Who You Gonna Call? Not Former Executives

  • 23 juin 2023
  • Adil Abdulla & Denna Jalili

When investigating class actions, there is often some information known only to the executives of that allegedly misbehaving corporation. Obtaining those executives’ stories, or better yet their testimony, can be a high prize for plaintiff-side lawyers.

However, lawyers cannot contact current executives of a represented corporation. That is a breach of our professional responsibilities.

A recent case suggests that, at least in Québec, this prohibition might extend to former executives. This article summarizes Holcman c Lightspeed Commerce Inc, 2023 QCCS 1681 and implications for class action lawyers in Québec. It then considers case law in Alberta and British Columbia. Finally, it uses all of the above to assess what rule applies in Ontario.

(1) The Decision in Holcman

In Holcman, the plaintiff sued Lightspeed for securities misrepresentation. Ajamian, Lightspeed’s Executive Vice-President of Marketing, was “involved in Lightspeed’s response”. However, she then left the company. After she left, an investigator retained by the plaintiff’s lawyer sent her a LinkedIn message asking if she would act as a witness.

Notwithstanding that she was no longer an employee, the Superior Court of Québec (“QCCS”) held that Ajamian was still a “representative” of Lightspeed, such that she was represented by the corporation’s lawyer and could not be contacted. The lawyers for the plaintiff breached that rule, so the QCCS ordered them to produce a list of every former employee that they had contacted. The QCCS also suggested that, if Ajamian had responded, the plaintiff would have been required to disclose to the defendant everything she had said.

In light of Holcman, lawyers in Québec should avoid contacting current or former executives of defendant corporations. Plaintiff-side lawyers should also be wary of former executives who offer to act as whistleblowers: accepting their help could open you up to broader disclosure.

It is unclear whether this rule changes after authorization. If not, this might become confusing where the executive is a member of the class, e.g. in an employment law class action. In that case, are they represented by both the lawyers for the plaintiff and the lawyers for the defendant?