Canadian Lawyer

8 O C T O B E R 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m \ AT L A N T I C \ C E N T R A L \ W E S T REGIONAL WRAP-UP T he latest court decision in a seven-year legal battle between Montreal's largest newspaper and several public bodies over access to information on legal fees has left many Quebec lawyers perplexed about its potential impact and meaning in regards to professional secrecy and privileged information. For some, the Quebec Court of Appeal's late-August judgment in favour of Le Journal de Montréal — which had been trying since 2010 to legally force four regional school boards and the off- island Montreal suburb of Terrebonne to divulge the amount of money they paid to the lawyers who defended them in liti- gation suits brought by taxpayers — is an unsurprising, one-off finding that applies only to this particular case. But others see it as a precedent-setting ruling that weakens the Charter-protected notion of lawyer-client communications and opens the door to similar populism- minded actions designed to discredit lawyers. The genesis of the case was the school board's refusal to reveal legal fees it paid in a class action suit brought forward by a parents' group a decade ago. The school boards (and later Terre- bonne, which was being similarly pres- sured by Le Journal to disclose legal fees it paid in several litigation cases against a citizen) refused, saying the fees were privileged information and that the information, if revealed, would provide a glimpse of the "volume of measures" it took in the cases. In a 2012 ruling, Quebec's privacy watchdog, the Commission d'accès à l'information du Québec, sided with the public bodies and found the fees were protected under the province's 1982 law governing access to documents of public bodies. The Court of Quebec overturned that ruling, but it was subsequently rein- stated by the Superior Court of Quebec. That set the stage for the Quebec Court of Appeal's restoration of the provincial court's ruling in a unanimous written decision in August by three judges, with some modifications added by Justice Paul Vézina. Referring to both federal and provin- cial statutes relating to access to privacy and privileged information, the judges argued that the key question in the case was whether divulging the legal fees would undermine lawyer-client confi- dentiality. "If there is no secrecy, then the question of exceptions becomes moot, the restriction to right of access is inexistent," they wrote. They also noted that while professional secrecy permits public bod- ies to defend themselves legally, "it does not release them from being accountable to the administered." The judges found the fees were not secret and ordered the public bodies to hand over the requested information on legal fees to the Montreal tabloid within 10 days. Reaction to the ruling was fast and varied from lawyers in all spheres of Que- bec law. "This decision goes the furthest yet on the question of whether or not the totality of legal fees are privileged information," said Danielle Ferron, a partner with Lan- glois Lawyers LLP in Montreal and the author of a 2014 article on the subject. Despite the whimsical He loves me . . . he loves me not nature of the rul- ings in the case — from protected to not protected to protected to not protected — Ferron thinks the decision, which is likely final since the parties have report- edly agreed to settle, could be a precedent in cases involving both public and private parties. "I don't know if this analysis would apply or be valid in other cases or to what extent, but I certainly wouldn't be surprised to see someone try it, maybe in class actions," she said. Éric Meunier agrees. As senior legal counsel for Quebecor Média, which owns Le Journal, and one of the two lawyers who represented the daily (along with Bernard Pageau), he said the judgment could prove valuable for citizens and organizations of all stripes in la belle province. "No new principle has been estab- lished in this case, but I hope the decision will send a signal to public organizations to make this type of information more accessible," said Meunier. "People are asking them all the time for information like the fees they pay. That information should be easily available in this day and age." For his part, eminent Montreal law professor and constitutional lawyer Julius Grey saw the decision in much darker terms. "I think it's dangerous," he said. "People can go on fishing expeditions for questionable motives and reasons." In addition to making lawyers look bad and putting pressure on public institutions and even private parties, Grey believes that revealing information relevant to billing could reveal privileged client information. "The Supreme Court reaffirmed the fundamental need of privilege in 2016," said Grey, adding that professional secrecy is both a deontological duty and a substantive fundamental right that obliges confidentiality stemming directly from the lawyer-client relationship, and immu- nity from disclosure, which protects the client. "Call me old-fashioned, but I'm generally opposed to populism and espe- cially the notion that the public needs to know and find out everything about fees in order to ensure good governance." — MARK CARDWELL Disclose legal fees paid by public bodies, says Quebec's top court C E N T R A L

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