Case information

Civil procedure — Pre-trial examination — Implied rule of confidentiality — Anton Piller order — Limited use clause — Scope of clause limiting use of fruits of seizure in Anton Piller proceeding contemplated by Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 — Scope of implied rule of confidentiality, conditions of access and use, regarding information obtained on persons other than those questioned in examination.

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On August 26, 2019, the respondent Metso Minerals Canada Inc. (Metso) made requests for disciplinary inquiries to the Ordre des ingénieurs du Québec (OIQ) against Mr. Lepore, the applicant, and the intervener Mr. Tarnowski. Mr. Lepore was an engineer and former head of engineering with Metso. Further to Mr. Lepore’s resignation from Metso and his association with the intervener Täask Industrial Solutions Inc. (Täask), Metso obtained ex parte an Anton Piller order from the Superior Court on June 19, 2019. That order authorized the seizure and sealing of all confidential assets belonging to it and that were in Mr. Lepore’s residence, as well as in the residences of the interveners Mr. Heath and Mr. Tarnowski, who were also two former employees now working for Täask. The Anton Piller order was amended several times after its initial execution on June 20, 2019. On July 24, 2019, the Superior Court rendered a 10 day provisional interlocutory injunction order imposing certain constraints on the defendants, including that of not divulging, disclosing, or using any confidential information belonging to Metso. The order was also renewed several times. Following the pre trial examinations of the interveners Mr. Heath and Mr. Tarnowski that took place on July 30 and 31, 2019, the parties agreed to an out of court settlement on August 12, 2019. The transaction was homologated by the Superior Court on August 15, 2019, and it was accompanied by an order regarding the sealing of the exhibits obtained by the execution of the Anton Piller order. Further to the making of the requests for disciplinary inquiries, Metso sent OIQ’s assistant syndic, a respondent in this case, the documents collected in the execution of the Anton Piller order as well as the pre trial examinations. OIQ’s assistant syndic filed a disciplinary complaint against Mr. Lepore with the disciplinary council. Annexed to the complaint was a list of exhibits, including copies of the documents that Metso had given him, but which were also sealed as a result of the order of August 15, 2019. In February 2021, Mr. Lepore applied for the dismissal of the complaint, alleging, in particular, that the evidence provided in support of the complaint fell within the purview of a sealing order, which rendered it unlawful. In April 2021, Metso filed a de bene esse application to have the seals in respect of the documents lifted. To support Metso’s application, OIQ’s assistant syndic filed a declaration of voluntary intervention to obtain the lifting de bene esse of the implied duty of confidentiality in respect of the pre trial examinations. The interveners Mr. Heath and Mr. Tarnowski consented to the application to have the seals lifted and consented to the use of their pre trial testimony in the disciplinary proceeding. The Superior Court declared, among other things, that the applications by Metso and the assistant syndic to have the seals lifted were unnecessary, and it allowed in part the assistant syndic’s application to be relieved from the implied undertaking of confidentiality as regards the pre trial examinations of Mr. Heath and Mr. Tarnowski, as well as of Täask. The Court of Appeal dismissed the appeal.