T-1372-82
Chambre des notaires du Québec (Applicant)
v.
Restrictive Trade Practices Commission and
Director of Investigation and Research (Respond-
ents)
Trial Division, Dubé J.—Montreal, April 5;
Ottawa, April 23, 1982.
Practice — Privilege of documents — Price fixing of notar
ies' tariff alleged — Confidential documents between notaries
and clients privileged Records of Chambre des notaires'
Committee on Discipline and Syndic not privileged — MotiOn
to quash denied — Combines Investigation Act, R.S.C. 1970,
c. C-23, ss. 5, 10, 32, 38 — Professional Code, R.S.Q. 1977, c.
C-26, ss. 109, 111, 112, 114, 149, 192, 193, 194, 195, 196
Notaries Act, R.S.Q. 1977, c. N-2, ss. 1, 5, 15 19, 20
Canada Evidence Act, R.S.C. 1970, c. E-10, s. 37 — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18 — Criminal
Code, R.S.C. 1970, c. C-34, s. 7.
This is a motion to quash the authorization, certificate and
seizure, during an investigation under sections 32 and 38 of the
Combines Investigation Act, of documents held by the Cham-
bre des notaires. The documents consisted of reports of the
Professional Inspection Committee of the Chambre des
notaires, prepared during investigations of the records of
Quebec notaries; records of their Committee on Discipline
dealing with complaints brought against notaries; and docu
ments of their Syndic made during inquiries of notaries for
offences under the Professional Code and the Notaries Act.
The applicant maintained that the documents were privileged
under the requirement for confidentiality between professional
legal advisors and their clients and that between notaries and
the professional Order to which they belong.
Held, the motion is dismissed. The common law principles
governing confidentiality of documents in possession of a
lawyer are not directly applicable to Quebec notaries. There are
provisions in the Notaries Act and the Professional Code for
maintaining professional secrecy. However, the Combines
Investigation Act is criminal legislation, and provincial statutes
cannot govern the admissibility of evidence during a criminal
prosecution. In criminal law, the common law recognizes com
munications as privileged if they concern a legal matter, are
made confidentially and are not made for an unlawful purpose.
Thus, private, confidential documents deposited in the notaries'
records in good faith are privileged. However, documents pre
pared by the Committees and the Syndic are not privileged
unless they include reproductions of confidential documents,
and must be given to the Restricted Trade Practices
Commission.
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Regina v. Hoffmann-La Roche Ltd. (Nos. 1 and 2)
(1981), 33 O.R. (2d) 694 (C.A.); Solosky v. Her Majesty
The Queen, [1980] 1 S.C.R. 821; In re Shell Canada
Ltd., [1975] F.C. 184 (C.A.); Shellard v. Harris (1833),
5 Car. & P. 592; 172 E.R. 1113 (K.B.); Centre com-
munautaire juridique de Montréal et autre c. Mierzwin-
ski (juge), [1978] C.S. 792, affirmed by the Court of
Appeal in a judgment that has not yet been reported
(500-10-000 260-784).
COUNSEL:
François Aquin for applicant.
Bruno Pateras, Q. C., for respondent Director
of Investigation and Research.
SOLICITORS:
Geoffrion, Prud'homme, Montreal, for appli
cant.
Deputy Attorney General of Canada for
respondents.
The following is the English version of the
reasons for order rendered by
Dust J.: This is a motion to quash the author
ization, the certificate and any seizure of docu
ments under the Combines Investigation Act' on
the ground that the said documents are confiden
tial.
The authorization in question was issued by the
Director of Investigation and Research, under sec
tion 10 of the above-mentioned Act, in connection
with an inquiry held in respect of sections 32 and
38, concerning the provision of notarial services
and related products. It authorized three govern
ment employees to enter the premises of the appli
cant, the Chambre des notaires du Québec, * in
Montreal, where there might be evidence relating
to the subject of the inquiry, and to examine any
documents found there and copy or remove them.
This authorization, dated January 7, 1982, was
accompanied by the certificate of a member of the
respondent, the Restrictive Trade Practices Com
mission, dated January 8, 1982. The documents
seized are at present sealed and in the Board's
custody.
' R.S.C. 1970, c. C-23.
