SUPREME
COURT OF CANADA
Citation:
Canada (Attorney General) v. Thouin, 2017 SCC 46
|
Appeal Heard:
May 24, 2017
Judgment
Rendered: September 28, 2017
Docket:
36869
|
Between:
Attorney
General of Canada
Appellant
and
Daniel
Thouin and Automobile Protection Association
Respondents
And
Between:
Ultramar
Ltd., Olco Petroleum Group ULC, Irving Oil Limited, Alimentation Couche-Tard
inc., Dépan-Escompte Couche-Tard inc., Couche-Tard inc., Global Fuels Inc.,
Global Fuels (Québec) Inc., Philippe Gosselin & Associés ltée, Céline Bonin
and Claude Bédard
Appellants
and
Daniel
Thouin and Automobile Protection Association
Respondents
-
and -
Attorney
General of Quebec
Intervener
Official English Translation
Coram: McLachlin C.J. and Abella, Moldaver, Wagner, Gascon, Brown and
Rowe JJ.
Joint Reasons for
Judgment:
(paras. 1 to 44)
|
Gascon and Brown JJ. (McLachlin C.J. and Abella, Moldaver,
Wagner and Rowe JJ. concurring)
|
Note: This document is subject to editorial revision before its
reproduction in final form in the Canada Supreme Court Reports.
canada (attorney general)
v. thouin
Attorney General of Canada Appellant
v.
Daniel Thouin and
Automobile Protection Association Respondents
‑ and ‑
Ultramar Ltd., Olco Petroleum Group ULC,
Irving Oil Limited, Alimentation Couche‑Tard
inc.,
Dépan‑Escompte Couche‑Tard
inc., Couche‑Tard inc.,
Global Fuels Inc., Global Fuels (Québec)
Inc.,
Philippe Gosselin & Associés ltée,
Céline Bonin and Claude Bédard Appellants
v.
Daniel Thouin and
Automobile Protection
Association Respondents
and
Attorney General of Quebec Intervener
Indexed as: Canada (Attorney
General) v. Thouin
2017 SCC 46
File No.: 36869.
2017: May 24; 2017: September 28.
Present: McLachlin C.J. and Abella, Moldaver, Wagner, Gascon,
Brown and Rowe JJ.
on appeal from the court of appeal for quebec
Civil
procedure — Evidence — Immunity — Class action against oil companies and retailers
who had been subjects of investigation by Competition Bureau — Motion for
permission to examine chief investigator from Competition Bureau and for order
requiring Attorney General of Canada to disclose evidence obtained in
investigation — Objection based on Crown immunity — Whether chief investigator
may be required to submit to discovery under Quebec rules of civil procedure in
proceedings in which neither Crown nor chief investigator is party — Crown
Liability and Proceedings Act, R.S.C. 1985, c. C‑50, s. 27 —
Interpretation Act, R.S.C. 1985, c. C‑50, s. 17 .
Crown
law — Prerogatives — Immunity — Civil procedure — Obligation to provide
discovery — Whether Parliament has lifted common law Crown immunity from
discovery and, if so, to what extent — Crown Liability and Proceedings Act,
R.S.C. 1985, c. C‑50, s. 27 — Interpretation Act,
R.S.C. 1985, c. C‑50, s. 17 .
The
respondents instituted a class action against the appellant oil companies and
retailers further to allegations of a conspiracy to fix gasoline retail prices
in certain regions of Quebec, which allegations had already been investigated
by the Competition Bureau of Canada. In their class action, the respondents
sought permission to examine the Competition Bureau’s chief investigator and an
order requiring the Attorney General of Canada, as the Competition Bureau’s legal
representative, to disclose to them all intercepted communications and all
documents in the investigation file. The appellants
countered by raising the common law immunity from discovery on the ground that
neither the Crown nor the chief investigator was a party in the class action.
The
Superior Court granted the respondents’ motion, granting permission 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. It also ordered the disclosure of any recordings
and documents relevant to the proceedings in this case. The Court of Appeal
dismissed the appeal, concluding that Crown immunity could not be relied on in
this case because of s. 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 s. 27 establishes a general rule that applies in any
proceedings by, against or involving the Crown.
Held:
The appeal should be allowed.
Crown
immunity, which originated in the common law, can be overridden only with clear
and unequivocal legislative language. Both Parliament and the provincial
legislatures have gradually placed limits on this immunity in order to draw the
legal position of the Crown and its servants closer to that of other Canadian
litigants in, among other areas, that of civil liability. It is up to the
courts to give meaning to legislative provisions that narrow the limits of the
immunity and to determine its scope, where necessary.
