Supreme Court Upholds Crown Immunity from Examination for Discovery in Civil Cases in which the Crown is not a Party

2 October 2017

By Shakaira John
In a unanimous decision released September 28, 2017, the Supreme Court of Canada concluded that the common law immunity from discovery continues to apply to the Crown in proceedings in which it is not a party. Following the Supreme Court’s decision in Canada (Attorney General) v Thouin, Crown officials cannot be compelled to submit to discovery in civil actions in which the Crown (or its servants) are not parties.
Background: In 2004, the Competition Bureau launched a ten-year “Octane” investigation in response to allegations that certain oil companies and retailers had conspired to fix gasoline prices in certain regions of Quebec. During the investigation, the Bureau recorded over 220,000 private communications. 

In the aftermath of the investigation, two parallel class actions were instituted against the oil companies. The representative plaintiffs in the two actions sought permission to examine the Competition Bureau’s chief investigator as well as an order requiring the Attorney General of Canada (the “Attorney General”), as the Competition Bureau’s legal representative, to disclose to them all documents in the investigation file including the intercepted communications.

The Superior Court decision granted permission for the plaintiffs 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. The Court also granted an order requiring disclosure of any recordings and documents relevant to the proceedings in the case. The Attorney General appealed.
The Court of Appeal of Quebec dismissed the appeal, relying on section 27 of the Crown Liability and Proceedings Act (“CLPA”), which provides that “the rules of practice and procedure of the court in which proceedings are taken apply in those proceedings”. The Court of Appeal held that section 27 establishes a general rule that applies in any proceedings involving the Crown (even proceedings to which the Crown is not a party). The Attorney General appealed to the Supreme Court. 
Crown Immunity from Discovery in Civil Cases: The doctrine of Crown immunity is deeply entrenched and has evolved over time in Canadian and United Kingdom legislation and case law. In Canada, such Crown immunity is now recognized in section 17 of the Interpretation Act, which states:
No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s rights or prerogatives in any manner, except as mentioned or referred to in the enactment.
In short, unless the immunity is clearly lifted, the Crown continues to have it. In its decision, the Supreme Court emphasized that the legislature must use express wording to lift Crown immunity.

Section 27 of the CLPA, according to the class action plaintiffs, does just that. The Supreme Court disagreed.

Consistent with principles of statutory interpretation, the Supreme Court considered section 27 in light of its words, read in their entire context of the act, along with its legislative history. Based on its analysis, the Supreme Court held that the CLPA applies only to proceedings in which the Crown is a party. As such, under the CLPA, the Crown is subject to discovery in proceedings in which it is a party, but the CLPA does not go beyond that. In other words, section 27 does not clearly and unequivocally lift the Crown’s common law immunity from discovery in proceedings in which the Crown is not a party. As neither the Crown nor the chief investigator was a party to the proceedings at bar, the chief investigator had the ability to refuse, on the basis of the Crown’s immunity, to submit to discovery in this case.
The Takeaway: Unless and until there is clear and unequivocal legislative intent to override Crown immunity, the Crown cannot be compelled to submit to discovery in proceedings in which it is not a party.

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