Executive Summary: Key Legal and Evidentiary Issues

• Scope of pre-trial discovery, including how far parties must go in producing documents and answering questions at examinations under art. 228 C.p.c.
• Application of solicitor–client privilege to in-house and external counsel communications, board and executive committee materials, and exchanges with Transport Canada.
• Use of litigation privilege to protect documents and even text messages created primarily to prepare for existing or anticipated court proceedings.
• Invocation of “intérêt légitime important” to shield highly strategic, commercially sensitive information (notably about a national high-speed rail initiative) from disclosure.
• Assessment of whether VIA waived privilege by previously disclosing two internal documents, and the court’s power to order return and destruction of such documents.
• Control of questioning at oral discovery: limits on repetitive, argumentative, or purely legal questions, and on questions that would reveal privileged preparation with counsel.

Factual background and parties

VIA Rail Canada Inc. is a federal Crown corporation mandated to operate passenger rail services across Canada. With only limited track ownership of its own, VIA runs its trains primarily over the rail infrastructure of the Compagnie des chemins de fer nationaux du Canada (CN), a privatized railway company. Beginning in 2022, VIA started deploying new Siemens Venture trainsets to replace its older Legacy equipment on the Québec–Windsor corridor. On 11 October 2024, relying on federal railway operating rules, CN imposed operational restrictions on VIA’s Venture trains. These restrictions required locomotive engineers to slow down and, before entering more than 300 level crossings, visually confirm that the warning devices (lights, bells or barriers) were functioning correctly for a minimum period of time. Under normal conditions, automated systems detect the presence of a train and activate crossing protections without requiring this additional step. CN justified the restrictions by pointing to a perceived “shuntage” problem: concerns that Venture trains might not consistently shunt track circuits so as to trigger the warning systems. VIA took the position that the restrictions were unjustified. It contended that test data did not demonstrate a shunting defect in the Venture trains and that numerous tests instead showed proper shunt performance. According to VIA, CN’s measures caused significant delays and disruption to VIA’s operations, were disproportionate and unreasonable, and were, in reality, motivated by a separate dispute between the parties then pending before the Canadian Transportation Agency.
Procedural history and nature of the main claim

In early March 2025, VIA commenced proceedings in the Quebec Superior Court. In that main action, VIA seeks essentially a permanent injunction preventing CN from applying the disputed restrictions to its Venture trains. VIA also reserves the right to claim damages, although the quantum of any such damages remains undetermined at this interlocutory stage. CN vigorously contests VIA’s claim. It denies any bad faith and asserts that the restrictions are required for public safety. In CN’s view, safety imperatives must prevail over VIA’s commercial interests where potential risks at level crossings are concerned. As the action moved forward, the parties agreed to exchange documents as “pré-engagements” in advance of out-of-court examinations on discovery. On 8 August 2025, each side served extensive pre-engagement requests, and each responded with broad objections grounded in privilege and related protections. In addition, during CN’s examination of VIA’s President and CEO, Mario Péloquin, on 24 October 2025, VIA raised a series of objections to specific questions, often invoking privilege or challenging the nature of the questioning.
Legal framework: discovery, privilege and important legitimate interest