Section 17
of the Interpretation Act serves as a starting point in each case in
which the Crown might have immunity by confirming that unless the immunity is
clearly lifted, the Crown continues to have it. It must therefore be determined
whether, in the instant case, Parliament has lifted the common law Crown
immunity from discovery and, if so, to what extent.
Section 27 of the CLPA provides that the Crown is
subject to the “rules of practice and procedure of the court” where proceedings
in which it is a party are taken. The effect of this section is that the
Crown’s immunity is lifted in such cases and that the rules of civil procedure,
including those on discovery, apply to the Crown. Parliament made a clear
choice when it introduced s. 27 into the CLPA , thereby imposing the
application of such rules on the Crown in proceedings in which it is a party. However, s. 27
does not indicate a clear and unequivocal intention on Parliament’s part to
lift the Crown’s immunity by requiring the Crown to submit to discovery in
proceedings in which it is not a party.
When
s. 27 is considered in light of its words and of all the sections of the
CLPA , together with its legislative history, it is clear that it applies only
to proceedings in which the Crown is a party. The words “in which
proceedings are taken” and “those proceedings” in s. 27 necessarily refer
to the provisions of the same subpart of the CLPA that concern “proceedings
against the Crown”. That Act has evolved such that the obligation to submit to
discovery in proceedings in which one is a party now applies to the Crown, but
it does no more than that. In the absence of a clear and unequivocal expression
of legislative intent, it is not open to the courts to depart from a recognized
common law rule in this regard.
Given that neither the Crown nor the chief investigator is a party in the
proceedings in this case, the chief investigator may
refuse, on the basis of the Crown’s immunity from discovery, to submit to the
examination on discovery in question.
Cases Cited
Overruled:
Temelini v. Ontario Provincial Police (Commissioner) (1999), 44
O.R. (3d) 609; considered: Imperial
Oil v. Jacques,
2014 SCC 66, [2014] 3 S.C.R. 287; referred
to: Canada Deposit Insurance Corp. v. Code (1988),
49 D.L.R. (4th) 57; Lizotte v. Aviva Insurance Co. of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521; Parry Sound (District) Social Services
Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157; Slaight
Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Friends of the
Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R.
3; Alberta Government Telephones v. Canada (Canadian
Radio‑television and Telecommunications Commission), [1989] 2 S.C.R. 225; Rizzo & Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27.
Statutes and Regulations Cited
Code of Civil Procedure, CQLR, c. C‑25,
arts. 398 para. 1(3), 402.
Crown Liability Act, R.S.C. 1970,
c. C‑38, s. 14.
Crown Liability Act, S.C. 1952‑53,
c. 30.
Crown Liability and Proceedings Act,
R.S.C. 1985, c. C‑50 , part II, ss. 23, 24, 25, 26, 27, 34.
Crown Liability and Proceedings (Provincial Court) Regulations, SOR/91‑604, ss. 7, 8.
Crown Proceedings Act, 1947 (U.K.), 10
& 11 Geo. 6, c. 44.
Federal Courts Act, R.S.C. 1985, c. F‑7 .
Interpretation Act, R.S.C. 1970,
c. I‑23, s. 16.
Interpretation Act, R.S.C. 1985, c. I‑21,
s. 17 .
Authors Cited
Brun, Henri, Guy Tremblay et Eugénie Brouillet. Droit
constitutionnel, 6e éd. Cowansville, Que.: Yvon Blais, 2014.
Côté, Pierre‑André, in collaboration with Stéphane Beaulac and
Mathieu Devinat. The Interpretation of Legislation in
Canada, 4th ed. Toronto: Carswell, 2011.
Driedger, Elmer A. Construction of Statutes, 2nd ed.
Toronto: Butterworths, 1983.
Hogg, Peter W., Patrick J. Monahan and Wade K. Wright. Liability
of the Crown, 4th ed. Toronto: Carswell, 2011.
Horsman, Karen, and Gareth Morley, eds. Government Liability: Law
and Practice. Aurora, Ont.: Cartwright Law Group, 2007 (loose‑leaf
updated May 2017, release 25).
Pépin, Gilles, et Yves Ouellette. Principes de contentieux
administratif, 2e éd. Cowansville,
Que.: Yvon Blais, 1982.
Sullivan, Ruth. Sullivan on the Construction of Statutes,
6th ed. Markham, Ont.: LexisNexis, 2014.
