On June 2012, the Supreme Court of Canada announced that it
would hear appeals in two matters from Quebec (Imperial Oil v Simon Jacques and Couche-Tard Inc v Simon Jacques) that may
determine whether and to what extent wire tap evidence that was
obtained in a criminal or a regulatory investigation can be
produced in civil proceedings. These decisions will be important to
corporations and individuals that may be subjected to regulatory
investigations and class action lawyers.
Both of the matters deal with a Competition Bureau investigation
into gas price fixing in Quebec. In the course of this
investigation, the Competition Bureau recorded thousands of private
conversations. As a result, the Federal Crown laid charges against
several dozen individuals and companies for artificially raising
gas prices. Most of the defendants have settled or pleaded guilty.
However, the criminal case is on-going for eight of the companies
and six of the individuals.
In the interim, a class action was commenced alleging price
fixing against some the defendants in the criminal matter and other
parties. The plaintiffs' lawyers sought production of the
wiretap evidence from the criminal proceeding to use in the class
action. The trial judge ordered the Crown to produce this
The Supreme Court's decision will be important for the
Application to other areas of law –
Although the decisions appealed from deal with competition law, the
application of the decision could potentially be much broader.
Ultimately, the decision may have ramifications for any criminal or
regulatory matters that also result in civil actions. This would be
particularly important for cases based on fraud, environmental law
and securities regulations. In each of these areas of law, the
Supreme Court may potentially hand plaintiffs a very useful
Scope of the decision – If the Supreme
Court rules that the wiretaps should be turned over to the
plaintiff, this may open the door to the availability of other
information obtained through the investigations of
governmental/regulatory agencies. Where (or if) the Supreme Court
draws this line will be of interest to parties subject to these
investigations, and will likely affect their level of voluntary
– On the other side of the coin, the decision could have an
impact on the Charter rights of the individuals and
companies affected. Although the law surrounding the
government's ability to use wiretaps has been considered, it is
less clear if third parties should also have access to this
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.
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