SCC to Consider Use of Criminal Wiretaps in Class Actions

June 14, 2013

On June 2012, the Supreme Court of Canada announced that it would hear appeals in two matters from Quebec (Imperial Oil v Simon Jacques and Couche-Tard Inc v Simon Jacques) that may determine whether and to what extent wire tap evidence that was obtained in a criminal or a regulatory investigation can be produced in civil proceedings. These decisions will be important to corporations and individuals that may be subjected to regulatory investigations and class action lawyers.

Both of the matters deal with a Competition Bureau investigation into gas price fixing in Quebec. In the course of this investigation, the Competition Bureau recorded thousands of private conversations. As a result, the Federal Crown laid charges against several dozen individuals and companies for artificially raising gas prices. Most of the defendants have settled or pleaded guilty. However, the criminal case is on-going for eight of the companies and six of the individuals.

In the interim, a class action was commenced alleging price fixing against some the defendants in the criminal matter and other parties. The plaintiffs' lawyers sought production of the wiretap evidence from the criminal proceeding to use in the class action. The trial judge ordered the Crown to produce this evidence.

The Supreme Court's decision will be important for the following reasons:

1. Application to other areas of law “ Although the decisions appealed from deal with competition law, the application of the decision could potentially be much broader. Ultimately, the decision may have ramifications for any criminal or regulatory matters that also result in civil actions. This would be particularly important for cases based on fraud, environmental law and securities regulations. In each of these areas of law, the Supreme Court may potentially hand plaintiffs a very useful tool.
2. Scope of the decision “ If the Supreme Court rules that the wiretaps should be turned over to the plaintiff, this may open the door to the availability of other information obtained through the investigations of governmental/regulatory agencies. Where (or if) the Supreme Court draws this line will be of interest to parties subject to these investigations, and will likely affect their level of voluntary participation.
3. Charter rights “ On the other side of the coin, the decision could have an impact on the Charter rights of the individuals and companies affected. Although the law surrounding the government's ability to use wiretaps has been considered, it is less clear if third parties should also have access to this information.