Before turning to the specific objections, the court sets out the applicable legal principles. Interrogatoires préalables and demands for document production are described as central tools in the civil exploratory phase. They serve the ultimate goal of truth-seeking and contribute to fair and efficient trials by promoting early disclosure and encouraging settlement. At the same time, the court emphasizes proportionality, relevance and the need to avoid fishing expeditions, repetitive requests, and unduly burdensome reviews. Within this procedural context, three protective doctrines are crucial. First, solicitor–client privilege (secret professionnel avocat-client) is characterized as a fundamental, quasi-constitutional right. It protects confidential communications between a client and a lawyer (whether external or in-house) made for the purpose of obtaining or providing legal advice, and it covers the entire continuum of communications necessary for that advice. In complex, long-running mandates, such as ongoing corporate counsel relationships, communications are presumptively privileged, and waiver must be clear, explicit and unequivocal. Second, litigation privilege (privilège relatif au litige) aims to create a “zone of confidentiality” for documents whose primary purpose is the preparation or conduct of existing or reasonably anticipated litigation. It can apply to communications involving third parties, is distinct from solicitor–client privilege, and generally ends when the litigation (and any closely related proceedings) concludes. It does not protect underlying source documents that were not themselves created for litigation. Third, the notion of “intérêt légitime important” (important legitimate interest) is drawn from articles 12 and 228 of the Code of Civil Procedure and is informed by Supreme Court jurisprudence. It allows courts, in exceptional cases, to limit publicity or disclosure where an objectively serious public interest in confidentiality would otherwise be compromised. In the commercial sphere, it is reserved for highly sensitive, high-value information at the core of an enterprise’s strategic operations, especially where disclosure would cause serious prejudice or adversely affect third parties who are not part of the litigation.
VIA’s 125 contested documents

VIA grouped the 125 documents in dispute into five categories: exchanges with Transport Canada; confidential communications involving lawyers; materials from VIA’s Board of Directors and Executive Committee; other internal documents prepared in anticipation of the present litigation; and a small “other” group capturing documents said to be protected for reasons of important legitimate interest or lack of relevance. These documents, or redacted portions of them, were described in a revised privilege register and supported by sworn statements from VIA’s in-house and consulting lawyers. After conducting ex parte hearings with each side in turn and then independently reviewing the full, unredacted documents, the judge concludes that VIA has met its burden of proof. The court finds that all 125 documents, or the caviarded parts of them, fall within solicitor–client privilege, litigation privilege, and/or an important legitimate interest, in the manner advanced by VIA. Even technically dense portions are found to be directly linked to the ongoing dispute with CN and to fall within the privileged continuum of legal advice and litigation planning. The judge rejects CN’s characterization of some communications with Transport Canada as mere business discussions, lobbying activity, or routine regulator–regulated exchanges. In the court’s view, the 125 documents reveal only strategic exchanges tied to VIA’s legal and litigation posture in this specific dispute. The court also accepts that text messages, given how modern business is conducted, can be covered by litigation privilege when they are created primarily to prepare for litigation.
Important legitimate interest and the high-speed rail project

Among the 125 documents, several redactions are justified not only on privilege grounds but also under the “intérêt légitime important” rubric. Through the evidence of VIA’s counsel, the court learns that the redacted information concerns highly strategic discussions and negotiations about a national high-speed rail initiative. That initiative, involving VIA subsidiary Alto and a private partner (Cadence), is being developed in close coordination with Transport Canada. The court accepts that these materials are commercially and strategically sensitive, unrelated to the present shuntage and restrictions dispute, and that their disclosure could seriously prejudice both government policy objectives and delicate commercial negotiations. On that basis, and noting CN’s own deference on this narrow issue, the judge finds that VIA has demonstrated an important legitimate public interest in maintaining confidentiality and that the information in question is not relevant to the current litigation. One document also includes a portion redacted purely for irrelevance to CN’s request, and the court confirms that this kind of non-responsive material need not be produced.
No waiver of privilege over two previously disclosed documents

A specific controversy arose regarding two documents, DOC-00014093 and DOC-00014089, which were originally sent in full to CN on 1 April 2025 and later included among the 125 privileged documents. CN argued that VIA, by disclosing them, had waived any privilege. VIA responded that the disclosure occurred before its counsel fully appreciated the privileged nature of those documents, and that further contextual information only became apparent after the communication. On the evidence, the court is satisfied that there was no clear, explicit or unequivocal waiver. It reiterates that waiver of either solicitor–client or litigation privilege cannot be presumed from mere disclosure, particularly where counsel expressly states that privilege is not being renounced and where the disclosure was made to expedite urgent injunctive proceedings. The judge therefore finds that VIA has not waived privilege over these two documents. He orders CN to return all paper and electronic copies of DOC-00014093 and DOC-00014089 to VIA within ten days and to keep no copies.
CN’s three privileged documents

