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October 19, 2014

In an important decision released on October 17, 2014, Imperial Oil v. Jacques, 2014 SCC 66, the Canadian Supreme Court confirmed plaintiffs’ ability to obtain disclosure of wiretap evidence obtained in connection with criminal competition law investigations.

This case was an appeal from a decision of the Quebec Superior Court.  The lower court granted a motion by Quebec class action plaintiffs for disclosure of wiretap recordings obtained by the Competition Bureau (the “Bureau”) in connection with its ongoing Quebec gas price-fixing investigation.

During the investigation the Bureau intercepted and recorded some 220,000 private communications pursuant to seven court orders obtained under Part VI of the Criminal Code (the “Code”). Fifty-four charges have also been laid to date.

The Superior Court held that the wiretap evidence was both relevant to the plaintiffs’ civil proceedings (a class action commenced under section 36 of the Competition Act – the “Act”) and that neither the Act nor the Code created any immunity from disclosure.

The Supreme Court’s Decision

On appeal to the Supreme Court (the Quebec Court of Appeal dismissed motions for leave to appeal) a majority of the Court, in joint reasons per Justices LeBel and Wagner, affirmed the Superior Court’s decision and dismissed the appeal. In particular, the Supreme Court agreed with the lower court’s holding that parties to a civil proceeding may obtain disclosure of wiretap evidence intercepted by the state in the course of a criminal investigation.

Reasons

In arriving at this decision, the Supreme Court reasoned, among other things, that:

1. In general, article 402 of the Quebec Code of Civil Procedure (the “Quebec Code”) gives Quebec judges great discretion in exercising their power to order disclosure in civil proceedings as long as evidence is relevant. In addition, judges should generally favour disclosure in the interests of truth-finding, procedural fairness and ensuring the efficiency of the judicial process.

2. Judges may tailor disclosure orders to, for example, avoid harming the interests of third parties (in this case, an order to disclose the wiretap evidence only to counsel and experts and screen the evidence so as not to disclose the identities third parties not involved in the proceedings).

3. These general principles are not absolute, however, and may be limited if evidence is subject to immunity from disclosure under legislation or case law.

4. Section 29 of the Act, which governs the Bureau’s confidentiality obligations regarding compulsorily and voluntarily obtained information, does not prohibit the disclosure of wiretap evidence obtained under Part VI of the Code. Section 29 further specifically provides that evidence obtained by the Bureau may be disclosed “for the purpose of the administration or enforcement” of the Act (language that has previously been relied on by civil plaintiffs seeking disclosure of evidence in the Bureau’s possession).

5. There is a “broad exemption” (s. 193(2)(a)) to the general Code provision prohibiting disclosure or use of intercepted private communications without the consent of the originator or recipient if disclosure is made “in the course of or for the purpose of giving evidence in any civil or criminal proceedings …” The Court held that the case law and academic literature both supported a broad interpretation of section 193(2)(a) (i.e., allowing criminal wiretap evidence to be disclosed in civil proceedings, including at the exploratory stage of proceedings).

Implications of the Decision

In reading this important and interesting decision, it seems to me that there are several implications.

First, the case confirms the general principle that courts should be inclined to order disclosure of evidence relevant to proceedings, subject to judicial discretion to tailor the form of disclosure (e.g., to protect the privacy of third parties).

Second, the case further broadens the circumstances in which private plaintiffs may obtain evidence in the Bureau’s possession for use in civil or class actions.

Third, the case confirms that the categories of evidence enumerated in section 29 of the Act are not exhaustive and that categories not listed under section 29, such as wiretap evidence collected in the course of a criminal investigation, may well be subject to civil production.

Finally, and perhaps most importantly, the case seems to me to increase the civil risk of parties to price-fixing and other criminal investigations (i.e., further widen the potential civil exposure).

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