Canada: Use Of Information From Regulatory Investigations In Civil Litigation

In its recent decision in Imperial Oil v Jacques 2014 SCC 66 (found here), the Supreme Court of Canada gave the plaintiffs in a class action against Imperial Oil and others access to private communications the Competition Bureau of Canada had gathered through wiretaps in an investigation. This case has significant implications for any businesses which are governed by and investigated by regulatory bodies, including environmental regulators like Federal and Provincial environment ministries and the Alberta Energy Regulator.

Background

The Competition Bureau obtained wiretap warrants as a part of its investigation into allegations that a number of individuals and corporations had conspired to fix the pump price of gasoline in Quebec. Imperial Oil was not charged following the investigation, but a number of other parties to the appeal to the Supreme Court of Canada were. After charges were laid, and while criminal proceedings were ongoing, two individuals and the Automobile Protection Association (the "Class Action Plaintiffs") filed a class action against Imperial and a number of other defendants for damages from the alleged conspiracy to fix pump prices.

At the discovery stage of the class action, the Class Action Plaintiffs asked the Quebec Superior Court for an order under Quebec's third-party production rule to force the Competition Bureau to turn over all the wiretap evidence it had gathered in its investigation. The Quebec Superior Court granted the order and, following an unsuccessful appeal to the Quebec Court of Appeal, Imperial, along with a number of other defendants, appealed to the Supreme Court of Canada.

The Supreme Court of Canada Decision

A majority of the Supreme Court held that courts can order production of evidence gathered by a regulator  based on Art. 402 of Quebec's Code of Civil Procedure, which gives the court the discretion to order production of documents in the hands of third-parties, and subsection 193(2) of the Criminal Code of Canada, which permits disclosure of intercepted private communications "for the purpose of giving evidence in any civil [proceedings]." Subsection 193(2) does not provide a specific right to access wiretap evidence. However, that subsection creates an exception to the general prohibition on disclosing intercepted private communications to ensure that courts have access to all relevant information in proceedings before them. There was no criminal prohibition on disclosure, and the Competition Act did not create an immunity from disclosure, so there was nothing stopping the court from ordering the Competition Bureau to produce the wiretap evidence it had gathered.

Implications

The Supreme Court's decision means that materials gathered by regulatory agencies during their investigations may be discoverable in civil actions, even though the parties subject to investigation may not have been charged. All the provinces and territories, and the federal courts, have a similar rule to Quebec's rule 402. Further, many regulatory bodies have similar powers to the Competition Bureau to obtain information in an investigation. For example, the Alberta Environmental Protection and Enhancement Act ("EPEA") grants investigators the power to request search warrants and wiretap warrants under the same sections of the Criminal Code of Canada which were at issue in Jacques.  Therefore, any information collected during an EPEA investigation would be potentially be discoverable and producible in a civil action. More broadly speaking, it is likely that other materials in the possession of a regulatory agency can be subject to third-party production in the right case.

However, Jacques does not provide unlimited and unfettered access to information gathered in an investigation. Jacques provides that, where there is a specific prohibition on disclosure, a plaintiff in a civil action cannot obtain production of investigation materials. For this reason, when faced with the possibility of a third-party production order, it will be necessary to look to the statute authorizing the investigation. As an example, Alberta's Securities Act provides that all information gathered during an investigation is confidential "and shall not be divulged." Given this strong language, information gathered by staff during a securities commission investigation may very well be protected from disclosure. However, EPEA does not provide for confidentiality, so information gathered by investigators under that act may be subject to third-party production.

The Supreme Court also pointed out that judges can, and should place limits on production from regulatory agencies where it is appropriate to do so. Any records to be produced must be relevant to the litigation at issue, and judges should be alert to the possibility of, and work to prevent 'fishing expeditions.' The Supreme Court also recognized that judges "should limit the potential for invasion of privacy," however, the privacy interest is that protected by the Charter of Rights and Freedoms.  It appears that the Supreme Court has found that commercial interests in protecting sensitive information gathered in an investigation are insufficient to refuse disclosure.

However, the Supreme Court has held (in Sierra Club) that commercial interests may support a confidentiality order to seal court files or proceedings. Although there may not be an obstacle to production of information gathered by regulatory agencies, there may be other steps that can be taken to protect  information from wider public disclosure.

In short, companies and individuals who are sued in civil actions where parallel regulatory investigations have occurred should be prepared to contest applications for third-party production of information gathered by regulatory bodies during their investigations and seek to limit public disclosure of any information produced.  Except in rare circumstances which may justify a pre-action production order, an applicant seeking to get production of that information will likely be prevented from engaging in a fishing expedition and, in addition to meeting the test set out by the Supreme Court, would have to at least have a sufficient basis  to commence the civil action in the first place.

About BLG

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions