Executive Summary: Key Legal and Evidentiary Issues

• Gazeauair sought disclosure of undertaking E-11, requiring Groupe Geyser to produce communications with the Ville de Laval concerning customs tariffs on vents and louvers.
   
• Groupe Geyser resisted disclosure on the basis that the communications were protected by settlement privilege.
   
• Evidence reviewed by the Court showed the correspondence was a one-sided request refused by the Ville de Laval, not a negotiation.
   
• Settlement privilege, even if applicable, would only affect admissibility at trial rather than bar disclosure at this stage.
   
• Gazeauair's allegation of bad faith against Groupe Geyser provided an additional basis to set aside any claim of privilege.
   
• Underlying the dispute is a $43,617.01 payment Groupe Geyser made under protest for tariffs it seeks to recover from Gazeauair.
   

Facts of the case

Groupe Geyser inc., a general contractor, engaged Gazeauair inc. as a subcontractor on a construction project for a building owned by the Ville de Laval. Gazeauair was to supply vents and louvers manufactured in the United States, which became subject to customs tariffs following disruptions in international trade with that country. A dispute arose between the parties over which of them should bear these tariffs. Groupe Geyser paid, under protest, the tariff amount invoiced by Gazeauair and sought reimbursement of $43,617.01. During the examination of Groupe Geyser's representative, Alexandre Lauzon, on March 10, 2026, an undertaking (E-11) was given to provide communications with the Ville de Laval specifically addressing the customs tariff question. Groupe Geyser subsequently refused to honour this undertaking, prompting Gazeauair to bring a case management notice asking the Court to order disclosure.

Policy and legislative provisions at issue

Groupe Geyser's refusal rested on settlement privilege, arguing that the communications with the Ville de Laval constituted settlement discussions meeting the criteria established in the case law. It relied on a 2023 mediation agreement with the Ville de Laval, dated 2023, to establish a context of negotiation. Gazeauair countered that settlement privilege only governs admissibility of evidence at trial and does not prevent disclosure at the pre-trial stage, and further argued that the privilege does not apply where documents are sought to establish a party's fraudulent conduct — an exception it invoked based on its defence alleging bad faith by Groupe Geyser.

Reasoning and analysis

The Court examined the disputed documents confidentially and found they did not constitute a negotiation. The correspondence, exchanged between September 29 and October 6, 2025, showed a request by Groupe Geyser that the Ville de Laval refused, with no evidence of mutual concessions or attempts to reach common ground. The Court noted that the 2023 mediation agreement predated the tariff dispute and was unlikely to relate to it, a conclusion reinforced by a May 23, 2025 letter from Groupe Geyser acknowledging a 25% customs tariff imposed by the Canadian government. Even assuming the documents were negotiation-related, the Court held that settlement privilege operates as a rule of evidence affecting admissibility at trial, not a bar to disclosure of information beforehand. Finally, the Court found that Gazeauair's allegation that Groupe Geyser acted in bad faith by misleading it as to who would bear the tariffs — without ruling on the merits of that allegation — favoured setting aside any privilege in the interest of the search for truth.

Ruling and overall outcome

The Court partially granted Gazeauair's case management notice, ordering Groupe Geyser to disclose undertaking E-11 within ten days, specifically all communications with the Ville de Laval addressing the customs tariff question on the vents and louvers. Groupe Geyser, or its counsel, was ordered to retrieve the sealed documents from the Court registry within thirty days. The Court dismissed the other requests in Gazeauair's case management notice. In its case management capacity, the Court amended a prior order of Judge Jean-François Mallette, set a September 25, 2026 deadline for the defendant to produce additional exhibits or pleadings, and maintained the trial dates of January 11 to 13, 2027. No costs were awarded.