Royal Trust Corporation of Canada v. Fisherman
("Royal Trust"), a decision of the Ontario
Superior Court, is another example of a court addressing the risk
that discovery evidence could be used against a defendant in a
Canadian action, who is also a defendant in United States
("U.S.") criminal proceedings.
The Court took a different approach from that in Gillis v
Eagleson in refusing to order a stay of an Ontario class
action, despite the defendant's argument that any evidence
given by him would be used against him in anticipated criminal
proceedings in the U.S. In Gillis, the defendant
successfully sought a stay of an Ontario civil action pending the
final determination of U.S. criminal proceedings.
In Royal Trust, the Court found that no Canadian
constitutional right was engaged because the risk arose based on
U.S. constitutional principles. The Court further emphasized
that it was not up to the Canadian courts to frustrate Canadian
litigation in order to remedy so-called deficiencies in the U.S.
Constitution. To do so, wrote the Court, would be to give the
Charter extra-territorial effect.
The Court also distinguished Gillis based on a number
of factors, including that no criminal charges had yet been laid
against the defendant so the risk was speculative (even though it
later came to pass), discovery had not been completed, and the
defendant was not a Canadian citizen. Most significantly,
perhaps, was the fact that in Gillis there was
uncontroverted expert evidence that the defendant would receive no
Charter protection in the U.S. criminal proceedings and
that he would not have the ability to invoke the U.S.
Constitution's Fifth Amendment to prevent any discovery or
trial evidence in the Ontario civil proceedings from being used
against him in the U.S. criminal trial. In Royal Trust,
however, the expert opinion was divided as to the use that would be
made of the Ontario evidence by a U.S. court. Therefore, the
prejudice to the defendant was less clear.
Consistently, subsequent courts have followed this approach;
they have been reluctant to step in where no clear prejudice can be
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.
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