Canada: Public Access To Lawyer's Accounts: Are We Seeing A Two-Tier Application Of Professional Secrecy?

Last Updated: July 26 2017
Article by Karl Delwaide and Antoine Guilmain

In theory, solicitor-client  privilege is constitutional or quasi-constitutional in nature, as it would be protected, depending on the circumstances, by either the Canadian Charter of Rights and Freedoms1 or the Quebec Charter of Human Rights and Freedoms.2 Our legal system is based on the fundamental right of individuals to consult their lawyer with complete freedom, and it without fearing that what they say will become public or be disclosed in court (subject to some exceptions that we will not address here). The privilege belongs to the client; only the client can waive it, and only where it is clearly established that the client has done so.

The public bodies subject to the Act respecting Access to Documents Held by Public Bodies and the Protection of Personal Information3 ("Access Act") are also entitled to professional secrecy, and that secrecy will take precedence over the limited exemptions from release in response to an access request.

One Decision-Maker, Two Decisions, Two Results

The Commission d'accès à l'information of Quebec ("CAI") recently had the occasion to address this issue—two occasions, in fact. In two decisions, issued on April 10 and 12, 2017, Commission member Philippe Berthelet considered whether the accounts of lawyers retained by a public body, and, more specifically, the amount of the fees charged, including the total amount, are public. Two cases heard by the same member, but with two different decisions: is this logical? We would note at the outset that although the decisions address the right of public bodies to protection of information covered by solicitor-client privilege, their ramifications and consequences apply equally to private sector businesses. This is what we will attempt to show here.

In the first case, L.P. v. Centre intégré de santé et de services sociaux de l'Outaouais,4 the request was for [Translation] "... all fees paid to the law firm Bastien, Moreau, Lepage in relation to bargaining of local matters in the collective agreements... of the public body's three unions...". The CAI concluded that the information that could be released included [Translation] "the heading 'Local bargaining'" and "the amount corresponding to the total fees for that service".

In the other case, P.M. v. Loto-Québec,5 the CAI dismissed the application for review filed by the person who had requested access, the ultimate purpose of which was to gain access to the total amounts paid by Loto-Québec to a law firm in relation to two civil suits (still pending before the Superior Court at the time the access request was made, and even at the time of the decision, at the appeal stage).

Reasoning adopted

In its analysis, the CAI adopted the same approach in both cases. In order for information (here, the total amount of the fees paid) to be considered to be protected by solicitor-client privilege:

  1. it must be a communication between a lawyer and his or her client;
  2. it must involve consulting or obtaining a legal opinion; and
  3. the parties must consider it to be confidential.

In both of these cases, the CAI was of the opinion that requirements (1) and (3) had been met. For the second criterion, the CAI adopted the same analytical approach: there is a presumption of confidentiality, unless the person requesting access rebuts that presumption, which, in fact, that person has the burden of doing. However, the person who made the request may discharge that burden without necessarily having to introduce actual evidence. In the opinion of the CAI, information may be shown not to be protected by professional secrecy using logical arguments derived from the case. This is interesting but potentially problematic: if evidence is adduced, the adverse party can attempt to respond to it; if the tribunal constructs a logical argument, it is difficult to "guess" what is or is not logical in the tribunal's eyes—other than by reading the decision. At that point, however, it is too late to respond to it or to introduce evidence that would rebut the perception, as logical as it may be at the outset.

In the Loto-Québec case, the CAI concluded that information protected by professional secrecy could be disclosed if the total amount of the fees in the pending cases was disclosed. Undoubtedly, the fact that these were related to litigation cases and that they were still pending at the time of the access request carried some weight in the final outcome. The courts are accustomed, and even are more inclined, to identify and protect communications between a client and his or her lawyers when they take place in the context of litigation. Even the total amount of the fees may fall under the umbrella of privilege: the fees could disclose the efforts that a client is prepared to make, or not make, to defend its interests. Allowing access to lawyers' accounts would amount to providing a way of deducing the organization's level of commitment to the proceedings undertaken. The protection afforded by professional secrecy is therefore granted.