VIA also challenged CN’s assertion of privilege over three documents identified in CN’s own privilege log: a partially redacted internal document and two documents withheld entirely. These were supported by a sworn declaration from a CN paralegal who had not personally authored, sent or received the documents but had visually reviewed them. Despite the relatively limited first-hand knowledge of the declarant, the court’s ex parte examination of the documents themselves proved decisive. The judge concludes that each of the three documents is indeed covered by solicitor–client and/or litigation privilege as claimed and that CN has met its burden. Accordingly, the objections are maintained and CN is not required to produce these materials to VIA.
Objections during the examination of VIA’s CEO

The court then addresses 15 groups of objections raised by VIA during CN’s examination of Mario Péloquin on 24 October 2025. These objections related to questions about VIA’s communications with Transport Canada, the drafting and meaning of particular emails and letters, internal board and executive committee discussions about shunting and operating decisions, the operational decision to continue running Venture trains, and the alleged effect of reduced speeds on the cognitive workload of locomotive engineers. VIA’s counsel objected for various reasons: lack of personal knowledge on the part of the witness, repetition of questions already answered, overly argumentative or “loaded” formulations, vagueness, and, frequently, the risk that answers would disclose privileged communications or litigation strategy, especially where in-house counsel played an active role in internal discussions. After reviewing the transcript excerpts and the context of each question group, the court upholds all of VIA’s objections. Where the witness had already answered similar questions, the judge finds that CN was improperly repeating them. Where CN sought legal characterizations—for instance, whether a given decision was “opérationnelle” or whether a letter amounted to a statutory “demande” under the Railway Safety Act—the court considers these to be legal or opinion questions for counsel, not factual inquiries suitable for a lay corporate representative. Where answers would necessarily reveal the content of discussions with counsel or internal strategic deliberations about the present litigation, the court finds that solicitor–client and litigation privilege validly bar further questioning. In some instances, such as the witness’s preparation for his examination, the court recognizes that inquiries into what documents he reviewed or what he was told by his lawyers would directly pierce the privileged zone.
Additional time for further examination

Although the court accepts the propriety of VIA’s objections and instructions, it also recognizes CN’s complaint that a significant portion of the scheduled five-hour examination was consumed by exchanges on objections and related discussions. The judge expressly states that he attributes no blame to either side. Nonetheless, he concludes that CN did not, in practice, enjoy a full five hours of substantive questioning on topics that are in fact permissible. To remedy this and to preserve the fairness of the pre-trial examination process, the court orders that CN may continue its examination of Mr. Péloquin for an additional 2.5 hours on a date to be agreed by the parties. Crucially, CN is barred from repeating any questions for which VIA’s objections have been upheld in this judgment. The extra time is thus confined to new, permissible lines of inquiry that respect the established privilege boundaries and procedural limits.
Costs, monetary consequences and overall outcome

On the issues of VIA’s 125 documents, including the two accidentally disclosed documents, the court fully maintains VIA’s objections. It concludes that all of the challenged materials are protected by privilege and/or important legitimate interest, and that VIA did not waive its privileges. For these aspects of the decision, the judge awards costs (frais de justice) in VIA’s favor. On the issues of CN’s three documents, the court likewise maintains CN’s objections and awards costs to CN on that discrete portion. Regarding the objections during the examination of Mr. Péloquin, all 15 groups of VIA’s objections are upheld, and the court again awards VIA its costs, while also granting CN the procedural remedy of an additional 2.5 hours of examination time. In aggregate, VIA is the more successful party in this interlocutory judgment, having preserved the confidentiality of a large body of strategic and privileged communications and secured the maintenance of all its examination objections, while CN’s success is limited to its own three documents and the extension of discovery time. However, the judgment does not adjudicate VIA’s underlying claim for a permanent injunction or any damages; it is strictly procedural and evidentiary. The reasons do not quantify any costs or other monetary amounts. Accordingly, while costs are awarded to both VIA and CN on different objection issues, the total amount of monetary awards, including any costs or damages, cannot be determined from this decision.