The numerous proceedings involving the former officers and
directors of the United States (U.S.) and Canadian
Hollinger-related corporations offer a recent high-profile example
of the risks to the privilege against self-incrimination arising
from cross-border parallel proceedings. The defendants faced U.S.
and Canadian civil litigation (including shareholder class
actions), Ontario Securities Commission and Securities &
Exchange Commission prosecutions, U.S. criminal proceedings, and
Canada Revenue Agency and Internal Revenue Service investigations.
The Hollinger corporations themselves were subject to bankruptcy
proceedings in both the U.S. and Canada.
In Catalyst Fund General Partner I Inc. v. Hollinger
Inc.,  O.J. No. 2191 (SCJ), aff'd  O.J.
No. 4666 (CA), certain officers and directors of Canadian
corporation Hollinger Inc. faced proceedings by a shareholder under
the oppression remedy provisions of the Canada Business
Corporations Act ("CBCA") at the same time as these
other proceedings were also extant.
The applicant shareholder obtained an order removing these
officers and directors and appointing an inspector to investigate
certain payments made to them, which the applicant alleged were
improper. The court-appointed inspector later sought to examine the
former officers and directors under oath, as permitted under
section 229 of the CBCA.
The defendants resisted the inspector's request for an
examination on the ground that it would result in their inability
to rely on the Fifth Amendment protection against
self-incrimination in the U.S. criminal proceedings. They
argued that any examination should at least be postponed until the
inspector had exhausted other sources of information, in light of
the real and likely risk that the transcript from an examination in
Canada would find its way into the U.S.
The Superior Court applied the analysis in Royal Trust
Corporation v Fisherman and determined that it could impose
effective safeguards to protect against self-incrimination concerns
as part of its control process. In particular, the Court
emphasized that an individual could apply for directions with
respect to potentially incriminating questions before an answer was
required, the inspector was not a compellable witness under the
CBCA, the examination could take place in camera, and a
protective order could be sought. The Court also pointed to
unique aspects of an inspector's report, such as the privilege
that is attached to material gathered by an inspector.
Ultimately, the inspector did not proceed with the examination
and the safeguards relied on by the Court were never tested.
However, questions remain about the effectiveness of such
safeguards. For example, it is easy to imagine that Ontario
evidence could make its way to the U.S., in violation of a
protective order, and the witness who is affected may have little
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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