Executive Summary: Key Legal and Evidentiary Issues

• Allegations of client poaching and illegal appropriation of trade secrets by former physicians of the applicant clinics.

• Dispute over the admissibility of evidence obtained from a former physician’s personal Gmail and Google Drive accounts.

• Claims of violation of privacy rights and solicitor-client privilege in the collection and use of electronic documents.

• Procedural objections raised regarding the scope of pre-trial examinations and document disclosure.

• Application for leave to appeal an interlocutory judgment limiting access to potentially privileged or confidential documents.

• The court’s assessment of whether the applicants suffered irreparable harm justifying appellate intervention.

Facts and outcome of the case

Background and parties

Groupe Médical Lacroix Inc. and Clinique Médicale Lacroix Inc. filed proceedings against Dermago Inc., Gestion HTLC Inc., Marc-André Doré M.D. Inc., Marc-André Doré, and Émilie Bourgeault. The applicants alleged that Dr. Bourgeault and Dr. Doré, both former physicians at their clinic, engaged in practices of client poaching and illegal appropriation of trade secrets belonging to the applicants. The applicants filed an originating application in abuse of rights, claiming several million dollars from the respondents. The applicants relied in part on documents accessed from Dr. Bourgeault’s personal Gmail and Google Drive accounts, which were left accessible after her departure from the clinic.

Procedural developments and evidentiary disputes

Dr. Bourgeault filed a motion for seizure before judgment of documents extracted by the applicants from her personal Gmail and Google Drive accounts, based on the protection of her privacy, property rights, and solicitor-client privilege. The court granted this seizure before judgment, and the applicants filed an opposition. The respondents also filed a motion to have the main action declared abusive and dismissed, particularly based on the allegedly unauthorized access to Dr. Bourgeault’s personal accounts by the applicants.

A case management conference was held, and the court permitted limited questioning of Dr. Bourgeault regarding the facts supporting the seizure before judgment, and of Dr. Bourgeault and Dr. Doré regarding the motion to declare the action abusive and for dismissal. The respondents objected to questions and requests for undertakings about the materials found on Dr. Bourgeault’s workstation, and the court upheld these objections. The court noted that allowing the applicants to obtain answers or undertakings regarding these materials could allow them to obtain indirectly what they could not obtain directly if the documents were found to have been obtained in violation of privacy or privilege.

Application for leave to appeal and court’s decision

The applicants sought leave to appeal the interlocutory judgment that upheld the objections and limited their access to the disputed documents and information. They argued that the court failed to rule on the admissibility of the evidence under article 2858 of the Civil Code of Québec and that the judgment prejudiced their ability to pursue their claims.

The court denied leave to appeal, finding that the interlocutory judgment did not decide part of the main dispute nor cause irreparable harm to the applicants. The court stated that the limitations imposed were to prevent premature access to potentially privileged or confidential documents, and that the issue of admissibility would be addressed at a later stage based on complete evidence and arguments. The court concluded that the applicants did not suffer irreparable prejudice and dismissed the application for leave to appeal, with costs awarded to the respondents.