Canadian Appeals Monitor Information and Commentary on Upcoming and Recent Appeal Court Decisions

This Week at the SCC (17/10/2014)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in The SCC Monitor
Brandon Kain

The Supreme Court of Canada released one judgment this week of interest to Canadian businesses and professions.

In Imperial Oil v. Jacques, 2014 SCC 66, the Court held that a private litigant can request the disclosure of recordings of private communications from third parties to the civil action, which were intercepted by the government during a criminal investigation, without the consent of either of the communicating parties.

The recordings in Imperial had been obtained by the Competition Bureau pursuant to judicial authorizations under Part VI of the Criminal Code as part of its investigation into an alleged price-fixing conspiracy.  The disclosure was ordered in response to the plaintiffs’ motion brought under art. 402 of the Quebec Code of Civil Procedure to obtain disclosure of the intercepted communications from the Competition Bureau and the federal Director of Public Prosecutionsregardless of the fact that the communications had not been filed in criminal proceedings and the validity of the authorizations had not been determined.  The majority judgment of LeBel and Wagner JJ. held that the recordings could be disclosed despite the fact that s. 193 of the Criminal Code makes it an offence to disclose intercepted communications without the consent of the communicating parties, since they fell within the exception to this in s. 193(2)(a), which applies where the disclosure is made “in the course of or for the purpose of giving evidence in any civil… proceedings”.  This exception applied even though the disclosure was sought prior to the hearing of the civil trial, while the class action remained at the exploratory phase, since the communications were being requested for the purpose of testifying at the hearing.

Importantly, the majority also held that judges possess the discretion to deny disclosure based on relevance and privacy concerns, though it observed that disclosure is generally to be favoured.  As well, the majority emphasized that judges have discretion over the disclosure process itself, and may impose conditions and limits on disclosure through a balancing of interests approach (e.g., by limiting disclosure solely to the lawyers and experts participating in the civil proceedings, and screening the recordings to protect third party privacy interests).

The McCarthy Tétrault Opinions Group consists of members of the firm’s litigation department whose practices focus on written advocacy and the provision of strategic advice and opinions in the context of complex business disputes and transactions.  The members of the Opinions Group are Anthony Alexander, Martin Boodman, Brandon Kain and Hovsep Afarian.