32 | LEXPERT • December 2015 | www.lexpert.ca
ANTITRUST
Code, the SCC found that the exception contained in s. 193(2)(a) of
the Criminal Code applied. Specifically, s. 193(2)(a) of the Criminal
Code permits intercepted private communications to be used for the
purpose of giving evidence in civil or criminal proceedings (Imperial
Oil at para 48). The SCC held that the lower court's order that the
information be produced was accordingly correct.
Parties in and outside Canada should take note of this decision, as
other jurisdictions - such as the US and UK - do not allow intercept-
ed private communications to be disclosed as part of a civil litigation
between private parties. This decision accordingly helps to advance
Canada's reputation as a plaintiff-friendly jurisdiction, opening the
door for plaintiffs in Canada to access valuable evidence obtained
from criminal investigations.
Conclusion - In light of these two decisions, it is important that
parties involved in Bureau investigations, or those contemplating ap-
proaching the Bureau, know how their information will be treated by
the courts once it is in the hands of the Bureau.
Both Nestlé and Imperial Oil are indicative of a trend in Canadian
jurisprudence towards disclosure. Canadian courts have made it clear
that information in the hands of the Bureau is not subject to absolute
confidentiality — whether the information is proffered to the Bu-
reau in anticipation of immunity or lenient sentencing, or whether it
is obtained in the course of a Bureau investigation.
Bronwyn Roe is an associate with WeirFoulds' litigation practice group. An accom-
plished litigator, she focuses on corporate and commercial disputes, with a special
interest in matters involving public authorities and matters involving competition law.
She has developed a particular expertise in advising clients in relation to competition
law litigation and Competition Bureau investigations.
Jeff Scorgie is an associate with WeirFoulds. Jeff practises civil litigation with a partic-
ular emphasis on construction and procurement disputes. Jeff also has experience
advising clients on a range of competition law matters and issues related to Competi-
tion Bureau investigations.
Bronwyn
Roe
WeirFoulds LLP
Tel: (416) 947-5051
Fax: (416) 365-1876
Jeff
Scorgie
WeirFoulds LLP
Tel: (416) 619-6288
Fax: (416) 365-1876
broe@weirfoulds.com
jscorgie@weirfoulds.com
Nikiforos Iatrou leads WeirFoulds' Competition/Antitrust group. He recently
finished a three-year special appointment as counsel to Canada's Commissioner of
Competition, where he acted as lead counsel on some of the Competition Bureau's
highest-profile matters. A former clerk of the Court of Appeal for Ontario, he
publishes widely, including as co-author of the book Witness Preparation: A Practi-
cal Guide, with Supreme Court of Canada Justice omas Cromwell and Bryan
Finlay, QC.
Nikiforos
Iatrou
WeirFoulds LLP
Tel: (416) 947-5072
Fax: (416) 365-1876
niatrou@weirfoulds.com
