The Litigator

THE LITIGATOR

Commentary on Law Affecting Business

The Litigator
AGM :: Affleck Greene McMurtry LLP

THE LITIGATOR

Affleck Greene McMurtry LLP
365 Bay Street, Suite 200  ·  Toronto, Canada
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Quebec court raps plaintiffs’ knuckles

The Quebec Superior Court recently granted an unusually strict protective order to defendants in a class action to prevent evidence from the class action finding its way into parallel criminal proceedings against them.

The defendants are a group of gas station owners (both corporations and individuals) who have been charged with conspiring to fix retail gasoline prices, a criminal offence under the Competition Act. A number of gas station owners have already pleaded guilty and been sentenced.

The day after the Competition Bureau announced the results of its investigation into the alleged cartel, class actions were commenced against the gas station owners.

The defendants, fearing that evidence they will be forced to divulge in the civil proceedings could find its way into the criminal proceedings, sought a protective order sealing the evidence in relation to the corporate defendants, and a stay of proceedings against the individual defendants until the outcome of criminal charges has been determined.

Justice Bélanger had no difficulty ordering the sealing of transcripts of examinations for discovery and documents exchanged by the parties. The open court principle applies to hearings in court. Transcripts and documents obtained in the discovery process are confidential until they are used in court at trial, she explained. The protective order therefore does not infringe the open court principle.

Bélanger J. went further still, and ordered that the defences filed in court be sealed. While this does infringe the open court principle, it is more important to permit the class actions to proceed normally toward trial, she held.

Turning to the stay the proceedings sought by the individual defendants, Bélanger J. held that the protective orders were sufficient and refused the stay.

However, Bélanger J. delivered a stern rebuke to plaintiffs’ counsel. She noted that the plaintiffs had been quite aggressive in trying to get evidence from the criminal proceeding to use against the defendants and in attempting to intervene in the criminal proceedings, purporting to represent the victims of the conspiracy. This “brouhaha” led to counsel for the Director of Public Prosecutions announcing that it would not respond to any requests from counsel for the plaintiffs. She concluded: “the Court considers that there was, on the part of counsel for the plaintiffs, a demonstration of their ignorance of the Canadian criminal justice system”.

Jacques c. Ultramar ltée, 2011 QCCS 5272, http://www.canlii.org/fr/qc/qccs/doc/2011/2011qccs5272/2011qccs5272.html

W. Michael G. Osborne
Affleck Greene McMurtry LLP

W. Michael G. Osborne

Michael Osborne is a former Partner of Affleck Greene McMurtry LLP

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