Executive Summary: Key Legal and Evidentiary Issues

• Desjardins Assurances générales inc. asked a single judge of the Quebec Court of Appeal to withdraw Exhibits P-4 to P-12, Exhibit DAG-30 and two recordings filed with the respondents' appeal brief.
   
• At the root of the appeal is a Superior Court judgment dismissing the insurer's litigation privilege objections raised during the pre-trial examinations of its representatives.
• Only Exhibits P-4 to P-12 were physically in the court record when the objections were debated at first instance.
   
• According to the appellant, the exhibits were not alleged and filed in support of the application to decide the objections and were not put into evidence before the motion judge, so they are not relevant on appeal.
   
• The respondents countered that the exhibits bear on their alternative argument that litigation privilege gives way where the insurer's mishandling of the file and bad faith are at issue, and that the motion judge ruled on their main argument without hearing the parties on that alternative.
   
• Justice Stephen W. Hamilton referred the application to the panel hearing the merits and granted each party 15 additional minutes of hearing time.
   

Facts of the case

Steven Ladouceur and Malina Cailean are the respondents in an appeal brought by Desjardins Assurances générales inc. from Superior Court file 500-17-121198-223. During the pre-trial examinations of Desjardins' representatives, including the examination of Éric Laplace on September 28, 2023, the insurer raised objections based on litigation privilege. Justice Marc St-Pierre of the Superior Court, District of Montreal, dismissed those objections in a judgment dated January 14, 2026. Leave to appeal was granted by a judge of the Court of Appeal in Desjardins Assurances générales inc. c. Ladouceur, 2026 QCCA 330. The decision does not describe the nature of the underlying claim.

With their appeal brief, the respondents filed Exhibits P-4 to P-12, Exhibit DAG-30 and two recordings. Each item came from the first-instance record. Exhibits P-4 to P-12 were alleged in support of the originating application of one respondent [the source refers to "l'intimée" in the feminine singular without naming which respondent], DAG-30 was alleged in support of Desjardins' defence, and the two recordings were sent by Desjardins in response to an undertaking given at the Laplace examination. Of these, only Exhibits P-4 to P-12 were physically in the record when the objections were argued. Desjardins applied to withdraw the exhibits, and Justice Hamilton heard the application on September 17, 2026, with Mtre Léa Barot-Brown appearing for Desjardins and Mtre Sonia Loiselle for the respondents.

Policy and legislative provisions at issue

No insurance policy terms or contractual clauses are discussed. The application was brought under article 379 of the Code of Civil Procedure, which is cited in the minutes' description of the application. The decision does not reproduce or analyze the provision's text. The description refers to correcting an irregularity in the respondents' brief, withdrawing exhibits and striking allegations, while the reasons address only the withdrawal of exhibits. Underlying the dispute is the doctrine of litigation privilege, along with the respondents' proposed exception for cases where an insurer's mishandling of the file and bad faith are in issue.

Reasoning and analysis

Desjardins argued that the exhibits were neither alleged nor filed in support of the application to decide the objections and were not put into evidence before the motion judge, so they could not be relevant on appeal. In response, the respondents pointed to their position at first instance. Primarily, they argued that litigation privilege did not apply; alternatively, they argued that an exception exists where the insurer's mishandling of the file and bad faith are at stake. They submitted that the exhibits were relevant to the alternative argument. They also submitted that if the exhibits were not brought to the motion judge's attention, it was because he decided the main argument without hearing the parties on the alternative one.

Justice Hamilton declined to decide the question himself. In his view, the panel hearing the appeal on the merits would be better placed, after reviewing the full record, to determine whether the application should be granted in whole or in part, citing Droit de la famille — 251058, 2025 QCCA 911. Recognizing that this approach risked complicating the debate on appeal, he allotted each side extra hearing time.

Ruling and overall outcome

In a judgment rendered on the minutes of the September 17, 2026 hearing, Justice Hamilton referred Desjardins' application to the panel that will hear the merits of the appeal. He also granted each party 15 additional minutes of hearing time. Neither side prevailed, since the withdrawal request was left undecided rather than granted or dismissed. No damages, costs or other monetary amount were ordered, so no award can be identified from the decision.