On October 3rd, the Canadian Bar Association held a panel on the disclosure of confidential information in competition cases as part of its Annual Competition Law Fall Conference. The panel was moderated by our own Louis P. Bélanger, who represents intervener Ultramar Ltd. in two high-profile cases involving the disclosure of wiretap evidence, Couche-Tard Inc v Jacques and Pétrolière Impériale v Jacques. The Supreme Court of Canada recently granted leave to appeal in both cases, which are contesting an interlocutory order of the Québec Superior Court that required the Competition Bureau and the Director of Public Prosecutions of Canada to disclose wiretap evidence to third parties in civil proceedings under the Competition Act in "follow-on" suits to the criminal prosecutions under the same Act. Section 36 of the Competition Act allows a person to sue for loss or damage arising from a breach of the statute's criminal provisions.
Between 2005 and 2006, the Competition Bureau had intercepted and recorded numerous telephone conversations as part of its "octane" criminal investigation, which involved a gasoline price-fixing cartel in the Estrie region of Québec. The Crown subsequently laid criminal charges against fifty-two individuals and companies for illegally conspiring to inflate gas prices. During the criminal proceedings, the Director of Public Prosecutions of Canada disclosed to the accused over 5000 recordings of conversations involving the accused parties intercepted during the investigation.
A number of gas consumers commenced a class action under section 36 of the Competition Act and section 1457 of the Civil Code of Québec the against seventy-two defendants, including some individuals and companies who were already facing criminal charges under the Act. (Section 1457 of the Civil Code of Québec governs extra-contractual liability for breach of rules of conduct.)
In June 2012, counsel for the consumer plaintiffs filed a motion with the Québec Superior Court requesting disclosure of all of the wiretap evidence from the "octane" criminal investigation that had been disclosed to the accused – including the communications that had never been publicly disclosed. The Superior Court concluded that evidence gathered during the Competition Bureau's criminal investigations may be used for any proceedings under the Competition Act, including civil actions for damages pursuant to section 36 of the Act, as well as section 1457 of the Civil Code of Québec. Thus, the Superior Court ordered the production of the wiretaps to the civil plaintiffs, albeit with a requirement for necessary redactions to protect the privacy of third parties.
Six months later, the Québec Court of Appeal refused leave to appeal the Superior Court's decision. Relying on its ruling in Elitis Pharma inc c RX Job inc, the Court of Appeal concluded that an interlocutory judgment dismissing an objection to evidence cannot be appealed except under certain circumstances, which were not present in the case at bar. The Court of Appeal also found that the civil defendants still had the opportunity to object to the introduction of the wiretap recordings in the course of the proceedings because that evidence had not yet been introduced.
The Supreme Court of Canada is scheduled to hear the appeals of these decisions (and others) in April, 2014. It will have an opportunity to clarify the extent to which wiretap evidence disclosed to the accused in a criminal investigation under the Competition Act can be compelled to be produced in civil proceedings brought by third parties under that Act.
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