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This Week at the SCC (10/06/2013)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in This Week at the SCC
Martin Boodman

This week the Supreme Court of Canada granted two leave applications and rejected another in cases concerning important evidentiary issues.

In Couche-Tard Inc. v. Jacques 2012 QCCA 2266 and Pétrolière Impériale v. Jacques 2012 QCCA 2265, the issue was whether the Quebec Superior Court was correct in ordering the Competition Bureau, a third party to the case, to provide to the parties to a class action recordings of communications intercepted and given to the accused in a previous criminal investigation. The Superior Court had ordered communication of the recordings subject to redaction to protect the privacy of third parties. The Quebec Court of Appeal refused leave to appeal the interlocutory judgment of the Superior Court indicating that the order was not one “that cannot be remedied by the final judgment”. In particular, the court stated that a judgment rejecting an objection to evidence was not generally subject to appeal and the issue in the case arose before the actual production of the evidence. The Supreme Court of Canada has accepted to hear an appeal on the application to appeal the Superior Court decision.

In Imperial Tobacco Canada ltée v. Létourneau 2012 QCCA 2260, the issue was whether the professional secrecy privilege protected by section 9 of the Quebec Charter of Human Rights and Freedoms, RSQ, c. C-12, included the litigation privilege. In the case, the Quebec Superior Court rejected an objection by the defendants to the production of the draft of an expert report prepared in anticipation of litigation. The defendants appealed the decision relying on articles 29 and 511 of the Quebec Code of Civil Procedure which permit an immediate appeal of the rejection of an objection to evidence based on section 9 of the Charter. After an extensive review of the authorities, the Quebec Court of Appeal stated that the appeal itself was irregular and that the interlocutory judgment could only be contested within an appeal of the final judgment. The court held that section 9 of the Charter only applied to the solicitor client privilege, which must be distinguished in purpose and scope from the litigation privilege.

The Supreme Court of Canada dismissed an application for leave to appeal the Court of Appeal’s decision.

The McCarthy Tétrault Opinions Group consists of members of the firm’s litigation department whose practices focus on written advocacy and the provision of strategic advice and opinions in the context of complex business disputes and transactions. The members of the Opinions Group are Anthony Alexander, Martin Boodman, Brandon Kain, Hovsep Afarian and Kirsten Thompson.