La curieuse histoire de la Loi sur les dossiers d’entreprises

Abstract

Quebec courts have the authority to order the holding of a rogatory commission for the purpose of gathering evidence at the request of a foreign court. This power, however, is constrained by the 1958 Business Concerns Records Act (BCRA), which prohibits the removal or transmission of corporate documents in response to a request from a foreign authority. The maximalist protection afforded to corporate records is striking, particularly in an era where international comity is a guiding principle of Quebec’s private international law regime.

This article traces the historical origins of the BCRA and its expansive interpretation by the courts. It argues for an approach that strikes a balance between the statute’s underlying objectives and the need for a baseline of judicial cooperation between Quebec and neighboring jurisdictions. At the judicial level, a narrower interpretation of the BCRA remains possible, as illustrated by the approach adopted by Ontario courts in relation to comparable legislation. At the legislative level, the BCRA could be amended—or repealed altogether—given that the procedural framework governing rogatory commissions already provides sufficient safeguards to address the concerns that motivated the statute’s original enactment.