* Often referred to as the "Board" hereinafter—Tr.
The documents may be divided into three
categories.
The first category consists of the reports of the
Board's Professional Inspection Committee,
reports prepared during and following inspections
of the records of Quebec notaries. This Commit
tee, whose function is to "supervise the practice of
the profession by the members of the corporation",
was established in 1973 pursuant to the Profes
sional Code. 2 It keeps an up-to-date professional
file on each of the some 2,500 notaries in the
Province. The Committee's inspector has access to
any firm and to any records of a notary, including
all the deeds executed en minute, the repertory of
such deeds and the corresponding index. The
inspection report may disclose and make a finding
of procedural or formal irregularities and even
criminal acts, such as forgery, fraud and misappro
priation of funds, and may even contain the
notary's confession to such acts. These reports may
be accompanied by additional sheets, extracts
from deeds or documents and even full reproduc
tions of certain notarial deeds. The report may also
contain the names of clients or of persons who
were parties to a notarial deed, the names of
persons for whom money is being held in trust and
full reproductions of certain deeds, and even of the
wills of persons still alive. The members of the
Committee take an oath of secrecy under section
111 of the Professional Code. The Committee has
the privileges set out in section 114, the powers set
out in section 192 and the immunities conferred by
sections 193, 194, 195 and 196 of the above-men
tioned Code.
The second category of documents belongs to
the Board's Committee on Discipline, which deals
with any complaints brought against notaries. The
Committee has the legal authority to subpoena
witnesses and require production of any docu
ments, and has all the powers of the Superior
Court to compel witnesses to appear. The records
of this Committee contain information, often not
yet proved, that could behighly prejudicial to the
reputation of the notaries concerned. They could
even contain an actual confession by a notary that
he had committed offences of a criminal nature.
2 R.S.Q. 1977, c. C-26.
The Committee's records also contain the testimo
ny of notaries or other witnesses heard at discipli
nary hearings. Like the Professional Inspection
Committee, the Committee on Discipline enjoys
the powers and immunities provided for in the
above-mentioned Code.
The third category of documents includes infor
mation received by the Board's Syndic, who makes
inquiries of a notary against whom an information
has been laid in connection with an offence under
the Professional Code, the Notaries Act 3 or the
Regulations under these two Acts. This informa
tion may come from the public, members of the
Order or the Professional Inspection Committee
mentioned above. During his investigation the
Syndic may require that the notary give him any
information and documents respecting the inquiry.
The Syndic and the assistant syndics enjoy the
privileges provided for in section 114, the powers
provided for in section 192, and the immunities
conferred by sections 193 to 196 of the Profes
sional Code. Their records contain information,
not yet proved, that could be highly prejudicial to
the reputation of the notaries concerned, and even
confessions by them to criminal offences.
The Board maintained that these documents
were confidential in two respects. First, it relied on
the legal obligation of every notary and his repre
sentatives, agents and professional corporation to
respect the right to confidentiality of his clients
and the parties to any deeds executed. Second, it
relied on the principle of the privileged communi
cations that must exist between notaries and the
professional Order to which they belong in matters
of discipline and professional inspection.
In Canada the profession of notary exists only in
Quebec. The common law principles governing the
confidentiality of documents in the possession of a
lawyer are, therefore, not directly applicable to
Quebec notaries. There is no doubt, however, that
a notary's obligation to maintain professional
3 R.S.Q. 1977, c. N-2.
secrecy exists in Quebec just as in France. 4 As we
know, the role of a notary is different from that of
a lawyer. He may act as a private adviser, or be
neutral between two parties. He is not called upon
to defend his clients' interests in court. However,
he often plays the role of a family adviser. In
principle he is obliged not to disclose any confi
dences he receives and the notarial deeds he pre
pares. However, he is not bound to keep confiden
tial public deeds that are to be registered and will
become a matter of public knowledge. In the case
of private deeds a notary must maintain the strict
est discretion.
The role and confidentiality obligations of a
notary are set out in certain provisions of the
Notaries Act. In section 1 "records of a notary"
are defined as all the deeds executed en minute by
a notary, the repertory of such deeds and the
index. The "files relating to a notary's records" are
the documents and title deeds which the holder of
a notary's records has in his keeping for another.
