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Supreme Court recalls broad principles regarding the disclosure of evidence held by a third party in Quebec civil law

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Litigation and Dispute Resolution Bulletin

The civil law has recognized for some time that a party to a telephone conversation can record the conversation and use it in connection with civil litigation unless the use of such evidence would tend to bring the administration of justice into disrepute[1]. It is also recognized that a party cannot intercept a private communication between third parties and use it as evidence before the court[2].

What if a conversation between third parties is recorded by the police as part of a criminal investigation? Can a party to a civil dispute request the disclosure of such recordings and use them as evidence? The Supreme Court of Canada partially answers this question in Imperial Oil v. Jacques, 2014 SCC 66.

The facts

To carry out the "Octane" investigation into allegations of a conspiracy to fix gasoline pump prices in certain regions of Quebec, the Competition Bureau of Canada obtained judicial authorizations under the Criminal Code that enabled it to intercept and record more than 220,000 private communications. As a result of the investigation, criminal charges were laid. In parallel with the criminal proceedings, a class action was instituted against a number of persons alleging that they had engaged in anti‑competitive practices in breach of the duties imposed by Civil Code of Québec and the Competition Act. In support of their action, the applicants filed a motion in which they sought disclosure by the federal Director of Public Prosecutions and the Competition Bureau of the recordings that had already been disclosed to the accused in the parallel criminal proceedings. The appellants contested the motion.

The lower courts

In first instance, the Superior Court granted the motion and ordered the Director of Public Prosecutions and the Competition Bureau to disclose the requested recordings solely to the lawyers and experts participating in the civil proceedings, and that they screen the recordings to protect the privacy of third parties having nothing whatsoever to do with the proceedings. The Court of Appeal refused leave to appeal that decision.

The Supreme Court of Canada decision

The Supreme Court confirmed the Superior Court decision and allowed the disclosure of the recordings on the terms set by the judge in first instance.

A party to a civil proceeding can request the disclosure of recordings of private communications intercepted by the state in the course of a criminal investigation. The object of the rule[3] allowing the communication of recordings of this nature is to ensure that courts will have access to all information relevant to the proceedings before them.

Key principles regarding evidence

In ordering the disclosure of this evidence, the Supreme Court took the opportunity to recall certain broad principles of Quebec civil law regarding evidence.

Firstly, quoting Justice Cory in R. v. Nikolovski[4], the Court notes that the ultimate aim of any trial must be to seek and to ascertain the truth. In an accusatory and adversarial system such as ours, the task of bringing the truth to light falls first and foremost to the parties. Guided by this objective and this reality, the legislator has set up mechanisms to facilitate the search for the truth by the parties during the pre‑trial exploratory stage. Thus, in civil matters, article 402 of the Code of Civil Procedure allows the judge to order the disclosure to the parties of relevant documents in the hands of a third party:

"[26] The pre‑trial "exploratory" stage, which is a key time for this search in court for the truth, facilitates the disclosure of evidence that might enable the parties to establish the truth of the facts they allege […] This stage enables each of the parties [translation] "to be better informed of the facts of the case and, more specifically, of the opposite party's evidence" […] It also favours admissions, allows the issues to be defined quickly and facilitates transactions" […]

[27] The Quebec legislature, aware of the importance of the exploratory stage in the civil process, had already established a framework for it by enacting a series of rules of general application that empower judges to order the disclosure of documents relating to the issues between the parties. […] [It is these rules] that form the basis for the "right of access" to  information. The rules, which are now codified in ch. III of Title V of the Code of Civil Procedure, include art. 402 […]"

Given the importance of facilitating  the search for truth, the courts have often insisted that the right to disclosure must be understood broadly[5]. The Court notes that this right is nevertheless not unlimited. It must sometimes be limited to avoid harming the interests of third parties, to ensure the proportionality principle is kept in mind or when the disclosure is subject to an immunity from disclosure that is either provided for in legislation or established by the courts.

Here, the Court held that no legal provision prohibits the disclosure of the recordings. On the contrary, section 193 of the Criminal Code, which prohibits the use of intercepted communications, sets out an exception when the disclosure is for the purpose of giving evidence in any civil proceedings (193(2) Cr.C.).

