Crown Immunity and Class Actions

In its decision Canada (Attorney General) v. Thouin, 2017 SCC 46 rendered on September 28, 2017, the Supreme Court of Canada reversed the decisions of both the Superior Court of Quebec and the Quebec Court of Appeal, finding that the lower courts had erred in their interpretation of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 (“CLPA”).

In essence, the Supreme Court found that the provincial rules of discovery did not apply to the Crown in proceedings in which it was not a party. As such, Crown immunity could be invoked and the Crown representative, here the chief investigator of the Competition Bureau, could refuse to submit to an examination on discovery and to provide documents that were obtained during an investigation.

The facts of this case can be summarized as follows. The representatives of two class actions were suing several oil companies and retailers on the basis that the members of these groups who had purchased gasoline in various locations in the province of Quebec were victims of a fixed gas price conspiracy orchestrated by those oil companies and retailers. The representatives applied for permission to examine the chief investigator of the Competition Bureau as well as requested an order to disclose to them all intercepted communications and all documents in its file concerning its “Octane” investigation. That investigation had been launched to look into similar conspiracy allegations as the ones contained in the class actions and had been extensive: it had lasted over 10 years and had allowed the Bureau to collect more than 220 000 private communications. This was obviously a potential gold mine of information for the class action representatives and could clearly help them in establishing the elements of their case.

The central question in Thouin revolved around the reading of section 27 of the CLPA and whether Parliament had clearly and unequivocally lifted Crown immunity. Indeed, section 27 CLPA states:

27.  Except as otherwise provided by this Act or regulations, the rules of practice and procedure of the court in which proceedings are taken apply in those proceedings.

The starting point of the Court’s analysis was section 17 of the Interpretation Act. It clearly provides that unless immunity is lifted, the Crown continues to have it. The question thus becomes whether section 27 of the CLPA can be invoked by the class action representatives and ground their argument that Parliament had lifted Crown immunity by subjecting the Crown to the “rules of practice and procedure of the court”. If section 27 did apply then the Crown’s immunity would be lifted and the rules of Quebec civil procedure would govern the proceedings, including the right to discovery.

However, the question that remained was: for section 27 CLPA to apply did the Crown have to be a party to the proceedings?

In order to answer this question, the Court, using recognized principles of statutory interpretation, interpreted section 27 CLPA. It noted that section 27 provided that “the rules of practice and procedure of the court in which proceedings are taken apply in those proceedings”. The Court found that on a simple reading of the statutory provision, it appeared that this section could not apply if the Crown was not a party to the proceedings. The Court concluded that the words used at section 27 did not reveal a clear and explicit intention to bind the Crown in all proceedings. The Court also noted that the legislative history supported this interpretation.

In short, the Court concluded that since the Crown was not a party to the class action proceedings it continued to benefit from Crown immunity and could not be forced to submit to a discovery examination under the rules of Quebec civil procedure.

One final note. At the end of its decision, the Court noted that the question at issue in Thouin was not the same as the one that had been decided in Imperial Oil v. Jacques, 2014 SCC 66. In Jacques, the Court had not decided the question with respect to Crown immunity under the CPLA. The issue in Jacques was whether a party in a civil proceeding could request the disclosure of private communications intercepted by the state in the course of a criminal investigation. To resolve it, the Court considered sections 29 and 36 of the Competition Act and section 193 of the Criminal Code and held that they did not preclude the disclosure of the recordings. The Court did not address the question of Crown immunity under the CLPA. However, as the AGC did concede Crown immunity has been lifted where the Crown is summoned to testify at trial and is thus governed by ordinary rules of civil procedure.

In an era where discovery rules have become so permissive, the Thouin decision is a reminder that there still may exist instances where even though relevant evidence may be available, it may still be protected or be deemed inaccessible.