Section 5 provides that the records of a notary
shall not be liable to seizure. Section 15 sets out
the principal duties of a notary, and provides in the
first paragraph that he shall not "divulge confiden
tial knowledge acquired by him in the practice of
his profession". Sections 19 and 20 provide that a
notary must keep in a proper state a repertory of
all deeds executed by him and an index to the
repertory.
These preliminary remarks as well as the above-
mentioned provisions of the Notaries Act indicate
the degree of confidentiality that must be main
tained in the relations between a notary and his
client.
At a second level, the Professional Code estab
lishes the degree of confidentiality between a
notary and the Board. Section 109 provides for the
establishment of the Professional Inspection Com
mittee mentioned above, whose functions are set
out in section 112. Section 111 provides that each
investigator shall take the oath contained in
Schedule II "... that I will not reveal or make
known, without being authorized therefor by law,
^ Jean-Louis Baudouin, Secret professionnel et droit au
secret dans le droit de la preuve, Paris, Librairie générale de
droit et de jurisprudence, 1965, and A. Perraud-Charmantier,
Le secret professionnel, Paris, Librairie générale de droit et de
jurisprudence, I926.
anything whatsoever of which I have taken cogni
zance in the performance of my duties". Section
192 allows a syndic, a professional inspection com
mittee or a committee on discipline to take cogni
zance of a record kept by a professional and to
require the delivery of any document respecting an
inquiry. These investigators are protected by the
immunity provided for in section 193 and cannot
be prosecuted for acts done in good faith in the
performance of their duties. Section 149 provides
that the evidence given by a notary at an inquiry is
privileged and that every person conversant with
such evidence shall be personally bound to secrecy.
Section 194, finally, prohibits any extraordinary
recourse and any injunction against the investiga
tors.
However, we are dealing here with a seizure
under the provisions of federal criminal
legislation, 5 the Combines Investigation Act. Sec
tion 7 of the Canadian Criminal Code, R.S.C.
1970, c. C-34, establishes the supremacy of the
common law in this respect.
It is true that section 37 of the Canada Evidence
Act 6 provides that in all proceedings over which
the Parliament of Canada has legislative authority,
the laws of evidence in force in the province apply,
subject to this and other Acts of the Parliament of
Canada. This section does not make it possible to
interpret a provincial statute as governing the
admissibility of evidence during a criminal pros
ecution, however, [TRANSLATION] "It is to
common law principles that we must look in
assessing the extent and scope of solicitor-client
privilege".'
Dickson J. discussed solicitor-client privilege in
a recent decision of the Supreme Court of Canada,
Solosky v. Her Majesty The Queen. $ He empha
sized that there are exceptions to the privilege, and
stated the following [at page 837]:
See Regina v. Hoffmann-La Roche Ltd. (Nos. 1 and 2)
(1981), 33 O.R. (2d) 694 (C.A.) at p. 736.
6 R.S.C. 1970, c. E-10.
7 See Centre communautaire juridique de Montréal et autre
c. Mierzwinski (juge), [1978] C.S. 792, affirmed by the Court
of Appeal in a judgment that has not yet been reported
(500-10-000 260-784).
8 [1980] 1 S.C.R. 821.
As Mr. Justice Addy notes, privilege can only be claimed
document by document, with each document being required to
meet the criteria for the privilege—(i) a communication be
tween solicitor and client; (ii) which entails the seeking or
giving of legal advice; and (iii) which is intended to be confi
dential by the parties.
In this regard I shall take the liberty of adopting
the conclusion of Alain Cardinal in his article "Les
communications privilégiées avocat -client" in The
Canadian Bar Review of March 1981 [Vol. 59, p.
652]:
[TRANSLATION] We hope that the reader will recall that
there is no right to a lawyer's "professional secrecy" in Quebec
or Canadian law, but merely a "privilege" subject to judicial
assessment.
