Plaintiff-Friendly Competition Decisions From Canada

Canada’s competition class-action jurisprudence has been tilting in plaintiffs’ favor in recent years. Canadian courts have been recognizing low thresholds for certification class-action and allowing certification of indirect purchaser class-action lawsuits. This trend has continued with two recent disclosure-related decisions that have important implications for U.S. businesses defending claims in Canada or subject to Canadian antitrust investigations. Documents and evidence that might not see the light of day in a U.S. courtroom are disclosable in Canadian class actions and to defendants in criminal proceedings.

In February, 2015, the Ontario Superior Court released its decision in R. v. Nestlé Canada Inc. The court ruled that information voluntarily provided to the Canadian Competition Bureau under its Immunity and Leniency Programs is not protected by settlement privilege and must be disclosed to the accused in related criminal proceedings. The inapplicability of settlement privilege to these communications would imply that they could similarly be the subject of disclosure in a private action.

In Imperial Oil v. Jacques (October 2014), the Supreme Court of Canada ruled that wiretap information obtained during Competition Bureau investigations may be disclosed to parties in civil and class-action proceedings.

It is important that those involved in Competition Bureau investigations know how their information will be treated by the courts once it is in the hands of Canada’s antitrust authority. Both R. v. Nestlé and Imperial Oil v. Jacques are indicative of a trend in Canadian jurisprudence towards disclosure.