Executive Summary: Key Legal and Evidentiary Issues

• Scope of pre-trial discovery and the threshold for objecting to questions or undertakings as irrelevant or constituting a “fishing expedition” under article 228 C.p.c.
• Distinction between retrievable “documentation” (e.g., notes, invoices, orders) and overly burdensome “internal communications” (emails, texts) in production requests tied to alleged anti-competitive conduct.
• Extent to which a party can defer answers on damages and quantification by invoking a forthcoming forensic accounting expert report and the flexibility of the litigation protocol.
• Limits on forcing a party to identify potential witnesses at the discovery stage, versus legitimate requests for organizational charts or role-based information (e.g., use of “code 600”).
• Requirements for properly invoking litigation privilege and professional secrecy, and the insufficiency of bare assertions without evidence of legal communications or litigation-driven analysis.
• Consequences of failing to object in a timely manner at examination, and the court’s willingness to reject late objections and characterize them as procedurally out of time.

Background and facts of the dispute

Vidétron ltée brought an action in damages of approximately 13 million dollars against Bell Canada and Télébec, s.e.c., in relation to access to telecommunications infrastructure that belongs to the defendants. The case arises in the context of Vidéotron’s use of poles and other support structures to deploy its network. Vidéotron alleges that Bell and Télébec have not complied with their regulatory obligations governing access to these structures, and that this non-compliance has produced significant commercial harm.
The plaintiff characterizes four categories of fault as anti-competitive conduct: unreasonable delays in processing permit applications; unreasonable application of construction standards; delays in granting access to the structures; and imposition of replacement costs. The damages claimed are said to consist essentially of loss of profit and additional expenses incurred in connection with the affected projects. The judgment under review is not a decision on liability or damages. It is an interlocutory ruling dealing specifically with objections to undertakings, pre-engagements and questions arising from the pre-defence examination of Vidéotron’s representative.

Procedural context and the relevance standard

The objections are framed and analyzed under article 228 of the 2016 Code of Civil Procedure, which governs objections at examinations, including objections based on pertinence. The court recalls that, at the stage of pre-trial examinations, relevance must be interpreted in a broad and liberal manner in light of the pleadings. Drawing on recent Court of Appeal authority, the judge emphasizes that the legislature sought to limit recourse to the court for rulings on objections, reduce delay, and control costs by requiring that most relevance objections not interrupt the examination.
However, the Court of Appeal has recognized a narrow residual space for objections where a question is truly foreign to the issues, and answering it would be unduly onerous, dilatory, or vexatious. In such “rare cases,” a witness can legitimately refuse to answer because the question amounts to an abuse—for example, a classic “blind search” that significantly burdens the process without a real link to the live disputes. The Superior Court therefore applies this test to determine whether Vidéotron’s objections fall into this exceptional category.

Discovery requests, blind searches and internal communications

A key aspect of the ruling is the court’s distinction between “documentation” and “internal communications” in the contested undertakings and pre-engagements. For certain items (such as PECL-1, PECL-3, ECL-23 and ECL-27), the defendants sought both all “documentation” and all “internal communications” relating to the projects and alleged faults. The court holds that “documentation”—which it understands to include memos, purchase orders, invoices, work orders and similar records—remains relevant and likely retrievable without undue burden, and must be produced.
By contrast, the request for all internal communications (emails, text messages and other messages exchanged between all of Vidéotron’s employees or with third parties across all alleged projects) is viewed as an impermissible “recherche à l’aveuglette,” or blind search. Without any limitation by author, recipient, date or subject, such a sweep would be excessively onerous and dilatory relative to its likely probative value. The court therefore partially upholds Vidéotron’s objections in this cluster: documentation must be communicated, but internal communications requested in an indiscriminate way need not be produced.

Pure relevance objections and the obligation to answer

For a series of other undertakings and pre-engagements (ECL-25, 28, 32, 36, 39, 62, 63, 65 and PECL-4 to PECL-7, beyond information already provided), Vidéotron argued that the information requested was either already in the defendants’ possession or not pertinent. The court rejects these objections. It finds that information such as dates of particular cases, the number of accepted permit requests, the number of poles involved, communications with Hydro-Québec about a specific line, or intentions regarding projects is not truly foreign to the dispute and does not impose a disproportionate burden.
The judge stresses that a party examined must generally provide documents and information even if the opposing party may hold similar data, unless the request is manifestly abusive. Requiring the examined party to provide its version ensures clarity and informational symmetry, consistent with the principle that the burden of proof lies with the plaintiff. Thus, a number of Vidéotron’s attempts to refuse or limit undertakings based on alleged irrelevance or duplication are dismissed, and the undertakings must be fulfilled.

