The right to professional secrecy is fundamental. Sometimes called professional privilege, it is enshrined in article 9 of the Quebec Charter of Human Rights and Freedoms and reads as follows: “Every person has a right to non-disclosure of confidential information. No person bound to professional secrecy by law and no priest or other minister of religion may, even in judicial proceedings, disclose confidential information revealed to him by reason of his position or profession, unless he is authorized to do so by the person who confided such information to him or by an express provision of law. The tribunal must, ex officio, ensure that professional secrecy is respected.”

As a fundamental right enshrined in the Charter of Human Rights and Freedoms, the right to professional secrecy automatically applies when you consult a member of one of Quebec’s 45 professional orders. The province’s Professional Code dictates that every professional must respect the secrecy of all confidential information that she learns in the exercise of her profession. She can only be released from this obligation with her client’s authorization or where so ordered by law.

It is clear, then, that professionals are strictly bound to maintain secrecy in Quebec. You benefit completely from this right when you consult a professional belonging to one of the province’s 45 orders.

However, the situation is not as clear for professionals who are not governed by the Professional Code. For example, a banker cannot invoke professional secrecy to avoid answering questions in the context of legal proceedings against his client. If he testified in court, he would have to disclose information such as the amount of money held by his client in a given bank account or mutual fund.

In order for information to be covered by professional secrecy, it must be confidential in nature. As well, it must have been provided in the context of a service relationship between the professional and her client. The information may be communicated orally or in writing. The opinions or advice (written or oral) provided by the professional are also protected by professional secrecy.

In some cases, even your identity may be protected by professional secrecy if you give precise instructions to this end and you have legitimate reasons for seeking this protection.

While professional secrecy applies to all professionals, the obligation is even broader in the case of lawyers. The law provides that all facts revealed by a client to his lawyer are protected by professional secrecy, not just those of a confidential nature. In one case, a court decided that a person could refuse to reveal the date he first consulted his lawyer, as even this information is protected by professional secrecy.

The right to professional secrecy promotes a climate of confidence between you and the professional. In fact, you can disclose information you would not feel comfortable divulging to other people, even your best friends.

The right to professional secrecy is particularly reassuring in the context of a relationship with a legal professional (lawyer, notary), a medical professional (doctor, psychologist, nurse), or a professional who has access to your financial assets (accountant). These people often have access to very intimate or personal information concerning you, your business, or your family situation.

In most of your dealings with professionals, you are protected by professional secrecy. However, as with every rule, there are certain exceptions.

First of all, you can renounce your right to professional secrecy. This renunciation can be explicit (you disclose the information to others yourself) or tacit (you do nothing to stop others from accessing the information).

For example, if you are taking out life insurance and sign a document granting the insurer access to your medical records, you are explicitly renouncing professional secrecy.

On the other hand, if you begin legal proceedings following a physical injury, you are implicitly renouncing professional secrecy for the medical records containing information relevant to the lawsuit.

The right to professional secrecy can also be set aside when public security is at risk and there is imminent danger of death or serious injury. In these extreme and rare circumstances, the courts have determined that professional secrecy must take a backseat to public security. For example, a court might order a psychiatrist to disclose his professional opinion as to the mental state of an accused and the risk he poses to society.

Yes, most notably in the case of a professional who has counseled or helped his client to commit an illegal act or who conspired with the client. Such a situation does not qualify for the protection of professional secrecy. This means that the professional cannot invoke professional secrecy to refuse to answer questions if called as a witness by a court or disciplinary committee.

Furthermore, a professional cannot hide behind professional secrecy if a complaint about his conduct is filed with the disciplinary committee of his order. He must answer all questions asked, even if it means disclosing confidential information, such as the identity of a client, the steps taken, or the opinions given in the file. But to protect the confidentiality of this information, the disciplinary committee meeting can be held in camera (closed to the public) or certain information in the committee’s decision can be kept secret.

If a professional is not respecting your right to professional secrecy, he is guilty of malpractice and can be made to account for his actions. You can file a complaint with the appropriate professional order or pursue the professional before the courts.

It is important to know the difference between a disciplinary complaint filed with a professional order and a court claim.

In the case of a disciplinary complaint, the disciplinary committee of the professional order can reprimand or disbar the professional and impose a fine.

If you decide to go to court, the professional may be ordered to pay pecuniary (monetary) damages to compensate you for any injury resulting from the malpractice. Before undertaking such proceedings, you should first send a notice of default to the professional to formally demand damages. If this approach doesn’t resolve the dispute, you may then want to go to court to make this claim.