On October 3rd, the Canadian Bar Association held a
panel on the disclosure of confidential information in competition
cases as part of its Annual Competition Law Fall Conference. The
panel was moderated by our own Louis P. Bélanger, who
represents intervener Ultramar Ltd. in two high-profile cases
involving the disclosure of wiretap evidence, Couche-Tard Inc v
Jacques and Pétrolière
Impériale v Jacques. The Supreme Court of
Canada recently granted leave to appeal in both cases, which are
contesting an interlocutory
order of the Québec Superior Court that
required the Competition Bureau and the Director of Public
Prosecutions of Canada to disclose wiretap evidence to third
parties in civil proceedings under the Competition
Actin "follow-on" suits to the
criminal prosecutions under the same Act. Section 36 of
Act allows a person to sue for loss or
damage arising from a breach of the statute's criminal
Between 2005 and 2006, the Competition Bureau had intercepted
and recorded numerous telephone conversations as part of its
"octane" criminal investigation, which involved a
gasoline price-fixing cartel in the Estrie region of Québec.
The Crown subsequently laid criminal charges against fifty-two
individuals and companies for illegally conspiring to inflate gas
prices. During the criminal proceedings, the Director of Public
Prosecutions of Canada disclosed to the accused over 5000
recordings of conversations involving the accused parties
intercepted during the investigation.
A number of gas consumers commenced a class action under section
36 of the Competition Act and section 1457 of
the CivilCode of Québec the
against seventy-two defendants, including some individuals and
companies who were already facing criminal charges under the Act.
(Section 1457 of the Civil Code of Québec governs
extra-contractual liability for breach of rules of conduct.)
In June 2012, counsel for the consumer plaintiffs filed a motion
with the Québec Superior Court requesting disclosure of all
of the wiretap evidence from the "octane" criminal
investigation that had been disclosed to the accused –
including the communications that had never been publicly
disclosed. The Superior Court concluded that evidence gathered
during the Competition Bureau's criminal investigations may be
used for any proceedings under the Competition
Act, including civil actions for damages pursuant to
section 36 of the Act, as well as section 1457 of the
Civil Code of Québec. Thus, the Superior Court
ordered the production of the wiretaps to the civil plaintiffs,
albeit with a requirement for necessary redactions to protect the
privacy of third parties.
Six months later, the Québec Court of Appeal refused
leave to appeal the Superior Court's decision. Relying on its
ruling in Elitis Pharma inc c RX
Job inc, the Court of Appeal concluded
that an interlocutory judgment dismissing an objection to evidence
cannot be appealed except under certain circumstances, which were
not present in the case at bar. The Court of Appeal also found that
the civil defendants still had the opportunity to object to the
introduction of the wiretap recordings in the course of the
proceedings because that evidence had not yet been introduced.
The Supreme Court of Canada is scheduled to hear the appeals of
these decisions (and others) in April, 2014. It will have an
opportunity to clarify the extent to which wiretap evidence
disclosed to the accused in a criminal investigation under the
Competition Act can be compelled to be
produced in civil proceedings brought by third parties under that
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Commissioner of Competition addressed innovation, enforcement and policy initiatives at the Competition Bureau in his keynote speech, "Strengthening Competition: Innovation, Collaboration and Transparency."
Used car listing website operator CarGurus Inc.'s attempt to force rival Trader Corporation to supply it with vehicle listing data has encountered a dead end as the Competition Tribunal denied it leave to commence a private application under several provisions of the Competition Act.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).