In its recent decision in Imperial Oil v Jacques 2014 SCC 66 (found​ here), the Supreme Court of Canada gave the plaintiffs in a class action against Imperial Oil and others access to private communications the Competition Bureau of Canada had gathered through wiretaps in an investigation. This case has significant implications for any businesses which are governed by and investigated by regulatory bodies, including environmental regulators like Federal and Provincial environment ministries and the Alberta Energy Regulator.

Background

The Competition Bureau obtained wiretap warrants as a part of its investigation into allegations that a number of individuals and corporations had conspired to fix the pump price of gasoline in Quebec. Imperial Oil was not charged following the investigation, but a number of other parties to the appeal to the Supreme Court of Canada were. After charges were laid, and while criminal proceedings were ongoing, two individuals and the Automobile Protection Association (the “Class Action Plaintiffs”) filed a class action against Imperial and a number of other defendants for damages from the alleged conspiracy to fix pump prices.

At the discovery stage of the class action, the Class Action Plaintiffs asked the Quebec Superior Court for an order under Quebec’s third-party production rule to force the Competition Bureau to turn over all the wiretap evidence it had gathered in its investigation. The Quebec Superior Court granted the order and, following an unsuccessful appeal to the Quebec Court of Appeal, Imperial, along with a number of other defendants, appealed to the Supreme Court of Canada.

The Supreme Court of Canada Decision

A majority of the Supreme Court held that courts can order production of evidence gathered by a regulator  based on Art. 402 of Quebec’s Code of Civil Procedure, which gives the court the discretion to order production of documents in the hands of third-parties, and subsection 193(2) of the Criminal Code of Canada, which permits disclosure of intercepted private communications “for the purpose of giving evidence in any civil [proceedings].” Subsection 193(2) does not provide a specific right to access wiretap evidence. However, that subsection creates an exception to the general prohibition on disclosing intercepted private communications to ensure that courts have access to all relevant information in proceedings before them. There was no criminal prohibition on disclosure, and the Competition Act did not create an immunity from disclosure, so there was nothing stopping the court from ordering the Competition Bureau to produce the wiretap evidence it had gathered.

Implications

The Supreme Court’s decision means that materials gathered by regulatory agencies during their investigations may be discoverable in civil actions, even though the parties subject to investigation may not have been charged. All the provinces and territories, and the federal courts, have a similar rule to Quebec’s rule 402. Further, many regulatory bodies have similar powers to the Competition Bureau to obtain information in an investigation. For example, the Alberta Environmental Protection and Enhancement Act (“EPEA”) grants investigators the power to request search warrants and wiretap warrants under the same sections of the Criminal Code of Canada which were at issue in Jacques.  Therefore, any information collected during an EPEA investigation would be potentially be discoverable and producible in a civil action. More broadly speaking, it is likely that other materials in the possession of a regulatory agency can be subject to third-party production in the right case.

However, Jacques does not provide unlimited and unfettered access to information gathered in an investigation. Jacquesprovides that, where there is a specific prohibition on disclosure, a plaintiff in a civil action cannot obtain production of investigation materials. For this reason, when faced with the possibility of a third-party production order, it will be necessary to look to the statute authorizing the investigation. As an example, Alberta’s Securities Act provides that all information gathered during an investigation is confidential “and shall not be divulged.” Given this strong language, information gathered by staff during a securities commission investigation may very well be protected from disclosure. However, EPEAdoes not provide for confidentiality, so information gathered by investigators under that act may be subject to third-party production.

The Supreme Court also pointed out that judges can, and should place limits on production from regulatory agencies where it is appropriate to do so. Any records to be produced must be relevant to the litigation at issue, and judges should be alert to the possibility of, and work to prevent ‘fishing expeditions.’ The Supreme Court also recognized that judges “should limit the potential for invasion of privacy,” however, the privacy interest is that protected by the Charter of Rights and Freedoms.  It appears that the Supreme Court has found that commercial interests in protecting sensitive information gathered in an investigation are insufficient to refuse disclosure.

However, the Supreme Court has held (in Sierra Club) that commercial interests may support a confidentiality order to seal court files or proceedings. Although there may not be an obstacle to production of information gathered by regulatory agencies, there may be other steps that can be taken to protect  information from wider public disclosure.

In short, companies and individuals who are sued in civil actions where parallel regulatory investigations have occurred should be prepared to contest applications for third-party production of information gathered by regulatory bodies during their investigations and seek to limit public disclosure of any information produced.  Except in rare circumstances which may justify a pre-action production order, an applicant seeking to get production of that information will likely be prevented from engaging in a fishing expedition and, in addition to meeting the test set out by the Supreme Court, would have to at least have a sufficient basis  to commence the civil action in the first place.