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September 28, 2017

It is relatively uncommon for the Supreme Court of Canada (SCC) to hear competition law cases. However, in an interesting decision handed down earlier today (Canada (Attorney General) v. Thouin), the SCC confirmed the presumption that Crown immunity applies in civil proceedings unless its protection is clearly legislatively overridden.

This case relates to a class action commenced against oil companies and retailers who had been the subjects of a Competition Bureau (Bureau) retail gasoline price fixing investigation in Quebec.

As part of their class action, the civil plaintiffs sought permission to examine the Bureau’s chief investigator and require the federal Attorney General (AG) to disclose all intercepted communications and documents collected as part of the investigation. In response, the defendants argued that Crown immunity barred the plaintiffs from Bureau and AG discovery.

Both the Quebec Superior Court and Quebec Court of Appeal held that Crown immunity could not be relied on based on section 27 of the Crown Liability and Proceedings Act (CLPA). In this regard, the Court of Appeal held that section 27, which provides that the rules of practice and procedure of the court in which proceedings are taken apply in those proceedings, establishes a general rule that broadly applies in any proceedings by, against or involving the Crown.

On appeal to the SCC, the main issue was whether Parliament had clearly removed Crown immunity in a proceeding in which the Crown was not a party.

In holding that Crown immunity did indeed apply in this case to bar the plaintiffs’ discovery, the SCC in general canvassed the history of the immunity in Canadian legislation and case law. The Court held that at common law, the Crown was not required to submit to discovery in which it was a party or in which it was not a party. As such, the Court reasoned that there must be a clear and unequivocal expression of legislative intent to override the common law.

More specifically, the SCC found that, while section 27 of the CLPA allowed discovery of the Crown in proceedings in which it was a party, the language of that section was far from unequivocal for discovery in proceedings in which the Crown was not a party (as in this case).

Interestingly, the SCC also contrasted this case with its decision in Imperial Oil v. Jacques, 2014 SCC 66, in which it held that a party in a civil proceeding could obtain disclosure of state-obtained wiretaps in a criminal investigation apparently based on the fact that Crown immunity was not at issue in that case and because the relevant legislation in Jacques – the Competition Act and Criminal Code – did not preclude wiretap disclosure.

In sum, the SCC confirmed in this case that there must be clear legislative language to remove the presumption of Crown immunity in civil proceedings. The case will also, in its result, operate as an obstacle to private plaintiffs attempting to enforce the Competition Act.

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