Can opinions be disclosed when obtained by the office of the Syndic as part or the preparation of auditions?

Tremblay v. Mpantis and Disciplinary Council of the Order des dentistes du Québec, C.A., March 15, 2023, 500-09-029877-222 and 500-09-029891-223

Facts

Two professionals, third party to the litigation, are consulted by the assistant Syndic and her lawyer subsequently to filing a disciplinary complaint and in preparation of the hearing on the merits. The assistant Syndic wishes to obtain their opinion on the contradiction in both parties’ expert opinions.

Aware of these consultations, Dr Tremblay files a motion to stay the proceedings on the grounds that the consultations with, and legal opinions issued by these professionals were not disclosed to him.

As part of the hearing for this motion, but also for the hearing on the merits, the Council dismisses objections made by the assistant syndic’s lawyer on questions related to these consultations, which objections are based on litigation privileges and professional secrecy.

Decision of the Superior Court

In judicial review, the Superior Court endorses the Disciplinary Council’s conclusion regarding litigation privilege. The Court applies the exceptions to this privilege explaining that it does not enable a party to avoid disclosing an element of proof that could (1) serve to establish the innocence of a respondent and/or (2) demonstrate abuse of process or reprehensible conduct by the party claiming the litigation privilege.

However, the application for judicial review is allowed with regards to the objection on professional secrecy.

Decision of the Court of Appeal

On the matter of professional secrecy, the Court of Appeal confirms the Superior Court’s decision and concludes that the Disciplinary council erred by lifting the duty to professional secrecy.

However, the Court intervenes and sets aside the decision regarding the application of litigation privilege. The Court first submits that the exception regarding the innocence of a respondent – which allows to lift the privilege and on which the Superior Court’s decision is based – was not invoked by Dr Tremblay.

Regarding the exception to the privilege relating to an abuse of process or professional misconduct, the Court reiterates that prima facie evidence of such abuse or misconduct must be presented by the party that invokes the exception. Since Dr Tremblay did not present such evidence in this case, the exception does not apply.

What to remember

In this decision, the Court of Appeal confirms that the litigation privilege, which allows the parties to develop their strategy in complete trust and protected from forced disclosure, applies in Quebec disciplinary law. Also, the party invoking the litigation privilege exception for abuse of process and professional misconduct must prove it prima facie.