Canadian civil plaintiffs can now access wiretaps collected by
authorities in the context of criminal investigations. The issue of
access arose in the aftermath of the Competition Bureau's
octane investigation. Between 2004 and 2008, the Bureau intercepted
and recorded 220,000 private communications among individuals
suspected of fixing the price of retail gasoline. Charges, guilty
pleas, convictions – and eventually a civil class action
– followed. To advance their case, the class action
plaintiffs requested disclosure of the Bureau's wiretaps. The
Quebec Superior Court ordered disclosure. The Supreme Court of
Canada dismissed an appeal of that order in Friday's decision
Imperial Oil v Jacques, 2014 SCC
According to the majority of the Supreme Court:
Civil rules of procedure permit courts to order production from
non-parties, such as the Competition Bureau, to aid in the search
Neither the Competition Act nor the Criminal
Code prohibit disclosure of wiretap information for use in
Judges have a discretion to refuse disclosure or to impose
conditions to protect the privacy of third parties or to safeguard
other important goals, such as ensuring a criminal accused receives
a fair trial.
How will this impact most civil class actions? Probably not very
much. The majority of Canadian class actions arise following
investigations which have not involved wiretaps. Nevertheless,
plaintiffs have a new arrow in their quiver where such evidence has
been collected by authorities and can be disclosed to them in civil
Of more potential concern for defendants (and potentially the
Competition Bureau), the Supreme Court did not decide whether
non-wiretap evidence collected by the Bureau in its investigation
is also subject to disclosure. For example, is information
proffered to the Bureau by participants in the Immunity and
Leniency Programs subject to disclosure? On the one hand, the
Supreme Court noted that section 29 of the Competition Act
prohibits disclosure of five specific types of information,
including information provided voluntarily pursuant to the
Act. However, section 29 also contains a blanket exemption
where disclosure is "for the purposes of the administration or
enforcement of" the Act. The lower court had
partially relied on that exemption to permit disclosure of the
wiretaps to the civil plaintiffs. Does that exemption similarly
permit disclosure to civil plaintiffs of information voluntarily
proffered to the Bureau by an immunity or leniency applicant? If
so, it could severely undermine the effectiveness of the Immunity
and Leniency Programs as the specter of increased civil liability
may cause applicants to think twice before cooperating with the
Bureau in circumstances where their information may be ordered
produced to civil plaintiffs.
Because the Supreme Court left this important question
unanswered, it will fall to lower courts to determine the scope of
section 29's exemption. No doubt, defendants and the Bureau
alike will urge the court to refuse disclosure in these
circumstances owing to the important societal goal of ensuring an
effective investigatory regime through the Immunity and Leniency
Programs. In particular, the Bureau will likely assert public
interest and possibly settlement privilege over information
received from immunity and leniency applicants. How a larger fight
around these issues will play out remains to be seen.
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.
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