Quebec Court Of Appeal Clarifies When Professional Secrecy Can Be Lifted In Norwich Orders

Checkbook Inc. v. 9202-0247 Québec Inc. (Seabell Capital Holding), 2025 QCCA 908

On July 18, 2025, the Court of Appeal of Quebec (the "Court") issued its decision in Checkbook Inc., marking a significant victory for Gowling WLG.

In this case, the Court, through the Honourable Mark Schrager, J.C. A., rendered a landmark decision in the context of a Norwich order, on the lifting of the privilege of professional secrecy. The Court thus confirmed Gowling WLG's position that a court hearing an application for Norwich disclosure orders has jurisdiction to decide ex parte issues related to professional secrecy, particularly when the crime exception is raised.

The facts

The appellant, represented by Charles Daviault, Mathieu Papineau, and Ludovic Obregon-Marchand of Gowling WLG, alleges that it is a fraud victim for an amount over $2 million perpetrated by the respondents. The Superior Court had partially dismissed the application for the issuance of Norwich orders seeking the disclosure of information and documents about the origin and destination of funds that had transited through notaries' trust account. The Superior Court considered that in the absence of the alleged fraudsters, who were the beneficiaries of the professional secrecy, it could not order the lifting of that secrecy.

The appellant therefore appealed this decision and sought to have the Court recognize that civil courts have jurisdiction to rule ex parte on professional secrecy matters.

The decision

In its analysis, the Court first highlighted the origin and purpose of the Norwich order. This common law interlocutory remedyaims to compel the disclosure of information, such as the source and destination of funds, for the general purposes of identifying the alleged perpetrator of a wrongdoing or tracing their assets. This type of request is usually made ex parte, i.e., without the person concerned being notified of the proceedings, so as to avoid alerting them and to prevent them from dissipating the assets. In this sense, such a hearing is an exception to the right to be heard (also known as audi alteram partem).

The Court of Appeal concluded that trial courts have the necessary and inherent jurisdiction to decide on matters pertaining to professional secrecy, even in the absence of the beneficiary of this privilege and of the professional bound by that privilege, as is already the case in criminal law, particularly for the issuance of search warrants. Furthermore, the purposes of the Norwich order are better served when the above-mentioned conditions exist. On these grounds, the Court concluded that the refusal to grant the orders sought by Checkbook at first instance constituted a legal error.

In establishing guidelines for trial courts, the Court went on to emphasize that when hearing this type of case, a judge must review the documents and information covered by the order being sought in order to determine whether they are protected by secrecy. Refusal to do so is also likely to constitute a legal error.

The application of the crime exception to the principle of professional secrecy is also maintained by the Court in this case. The Court reiterated that to justify the lifting of professional secrecy, the crime exception must be based on prima facie evidence of fraud. More specifically, the burden of proof is that which "would lead a reasonable person, on the balance of probabilities, to conclude that a fraudulent act or crime has been committed by the client, and that the established professional relationship is being used to facilitate, encourage, or prepare the commission of that crime [translation]."

In this case, the proceeds of the alleged fraud against the appellant had been deposited in trust through notaries, whose professional relationship had been misused to achieve the alleged unlawful objective. In the Court's opinion, this finding in itself is sufficient to conclude that the crime exception applies, especially since the trial judge had recognized the prima facie evidence of fraud to justify the orders against the financial institution, but had not granted any such orders against the notaries.

Key takeaways

In short, this decision is significant in Quebec law because:

• It constitutes one of the few Norwich-order-related decisions rendered by an appellate court. The Court notably stated that the issue raised by the appeal is of great interest and importance.
• The Court ruled that civil courts may decide professional secrecy matters ex parte.
• The Court provided guidance for deciding matters pertaining to the lifting of professional secrecy under the crime exception in Norwich applications.
• Given that financial crimes and fraud are becoming increasingly common and that alleged fraudsters are using sophisticated tactics to achieve their ends, the Court of Appeal established that the institution of professional secrecy must not become a practical tool for fraudsters, but that it remains important to protect professional secrecy in our justice system.

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