Executive Summary: Key Legal and Evidentiary Issues

• Scope and relevance of a sealed professional disciplinary file to an interlocutory injunction challenging a member’s exclusion from Desjardins
• Weight to be given to prior regulatory and appellate decisions (OACIQ and Cour du Québec) versus underlying evidentiary record in supporting Desjardins’ exclusion decision
• Impact of Desjardins’ prior conduct, including its 28-month failure to seek the disciplinary exhibits when they were public, on whether access to sealed documents is now “necessary”
• Interface between public-interest sealing orders obtained in criminal-investigation context (Enquête Portier) and the civil court’s management of an injunction action
• Standard for determining if additional documentary evidence is required for a fair contestation of an interlocutory injunction (art. 158(1) C.p.c.)
• Consequences of proceeding on affidavits and existing decisions alone, without live testimony or access to the sealed disciplinary file, for the upcoming interlocutory hearing

Factual background

Mathieu Joncas is a real estate broker who operated a private lending company, 9265-2791 Québec inc., and was a member of the Desjardins cooperative financial network. In 2019, he came under police suspicion in connection with the theft and resale of personal data from the Mouvement Desjardins, which led to media coverage and later to a broader criminal investigation known as Enquête Portier. Parallel to the criminal dimension, the Organisme d’autoréglementation du courtage immobilier du Québec (OACIQ) brought two disciplinary complaints against Joncas in 2020. These complaints alleged that he had acquired lists of potential clients containing extensive personal and financial information of approximately 150,000 to 200,000 individuals for about $100,000, and that he had used or intended to use this data improperly for solicitation, raising conflict-of-interest concerns. A disciplinary hearing was held in May 2021 before the OACIQ’s Committee of Discipline. Most exhibits were public, and Desjardins obtained some additional documents under a non-publication and non-disclosure order. In September 2021, the Committee found Joncas guilty on multiple counts, and in June 2022 it imposed sanctions after identifying several aggravating factors in his conduct.

Developments with Desjardins and the exclusion process

Following the initial disciplinary decision in September 2021, Desjardins’ federation (FCDQ) began considering Joncas’s continued membership. In January 2022, FCDQ issued a first notice of intention to exclude him as a member, referring to the disciplinary findings, though that process was soon suspended after discussions. In June 2022, the Committee of Discipline rendered its sanction decision, and in July 2022 Joncas appealed both the guilt and sanction decisions to the Cour du Québec, filing the entire disciplinary record, including exhibits and transcripts, as part of his appeal materials. Desjardins nonetheless chose not to formally seek or review the complete evidentiary file during this period. In January 2024, Desjardins again revived the exclusion process, and once more it was temporarily suspended after discussions with the member. Meanwhile, a further round of hearings was held in the Cour du Québec in May 2024 on Joncas’s appeal of the disciplinary decisions.

Sealing orders and public-interest privilege

While the disciplinary appeal was pending, the Sûreté du Québec (SQ) sought protection of the disciplinary record, arguing that the material overlapped with the ongoing criminal investigation into the large-scale theft and misuse of Desjardins’ member data. In May 2024, Justice Hélène Di Salvo of the Superior Court granted orders of protection and sealing with respect to the disciplinary file, relying on a public-interest privilege rationale linked to the integrity of the criminal investigation. Shortly thereafter, the SQ intervened before the appeal judge, seeking similar protective measures in the disciplinary appeal proceedings. Joncas became fully aware of these steps in late May 2024. In June 2024, he was arrested and released on conditions in connection with Enquête Portier. Later in June 2024, Justice Pierre A. Gagnon of the Cour du Québec ordered that no elements of the disciplinary file could be communicated without his permission. In September 2024, Joncas filed an application for leave to appeal Justice Di Salvo’s protection and sealing judgment to the Supreme Court of Canada; that leave application and related preliminary issues remained pending as of April 2025.

Renewed exclusion decision and the civil action

In October 2024, after Justice Gagnon had partially overturned certain findings of guilt and reduced some sanctions but had confirmed key aspects of the misconduct, Desjardins again turned to the question of Joncas’s membership. Justice Gagnon’s decision emphasized, among other things, that Joncas had asked a supplier to target clients of Desjardins in regional areas, reinforcing the link between his activities and Desjardins’ client base. Desjardins’ internal security official, Brigitte Petit, analyzed both the OACIQ disciplinary decision and the Cour du Québec appellate decision, as well as the criminal charges laid in Enquête Portier. She concluded that Joncas had acquired confidential data on up to 200,000 people, including Desjardins members, and that his conduct was fundamentally incompatible with the cooperative’s interests. On that basis, and relying on article 382.1 of the Loi sur les coopératives de services financiers, Desjardins’ local caisse (Caisse Desjardins de l’Anse de la Pocatière) proceeded on 9 October 2024 to exclude Joncas as a member and to deny certain banking services to his company 9265-2791 Québec inc. In response, Joncas and his company filed an action in the Superior Court in November 2024 seeking both interlocutory and permanent injunctions to restore his membership and banking services, including direct deposit and direct withdrawal services, and claiming damages of approximately $200,000, subject to adjustment.