APPEAL
from a judgment of the Quebec Court of Appeal (Émond, Mainville and Parent
JJ.A.), 2015 QCCA 2159, [2015] AZ‑51241727, [2015] Q.J. No. 14822
(QL), 2015 CarswellQue 13777 (WL Can.), affirming a decision of Godbout J.,
2015 QCCS 1432, [2015] AZ‑51166343, [2015] J.Q. no 2923
(QL), 2015 CarswellQue 3026 (WL Can.). Appeal allowed.
Bernard
Letarte and Pierre Salois, for the appellant the Attorney
General of Canada.
Louis P. Bélanger, Sidney Elbaz,
Sylvain Lussier, Frédéric Plamondon, Louis‑Martin O’Neill,
Pierre‑Luc Cloutier, Sébastien C. Caron, Michel C.
Chabot and Guillaume Lavoie, for the appellants Ultramar Ltd., the
Olco Petroleum Group ULC, Irving Oil Limited, Alimentation Couche‑Tard
inc., Dépan‑Escompte Couche‑Tard inc., Couche‑Tard inc.,
Global Fuels Inc., Global Fuels (Québec) Inc., Philippe Gosselin & Associés
ltée and Claude Bédard.
Written submissions only by Louis
Belleau and Luc Jobin, for the appellant Céline Bonin.
Guy Paquette, Claudia Lalancette, Pierre
LaTraverse
and Jasmine Jolin, for the respondents.
Stéphane Rochette, for the intervener.
English version of the judgment of the
Court delivered by
Gascon
and Brown JJ. —
I.
Introduction
[1]
Crown immunity is
deeply entrenched in our law. The Court has held that to override this
immunity, which originated in the common law, requires clear and unequivocal
legislative language. Over the years, both Parliament and the provincial
legislatures have gradually placed limits on this immunity in order to draw the
legal position of the Crown and its servants closer to that of other Canadian
litigants. This is true in, among other areas, that of civil liability. Ultimately,
it is up to the courts to give meaning to legislative provisions that narrow
the limits of the immunity and to determine its scope, where necessary.
[2]
The issue in this
appeal is whether, under the Crown Liability and Proceedings Act, R.S.C.
1985, c. C‑50 (“CLPA ”), the obligation to submit to discovery in
proceedings in which one is not a party applies to the federal Crown (“Crown”).
More specifically, we must determine whether a chief
investigator from the federal government’s Competition Bureau (“chief
investigator”) may be required to submit to discovery under the rules of civil
procedure that apply in Quebec in proceedings in which neither the Crown nor
the chief investigator is a party. If so, we must then determine whether, in
ordering the examination on discovery of the chief investigator, the Superior
Court and the Court of Appeal erred with respect to the principles governing
civil procedure in Quebec, including that of proportionality.
[3]
For the reasons that follow, we are of the view
that the courts below erred in their interpretation of the CLPA . Provincial
rules on discovery do not apply to the Crown in proceedings in which it is not
a party. The chief investigator may therefore refuse, on the basis of the
Crown’s immunity from discovery, to submit to the examination on discovery at
issue in this case.
II.
Facts
[4]
The respondent Daniel
Thouin is the designated member in a class action instituted by the respondent
Automobile Protection Association (“respondents”) against the appellant oil
companies and retailers. The group on whose behalf he is acting consists of
various people who claim to have purchased gasoline in 14 cities or
regions of Quebec and who were allegedly the victims of a conspiracy by those
oil companies and retailers to fix gasoline prices. The case proceeded in
parallel with a similar class action concerning other cities or regions, that
of Simon Jacques, Marcel Lafontaine and the Automobile Protection
Association.
[5]
The representatives in
the two actions applied for permission to examine the chief investigator and
for an order requiring the Attorney General of Canada (“AGC”), as the
Competition Bureau’s legal representative, to disclose to them all intercepted
communications and all documents in the Bureau’s file from its “Octane” investigation.
That investigation had been launched in response to allegations that certain
oil companies and retailers, including the appellants, had conspired to fix
gasoline prices. During the 10 years of the “Octane” investigation, which
began in 2004, the Bureau recorded more than 220,000 private communications.
III.
Decisions of the Courts Below
A.
Judgment of the Superior Court — 2015 QCCS 1432
[6]
Godbout J., who heard
the motion, granted permission 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, and
also ordered the disclosure of any recordings and documents relevant to the
proceedings in this case.
