Written by Emrys Davis
The Supreme Court of Canada held today that civil plaintiffs cannot examine for discovery (aka depose) a Competition Bureau investigator: Canada (Attorney General) v. Thouin, 2017 SCC 46.
The Court observed that, at common law, the Crown once enjoyed several immunities, including immunity from discovery and document production. Legislation has clearly and unequivocally lifted some of those immunities so that the federal Crown now has similar discovery and document production obligations to private litigants—but only when it is a party to the lawsuit. The Court held that no legislation clearly and unequivocally lifts the federal Crown’s immunity from discovery when it is not a party to the lawsuit. Thus, the lower courts were wrong to order the Bureau investigator to be examined for discovery in a price-fixing class action to which the Crown is not a party.
The Court noted that courts can require the federal Crown to produce documents or be examined at trial even when it is not a party to the lawsuit because its immunity has been lifted for those purposes.
Today’s decision is good news for the Bureau, which keeps its investigations confidential to protect their integrity and to protect the identity of any informants. It had no desire to see its lead investigator examined under oath about the investigation. However, by recognizing that the Bureau may have to produce documents, the decision leaves for another day Bureau concerns that document production requests from civil plaintiffs will consume scarce resources and thereby impair its enforcement activities.