With respect to the terms of the disclosure, the judge enjoys broad discretion in this regard:

"[82] The courts have always had a right to oversee and control the evidentiary process. They therefore have all the powers necessary for the exercise of such control […] These include the power to control the process of disclosing evidence and to set conditions for and limits on disclosure […] Judges have great discretion in exercising this power at the exploratory stage […] The appropriateness and the extent of such control therefore vary with the interests to be protected and the circumstances of each case."

However, certain cardinal principles must be followed. The proceedings must remain fair, the search for truth must not be obstructed and the proceedings must not be unjustifiably delayed. The judge must also consider the financial and administrative impact of the conditions being imposed and how they will affect the general conduct of the proceedings. Lastly, he must consider the right to privacy of innocent parties and, where the requested documents result from a criminal investigation, the impact of disclosure on the efficient conduct of the criminal proceedings and on the right of the accused to a fair trial.

The Court notes however that, at the exploratory stage of a proceeding, the right to privacy and the right to make full answer and defence are, to some degree, protected by the duty of confidentiality imposed on the parties at this stage[6].

In this case, the Court held that the disclosure order of the judge in first instance meets the applicable requirements. It is up to the judge on the merits to rule on the admissibility in evidence of the disclosed recordings.

[1]       See, among others: Erez Sewing Machine v. Vêtement Super Vogue, [1980] C.P. 157; Commission des droits de la personne v. Commission scolaire de Jean Rivard [1995] R.J.Q. 2245 (T.D.P.Q.); Droit de la famille – 2474 [1996] R.D.F. 612 (S.C.); Sejko v. Gabriel Aubé inc., [1999] R.J.Q. 2115 (C.Q.); Larivière et Coopérative fédérée de Québec, D.T.E. 99T-753 (T.C.); Behrens v. Stoodley, (1999) 3 R.F.L. (5th ed.) 90; Huber v. Huber, [2000] CarswellOnt 1463 (S.C.); Toope v. Toope, (2000) 8 R.F.L. (5th ed.) 446 (Unified Family Court); H. (C.) v. L. (D.), [2001] R.D.F. 821 (S.C.); Gordonia Ltd. v. Provigo Distribution inc., [2001] R.J.Q. 97 (S.C.); Therriault v. Therriault, B.E. 2001BE-1001 (S.C.) Arcand v. Cayer, 2004 CanLII 43924 (S.C.); Bellefeuille v. Morisset, 2006 QCCQ 236 (CanLII).

[2]       Srivastava v. Hindu Mission of Canada (Quebec) Inc., 2001 CanLII 27966 (C.A.); Houle v. Mascouche (Ville de), 1999 CanLII 13256 (C.A.).

[3]       Section 193(2) a) of the Criminal Code.

[4]       [1996] 3 S.C.R. 1197, par. 13.

[5]       Westinghouse Canada Inc. v. Arkwright Boston Manufacturers Mutual Insurance Co., [1993] R.J.Q. 2735; Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc., [2001] 2 S.C.R. 743, par. 60; Frenette v. Métropolitaine (La), cie d'assurance-vie, [1992] 1 S.C.R. 647, p. 680; and more specifically on article 402 C.C.P.: Autorité des marchés financiers v. Panju, 2008 QCCA 832, [2008] R.J.Q. 1233; Fédération des infirmières et infirmiers du Québec v. Hôpital Laval, 2006 QCCA 1345, [2006] R.J.Q. 2384; Westfalia Surge Canada Co. v. Ferme Hamelon (JFD) et Fils, 2005 QCCA 514 (CanLII).

[6]       Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc., [2001] 2 S.C.R. 743; Autorité des marchés financiers v. Panju, 2008 QCCA 832, [2008] R.J.Q. 1233, par. 57; Marché Lionel Coudry inc. v. Métro inc., 2004 CanLII 73143 (Q.C.A.), par. 7; Southam v. Landry, 2003 CanLII 71970 (Q.C.A.), par. 6.

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