Executive Summary: Key Legal and Evidentiary Issues

• Defendants sought dismissal of Lacroix's action after discovering that Lacroix's IT manager had repeatedly accessed Bourgeault's personal Gmail and Google Drive accounts without authorization.
   
• Evidence showed the searches, conducted on Lacroix's instructions across multiple dates between October 2023 and April 2024, captured privileged communications between the Defendants and their lawyers.
   
• Applying the three-stage test from Celanese and Sprott, the court found Lacroix failed to rebut the presumption of prejudice arising from its access to privileged material.
   
• Lacroix's sworn declarations were incomplete, omitting key details about the scope and duration of the searches and the individuals who reviewed the extracted documents.
   
• Involvement of Lacroix's own in-house counsel in sorting the privileged documents did not cure the breach, since that lawyer owed a competing duty of loyalty to Lacroix.
   
• Given the deliberate and repeated nature of the intrusions, the court concluded that dismissal of the action was the only adequate remedy available.

Facts of the case

Clinique médicale Lacroix ("Lacroix") operates private healthcare clinics in family and specialized medicine. Doré and Bourgeault, both dermatologists, had provided services to Lacroix under service agreements beginning in 2018 and 2020 respectively. Both terminated their agreements in 2023 and, through their company Dermago inc., opened a competing dermatology clinic in September 2023. Lacroix subsequently sued Doré, Bourgeault, Dermago, and related parties for over $9.9 million, alleging breach of contract, disloyalty, unfair competition, and diversion of clientele.

Believing the Defendants had taken confidential materials when they left, Lacroix directed its IT manager, Christian Dubé, to search company computers for keyword-flagged documents. While doing so, Dubé discovered that Bourgeault's personal Gmail username and password had been saved on a former colleague's workstation. On instructions from Lacroix's in-house counsel, Dubé used those credentials to search Bourgeault's personal Gmail and Google Drive directly — first over three days in October 2023, then again in December 2023 and January 2024, and finally in an unsuccessful attempt in April 2024 after Bourgeault changed her password. He copied thousands of documents onto a USB key and distributed them to Lacroix's president, vice-president, in-house counsel, and external law firm. Lacroix's originating application was filed in November 2023, after the first round of searches, and Dubé returned to search the accounts three further times after the action was already underway.

Once Bourgeault discovered the intrusion through documents received mid-2024, she sought and obtained an order for seizure before judgment, which led to Lacroix delivering the USB key to the Defendants' lawyers in September 2024. The Defendants then brought a motion to dismiss Lacroix's action, alleging the searches violated their rights to privacy and solicitor-client privilege.

Policy and legislative provisions at issue

The case turned on the interaction between several Quebec statutory protections. Section 9 of the Quebec Charter of Human Rights and Freedoms guarantees the right to professional secrecy and requires courts to safeguard it on their own initiative. Article 2858 of the Civil Code of Québec requires courts to reject evidence obtained in violation of fundamental rights, with an even stricter standard applying where solicitor-client privilege is at stake. Article 51 of the Code of Civil Procedure allows courts to declare a proceeding abusive where a party's conduct is vexatious, and articles 53 and 54 empower courts to dismiss such proceedings and award damages, including punitive damages. Section 49 of the Charter separately authorizes punitive damages for unlawful and intentional violations of Charter rights.

Lacroix argued that none of these provisions authorizes dismissal of an action as a remedy for a privacy or privilege breach, and that the proper remedy — exclusion of specific evidence under article 2858 — was inapplicable because no privileged material had actually been filed in support of its claim.

Reasoning and analysis

The court adopted a three-stage framework drawn from the Supreme Court of Canada's decisions in Celanese Canada Inc. v. Murray Demolition Corp. and MacDonald Estate v. Martin, as applied by the Ontario Court of Appeal in Continental Currency Exchange Canada Inc. v. Sprott. First, the party alleging the breach must show the opposing party accessed privileged material. Second, once access is shown, a presumption of prejudice arises, which the accessing party must rebut with clear and convincing evidence — either that it never reviewed the documents, reviewed only non-privileged material, or that what it reviewed could not cause prejudice. Third, if the presumption is not rebutted, the court must determine the appropriate remedy, weighing factors such as how the documents were obtained, what was done upon discovering their privileged nature, the extent of review, the content's sensitivity, the litigation stage, and whether any protective measure could still cure the harm.

At the first stage, the court found clear evidence that Lacroix's representatives repeatedly accessed and reviewed emails and files containing legal strategy, opinions, client narratives, and detailed fee statements exchanged between the Defendants and their counsel.

At the second stage, the court found Lacroix's rebuttal evidence deficient. Dubé's sworn declaration omitted that he had spent three separate days searching the accounts, transmitted the full results to Lacroix's leadership and outside counsel, and returned to search the accounts three further times after litigation had begun — the last of these unsuccessful only because Bourgeault had by then changed her password. Vachon, Lacroix's director of legal affairs, admitted under oath to personally reviewing the material and screening out privileged emails — an act the court found could only be performed after reading the privileged content itself. The court rejected Lacroix's argument that Vachon's involvement as an in-house lawyer safeguarded privilege, noting the inherent conflict between his duty to Lacroix and any obligation to protect the Defendants' confidences. No sworn declarations were obtained from several individuals who had reviewed the material, including Lacroix's former in-house counsel, its president, or its former external law firm, leaving the extent and use of the acquired knowledge unexplained. The court also noted Lemieux's testimony that the repeated searches were undertaken specifically to find evidence to support Lacroix's litigation position.

At the third stage, the court found dismissal was the only adequate remedy. It emphasized that the intrusion was deliberate rather than accidental, that Lacroix had lawful alternatives available (such as an Anton Piller order or ordinary discovery procedures) but chose not to use them, that the privileged information had been shared widely among Lacroix's key decision-makers who remained active in directing the litigation, and that Lacroix possessed the material for close to a year without voluntary disclosure. The court concluded that no protective measure could now isolate the tainted knowledge from the ongoing proceeding, and that allowing the action to continue would perpetuate an unfair imbalance between the parties.

Ruling and overall outcome

The court granted the Defendants' motion, declaring that Lacroix's conduct was vexatious and constituted an abuse of the right to sue, and dismissed Lacroix's originating application in its entirety as against Dermago inc., Gestion HTLC inc., Marc-André Doré M.D. inc., Marc-André Doré, and Émilie Bourgeault. Lacroix was ordered to destroy all copies of the documents extracted from Bourgeault's personal accounts within thirty days and to confirm that destruction under oath. The court awarded the Defendants $150,000 in punitive damages under article 54 of the Code of Civil Procedure and section 49 of the Charter, and a further $150,000 in compensatory damages to cover legal fees and expenses incurred as a result of Lacroix's conduct, both amounts bearing legal interest and the additional indemnity under the Civil Code of Québec from the date of judgment. Lacroix's separate application alleging that the Defendants' own conduct was abusive was dismissed, and costs were awarded in favour of the Defendants.