How far does the professional secrecy of CPAs extend?

The Trial Judge’s Decision on the CPA Order’s Application 

The first instance decision stemmed from an application for judicial review filed by the Ordre des comptables professionnels agréés du Québec (the “CPA Order”) before the Superior Court. The Order sought a declaration that section 17.0.1 of the Act respecting the regulation of the financial sector (“ARFS”) did not apply to its members. 

According to the Order, the wording of that provision was not sufficiently explicit to override the right to professional secrecy protected under the Charter of Human Rights and Freedoms (“Charter”). 

Introduced into the ARFS a few years ago, section 17.0.1 is intended, among other things, to protect CPAs who wish to voluntarily disclose violations of financial sector laws to the Autorité des marchés financiers (“AMF”). The provision allows them to lift their duty of professional secrecy for that purpose. More specifically, its third paragraph expressly authorizes such disclosure — except for lawyers and notaries, who remain bound by their professional secrecy. 

In its decision, the Superior Court sided with the CPA Order. It concluded that: 

1. the third paragraph of section 17.0.1 of the ARFS constituted an express provision authorizing the lifting of CPA professional secrecy within the meaning of section 9 of the Charter; 
2. this provision infringed the privacy rights of CPA clients; and 
3. this infringement was not justified under the Charter. 

As a result, the Superior Court declared section 17.0.1 inapplicable to members of the CPA Order. 

The AMF and the Attorney General of Quebec subsequently appealed the decision. 

The Court of Appeal Clarifies the Scope of CPA Professional Secrecy 

The Court of Appeal upheld the trial judge’s finding that the third paragraph of section 17.0.1 of the Act respecting the regulation of the financial sector (“ARFS”) constitutes an “express provision” within the meaning of section 9 of the Charter of Human Rights and Freedoms (“Charter”), authorizing the lifting of CPA professional secrecy. 

However, unlike the trial judge, the Court of Appeal concluded that this paragraph does not infringe on CPA clients’ right to privacy. 

More specifically, the Court explained that since the right to privacy is an integral component of professional secrecy, any analysis of a potential violation must begin with a contextual assessment of the reasonable expectation of privacy. For CPA clients, that expectation is relatively limited. 

The Court noted that the whistleblower protection mechanism introduced by the ARFS “forms part of a broader legislative scheme involving, among other things, [the AMF’s] oversight of various aspects of the financial services industry” (paragraph 108 of the decision). Individuals and entities engaged in regulated activities must therefore expect to be subject to audits, investigations, inspections, or administrative proceedings—circumstances that reduce their reasonable expectation of privacy. 

The Court also emphasized that assessing a potential violation of professional secrecy requires considering both the nature of the information disclosed and the purpose of its communication. In this case, the disclosure regime concerns only information indicating an actual or anticipated breach of a law listed in section 7 of the ARFS (or a request to commit such a breach). These details, being primarily commercial or financial in nature, give rise to a lower reasonable expectation of privacy. 

The Court further noted that section 17.0.1 of the ARFS imposes no obligation on CPAs to disclose information. 

Finally, the Court of Appeal stressed the distinction between the professional secrecy of CPAs and that of lawyers and notaries. As the Court stated, “the intensity and scope of the right to professional secrecy vary according to the nature of the functions exercised by members of professional orders and the type of services they are called upon to provide” (paragraph 87 of the decision). The CPA’s role, being different from that of a legal professional, justifies a narrower scope of professional secrecy. 

Accordingly, the Court of Appeal concluded that section 17.0.1 of the ARFS does not infringe the professional secrecy rights of CPA clients protected under section 9 of the Charter. The provision therefore remains valid and applicable. 

A Clear Reminder of the Limits of Professional Secrecy 

In short, clients do benefit from professional secrecy when they engage the services of a CPA. However, this right is not absolute. It does not prevent a CPA from voluntarily disclosing to the AMF information that may indicate a breach of a law listed in section 7 of the Act respecting the regulation of the financial sector—including, for example, the Securities Act and the Insurers Act. 

In practice, this decision serves as a reminder that the professional secrecy of CPAs has limits and operates differently from that of lawyers and notaries. 

Have questions about the scope of professional secrecy in a regulatory context? Our litigation team can help.