Case information

Law of professions — Ethics — Access to information — Professional secrecy of lawyers — Litigation privilege — Whether Quebec Court of Appeal erred in law in applying tests set out in R. v. Brown, 2002 SCC 32, R. v. McClure, 2001 SCC 14, Blank v. Canada (Minister of Justice), 2006 SCC 39, and Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, without taking into account complainant’s duty to disclose under Quebec disciplinary law.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The respondent, Helen Mpantis, in her capacity as assistant syndic of the Ordre des dentistes du Québec, filed a complaint on September 5, 2018 with the Disciplinary Council of the Ordre des dentistes du Québec against the applicant, Marc Tremblay, a dentist. The complaint consisted in 30 charges and was accompanied by a request for provisional striking off the roll, which was eventually ordered. While preparing for the hearing of the complaint, the respondent decided, together with her lawyer, to consult two third party specialists because the opinion in the report by her expert differed from the opinion in the report by the applicant’s expert. The third parties provided, via telephone, their opinions on the two expert reports. The respondent did not, however, disclose this information to the applicant, who was nevertheless informed of the consultations. In January 2020, the applicant filed a motion for a stay of proceedings, in which he alleged that the respondent was in breach of her duty to disclose the existence and content of expert opinions obtained from third parties after the filing of the complaint. The hearing of the motion commenced on January 23, 2020 before the Disciplinary Council. During the hearing, the respondent was cross-examined on the identity of the third parties and on the content and substance of what had been communicated during the consultation with them. Counsel for the respondent, invoking litigation privilege and the professional secrecy of lawyers, objected to these questions and to the filing of notes that were apparently provided by one of the third parties. In a decision rendered on June 23, 2020, the Council disallowed some of those objections and allowed some of them. During the hearing on the merits of the complaint, counsel for the respondent, invoking litigation privilege, objected to the questions relating to the consultation with those third parties that were posed to the applicant’s expert, who had apparently been informed about the consultation. The Council, in a decision dated July 30, 2020, disallowed some of the objections relating to the questions that started with [TRANSLATION] “Who?” and “How come?”. The respondent applied to the Superior Court for judicial review of the two Disciplinary Council decisions that disallowed the objections raised. The Superior Court allowed the application for judicial review in part, quashing in part the Disciplinary Council’s decision dated June 23, 2020. The Court of Appeal dismissed the applicant’s appeal and allowed the respondent’s appeal.