In Centre de santé et de services sociaux de l'Outaouais (the "Centre"), however, the CAI did not reach the same result. Under the Act Respecting the Process of Negotiation of the Collective Agreements in the Public and Parapublic Sectors,6 the national parties have a mandate to enter into agreements with financial and monetary impacts. The regional parties have responsibility for negotiating all local matters provided for in the Act. The Centre had retained a law firm to assist in negotiating local matters. In the opinion of the CAI, the advice of the lawyer on pure business matters is not covered by solicitor-client privilege; that type of service is not covered by section 128 of the Act respecting the Barreau,7 which sets out the acts that are the exclusive prerogative of lawyers. There is one problem: while, undeniably, not all acts performed by a lawyer fall within the practice of law and are covered by professional secrecy, the Supreme Court of Canada did point out, in Foster Wheeler Power Co. v. SIGED,8 that "[a]ny solution must also take into account the evolving nature of the legal profession, in which lawyers are increasingly called upon to provide services in fields well beyond their traditional sphere of practice" (para. 33) and that "[w]e must also bear in mind that lawyers' functions and professional qualifications have evolved dramatically" (para. 36).

We do not know the details of the services performed by the firm retained by the Centre; the decision of the CAI (rightly) does not describe them. However, the result raises questions: lawyers practise in various areas of the law, not just litigation. Often, their strategic advice falls within the confines of both law and business. The question arises of how to distinguish what falls within the area that the CAI called [Translation] "pure business matters" from matters that are not purely business. After all, the client would like to ensure that its business interests coincide with the legal situation. The first does not work if the second is not taken into consideration, and surely what distinguishes good advice from excellent advice is a dependent on the legal advisor's knowledge of his or her client's business situation. The question becomes one of whether the protection of professional secrecy will depend on the category of the law in which the advice is provided. A lawyer who is involved in a case will give advice based on his or her client's business situation; the legal services provided in that context could very well be protected from disclosure, including disclosure of the amount of the lawyer's fees. The question is whether the client of a lawyer who acts as a transactional advisor will be accorded a sphere of protection that differs from what is given in the case of the lawyer's litigation colleague.


The two decisions examined here were made under the Access Act, but, in our opinion, their implications go beyond the more immediate sphere of the right of access to the accounts of outside counsel retained by a public body.

Foster Wheeler invites us to make a distinction based on what services are performed by a lawyer and the capacity in which the services are provided. We agree, but there is a difference between the examples used by the Supreme Court of Canada to support its reasoning in Foster Wheeler (e.g. a lawyer who is a government employee, who gives advice on policy matters that have nothing to do with the lawyer's legal training or expertise and are based, rather, on his or her knowledge of the ministry concerned) and the case of a lawyer whose advice to an employer or investor is based on the client's business situation.

To come back to a concern stated earlier regarding the approach taken, of concluding that professional secrecy applies (or not) based on logical arguments derived from the case (and not necessarily from the evidence introduced by witnesses), it is our opinion that caution is called for. Before taking this step, particularly where the party seeking information that might be covered by professional secrecy has introduced no evidence, the tribunal should give the party who enjoys the benefit of professional secrecy an opportunity to make submissions concerning the tribunal's "perception" that the privilege applies (or not). It may be that some clarification could then be provided as to the real nature of the services performed by the lawyer, from a perspective that takes into account the evolving nature of the legal professions. That would undoubtedly enable the tribunal to have the best possible "evidence" for deciding, in full possession of the relevant information, whether the situation calls for genuine protection of professional secrecy based on the professional act in question, rather than on a category of the law in which the legal advisor practises. After all, that is surely the essence of a contextual and evolving interpretation of the law.

Will the forthcoming decision of the Court of Appeal in Commission scolaire des Patriotes v. Quenneville9 answer our questions? The judgment of the Superior Court in that case confirms the presumption that lawyers' accounts are protected, subject to evidence to the contrary. However, the interest of the two recent decisions of the CAI discussed in this bulletin lies in the factors from which the tribunal may infer such evidence. To be continued ...


1 Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11.

2 Charter of human rights and freedoms, CQLR c. C-12.

3 CQLR c. A-2.1.

4 2017 QCCAI 78.

5 2017 QCCAI 77.

6 CQLR c. R-8.2.

7 CQLR c. B-1.

8 [2004] 1 S.C.R. 456.

9 2015 QCCS 4598

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions