Canada: Supreme Court Allows Wiretap Evidence To Be Disclosed For Purposes Of A Class Action Alleging Anticompetitive Practices

Wiretap evidence obtained in a criminal investigation by the Competition Bureau may be disclosed for purposes of a class action alleging anticompetitive practices according to the Supreme Court of Canada.¹

Background

In 2004, the Competition Bureau started a criminal investigation into allegations of a gas price fixing conspiracy in certain regions of Quebec. For purposes of the investigation, the Bureau sought and obtained the required judicial authorizations under the Criminal Code to intercept and record over 220,000 private communications, which eventually led to criminal charges being laid in 2008 against various individuals and corporations in Quebec pursuant to section 45 of the Competition Act, which prohibits price fixing arrangements between competitors.

Shortly after the criminal charges were laid, a motion seeking authorization to bring a class action was filed against several respondents, including the persons investigated by the Competition Bureau. The proposed class action accused the respondents of causing the class members harm by conspiring to raise gas prices at the pump. On November 30, 2009, Bélanger J., then of the Quebec Superior Court, authorized the class action.

On December 8, 2011, after the defendants to the class action had filed their plea, the plaintiffs presented a motion under Article 402 of the Quebec Code of Civil Procedure to compel the federal Director of Public Prosecutions and the Competition Bureau, both third parties for purposes of the class action, to disclose to them the wiretap evidence collected. Bélanger J. granted the motion and authorized the disclosure of part of the wiretap evidence, but limited disclosure to the professionals involved in the civil action, i.e., counsel and the experts for the parties.

Supreme Court's ruling

The Supreme Court upheld Bélanger J.'s order providing for disclosure of the evidence only to counsel and the experts. However, the Court refrained from ruling on its admissibility.

In the reasons of the majority, the Supreme Court dismissed the defendants' claim that certain provisions of the Criminal Code and the Competition Act are inconsistent with disclosure of such wiretap evidence. The Court observed that only clear language in federal legislation prohibiting disclosure would block such a request and that in the circumstances there was no such language.

This ruling is predicated on the broad and generous principles that govern the disclosure of evidence at the discovery stage under the Quebec Code of Civil Procedure. Provided the wiretap evidence gathered in a criminal investigation relates to facts that are relevant for the civil proceeding, and is not otherwise subject to any privilege, immunity from disclosure or other "specific exception", there is no principle of civil procedure that allows disclosure to be refused.

It is worth noting that this ruling also applies to wiretap evidence involving "innocent third parties", i.e., persons not subject to criminal investigation but who are nonetheless involved in a civil proceeding (such as a class action).

The Supreme Court has acknowledged, however, that, depending on the circumstances, respect for an individual's privacy, the orderly conduct of the criminal investigation or respect for the rights of the accused may preclude granting such a request.

Conclusion

This ruling reflects a liberal interpretation of the principles of civil procedure. It allows disclosure for purposes of civil proceedings of recordings made during criminal investigations, regardless whether the Crown has introduced them in evidence in the criminal charges and ensuing proceedings. This is important for persons who are implicated in anticompetitive practices.

We note that under the new Code of Civil Procedure, which will come into force in 2016 (at a date as yet unknown), new Article 251 is worded differently from the current Article 402. It remains to be seen whether the coming into force of the new code will have any effect on the interpretation and/or scope of this ruling and also whether the ruling will be applied in common law provinces, where there are similar provisions allowing the courts to order production of relevant documents from third parties in civil proceedings.

Footnote

¹ Imperial Oil v Jacques, 2014 SCC 66.

Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global legal practice. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers based in over 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South Africa (incorporated as Deneys Reitz Inc) and Fulbright & Jaworski LLP, each of which is a separate legal entity, are members ('the Norton Rose Fulbright members') of Norton Rose Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein helps coordinate the activities of the Norton Rose Fulbright members but does not itself provide legal services to clients.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.