Timeliness of objections and satisfied or moot undertakings

The judgment also addresses the procedural requirement that objections be raised in a timely manner during the examination. For engagements ECL-10 and ECL-20, no objection was voiced at the time of questioning, and Vidéotron only raised them months later in the objections motion. Relying on doctrine and case law, the judge considers such late objections to be tardy and therefore inadmissible: objections must be formulated at the moment when the allegedly improper evidence is sought, or immediately thereafter.
Certain undertakings (ECL-13 and ECL-26) are declared satisfied or moot because Vidéotron has in fact already provided minutes of relevant meetings and identified the cases where alternative solutions were requested. As a result, the associated objections no longer have practical significance. The court also rejects auxiliary objections where Vidéotron claimed Bell already possessed the relevant information, reiterating that this is not, in itself, a valid reason to refuse an otherwise proper undertaking.

Expert forensic accounting evidence and timing of discovery

Another significant issue is the interaction between discovery on damages and the plaintiff’s planned forensic accounting expert report. For various damages-related undertakings and pre-engagements, Vidéotron responded that quantification would be addressed in an expert report to be served with its underlying documents, and that the defendants, having chosen to examine before delivering their defences and before that expert report, could not later revisit this sequencing.
The court acknowledges that a protocol of the instance should not be treated as a rigid “straightjacket” or “carcan.” It is a case-management tool that must remain flexible to accommodate strategic adjustments and the evolution of the parties’ theories. The ability to amend procedures, including the protocol, is interpreted broadly and liberally. Therefore, choices made by the defendants regarding examination timing do not irrevocably bar them from conducting further discovery after the expert report, if legitimately required.
On this basis, the judge concludes that all objections premised on the idea that damages-related questions must be deferred to and closed by the expert report are premature. The court postpones the debate on several contested undertakings (PECL-9, PECL-13, PECL-14, PECL-16, PECL-17 and a series of ECL items) until after Vidéotron has served its forensic accounting report and supporting documents. Only then can the court assess whether the expert disclosure sufficiently answers the information needs or whether additional questioning is warranted.

Identification of witnesses and organizational information

The decision also clarifies the limits on forcing a party to disclose the names of its intended witnesses at the discovery stage. It reaffirms the generally accepted rule that a party is not required to reveal the identity of potential witnesses. Accordingly, the court upholds objections to questions 402 and 409 and to undertaking ECL-24 insofar as they aim to compel Vidéotron to identify individuals who might testify.
However, the defendants successfully resist an objection to question 417. That question asked who could apply “code 600,” and the court points out that Vidéotron has already answered in writing that the supervisor of each network design team could decide to use that code. As the substance of the answer was given, the objection is effectively satisfied. By contrast, undertaking ECL-16 does not seek witness names but rather an organizational chart that the witness acknowledged existed; the court finds this is a legitimate and relevant item of discovery and orders its production.

Litigation privilege, professional secrecy and methodology questions

Vidéotron also invoked professional secrecy and litigation privilege in response to several questions concerning how it selected the roughly 400 or so permit requests at issue from more than 10,000 overall requests, and how certain damages figures and summary tables (including exhibit P-35A) were prepared and calculated. The plaintiff argued that answering those questions would necessarily reveal privileged litigation strategy or communications.
The court first notes that there is no evidence in the record—such as redacted correspondence or references to counsel—to support a claim of professional secrecy. No lawyer is mentioned by the witness or in Vidéotron’s submissions on the objections. Without any foundation tying the information sought to actual legal advice, assertions of solicitor-client privilege cannot stand.
Turning to litigation privilege, the judge recalls that this protection is meant to create a confidential zone for preparing litigation, covering communications whose primary purpose is managing a dispute, and that it is interpreted restrictively. The burden lies on the party asserting the privilege to show that it applies. Here, questions about whether the witness knew how the 400 cases were selected, whether he or she participated in preparing P-35A or the damages breakdown, and whether the witness could explain how a particular dollar figure was calculated, are treated as inquiries into the witness’s knowledge and involvement, not as probes into confidential communications with counsel.
The court concludes that Vidéotron has not demonstrated that answering would necessarily reveal privileged litigation strategy or communications generated chiefly for litigation management. In the absence of even a preliminary showing that the methodologies were developed principally in preparation for this lawsuit, the objections based on litigation privilege and professional secrecy to questions 436, 438, 1000, 1002 and 1003 are rejected, and the questions must be answered.

Outcome of the objections motion and absence of monetary relief

In its dispositive section, the court formally records Vidéotron’s sworn declarations that certain requested documents simply do not exist, under pain of contempt if those declarations prove false. It partially allows some objections (mainly by carving out broad requests for internal communications), accepts several objections aimed at preventing forced disclosure of potential witnesses, and declares a few undertakings satisfied or without object. At the same time, the court rejects numerous objections and orders Vidéotron to provide documents, information, and an organizational chart, and it postpones the debate on several damages-related items until after service of the forensic accounting report.
The ruling therefore represents a mixed interlocutory outcome: neither side can be clearly characterized as the overall victor, and the court expressly orders that costs are “to follow,” meaning they will be determined at a later stage. There is no determination of liability or of Vidéotron’s approximately 13-million-dollar damages claim, and no damages, costs, or other monetary amounts are awarded to any party in this decision. As a result, no successful party can be definitively identified for purposes of a monetary award, and the total amount ordered in favor of any party in this judgment cannot be determined, because it is effectively zero at this procedural stage.