Canadian civil plaintiffs can now access wiretaps collected by authorities in the context of criminal investigations. The issue of access arose in the aftermath of the Competition Bureau's octane investigation. Between 2004 and 2008, the Bureau intercepted and recorded 220,000 private communications among individuals suspected of fixing the price of retail gasoline. Charges, guilty pleas, convictions and eventually a civil class action followed. To advance their case, the class action plaintiffs requested disclosure of the Bureau's wiretaps. The Quebec Superior Court ordered disclosure. The Supreme Court of Canada dismissed an appeal of that order in Friday's decision Imperial Oil v Jacques, 2014 SCC 66.
According to the majority of the Supreme Court:
- Civil rules of procedure permit courts to order production from non-parties, such as the Competition Bureau, to aid in the search for truth.
- Neither the Competition Act nor the Criminal Code prohibit disclosure of wiretap information for use in civil proceedings.
- Judges have a discretion to refuse disclosure or to impose conditions to protect the privacy of third parties or to safeguard other important goals, such as ensuring a criminal accused receives a fair trial.
How will this impact most civil class actions? Probably not very much. The majority of Canadian class actions arise following investigations which have not involved wiretaps. Nevertheless, plaintiffs have a new arrow in their quiver where such evidence has been collected by authorities and can be disclosed to them in civil proceedings.
Of more potential concern for defendants (and potentially the Competition Bureau), the Supreme Court did not decide whether non-wiretap evidence collected by the Bureau in its investigation is also subject to disclosure. For example, is information proffered to the Bureau by participants in the Immunity and Leniency Programs subject to disclosure? On the one hand, the Supreme Court noted that section 29 of the Competition Act prohibits disclosure of five specific types of information, including information provided voluntarily pursuant to the Act. However, section 29 also contains a blanket exemption where disclosure is "for the purposes of the administration or enforcement of" the Act. The lower court had partially relied on that exemption to permit disclosure of the wiretaps to the civil plaintiffs. Does that exemption similarly permit disclosure to civil plaintiffs of information voluntarily proffered to the Bureau by an immunity or leniency applicant? If so, it could severely undermine the effectiveness of the Immunity and Leniency Programs as the specter of increased civil liability may cause applicants to think twice before cooperating with the Bureau in circumstances where their information may be ordered produced to civil plaintiffs.
Because the Supreme Court left this important question unanswered, it will fall to lower courts to determine the scope of section 29's exemption. No doubt, defendants and the Bureau alike will urge the court to refuse disclosure in these circumstances owing to the important societal goal of ensuring an effective investigatory regime through the Immunity and Leniency Programs. In particular, the Bureau will likely assert public interest and possibly settlement privilege over information received from immunity and leniency applicants. How a larger fight around these issues will play out remains to be seen.