Lex Mundi Global Attorney-Client Privilege Guide |
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Canada, Quebec |
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(Canada)
Firm
Blake, Cassels & Graydon LLP
Contributors
Simon Seida |
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| Is the ACP recognized in your jurisdiction? | Yes. Also referred to as professional secrecy, ACP is recognized in the Province of Québec. |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | N/A |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | While distinct rules of evidence apply in civil and in criminal cases, ACP will protect from disclosure communications between an attorney and his or her client, as well as an attorney’s work product, in both cases. There is no specific exception relating to requests made by government authorities. |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | The corporation itself is considered the client. As such, the privilege belongs to the corporation, regardless of who was involved in the privileged communications. An attorney who notices or anticipates that the interests of a client’s representative may differ from those of the client must inform the representative of his duty of loyalty towards the client. |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | No. Nevertheless, ACP does not apply to business advice, as opposed to legal advice, provided by in-house counsel to the corporation. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | Yes |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | Yes |
| Is the common interest doctrine recognized in your jurisdiction? | Yes, albeit with paucity of case law pertaining to the doctrine. |
| How is the doctrine articulated in your jurisdiction? | Common interest privilege protects from disclosure legal advice that is sent confidentially by its recipient or his or her attorney to a third party with whom the client shares a common legal interest. |
| Must a common interest agreement be in writing? | No, although a written agreement may provide an evidentiary basis for the privilege to apply. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Litigation funding is permitted. There are no specific professional rules pertaining to litigation funding, but general rules may apply, such as an attorney’s duty of loyalty to the client, the duty to avoid any situation of conflict of interest, and the prohibition against attorneys acquiring litigious claims. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | Not directly. Case law, however, recognizes litigation privilege, which protects from disclosure documents created for the dominant purpose of litigation. |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | This exception has been discussed in several appellate cases, including Descôteaux v. Mierzwinski, [1982] 1 R.C.S. 860; Archambault c. Comité de discipline du barreau du Québec, 1992 CanLII 3997 (QC CA); and Maranda v. Richer, 2003 SCC 67. |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | Yes, although the rule is derived from case law. |
| What are the elements of the protection in your jurisdiction? | Litigation privilege attaches to documents created and communications made for the dominant purpose of litigation. It comes to an end upon the termination of the litigation giving rise to the privilege. |
| Does your jurisdiction recognize an accountant-client privilege? | Yes, but it is subject to more exceptions than ACP. |
| Does your jurisdiction recognize a mediation privilege? | Yes. Communications made during the mediation process are subject to a confidentiality undertaking, unless the mediation agreement provides differently. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Yes. Nevertheless, a communication that has led to a settlement will no longer be privileged if disclosure is necessary to prove the existence or the scope of the settlement. |
Lex Mundi Global Attorney-Client Privilege Guide
Canada, Quebec
(Canada) Firm Blake, Cassels & Graydon LLPContributors Simon Seida
Updated 24 Mar 2020Yes. Also referred to as professional secrecy, ACP is recognized in the Province of Québec.
N/A
While distinct rules of evidence apply in civil and in criminal cases, ACP will protect from disclosure communications between an attorney and his or her client, as well as an attorney’s work product, in both cases. There is no specific exception relating to requests made by government authorities.
The corporation itself is considered the client. As such, the privilege belongs to the corporation, regardless of who was involved in the privileged communications. An attorney who notices or anticipates that the interests of a client’s representative may differ from those of the client must inform the representative of his duty of loyalty towards the client.
No. Nevertheless, ACP does not apply to business advice, as opposed to legal advice, provided by in-house counsel to the corporation.
Yes
Yes
Yes, albeit with paucity of case law pertaining to the doctrine.
Common interest privilege protects from disclosure legal advice that is sent confidentially by its recipient or his or her attorney to a third party with whom the client shares a common legal interest.
No, although a written agreement may provide an evidentiary basis for the privilege to apply.
Litigation funding is permitted. There are no specific professional rules pertaining to litigation funding, but general rules may apply, such as an attorney’s duty of loyalty to the client, the duty to avoid any situation of conflict of interest, and the prohibition against attorneys acquiring litigious claims.
Not directly. Case law, however, recognizes litigation privilege, which protects from disclosure documents created for the dominant purpose of litigation.
Yes
This exception has been discussed in several appellate cases, including Descôteaux v. Mierzwinski, [1982] 1 R.C.S. 860; Archambault c. Comité de discipline du barreau du Québec, 1992 CanLII 3997 (QC CA); and Maranda v. Richer, 2003 SCC 67.
Yes, although the rule is derived from case law.
Litigation privilege attaches to documents created and communications made for the dominant purpose of litigation. It comes to an end upon the termination of the litigation giving rise to the privilege.
Yes, but it is subject to more exceptions than ACP.
Yes. Communications made during the mediation process are subject to a confidentiality undertaking, unless the mediation agreement provides differently.
Yes. Nevertheless, a communication that has led to a settlement will no longer be privileged if disclosure is necessary to prove the existence or the scope of the settlement.