Introduction

The Act respecting the distribution of financial products and services (the "Act") confers certain inquiry powers on the syndic of the Chambre de l'assurance de dommages (the "ChAD"), giving it access to documents or information in the possession of an insurer and in connection with the activities of one of its representatives who is the subject of an inquiry.

Sections 337 and 340 of the Act read as follows:

337.  Insurers, firms, independent partnerships and mutual fund dealers and scholarship plan dealers registered in accordance with Title V of the Securities Act(chapter V-1.1) must, at the request of a syndic, forward any required document or information concerning the activities of a representative.

340.  A person conducting an inquiry may

(1)  have access, at any reasonable time, to any establishment of a firm, independent representative, independent partnership or mutual fund dealer or scholarship plan dealer registered in accordance with Title V of the Securities Act (chapter V-1.1);

(2)  examine and make copies of the books, registers, accounts, records and other documents of the firm, independent representative, independent partnership or mutual fund dealer or scholarship plan dealer registered in accordance with Title V of the Securities Act;

(3)  require any document relating to their activities.

Every person having custody, possession or control of such books, registers, accounts, records and other documents must, at the request of the person conducting the inquiry, produce them and allow them to be examined.

The case of Carole Chauvin, in her capacity as syndic of the Chambre de l'assurance de dommages v. Aviva Insurance Company of Canada et al., 2013 QCCS 6397 (on appeal)

In the case of Carole Chauvin, in her capacity as syndic of the Chambre de l'assurance de dommages v. Aviva Insurance Company of Canada et al., 2013 QCCS 6397 (on appeal), an inquiry was initiated by the syndic of the ChAD concerning an adjuster employed by Aviva with respect to his investigation of a loss reported by one of Aviva's policy holders.

As part of the inquiry, the syndic asked Aviva to provide its entire claim file, including, among other documents, legal opinions it had obtained. Aviva refused to provide certain documents to the syndic, based on grounds related to solicitor-client privilege and litigation privilege. Given Aviva's refusal to provide a complete copy of the claim file, the syndic served and filed a motion seeking access to the entire claim file.

The ChAD's arguments essentially focused on its primary mission to protect the public and the broad range of powers necessary to do so.

On December 16, 2013, the Superior Court of Quebec rendered an important judgment ruling on the extent of the syndic's powers to compel production of the files of an insurer, more specifically whether the syndic of the ChAD may have access to documents falling under the umbrella of litigation privilege or solicitor-client privilege.

Solicitor-client privilege

In Quebec, solicitor-client privilege (or professional secrecy) is codified at section 9 of theQuebec Charter of Human Rights and Freedoms:

9.  Every person has a right to non-disclosure of confidential information.

No person bound to professional secrecy by law and no priest or other minister of religion may, even in judicial proceedings, disclose confidential information revealed to him by reason of his position or profession, unless he is authorized to do so by the person who confided such information to him or by an express provision of law.

The tribunal must, ex officio, ensure that professional secrecy is respected.

Solicitor-client privilege therefore benefits from a quasi-constitutional status. The Superior Court adopted the principles expressed by the Supreme Court of Canada in Canada (Privacy Commissioner) v. Blood Tribe Department of Health, [2008] 2 S.C.R. 574, namely that solicitor-client privilege may only be set aside by a clear and express statutory provision. Since there was no such provision in the Act, the ChAD could not have access to documents falling under the umbrella of solicitor-client privilege.

Litigation privilege

On the basis of the Supreme court decisions in Foster Wheeler Power Co, c. SIGED, [2004] 1 S.C.R. 456 and Blank c. Canada (Ministre de la Justice), [2006] 2 S.C.R. 319, the Superior Court ruled that litigation privilege should benefit from the same protections as those applicable to solicitor-client privilege. That being said, the Court applied the rule adopted by the Supreme Court in Blood Tribe mentioned above, namely that litigation privilege may only be set aside by a clear and express statutory provision. Since there was no such provision in the Act, the ChAD could not have access to documents falling under the umbrella of litigation privilege.

Conclusion

This is the first case rendered by the Superior Court of Quebec, where the rulings rendered by the Supreme Court in the Blood Tribe and Blank decisions were combined and the protections recognized and applied to the solicitor/client privilege were recognized and extended to the litigation privilege.