Commission d'accès à l'information asks for evidence that disclosure could affect apprehended legal proceedings

In Sigouin v. Promutuel Assurance Boréale (2025 QCCAI 3), the Commission d'accès à l'information ("CAI") analyzed a disagreement submitted under section 42 of the Act respecting the protection of personal information in the private sector, CQLR, c. P-39.1 (the "Act") over the right of access to certain information contained in an insurance claim file. 

More specifically, the request relates to communication of exchanges between the claims adjuster, the appraiser, and the contractor, including quotes and emails relating to the reconstruction of the plaintiffs' residence. Being in the context of an insurance case, the CAI follows recent case law and interprets the concept of "personal information" broadly enough to include information that relates to property and a person. 

The CAI also refuses to apply section 39 of the Act, which would allow the insurer to object to disclose the information on the basis that such disclosure could reasonably be expected to have an effect on an apprehended legal proceeding on the grounds that section 39 is an exception to the right of access and the insurer had not provided sufficient evidence to justify its application. Because the requested documents were created as part of the normal claim process and not specifically in view of a litigation, the CAI also concludes that they are not protected by litigation privilege pursuant to Blank v. Canada (Minister of Justice), 2006 SCC 39. The CAI also rejects the insurer's argument that certain documents should be protected as business secrets. 

In brief 

When invoking the exception to the right of access in section 39 of the Act, a company cannot simply rely on alleging the exception but must prove that disclosure would be likely to have an effect on an anticipated legal proceeding. This could potentially include providing specific examples of potential harm, providing internal communications demonstrating that the documents in question were prepared in anticipation of litigation, or providing a legal opinion as to why the disclosure of the documents could compromise the defense or litigation strategy in future legal proceedings.

The Quebec Court of Appeal decides a dispute on the basis of an "Entire Agreement" clause

At the end of 2024, the Court of Appeal rendered its decision in Groupe Inco inc. / Inco Group Inc. v. Groupe VSLG inc.  (2024 QCCA 1436).

This case concerns a trade dispute over the supply and sale of masks and medical equipment during the COVID-19 pandemic.

After an initial confidentiality agreement, INCO and VSLG signed, in April 2020, a supply contract under which INCO became the exclusive supplier of VSLG for two types of N95 masks. Various obligations are provided for in the contract to ensure that VSLG respects the business relationships developed by INCO with its co-contractors, including a non-solicitation clause with a penalty of US$5,000,000.

Subsequently, in June 2020, INCO and VSLG signed a partnership contract for the sale of various medical products, sharing the profits at 50% and INCO gave VSLG an extended authorization to communicate with its co-contractors to facilitate transactions.

A few months later, INCO accused VSLG of violating the non-solicitation clause of the supply contract by dealing directly with some of its co-contractors and requested payment of the US$5,000,000 penalty provided for in this supply contract.  After being rejected at first instance, INCO appealed to the Quebec Court of Appeal.

The Court of Appeal notes that the transactions at the root of the claim occurred under the partnership contract while the provisions upon which INCO bases its recourse are found in the supply contract. However, the partnership contract contains the following “entire agreement” clause:

"This Agreement and any other contracts, agreements, understandings and schedules referred to herein shall constitute the final, complete and exclusive expression of the terms of the contract between the Parties with respect to the subject matter of this Agreement. This Agreement supersedes any current or prior agreements, understandings, and schedules not expressly referred to in this Agreement. Neither party has entered into this Agreement in reliance on any other contract, agreement, understanding, promise, undertaking, or warranty other than those explicitly incorporated as described in this Agreement. This Agreement shall be governed by the laws of Quebec. »

On the basis of this provision, the Court of Appeal concluded that the non-solicitation clause and penalty found in the supply contract could not apply to the activities under the partnership contract and dismissed INCO's appeal.

Reminder

When entering into several agreements with the same contracting party, pay particular attention to the “entire agreement” clause and make sure that each contract contains all the necessary clauses.

Can an emoji be legally recognized as a signature?

In 2024, the Saskatchewan Court of Appeal (“SKCA”) recognized in Achter Land & Cattle Ltd. v. South West Terminal Ltd., 2024 SKCA 115 that a text message with a thumbs-up emoji was a valid signature based on the particular facts of the case, particularly because the parties had a history of informal contracts by text message. The SKCA expressly cautioned that this decision does not mean that every text message constitutes a signature: context matters.

Impact

Although electronic contracts can make the signing process more efficient, parties must protect themselves to avoid being unintentionally bound or relying on uncertain contracts because they are signed using processes that do not comply with relevant electronic document legislation.

Some examples of good practices to implement:

• adopt an internal contract policy that sets out who within your organization has the authority to enter into binding contracts, under what circumstances, the rules for negotiation and prior approval, if any, and impose disciplinary measures on negotiation teams;

• at the start of a negotiation, communicate how you will execute the contract, including in any solicitation of offers, and who has the authority to sign the contract if necessary;

• consistently use a means of signature recognized by the relevant legislation on electronic documents (Most Canadian provinces have adopted laws to ensure that electronic signatures are secure, reliable and legally binding);

• introduce in your contracts a clear clause on recognized signatures aligned with your practices (and follow it) both for the initial contract and for the amendments;

• be clear during the negotiation process that the contracts exchanged are “drafts” for comments and that only the final signed version will have legal force;

• be especially careful in non-binding and pre-contractual documents such as a letter of intent to indicate when the parties will be bound and that they do not intend to be bound until that time.