A ruling by the Quebec Administrative Labour Tribunal that held that litigation privilege applies only in civil matters and in adversarial proceedings but not in an administrative law context before a quasi-judicial tribunal with powers of inquiry was overturned by the Quebec Court of Appeal.

In a concise but clear decision, the Quebec appeal court held that it was “unreasonable to conclude” the provincial laws governing the Administrative Labour Tribunal allow for the revocation of litigation privilege.

Instead provisions in the Quebec Act to establish the Administrative Labour Tribunal (AEALT) and the Act respecting public inquiry commissions seek to confer the to the Administrative Law Tribunal (ALT) and its members a power of compulsion with respect to books, papers, deeds and writings “as appear necessary for arriving at the truth.” Those provisions do not “contain sufficiently clear, explicit and unequivocal language to abrogate litigation privilege,” added the unanimous three-judge panel in Procureur général du Canada c. De l’Étoile 2019 QCCA 1178.

“The appeal court ruled that litigation privilege exists in administrative law, with its strengths and weaknesses,” noted Francis Gervais, a former bâtonnier of the Barreau du Québec and an expert in solicitor-client privilege. “It also noted that it is a kind of privilege that may be subject to exceptions when a law specifically states that it can be rescinded.”

The case dates back to November 2014 when Marie-Héléne de l’Étoile, who works for the Royal Canadian Mounted Police, suffered an occupational injury and filed a claim before the Quebec workers’ compensation board, the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST). 

The compensation board initially turned down the claim, a decision that was overturned following an administrative review. While preparing for the administrative review, l’Étoile introduced as evidence a medical report. Her employer followed suit, but decided not to table the report as evidence. On April 2017, l’Étoile sought to compel her employer to divulge the report before the Administrative Labour Tribunal, but the RCMP contested the demand, invoking litigation privilege. Six months later, on November 2017, the tribunal ordered the employer to file the medical expert report because it held that litigation privilege did not apply in an administrative law context before a quasi-judicial tribunal with powers of inquiry. An Administrative Law Tribunal sitting in review found that the first administrative judge had erred in law because litigation privilege does apply to administrative law, but found that this error was not determinative. Quebec Superior Court Jacques Bouchard dismissed the employer’s application for judicial review.

Heeding guidance issued by the Supreme Court of Canada in Lizotte v. Aviva Insurance Co. of Canada 2 SCR 521, 2016 SCC 52, the appeal court found that the Administrative Labour Tribunal adopted a “defective reasoning and rendered a decision that does not fall within the range of possible, acceptable outcomes.”

The appeal court points out that most administrative bodies exercising adjudicative functions have commissioners who are granted powers by the Act respecting public inquiry commissions. Under the Administrative Labour Tribunal’s reasoning that would mean that most administrative bodies exercising adjudicative functions would be able to revoke litigation privilege, something that the appeal court describes as being “simply unreasonable.”

In Lizotte, the SCC held that litigation privilege does not have the same status as solicitor-client privilege. Though litigation privilege is less “absolute” than solicitor-client privilege, the SCC held that it is “fundamental to the proper functioning of the our legal system,” and that it promotes the search for truth by allowing parties to put their best cases before the court, highlighted the Quebec Court of Appeal. The autonomous nature of administrative justice does not allow it to shelve litigation privilege, added the appeal court. “It is a generic privilege subject to clearly defined exceptions,” noted the appeal court.

“It seems to me that the appeal court applies guidance by the SCC in the Lizotte case” to come to the conclusion that there “is no exception to be made in administrative law,” said Claude Leduc, a former bâtonnier of the Barreau and co-founder of Montreal law firm Mercier Leduc.

The appeal court did leave open the possibility that another Quebec law may lead to abrogation of litigation privilege in this case. It stated that the “real issue” in the case is whether Quebec Act respecting industrial accidents and occupational diseases allows for the abrogation of litigation privilege or for the recognition of a new exception to the application of this rule in cases where reports are obtained following the medical examination of a worker. That is a question that the Administrative Labour Tribunal did not answer, and which falls within its area of expertise, said the appeal court. As a result the file was referred back to the Administrative Labour Tribunal so that it may make a ruling within this respect.

That is an interesting question, said Gervais. “I think it would involve a renunciation rather than a non-application” of litigation privilege, said Gervais. “Once a person or an employer accepts to participate and exercise procedures before such administrative law tribunals, it would lead me to believe that a person is above all waiving their litigation privilege.”

This story was originally published in The Lawyer’s Daily.