The concerns about the effectiveness of protective orders raised
in Catalyst Fund General Partner I Inc. v Hollinger Inc.,
 OJ No 2191 (SCJ), aff'd  OJ No 4666 (CA) were also
central to a recent decision of Justice Goldstein in Neuwirth v
DaCosta et al., 2014 ONSC 527.
In Neuwirth, United States (U.S.) class action
plaintiffs brought an application to enforce letters rogatory
issued by a U.S. District Court to obtain evidence in Canada from
non-party employees of a Canadian subsidiary of one of the U.S.
defendants. The respondents opposed the application on the basis
that their privilege against self-incrimination could be violated.
The U.S. action involved allegations of a price-fixing conspiracy
among manufacturers of polyurethane foam, and the respondents
asserted concerns about the possibility of a related investigation
in Canada. Some of them were also defendants in a proposed Canadian
class action. They feared that evidence given in the U.S.
action could be used to further a Canadian Competition Bureau
investigation which could lead to criminal charges or evidence in
support of the Canadian class action. This, they said, would
violate their privilege against self-incrimination.
Goldstein J. disagreed. In response to the
respondents' claims that they were entitled to both use
immunity and derivative use immunity over their evidence, Goldstein
J. relied upon Treat America Limited v Leonidas, 2012 ONCA
748, leave to appeal to Supreme Court of Canada (SCC) refused, 2013
CanLII 28368 (SCC), which held that, according to the Supreme
Court of Canada in R v Jarvis, 2002 SCC 73, where evidence
is obtained during the course of an inquiry where the predominant
purpose is a civil matter, there is no automatic bar to its
introduction at a criminal trial; the trial judge will determine
the admissibility of the evidence.
Goldstein J. acknowledged the Catalyst Fund concern but
found that the protective order imposed by the U.S. District Court,
which apparently was broader than the implied undertaking rule and
prohibited U.S. counsel from providing any evidence to counsel in
the proposed Canadian class actions, was sufficient. Goldstein J.
was not prepared to assume that the lawyers would violate a court
order. Surprisingly, he did not address the possibility of evidence
being leaked by others. Goldstein J. ordered that the examinations
of the respondents would be conducted pursuant to the Ontario
Rules of Civil Procedure and that the respondents would
receive all of the protections contained in the Charter
and the relevant Evidence Acts.
The outcome was determined by the fact that, although there was
a Competition Bureau investigation, the respondents acknowledged
that they were not targets and so the risk to the respondents was
merely the possibility that their evidence might be used against
them in Canada (where Charter protections apply).
Significantly, Justice Goldstein said that if the respondents had
been targets of a U.S. criminal investigation, he might have taken
a different view of the propriety of invoking the Fifth
Amendment. We still await a case on those facts!
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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