The management dispute over access to the sealed disciplinary file

As the interlocutory injunction hearing was being scheduled, Desjardins raised a new issue at a case-management conference. It sought access to the now-sealed disciplinary file to prepare its defence to the interlocutory injunction, arguing that the contents were relevant and necessary to a full and fair contestation. The plaintiffs opposed the request, asserting that the existing public decisions and materials already available were sufficient, and that the sealed elements were protected by prior court orders grounded in public-interest privilege. The Superior Court, presided over by Justice Alain Michaud, was not asked at this stage to overturn or modify the sealing orders themselves. Rather, under article 158(1) of the Code of Civil Procedure, the Court had to decide whether it was appropriate, for the purpose of the interlocutory injunction, to “admit facts or documents” by lifting the seals on the disciplinary file or by otherwise making that file available to Desjardins. During this management phase, Justice Michaud was also advised that Desjardins had filed a distinct aggressive intervention in the Montréal Superior Court file, seeking a partial lifting of the protection and sealing orders, and that Justice Mario Longpré had directed that intervention to be heard by the civil judge seized of the main injunction action, since it would necessarily implicate the scope of Justice Di Salvo’s earlier orders. The Supreme Court of Canada had not yet ruled on Joncas’s application for leave to appeal the sealing decision.

Reasons for refusing to lift the seals for the interlocutory hearing

Justice Michaud concluded that it was not necessary to lift the seals on the disciplinary file for Desjardins to mount an effective defence to the interlocutory injunction. He rested this conclusion on three key considerations. First, Desjardins had never sought the underlying evidentiary exhibits during the long period (about 28 months) when they were public and available, even though it was actively contemplating and then pursuing the exclusion of Joncas. This suggested that Desjardins itself had not considered the raw disciplinary evidence essential to its decision-making. Second, the October 2024 exclusion decision was not based on the sealed disciplinary file but on the publicly available OACIQ decisions and the Cour du Québec appellate decision, together with knowledge of the criminal charges and the nature of Enquête Portier. Those decisions already synthesized the crucial facts and findings that Desjardins considered when deciding that Joncas’s activities were contrary to the caisse’s interests. Third, the Court observed that the detailed disciplinary and appellate decisions—each about fifty pages long and heavily reasoned—already captured the essential elements necessary to assess the lawfulness and reasonableness of Desjardins’ exclusion decision. Justice Michaud rejected Desjardins’ reliance on case law such as Perez, which concerns the relevance of documents not previously known to a party, noting that here the disciplinary record and its existence had been known to Desjardins since at least September 2021. What had changed was not the relevance of the material but its availability, now restricted by sealing orders obtained for public-interest reasons in a related criminal context. In the Court’s view, Desjardins had not shown why additional, sealed information—over and above the disciplinary and appellate decisions and the parties’ affidavits—was required to fairly argue the interlocutory injunction. It was also unclear how any information in the sealed record that might actually be favourable to Joncas would strengthen Desjardins’ position; if such information existed, it could logically weaken Desjardins’ case.

Procedural directions and outcome of the management judgment

In the result, the Superior Court declared that the documents forming Joncas’s disciplinary file, which are currently under seal, are not necessary to resolve the plaintiffs’ interlocutory injunction request. The Court directed that the interlocutory injunction be prepared and argued on the basis of the documents already in the parties’ possession and the sworn declarations filed, without live testimony at that stage. A further management conference was scheduled to finalize the hearing plan, with the Court signalling that the interlocutory hearing should require much less than the eight hours initially estimated in the parties’ joint case-management document. Justice Michaud also indicated that any later incidental proceedings to structure the hearing on the merits of the injunction and damages claim would need to be coordinated with the eventual decisions of the Supreme Court of Canada regarding the leave application on the sealing orders. As to the immediate dispute, the plaintiffs, 9265-2791 Québec inc. and Mathieu Joncas, were successful in resisting Desjardins’ attempt to access the sealed disciplinary file for the interlocutory injunction. The Court ordered that there would be no costs (“sans frais de justice”) on this management issue, meaning no monetary award, damages, or costs were granted to either party in this judgment, and the total amount ordered in favour of the successful party is therefore nil.