[7]
The AGC argued that the
Crown had immunity under the CLPA given that it was not a party in the
proceedings, but Godbout J. nonetheless granted permission to summon the
chief investigator. He drew a parallel between the motion before him in
Mr. Thouin’s case and the one that had been at issue in this Court in Imperial
Oil v. Jacques, 2014 SCC 66, [2014] 3 S.C.R. 287. In
his view, this Court had confirmed in Jacques that a judge could order
the Crown to disclose all communications intercepted during the “Octane”
investigation to the plaintiffs under art. 402 of the Code of Civil
Procedure, CQLR, c. C‑25 (“C.C.P.”), which was then in
force. He found that, like art. 402 of the C.C.P., the provision at issue
in Jacques, art. 398 para. 1(3) C.C.P., which concerns
examination on discovery, excludes the immunity, because both articles are in
the same chapter of the C.C.P., entitled “Special Proceedings Relating to
Production of Evidence” (paras. 19‑20 (CanLII)).
B.
Judgment of the Court of Appeal — 2015 QCCA 2159
[8]
The Court of Appeal,
per Émond J.A., was instead of the view that this Court had not ruled on
Crown immunity under the CLPA in Jacques, which meant that this question
remained unresolved. The Court of Appeal therefore undertook its own
interpretation of the CLPA in order to determine whether that Act expressly
lifts the Crown’s immunity under s. 17 of the Interpretation
Act, R.S.C. 1985, c. I‑21 , thereby making it possible to apply the
C.C.P.’s rules on examination on discovery to the Crown even in proceedings in
which it is not a party.
[9]
The Court of Appeal rejected the interpretation
proposed by the AGC to the
effect that all the provisions of Part II of the CLPA ,
including s. 27 , which provides that “the rules of practice and procedure
of the court in which proceedings are taken apply in those proceedings”, apply only to proceedings against the Crown. Relying in part on the rule of consistent expression (expressio
unius est exclusio alterius), it found that the absence of clear language
expressly limiting the application of s. 27 to proceedings against the
Crown supported the absence of Crown immunity and the possibility of requiring
the Crown to submit to discovery in this case. In the court’s opinion,
s. 27 establishes a general rule that applies in any proceedings
by, against or involving the Crown. If Parliament had intended the rule in
s. 27 to apply only to proceedings by or against the Crown, it would have
said so, as it did elsewhere in the CLPA .
[10]
The Court of Appeal
concluded that s. 27 of the CLPA therefore lifts the Crown’s immunity and
that the chief investigator could be examined on discovery under the C.C.P.
even though the Crown was not a party in the proceedings. The court was also of
the view that the motion judge had properly considered the question of
proportionality of the examination on discovery. In light of the great
deference owed to case management decisions, it found that appellate
intervention was not warranted.
IV.
Issues
[11]
The AGC and the other appellants — oil companies
and retailers — argue that the Court of Appeal erred in holding that Quebec
rules of civil procedure apply to the Crown by virtue of s. 27 of the CLPA
and that the chief investigator can as a result be examined on discovery even
though the Crown is not a party in the proceedings. The central question in
this appeal is whether Parliament has clearly and unequivocally lifted Crown
immunity in such a case. In the event that we answer this question in the
affirmative, the appellants further argue that the examination was permitted
improperly and in violation of the principles of the C.C.P. on the disclosure
of evidence, including that of proportionality.
V.
Relevant Legislative Provisions
[12]
Crown immunity is
recognized in s. 17 of the Interpretation Act , which reads as
follows:
17 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.
[13]
The respondents counter
with s. 27 of the CLPA , the effect of which, they argue, is that the rules
of practice and procedure of, in this case, the Quebec courts can apply to the
Crown even in proceedings in which it is not a party. The Court of Appeal adopted
this same interpretation. Section 27 of the CLPA reads as follows:
27 Except as
otherwise provided by this Act or the regulations, the rules of practice and
procedure of the court in which proceedings are taken apply in those
proceedings.
[14]
Section 34 of the
CLPA is also relevant to this appeal. It authorizes the Governor in Council to make regulations concerning the procedure that applies in proceedings
involving the Crown:
34 The Governor in Council may make
regulations:
(a) prescribing rules of practice and
procedure in respect of proceedings by, against or involving the Crown,
including tariffs of fees and costs;
(b) prescribing forms for the purposes
of proceedings referred to in paragraph (a);
(c) respecting the issue of
certificates of judgments against the Crown;
(d) making applicable to any
proceedings by, against or involving the Crown all or any of the rules of
evidence applicable in similar proceedings between subject and subject; and
(e) generally respecting proceedings
by, against or involving the Crown.
