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CIVIL PROCEDURE - Pre-trial discovery - Pre-trial examination - Object and scope - Immunity and privileges - Crown immunity - Persons who may be examined - Third party

Friday, September 29, 2017 @ 8:28 AM  

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Appeal by the Attorney General of Canada (AGC) from a judgment of the Quebec Court of Appeal affirming a decision concluding that the obligation to submit to discovery in a proceeding in which it was not a party applied to the federal Crown (Crown). The Court had to determine whether a chief investigator from the federal government’s Competition Bureau could be required to submit to discovery under the rules of civil procedure that applied in Quebec in proceedings in which neither the Crown nor the chief investigator was a party. Thouin was the designated member in a class action instituted by the respondents against Ultramar Ltd. and other oil companies and retailers. The group on whose behalf he was acting consisted of various people who claimed to have purchased gasoline in 14 cities or regions of Quebec and who were allegedly the victims of a conspiracy by those oil companies and retailers to fix gasoline prices. Thouin and the representative in a parallel class action proceeding applied for permission to examine the chief investigator and for an order requiring the AGC, as the Competition Bureau’s legal representative, to disclose to them all intercepted communications and all documents in the Bureau’s file from its investigation of the oil companies and retailers. The Superior Court granted permission to summon the chief investigator to be examined on discovery solely for the purpose of obtaining information about any knowledge he had specific to the territory covered by the class action, and also ordered the disclosure of any recordings and documents relevant to the proceedings in this case. The Court of Appeal concluded that s. 27 of the Crown Liability and Proceedings Act (CLPA) lifted the Crown’s immunity and that the chief investigator could be examined on discovery under the Code of Civil Procedure. The AGC and the other appellants argued that the Court of Appeal erred in holding that Quebec rules of civil procedure applied to the Crown by virtue of s. 27 of the CLPA and that the chief investigator could as a result be examined on discovery even though the Crown was not a party in the proceedings. The central question in this appeal was whether Parliament had clearly and unequivocally lifted Crown immunity in such a case.

HELD: Appeal allowed. Section 27 of the CLPA now provided that the Crown was subject to the “rules of practice and procedure of the court” where proceedings in which it was a party were taken. The effect of this section was that the Crown’s immunity was lifted in such cases, and the rules of civil procedure, including those on discovery, applied to the Crown. Parliament made a clear choice when it introduced s. 27 into the CLPA, thereby imposing the application of such rules on the Crown in proceedings in which it was a party. The language used in s. 27 of the CLPA was clear regarding the possibility of requiring the Crown to submit to discovery in proceedings in which it was a party. However, that language was far from unequivocal regarding the same possibility in proceedings in which the Crown was not a party. Only clear language to the effect that the rules of procedure of the court where proceedings in which the Crown was a third party were taken applied to the Crown could have justified an order that the chief investigator submit to discovery in this case. When s. 27 was considered in light of all the sections of the CLPA, it was clear that it applied only to proceedings in which the Crown was a party. The legislative and parliamentary history also supported the position of the AGC and the other appellants. The common law immunity from discovery continued to apply to the Crown in proceedings in which it was not a party. The chief investigator could therefore refuse, on the basis of the Crown’s immunity from discovery, to submit to the examination on discovery at issue in this case.

Canada (Attorney General) v. Thouin, [2017] S.C.J. No. 46, Supreme Court of Canada, B. McLachlin C.J. and R.S. Abella, M.J. Moldaver, R. Wagner, C. Gascon, R. Brown and M. Rowe JJ., September 28, 2017. Digest No. TLD-September252017013SCC