Flo Health wins limited Quebec appeal over privilege in privacy class action

Flo Health has won a limited appeal requiring a Quebec judge to examine internal communications about a U.S. regulatory investigation before deciding whether they must be disclosed in a privacy class action. In Flo Health Inc. c. Option Consommateurs, 2026 QCCA 1223, dated September 17, 2026, the Quebec Court of Appeal sent that privilege dispute back to the Superior Court while upholding the rejection of objections concerning board minutes and a privacy audit.

The unanimous ruling does not decide whether Flo unlawfully shared users’ information. It addresses the evidence Flo had to provide to support solicitor-client privilege, and the judge’s obligation to protect potentially privileged communications even after rejecting the company’s broader evidentiary position.

Three discovery objections in a privacy class action

Flo markets an app that allows users to track menstruation, ovulation and fertility and to enter highly personal information. Option Consommateurs alleges that the company collected sensitive information about users’ intimate lives and reproductive health and disclosed it to third parties for commercial purposes without consent.

The Superior Court authorized the class action on November 30, 2022, for people domiciled in Quebec who used the app between June 1, 2016 and February 23, 2019. The appeal judgment recounts that a February 2019 Wall Street Journal investigation into the app’s information-sharing practices prompted a U.S. Federal Trade Commission investigation, which ended in a June 2021 agreement with Flo.

The discovery dispute arose after the May 2025 examination of Flo co-founder and chief product officer Maxim Scrobov. On November 25, 2025, Superior Court Justice Catherine Piché ruled on numerous objections in Option Consommateurs c. Flo Health inc., 2025 QCCS 4228.

Flo appealed only three rejected objections. They concerned board-meeting minutes discussing the FTC investigation, communications relating to the investigation, and communications and reports from a privacy audit commissioned in 2019. On appeal, Flo narrowed its objection concerning the investigation communications to internal communications.

A generic affidavit did not establish the claimed presumption

Flo argued that a presumption of confidentiality recognized by the Supreme Court of Canada in Foster Wheeler applied to its lawyers’ work. That presumption can protect the communications associated with a complex, long-term legal mandate without requiring the client to dissect every element of the relationship. The party invoking it must first establish the relevant mandate, and the presumption can be rebutted.

The appeal panel, composed of Justices Michel Beaupré, Lori Renée Weitzman and Andres C. Garin, held that Flo had not established the factual basis for that presumption.

Piché had given little weight to Scrobov’s affidavit, finding it generic and inconsistent with his earlier discovery testimony. The appeal court upheld that assessment. His examination revealed limited knowledge of the company’s external lawyers, its board arrangements and the 2019 audit, while the affidavit asserted personal knowledge and described the involvement of legal advisers in broad terms.

Flo said the affidavit was uncontradicted because Scrobov had not been cross-examined on it. The court disagreed: the judge could assess its reliability against his earlier examination. Flo’s suggestion that he had subsequently obtained information internally also did not match the affidavit’s assertion of personal knowledge.

Potentially privileged internal communications still required review

The company’s alternative argument was that the judge should have inspected the documents before rejecting privilege. The court criticized Flo’s approach below: Option Consommateurs had asked for the documents to be brought to court and for a privilege log, while Flo had relied primarily on the presumption and chosen not to offer the documents for an examination in the other side’s absence.

That strategy did not remove the judge’s obligation to protect solicitor-client privilege. Under Quebec’s Charter of human rights and freedoms, the court must safeguard professional secrecy on its own initiative. Where the record still provides a prima facie basis for privilege, the documents must be examined before an objection is rejected in a way that could compel disclosure of protected communications.

The distinction mattered. For the board minutes and 2019 audit, the only potential foundation for privilege was the affidavit the judge had declined to credit. The rejection of those objections therefore stood.

For the internal FTC-investigation communications, however, Scrobov’s discovery testimony itself indicated that Flo’s legal team had led the response and discussed the product with him. That evidence could support privilege independently of his affidavit. The judge should have inspected those communications before rejecting the objection.

Earlier litigation-privilege ruling did not settle professional secrecy

The court also rejected the conclusion that a September 2024 discovery ruling had already disposed of the issue. That ruling concerned litigation privilege, not solicitor-client privilege. The two could not be treated as interchangeable.

The record also indicated that Flo had set aside documents it considered protected by professional secrecy during later document reviews. The court explained that discovering such material after an earlier objection does not necessarily prevent a party from invoking solicitor-client privilege, and the correspondence here supported the conclusion that Flo had not waived it.

The appeal was allowed in part and the internal-communications objection returned to the Superior Court for inspection and a new decision. The appellate court did not declare those communications privileged. It made no costs award, pointing to Flo’s limited success and the role its litigation strategy had played in creating the problem.

The decision underscores both sides of a privilege claim: companies need reliable evidence to establish the protection they invoke, while courts must independently guard against disclosing communications that the record shows may be protected.