The common law thus recognizes the confiden
tiality of certain documents entered into between a
client and his lawyer, but this confidentiality does
not extend to all documents. In criminal law the
common law recognizes as privileged oral, docu
mentary or gesticulated communications between
a client and his professional legal adviser acting
within his instructions provided that the said com
munications (a) concern a legal matter and are
relevant thereto; (b) are made confidentially, and
(c) are not made for an unlawful purpose. 9
A decision of the Federal Court of Appeal, In re
Shell Canada Ltd.,'° establishes clearly that even
though fact-finding powers in the widest terms are
conferred on the Director under sections 5 et seq.
of the Combines Investigation Act, section 10 of
the Act nevertheless reveals no intention of under
mining the solicitor-client relationship of confiden
tiality as to bona fide communications that made
necessary the solicitor-client privilege in connec
tion with the giving of evidence in the courts. The
privilege applies to the communications between
the respondent company and its salaried lawyers,
as it would in the case of communications between
the respondent and general practitioners of law.
Should Quebec notaries be regarded as profes
sional legal advisers? The author of the above-cit
ed Droit pénal canadien asks himself this question.
There is no doubt that in civil matters [TRANSLA-
TION] "the notaries' code, referring to article 332
9 See I. Lagarde, Droit pénal canadien (2nd ed. 1974), Vol.
III, pp. 2649 et seq.
1 ° [ 1975] F.C. 184 (C.A.).
of the Code of Civil Procedure, recognizes the
existence of a confidentiality requirement on the
part of notaries. Does the same apply in criminal
matters?". " By analogy with the role of the solici
tor in common law, it seems that a request to have
a deed transferring title to real property prepared
is a professional consultation. 12
In my view, where consultations and documents
between a client and his notary meet the same
criteria as govern the confidentiality of documents
between a client and his lawyer, such consultations
and documents must be privileged. We are not
dealing here of course with public notarial deeds or
documents to be registered in public registries, but
with private, confidential documents deposited in
the notary's records in good faith.
The same is not true, however, of the reports,
records and other documents prepared by the
Professional Inspection Committee, the Commit
tee on Discipline or the Syndic of the Board, unless
the said documents include photocopies or repro
ductions of confidential documents prepared by
the notary for his client. Neither the Professional
Code nor the Notaries Act can determine or limit
the admissibility of evidence in a criminal court.
It should be emphasized that this inquiry con
ducted by the Restrictive Trade Practices Com
mission respecting the provision of notarial ser
vices and related products is concerned with the
notaries' tariff, that is, the fees notaries charge
their clients. The Commission is not interested in
the content of confidential documents, whether
wills, deeds of sale or other notarial deeds. It
wishes to determine under sections 32 and 38 of
the Combines Investigation Act whether there was
a combination or price fixing with respect to the
notaries' tariff on the part of the Board and local
associations of notaries in the Province. For pur
poses of its inquiry the Commission must ascertain
the various rates charged; presumably the best
place to obtain this information is from the Cham-
bre des notaires du Québec.
" See Lagarde supra, at p. 2650.
12 Parke J. in Shellard v. Harris (1833), 5 Car. & P. 592;
172 E.R. 1113 (K.B.).
In other words, private notarial deeds and other
confidential documents entered into between
notaries and their clients are privileged and must
remain in the custody of the Chambre des
notaires. However, the other documents prepared
by the two Committees and the. Syndic for the
Board's purposes are not privileged and must be
given to the Commission. A list of all these docu
ments, which would no doubt be a very long one,
was not filed with the Court. The originating
notice of motion gives a general description of
eight different groups of documents, however. My
general conclusion is that all the reports,
exchanges of correspondence, disciplinary records,
directives and communications between the Board
and its two Committees and the Syndic are not
privileged. If certain confidential documents pre
pared by the notaries for their clients are attached
to these reports, they must remain in the Board's
office.
It is quite likely that these general directions
will not be sufficient to resolve the issue of confi
dentiality with respect to all the documents.
Accordingly, if the Chambre des notaires wishes to
be exempted from filing certain documents it
claims are confidential and privileged, it must
apply, for such an exemption by means of a motion,
accompanied by a list and description of the docu
ments in question, and set out in an affidavit the
specific grounds on which it is relying in support of
its application for an exemption.
We shall, accordingly, not order that the author
ization, certificate or seizure be quashed as
requested in this motion. In this sense the motion
is dismissed, but without costs.
ORDER
The motion is dismissed without costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.