Can electronic surveillance conducted in the context of a
criminal investigation be disclosed to a plaintiff in a class
action? Yes, according to a majority of the Supreme Court of Canada
in Imperial oil v. Jacques, 2014 SCC 66.
In this case, the Competition Bureau of Canada had obtained
permission to conduct electronic surveillance of various
individuals who were suspected of fixing gas prices in certain
regions of Quebec. The operation, code-named "Octane,"
intercepted and recorded more than 220,000 private
As Octane was underway, a class action was authorized against a
number of individuals and entities being kept under surveillance.
Plaintiff Jacques alleged that the defendants had engaged in
anti-competitive behaviour and were liable towards consumers who
had purchased fuel from their service stations. The Plaintiff
sought to obtain some of the intercepted communications under
article 402 of the Quebec Code of Civil Procedure. This
provisions states that if "it appears from the record that a
document relating to the issues between the parties is in the
possession of a third-party, he may...be ordered to give
communication of it..."
In first instance, the Superior Court of Quebec ordered
communication of the specific recordings sought by the Plaintiff.
The Superior Court found that no relevant immunities could be
invoked by the defendants under the Competition Act or the
Criminal Code. The Quebec Court of Appeal refused leave to
appeal the decision.
The Supreme Court agreed with the Superior Court and maintained
the decision of first instance.
According to the majority (the Chief Justice agreeing with the
result, but for separate reasons), although the Criminal
Code prohibits the unlawful disclosure of information, doing
so is not an offence if it is made in the course or for the purpose
of giving evidence in a civil trial. This broader, more generous
approach to the applicable criminal law rules is supported by the
existing case law and academic literature.
The majority added that article 402 C.C.P. provides the trial
judge with discretion in determining what constitutes reasonable
disclosure in a given set of circumstances, including the relevance
of the intercepted communications to the legal debate between the
litigants and the extent and prejudicial consequences of the
proposed invasion of privacy.
The majority stated that, at the exploratory stage of a
proceeding, privacy concerns are generally tempered by the duty of
confidentiality imposed upon the parties, their lawyers and any
experts involved in the litigation.
In a dissenting opinion, Justice Abella concluded that
disclosing to a private litigant communications intercepted during
a criminal investigation would provide that litigant with an
extraordinary advantage that he or she would not otherwise be
entitled to. Such disclosure would also infringe the right to
privacy enshrined in Quebec's Charter of Human Rights and
It follows that parties in Quebec whose communications have been
lawfully intercepted by authorities in the course of a criminal
investigation may see those communications disclosed to a civil
plaintiff under article 402 C.C.P., provided the disclosure is
found to be appropriate and proportionate by the trial judge.
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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