Professional Secrecy and Notaries’ Trust Accounts: How Far Does Protection Really Extend?

Authors: Juliette Oger-Chambonnet and Paul Déry-Goldberg

Quebec Case Law Review

Notaries hold a unique position within Quebec’s legal landscape. By the very nature of their profession, they are bound by professional secrecy and frequently manage significant sums of money through trust accounts.

This role raises a sensitive question: to what extent are the records of a trust account protected by professional secrecy?

A Strategic Concern at the Core of the Notary–Client Relationship

The confidentiality of trust accounts goes beyond mere technicalities. Today, it plays a central role in a landscape where tax, regulatory, and investigative authorities wield broad access powers. For notaries, lawyers, financial institutions, and businesses alike, the potential seizure or disclosure of fiduciary documents raises significant concerns.

A Legal Framework Based on Confidentiality

The Regulation respecting trust accounting by notaries [1] establishes the fundamental principle that a notary is subject to professional secrecy with respect to the account books and documents contemplated in this Regulation. The notary is therefore required to safeguard the confidentiality of financial transactions and preserve the integrity of the essential bond of trust with the client.

The Influence of the Maranda v. Richer Decision

In Maranda v. Richer[2], the Supreme Court of Canada established the principle that a lawyer’s invoice — including the amount of fees listed — is protected by professional secrecy, since it is intrinsic to the lawyer–client relationship. This presumption is particularly significant as it recognizes that a financial document may, by its very nature, reveal the client’s instructions or legal strategy.

Although the decision concerns the legal profession, its reasoning has significantly shaped the debate on the protection afforded to documents originating from notaries’ trust accounts. The Court concluded that it is presumed to fall prima facie (at first glance) within the category of privileged communications, upholding the objectives of solicitor-client privilege and minimizing potential infringement.

The Court, however, qualifies this principle, noting that the presumption is rebuttable where disclosure of the information does not compromise the confidentiality of the professional relationship, in which case the seizure may be considered reasonable.

Nuanced Guidance from the Court of Appeal of Quebec

Two decisions rendered in 2014 by the Court of Appeal of Quebec clarified the scope of professional secrecy in the context of trust accounts.

• In Canada (Attorney General) v. Chambre des notaires du Québec [3], the Court warns against creating categories of documents that are automatically protected (receipts, checks, notebooks, etc.). It emphasizes that such a presumption would be “risky,” underscoring the importance of a case-by-case analysis based on the nature of the information disclosed.
• A few months later, in Ménard v. Agence du revenu du Québec [4], the Court was once again called upon to rule on the application of professional secrecy in the context of a notary’s trust account. Although it did not definitively settle the issue, it acknowledged that the debate over the existence and scope of professional secrecy applicable to documents originating from a trust account remains open. This lack of a definitive answer creates uncertainty for notaries and lawyers, requiring heightened vigilance and a nuanced understanding of the applicable jurisprudential criteria.

When A Check Reveals an Instruction: Strengthened Protection for Certain Documents

Several decisions support recognizing the applicability of professional secrecy for certain documents related to a trust account, which, by their very nature, may reveal protected information.

In T.A. v. Autorité des marchés financiers [5], the Court held that checks issued from a trust account represent “the culmination of the client’s instructions”, and that ordering their production would amount to disclosing confidential information.

Similarly, in Stikeman Elliott v. 164461 Canada Inc.[6], the Court emphasized that no distinction should be made between the professional secrecy of lawyers and that of notaries with respect to trust accounts. It reaffirmed that transactions carried out in such an account — notably the issuance of checks or the distribution of funds — are protected by solicitor-client privilege. According to the Court, these transactions inevitably reveal the client’s instructions and the legal structure of the transaction, making it impossible to separate the material acts (such as issuing a check) from the advice received or directives given.

Limits of the Protection

Protection of professional secrecy does not apply automatically, and courts have been asked to recognize its limits in various contexts.

For example, in Cinar Corporation v. Weinberg [7], the Court clarified that professional secrecy applies only when fiduciary transactions form part of the communication through which a client seeks legal advice. Funds deposited for other reasons — for instance, for purely administrative purposes or convenience — do not benefit from this protection.

Conclusion

Quebec case law reveals a nuanced approach to protecting information related to notaries’ trust accounts. While certain documents benefit from professional secrecy, protection is not presumed at the outset and depends closely on the connection between the document and the notarial or legal service provided. In a context where disclosure requests and seizure powers are increasingly common, a rigorous and contextualized analysis is more necessary than ever.

KRB regularly assists notaries, lawyers, businesses, and financial institutions in safeguarding fiduciary confidentiality and preserving client trust when faced with disclosure or seizure proceedings. The firm provides both preventive and responsive support to determine whether documents are privileged, implement compliance protocols, and develop strategies tailored to regulatory and judicial authorities.

We encourage you to contact KRB’s litigation team for any questions related to professional secrecy, confidentiality, or the management of trust accounts.

[1] Regulation respecting trust accounting by notaries, RLRQ c N‑3, r 5.2, arts 3 and 33

[2] Maranda v. Richer, [2003] 3 S.C.R. 193

[3] Canada (Attorney General) v. Chambre des notaires du Québec, 2014 QCCA 552

[4] Ménard v. Agence du revenu du Québec, 2014 QCCA 589

[5] T.A. v. Autorité des marchés financiers, 2009 QCCS 3785

[6] Stikeman Elliott v. 164461 Canada Inc., [1996] J.Q. No. 4203.

[7] Cinar Corporation v. Weinberg, 2007 QCCS 4380