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Daniel Urbas is a lawyer with Woods & Partners. His practice focuses on media law, intellectual property, e-commerce and litigation. He can be reached at

The contents of Publishing Law should not be construed as legal advice offered by Masthead or Mr. Urbas. Readers should consult their own lawyers before acting.

Column for September 2001

Supreme Court Ruling Denies Media Access to Pre-Trial Information and Documents

Should information passed between plaintiffs and defendants prior to a trial be made available to the public? In a recent Quebec case, several media organizations argued before the Supreme Court of Canada that the public interest demands transparency, and that such information should not remain confidential. However, that's not how the Supreme Court eventually ruled. On September 13, 2001, the Supreme Court of Canada confirmed that there is an implied rule of confidentiality in Quebec concerning information obtained at pre-trial examinations on discovery. (The full reasons of the judgment can be obtained on-line at


The litigation involved parties in the Quebec asbestos industry. Lac d'Amiante du Quebec Ltée filed a lawsuit against 2858-0702 Quebec Inc. and Lac d'Amiante du Canada Ltée claiming over $12 million primarily as reimbursement for expenses incurred in defending itself against claims made in regard to asbestos exposure. A second action claimed an additional $31 million.

On December 5, 1996, the plaintiff's representative was examined out of court on discovery by the defendants' attorneys during which they requested a large number of documents. The plaintiff objected to producing the documents but the Superior Court dismissed the objection ruling that the information sought was relevant.

The plaintiff collected and inventoried the documents but prior to communicating them to the defendants, the plaintiff's attorneys asked that the defendants enter into a confidentiality agreement. The agreement would prevent the defendants from disclosing the documents to third parties.

The defendants refused to sign a confidentiality agreement. The plaintiffs filed a motion asking the court to order anyone to whom the documents and information would be communicated to keep same confidential. The motion dealt with the following types of documents:

- accounts submitted by lawyers who had defended the plaintiff in asbestos-related litigation and who had instituted lawsuits against insurers who had refused to defend the plaintiff;

- settlements reached with parties who had sued the plaintiff and the insurers against which the plaintiff had instituted actions; and

- various information about the plaintiff's employees.

Superior Court

The Quebec Superior Court dismissed the plaintiff's motion. In the judge's opinion, sittings of the court were public and therefore any related pleadings and exhibits became public unless there was evidence offered to the court which demonstrated that the hearing should be held in private. The court also did not think that the documents were confidential in that they did not reveal any trade secrets, raise any issue of a public order or violate good morals. As well, given the volume of documentation, there was no discernible strategy of the plaintiff which could be disclosed if those documents relating to the other lawsuits were provided to the defendants. The judge had evidence that well over 140,000 lawsuits had been commenced in the United States and that many lawyers, witnesses and experts in those cases had likely seen many of the documents. The judge believed that imposing an obligation of confidentiality on the defendants in those circumstances would be unreasonable.

Court of Appeal

The plaintiff appealed the decision. In detailed reasons, the court expressly recognized an implied undertaking rule in respect of pre-trial examinations. That rule automatically classifies as confidential all the documents that one party is required to disclose to the other prior to the hearing on the merits, without the disclosing party having to request the court to order the materials to be confidential.

The majority held that the rule did not violate the principle that trials are open to the public because the rule only affected the steps prior to the trial, mainly examinations before and after defence. Mr. Justice Fish noted that the public disclosure of information prior to trial would not promote the exploratory nature of the pre-trial examinations and that disclosure to the public prior to trial could even lead to less than full disclosure and reduce the possibility of out-of-court settlements.

The effect of the rule would be that it would bind the parties and their counsel to undertake not to use the information other than for the litigation in which they were currently involved and for which the discoveries were conducted. Only with leave of the court could the information obtained during the discoveries be used in other proceedings.

Supreme Court of Canada

Defendants obtained leave to appeal the decision to the Supreme Court of Appeal. On appeal, members of the print and broadcast media intervened. C.B.C., Southam Inc., Sun Media Corporation, La Presse Limitée and Fédération professionnelle des journalistes du Quebec argued that trials and Court files are public in Quebec and that society's interest in the transparency of judicial proceedings would urge against the recognition or introduction of a rule of confidentiality.

In a unanimous decision written by Mr. Justice Lebel, the Supreme Court of Canada dismissed the defendants' appeal and upheld the decision of the Quebec Court of Appeal.

