBH")

Defendants / Plaintiffs in Warranty (collectively: the "Companies")

v.

PROCUREUR GÉNÉRAL DU CANADA ("Canada")

Defendant in Warranty

________________________________________________________________

JUDGMENT ON DEFENDANTS' OBJECTION

TO THE FILING OF A DRAFT EXPERT'S REPORT

OF DR. DAVID FLAHERTY ________________________________________________________________

 

AND

 

NO 500-06-000070-983

CÉCILIA LÉTOURNEAU

Plaintiff

v.

JTI-MACDONALD CORP.

and

IMPERIAL TOBACCO CANADA LTÉE

and

ROTHMANS, BENSON & HEDGES INC.

Defendants / Plaintiffs in Warranty

v.

PROCUREUR GÉNÉRAL DU CANADA

Defendant in Warranty

________________________________________________________________

JUDGMENT ON DEFENDANTS' OBJECTION

TO THE FILING OF A DRAFT EXPERT'S REPORT

OF DR. DAVID FLAHERTY ________________________________________________________________

Avant que de parler prenez-moi ce mouchoir.

Couvrez ce sein que je ne saurais voir;

Par de pareils objets les âmes sont blessées,

Et cela fait venir de coupables pensées.

(Le Tartuffe, Molière: acte 3, scène 2)

[1]         Plaintiffs wish to file into proof what the parties agree is a draft of an expert's report of Dr. David Flaherty dated September 6, 1988 (the "Draft ").  The Companies object to the production in the court record on the basis that it is covered by solicitor-client privilege.

[2]         What is singular about the Draft, at least with respect to the applicability of any privilege or confidentiality rules, is that it is already a very public document indeed.  A court in the United States ordered that it be put on the website of RJ Reynolds, a US company that owned JTI at the time the Draft was created.  Thus, not only do the Plaintiffs have a copy, but anyone who wishes to consult it today need only click on the link in that company's website to view and, if desired, print it.

[3]         The Companies raise the following grounds of contestation:

a.    The Draft is covered by solicitor-client privilege (and not litigation privilege);

b.    Even if it is only the litigation privilege that applies, the "litigation" in contemplation of which the Draft was created has not ended but, rather, is on-going and includes the present files;

c.    ITL never renounced to its right to maintain the confidentiality of the Draft, whatever the status of JTI's rights might be;

d.    The protection afforded by solicitor-client privilege cannot be lost by reason of the Draft having been made public by forces outside the control of ITL and RBH, as well as of JTI.

[4]         Plaintiffs, for their part, admit that the Draft is covered by litigation privilege - but not solicitor-client privilege.  They plead that this is no obstacle to their filing it now, and this for two reasons.  First and foremost, the Draft is public, as that term is understood in the relevant Québec jurisprudence and doctrine, and, as a result, any confidentiality has been lost.  As well, they argue that the protection afforded to it by litigation privilege has expired, since the litigation, or anticipated litigation, for which it was intended is now concluded.

[5]         The impact of the present question to these files may well extend far beyond the admissibility of one document.  The Plaintiffs have harvested a significant portion of their documentary proof from public Internet sites that, partly as a result of US and perhaps British court rulings, contain numerous documents that in ordinary circumstances could be subject to some sort of privilege: solicitor-client, litigation, parliamentary or other.  This judgment is, therefore, a first step in the determination of the fate of what is potentially a large number of other documents in these files.

[6]         Taking a step back from the trees, one thing seems obvious to the Court.  Whatever privilege applies, and whether or not the 1988 litigation is the opening chapter of these files, and whether or not any of the Companies renounced in any way to that privilege, one cannot put the feathers back into the pillow once they are scattered by the wind.  The Draft is available over the Internet literally to anyone who cares to read it, and apparently has been so for a number of years. 

[7]         Would it not be absurd, and tend to make a mockery of the process, to expect the Court to turn its head in falsely pious modesty and exclaim cachez-moi ce document que je ne saurais voir, while everyone else in the courtroom, including the class members, journalists and the public in general, are reading it on their Blackberries?

[8]         As a general comment, almost all that has been written on the topic of privileged documents deals with pre-divulgation cases, i.e., requests for access to documents that have not already been seen by the opposing party, and certainly not by the public at large.  Those authorities provided to the Court that do deal with documents already divulged never contemplate a degree of divulgation of the sort found here.

[9]         Of the authorities submitted, the 2007 Biomérieux judgment of the Court of Appeal[1] appears to be the most on point.  There, confidential documents had been provided to the other side pursuant to a decision of the case management judge.  Nonetheless, that judge imposed strict limitations on what Biomérieux's lawyers could do with the documents and they were not shown to anyone else.

[10]      Although Biomérieux eventually returned all documents covered by professional-secret privilege, it argued in appeal that it should be allowed to use those documents because, once GeneOhm had sent them, they lost all protection afforded by the privilege.  Biomérieux's position was based on the Court of Appeal's decision in Chevrier v. Guimond[2] of 1984.

[11]      In its decision in Biomérieux, the Court of Appeal clearly limited the future application of Chevrier.  Before doing that, however, it noted that in its 1994 decision in the case of Poulin v. Prat[3] it had clarified the role of article 9 of the Quebec Charter of Human Rights and Freedoms[4] in such questions.  The Poulin judgment provides guidance here not so much for its recognition of the professional secret as a fundamental right but, rather, for the door that it opened, or perhaps left open, in cases "according to the circumstances, when the document or information is already in the hands of the adverse party"[5].

[12]      Thirteen years later, the Court of Appeal in Biomérieux clarified what is meant by "the circumstances" in Poulin v. Prat.  It said: "For example, if information subject to the professional secret has been divulged to the general public, I have difficulty in seeing how it could be protected by the court or otherwise.  On the other hand, if its divulgation was of limited scope and the circumstances do not lead to the conclusion that the divulgation was done as the result of a waiver of privilege, it seems to me that the court must impose the measures necessary to ensure the protection of a fundamental right arising from article 9 of the Charter"[6].

[13]      It is paramount to note that the court made it clear that the qualification that the divulgation not be done as the result of a waiver of privilege applies only to the case of a limited divulgation.  By isolating that mention in a sentence separate from the one dealing with a general divulgation, the Court of Appeal sets aside any consideration of waiver where there has been a broad divulgation of the document. 

[14]      This is a critical point for present purposes, since we are convinced that neither ITL nor JTI voluntarily waived whatever privilege that might have applied to the Draft. 

[15]      Consequently, in circumstances such as these, particularly where the widespread divulgation was made legally (as the result of a court order), as opposed to by way of an illicit act, the common sense approach of the Court of Appeal is the only logical alternative available - even in the face of a rule of such importance as the one governing privilege. 

[16]      This Court respects the wisdom of such an approach and sees no alternative but to dismiss the objection and peek under the handkerchief.

BASED ON THESE REASONS, THE COURT:

[17]      DISMISSES Defendants' objection to the filing of the draft expert's report of Dr. David Flaherty dated September 6, 1988.

[18]      WITHOUT COSTS.

 

_____________________________

BRIAN RIORDAN, J.S.C.

Hearing Date:  May 15, 2012



[1]      Biomérieux Inc. v. GeneOhm Sciences Canada Inc., 2007 QCCA 77 .

[2]       [1984] R.D.J. 240 , at page 242.

[3]       AZ-94011268 ; [1994] R.D.J. 301 .

[4]       R.S.Q., ch. C-12.

[5]       Ibidem, page 12; the Court's unofficial translation.

[6]       Op. cit., Note 1, para. 40; the Court's unofficial translation.

AVIS :
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