[15]
The parties in this
appeal also cite s. 7 of the Crown Liability and Proceedings
(Provincial Court) Regulations, SOR/91‑604 (“Regulations”):
7 Subject to sections 37 to 39 of the Canada Evidence
Act , where, under the provincial rules, there is [a] provision under which,
if an action were an action between a corporation (other than an agency of the
Crown) and another person, an officer or servant of the corporation could be
examined for discovery, such officer or servant of the Crown or an agency of
the Crown, as the case may be, as may be designated for the purpose by the
Deputy Attorney General or after such designation by order of the court, may be
examined for discovery during an action subject to the same conditions and with
the same effect as would apply to the examination for discovery of the officer
or servant of a corporation.
VI.
Analysis
A.
Crown Immunity
[16]
Crown immunity has evolved over time in English
and Canadian legislation and case law. At common law, the Crown could in times
past be sued in contract or on a proprietary claim (G. Morley, in
K. Horsman and G. Morley, eds., Government Liability: Law and
Practice (loose‑leaf), at p. 1‑40). However, it had
“a number of prerogatives that rendered civil litigation against it very
difficult” (ibid.). This was because the Crown was exempt from several
obligations that applied to ordinary litigants, including the obligation to
provide documentary or oral discovery (ibid.).
[17]
Thus, because of its
immunity, the Crown was historically exempt from the obligation to submit to
discovery in proceedings in which it was a party. This was the case even though
it could require the opposing party to be examined for discovery, and even
where it was acting as plaintiff (Morley, at p. 1‑40; see also
P. W. Hogg, P. J. Monahan and W. K. Wright, Liability
of the Crown (4th ed. 2011), at p. 90). This particular immunity was
recognized in Canadian court decisions that predated the statutory provisions
on Crown liability. The Alberta
Court of Appeal explained the immunity as follows in Canada
Deposit Insurance Corp. v. Code (1988), 49 D.L.R. (4th) 57:
In
my view, the rule that the Crown and its agents are
not subject to discovery does not arise from the assertion of a Crown prerogative but from an accident of history.
Nevertheless, I am bound by precedent to require statutory authority, strictly
construed, authorizing discovery of a Crown agent or
officer. [p. 61]
[18]
If this immunity meant that the Crown was not
then required to submit to discovery in proceedings in which it was a
party, it stands to reason that, at common law, the Crown was certainly not
required to do so in proceedings in which it was not a party.
[19]
That being said, there
is a presumption that the common law remains unchanged absent a clear and
unequivocal expression of legislative intent. In Lizotte v. Aviva Insurance
Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521, this Court summarized
the case law on this point and noted “that it must be
presumed that a legislature does not intend to change existing common law rules
in the absence of a clear provision to that effect” (para. 56; see also Parry Sound (District)
Social Services Administration Board v. O.P.S.E.U., Local 324, 2003
SCC 42, [2003] 2 S.C.R. 157, at para. 39; Slaight Communications
Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1077; and
R. Sullivan, Sullivan on the Construction of Statutes (6th ed.
2014), at pp. 504‑5).
[20]
In this regard,
s. 17 of the Interpretation Act now serves as a starting point in each case in which the Crown
might have immunity. It reads as follows: “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 Friends of the Oldman River Society v. Canada
(Minister of Transport),
[1992] 1 S.C.R. 3, the Court recognized that s. 17 is indeed the starting
point for the analysis regarding immunity and that, as a result, where there
are no express words in an Act to the effect that the Act applies to the Crown,
“it . . . remains to be decided whether the Crown is bound by
necessary implication” (p. 50).
[21]
In the past, language
similar to the words “except as mentioned or referred to” in s. 17 had
been used in s. 16 of the Interpretation Act, R.S.C. 1970,
c. I‑23, which provided that no enactment could bind the Crown,
“except only as therein mentioned or referred to”. In Oldman River and
in Alberta Government Telephones v. Canada (Canadian
Radio‑television and Telecommunications Commission), [1989] 2 S.C.R. 225, the Court interpreted this wording and concluded that a legislature must
use express language to lift Crown immunity unless it can be inferred that the
purpose of the Act would be wholly frustrated if the Crown were not bound (see
also H. Brun, G. Tremblay and E. Brouillet, Droit
constitutionnel (6th ed. 2014), at para. IX. 90).
[22]
With these principles
in mind, it must therefore be determined whether, in the instant case,
Parliament has lifted the common law Crown immunity from discovery and, if so,
to what extent.
B.
