The Québec Court of Appeal has ruled that cooperation with a police investigation by voluntarily disclosing privileged documents will not automatically waive privilege with respect to third parties (Centre universitaire de santé McGill c. Lemay).[i] The decision compliments a wider legislative trend towards encouraging cooperation with criminal investigations (including, for example, Immunity and Leniency Programs under the Competition Act or remediation agreements under the Criminal Code).
McGill University Health Centre provided a forensic accounting report to the police in cooperation with a criminal investigation. The report was protected by solicitor/client privilege, having been prepared at counsel’s request. A third party sought a copy of the report under an access to information request, which was denied and ultimately led to the dispute.
The Court found that when privileged information is disclosed, the scope of any privilege waiver depends on the context – disclosing to one does not waive privilege with respect to all. Justice Mainville applied the English Court of Appeal’s reasoning in British Coal v Dennis Rye to find specifically that voluntary disclosure of documents to the police as part of criminal proceedings will not affect the privilege status of those documents in civil proceedings.[ii]
By giving the document to the police, McGill did not intend to waive privilege with respect to all others. While it had not explicitly reserved privilege, the report was only made available to a small circle of internal persons. It should be protected from other third parties.
The decision should reassure companies when it comes to cooperating with criminal investigations, as well as disclosing information to their external auditors: doing so will not automatically waive privilege with respect to other third parties. This is the first time the Quebec Court of Appeal has ruled on this issue, and it will be interesting to monitor the decision’s impact over time, given the broader context of encouraging cooperation with investigations.
[i]. 2022 QCCA 1394.
[ii]. Ibid., para 39. British Coal Corp v. Dennis Rye Ltd (No. 2), [1988] 3 All ER 816 (C.A.). The principles of this judgment of the English Court of Appeal have been adopted by the courts of other Canadian provinces, see among others: Interprovincial Pipe Line Inc. v. M.N.R., [1996] 1 FC 367; Philip Services Corp. v. Ontario Securities Commission, 2005 CanLII 30328 (ON SCDC); Rekken v. Health Region #1, 2012 SKQB 248.