The Supreme Court not only examined the Quebec Code of Civil Procedure, but also interpreted the Code of Civil Procedure in light of the general principles and values expressed in the Civil Code of Quebec and the Quebec Charter of Human Rights and Freedoms. The Supreme Court held that the examination on discovery has become essentially exploratory and has thus become similar to the common law discovery. Reviewing the legislation, doctrine and the Court practice, the Supreme Court determined that an examination on discovery is a not a sitting of the court as it takes place under the control of the parties, outside the court and with no involvement on the part of the court other than in exceptional cases.

In dismissing the appeal, the Supreme Court briefly addressed the media's concerns. In a seventy-eight paragraph judgment, the Supreme Court devoted two paragraphs to the media's concerns. One of those paragraphs stated:

[72] Despite the fundamental importance of the media's right of access to information in a modern democracy, it must be consistent with the principle of respect for privacy. As we have seen, an examination on discovery is not part of either the court record or a trial. The content of the examination is therefore not accessible to the public, because it is still, as a general rule, in the private sphere. At that stage, there is no imperative of transparency in the judicial system that would justify taking that information out of the private sphere and making it accessible to the public or the media. It will also be recalled that once the trial begins, and except for the limited number of cases held in camera or subject to a publication ban, the media will have broad access to the court records, exhibits and documents filed by the parties, as well as to the court sittings. They have a firm guarantee of access, to protect the public's right to information about the civil or criminal justice systems and freedom of the press and freedom of expression.

The Supreme Court stated that the media's right of access must be consistent with the protection of privacy. However, the Supreme Court specifically limited the rule of confidentiality to information obtained solely from the examination and not information that is otherwise accessible to the public. The court closed its lengthy reasons by stating that: "[t]he obligation of confidentiality applies only to information that would have remained confidential if the examination on discovery had not taken place."

The right to keep the documents and information confidential ends if the receiving party decides to use the information. This means that if a party decides to file the documents or information prior to trial, then the media will have access to it:

Of course, the right to confidentiality will end if the adverse party decides to actually use the evidence or information obtained on discovery, when that party chooses to use all or part of it in his or her own case. The legislative intent that information be communicated in a civil trial will then prevail, to ensure that the system is transparent. On the other hand, at the examination on discovery stage, concern for transparency is not an issue because the examination is not a sitting of the courts. It is therefore legitimate in that case to give greater weight to the privacy interest, by imposing the obligation of confidentiality on information that is disclosed.

Though the rule of confidentiality applies during and after the case to both a party and its representatives, some limits exist. For example, the court may relieve individuals of the obligation of confidentiality "in cases where it is necessary to do so, in the interest of the justice". However, the Supreme Court cautioned that: "the court would avoid exercising that power to routinely, as to do so would compromise the usefulness of the rule, if not its very existence." In considering such a request, the courts will assess the severity of the prejudice if the rule of confidentiality were suspended against the benefits of suspending the rule. The court declined to list the factors to be taken into consideration when a party seeks to be relieved of its obligation.

How the judgment affects the media

While the Supreme Court did not specifically have to deal with procedural rules currently in place in the rest of the Canadian provinces, the reasoning outlined by the court suggests that, if asked to do so, the court would likely confirm that the rule of confidentiality also applies to the discoveries occurring prior to trial in the common law provinces. However, each province might adopt specific rules of court and other civil procedure legislation to limit or nuance the implied rule of confidentiality.

Because the bulk of the litigation occurs prior to trial, a great many pieces of information and documents may never be disclosed. They are neither filed at the trial nor on any pre-trial motion and may be exchanged in an action which settles out of court prior to trial. Even so, the various courts typically allow litigants to apply to the court for a confidentiality order which would protect information and documents from being disclosed before trial and at trial. Such court orders typically authorise the parties to file their confidential materials in sealed envelopes accessible only by the court. These orders, though, are issued by a court once it is satisfied that, upon the evidence, such measures are appropriate.

As the courts noted, the purpose of an examination is to encourage complete disclosure of the information and documents available despite there being a respect for privacy. If a party is reluctant to disclose information because it will become public, there may be some motivation for certain litigants to not fully or properly answer questions which would undermine the administration of justice and the full disclosure of evidence.

The media can place themselves in the position of a litigant to see the necessity of this rule. Take for example one magazine litigating the fact that another magazine has unfairly obtained the first magazine's client list. Should the plaintiff magazine, prior to trial or settlement, have to disclose to the public its client list and details of its financial damages, including lost sales and subscriptions, and should this information be available to all other magazines in Canada? Most plaintiff magazines would agree that they would not wish to have that information available to others.

Given that a trial date is set at least one or more years after an action has been instituted, the rule of confidentiality will likely delay the media's access to the information exchanged between the parties prior to trial. Unless the information is already public or unless a party discloses the information in a pre-trial motion, the information and documents will remain confidential until trial.