Competition Class Actions: the Competition Bureau Is Ordered to Disclose Wiretap Evidence to Plaintiffs
August 15, 2012
In a recent decision,1 the Québec Superior Court ordered the Competition Bureau (Bureau) and the Director of Public Prosecution (DPP) to disclose to class action plaintiffs’ counsel a copy of the private communications intercepted during the investigation on the sale of retail gasoline.
In June 2008 and July 2010, 14 corporations and 38 individuals were charged with conspiring to fix the retail price of gasoline in certain Québec municipalities. A number of them pleaded guilty to the charges brought against them, but some of the accused continue to defend the criminal case.
As part of its investigation, the Bureau had obtained judicial authorizations to intercept private communications pursuant to section 183 of the Criminal Code (Code). To comply with his disclosure obligations, the DPP provided the accused with a copy of more than 5,000 private communications intercepted during the investigation.
In 2009, the Court authorized a class action based on section 36 of the Competition Act (Act) brought on behalf of consumers in the municipalities affected by the conspiracy. The class action plaintiffs had obtained the evidence made public in the criminal proceedings, including certain documents summarizing the wiretap evidence and the recordings of certain intercepted communications.
The Court had to decide whether plaintiffs are entitled to the disclosure of the entire wiretap evidence, a request opposed by some defendants on various grounds. In addition to the parties, the DPP and the Attorney General of Québec made submissions to the Court.
Relying on Forest Protection,2 the Court stated that the results of the Bureau’s investigations must be used for any proceedings under the Act, which include private actions in damages pursuant to section 36. The Court dismissed the defendants’ arguments based on the judgments in Michaud3 and National Post,4 to the effect that disclosure of private communications intercepted by the State to third parties, who are neither accused nor targets of the wiretapping, is prohibited.
Despite the fact that the Code provides that the wiretap evidence must remain confidential, particularly section 193, which prohibits as an indictable offence using or disclosing voluntarily intercepted communications, the Court was of the view that there is no legal impediment to disclosing this evidence to the plaintiffs. The Court relied, among other things, on subsection 193(2) of the Code, which creates an exception for the disclosure "in the course of or for the purpose of giving evidence in any civil proceedings in which a person may be required to give evidence on oath."
The Court also summarily dismissed the defendants’ arguments based on section 8 of the Canadian Charter of Rights and Freedoms, which protects against unreasonable searches and seizures. Quoting a number of Canadian precedents, which authorized the disclosure of wiretap evidence in the context of civil proceedings, the Court concluded that the Bureau and the DPP can be ordered to disclose a complete copy of the intercepted communications, subject to protecting the interests of all concerned.
The Court was of the opinion that the proper administration of justice requires that the civil case should proceed to trial without delay. To protect the defendants who are still subject to the criminal process, the Court reiterated the parties’ implied confidentiality undertaking, as well as the protective measures already implemented, which provide that, for the time being, only the parties, their counsel, their experts and the Court have access to the record. The Court was of the view that counsel still have considerable work to do to be ready for trial, which justified ordering the disclosure of the entirety of the wiretap evidence disclosed to the defendants in the criminal cases, with the exception of conversations involving third parties completely foreign to the class action.
Finally, to ensure that potential witnesses in the criminal trials would not be contaminated by the disclosure of the wiretap evidence, the Court restricted for the time being the disclosure of the wiretap evidence to the parties’ counsel and experts only.
Our courts have repeatedly emphasized that wiretapping is a serious infringement of privacy by the State, which explains the detailed provisions of the Code that regulate the interception of private communications and protect their confidentiality. The Court's decision could mean that once the intercepted communications have been disclosed to the accused, they become accessible in their entirety in the context of a civil action, even if these communications never become part of the evidence in the criminal trial. Certain defendants are seeking leave to appeal this judgment, which should allow the Court of Appeal to rule on this important issue.
1 Jacques c. Pétroles Irving inc., 2012 QCCS 2954
2 Forest Protection Ltd. v. Bayer A.G.,  68 C.P.R. (3d) 59
3 Michaud v. Quebec (Attorney General),  3 S.C.R. 3
4 National Post Co. v. Canada (Attorney General),  O.J. 2238 (S.C.)