In Treat Canada Ltd. v. Leonidas,  O.J. No. 5551,
the Ontario Court of Appeal considered the jeopardy to the
privilege against self-incrimination in an appeal from an Ontario
order enforcing a letter of request for international judicial
assistance issued to the plaintiff in a U.S. class action. The
class action related to an alleged conspiracy among U.S. and
Canadian chocolate manufacturers to inflate prices. The order
compelled Robert Leonidas, former president and CEO of Nestle
Canada, to appear for a deposition and to provide oral testimony as
a witness in the class action. Neither Nestle nor Leonidas
was a defendant in the proceeding; however, the Canadian
Commissioner of Competition confirmed that Leonidas would soon be
charged for his involvement in the alleged conspiracy.
The Court of Appeal found that the order did not breach
Leodinas's Charter rights.
The Court found that requiring Leonidas to testify would raise
public policy concerns that reflect on the fairness of the Canadian
criminal justice system if the Commissioner was later able to
access his testimony to assist in the preparation of the criminal
case against him. Despite these public policy concerns, the
Court concluded that appropriate conditions could be put in place
to ensure that Leonidas's immunity rights were protected while
honouring Canada's comity obligations to the U.S. These
included restrictions on the Commissioner's ability to obtain
access to Leonidas's evidence. In particular, the Court
imposed the following conditions:
The Commissioner was to provide notice to Leonidas before
taking any step to seek access to the transcript of his
The Commissioner was not to seek or receive information
regarding the contents of Leonidas's testimony from anyone with
knowledge or possession of those contents;
The Commissioner was not to seek a court order to access
Leonidas's testimony unless he was not charged but instead
became a witness for the prosecution or if he was charged and
testified in a subsequent proceeding against him; and
In the event the Commissioner wished to obtain an order to
access Leonidas's testimony, the order had to be sought and
obtained from the Ontario Superior Court, on notice to
In any event, the Court found that it was not necessary to
decide whether the Charter protection against
self-incrimination extends to preclude a Canadian prosecutor from
obtaining access to compelled testimony in a U.S. proceeding for
the purpose of a criminal investigation. Instead, the Court
relied on the Commissioner's undertaking not to do so.
Leave to appeal to the Supreme Court of Canada was refused.
The Court's decision demonstrates a confidence (as yet
untested) that the imposition of conditions can ameliorate the
risk. The problem with this approach is the resulting uncertainty
as to whether any such conditions will be effective.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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).