Limits on the Crown’s Immunity From Discovery
[23]
In about 1950, Parliament, drawing on the Crown
Proceedings Act, 1947 (U.K.), 10 & 11 Geo. 6, c. 44, that had been
enacted in the United Kingdom, began to impose limits on the scope of the
common law Crown immunity. In 1953, it passed the Crown Liability Act,
S.C. 1952‑53, c. 30 (Morley, at p. 1‑41; Hogg, Monahan
and Wright, at p. 9), which had the effect of expanding Crown liability
and thus bringing the Crown’s
legal position closer to that of ordinary litigants.
That Crown Liability Act was the predecessor of the CLPA that is at
issue in this appeal. Today, Crown immunity still exists at the federal level
in the context of civil proceedings, but only within the limits set in the CLPA
and the Federal Courts Act, R.S.C. 1985, c. F‑7 , the scope of
which Parliament remains free to change (Brun, Tremblay and Brouillet, at
paras. IX. 72 to IX. 73). It follows that the Crown is not in
exactly the same legal position as ordinary litigants, since it still retains
certain residual privileges and immunities under the current legislation.
[24]
From this perspective,
it should be noted that s. 27 of the CLPA now provides that the Crown is
subject to the “rules of practice and procedure of the court” where proceedings
in which it is a party are taken. The effect of this section is that the
Crown’s immunity is lifted in such cases and that the rules of civil procedure,
including those on discovery, apply to the Crown. Parliament made a clear choice when it
introduced s. 27 into the CLPA , thereby imposing the application of such
rules on the Crown in proceedings in which it is a party.
[25]
The respondents argue
that s. 27 of the CLPA lifts Crown immunity in the case of provincial
rules of procedure even in proceedings in which the Crown is not a party. Like
the AGC and the other appellants, we disagree with the respondents’ assertions.
Section 27 of the CLPA does not indicate a clear and unequivocal intention
on Parliament’s part to lift the Crown’s immunity by requiring the Crown to
submit to discovery in proceedings in which it is not a party. Our reasoning is
based on the recognized principles of statutory interpretation.
C.
Interpretation of the CLPA
[26]
The Court observed in Rizzo & Rizzo Shoes
Ltd. (Re), [1998] 1 S.C.R. 27, that “there is only one principle or
approach, namely, the words of an Act are to be read in their entire context
and in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament” (para. 21,
quoting E. A. Driedger, Construction of Statutes (2nd ed.
1983), at p. 87; see also Sullivan, at p. 14). In the
case at bar, this modern approach to interpretation favours the appellants’
position.
(1) Wording of Section 27 of the CLPA
[27]
The language used in
s. 27 of the CLPA is clear as regards the possibility of requiring the
Crown to submit to discovery in proceedings in which it is a party. However,
that language is far from unequivocal as regards the same possibility in
proceedings in which the Crown is not a party. Indeed, the respondents conceded
this point at the hearing in this Court (transcript, at p. 125). Only
clear language to the effect that the rules of procedure of the court where
proceedings in which the Crown is a third party are taken apply to the Crown
could have justified an order that the chief investigator submit to discovery
in this case. Section 27 simply provides that “the rules of practice and
procedure of the court in which proceedings are taken apply in those
proceedings”. At first blush, this section does not
apply where the Crown is not a party. Its words do not show a clear and
explicit intention to bind the Crown in all proceedings in which it is
involved. This is particularly clear when the words of the section are
interpreted in the context of the CLPA as a whole.
(2)
Context and Structure of the CLPA and the
Regulations
[28]
When s. 27 is considered in light of all
the sections of the CLPA , it
is clear that it applies only to proceedings in which the Crown is a party. The
part of the Act in which the section is found and the structure of the CLPA as
a whole support this conclusion, and this is true in both official languages.
[29]
Section 27 is in
Part II of the Act, which is entitled “Proceedings” (“Contentieux
administratif” in French), and more specifically in a subpart entitled
“Procedure”. Part II, which governs proceedings in administrative litigation,
sets out the rules that apply at each stage, addressing in turn the topics of
jurisdiction, procedure, costs, execution of judgment, interest, tenders, and
prescription and limitation. As is explained in the academic literature, the
French expression “contentieux administratif” relates to proceedings in
which the Crown is a party (G. Pépin and Y. Ouellette, Principes
de contentieux administratif (2nd. ed. 1982), at p. 1).
[30]
The purpose of the
subpart entitled “Procedure” is equally clear: to establish rules with respect
not only to the initiation of proceedings against the Crown (s. 23), but
also to defences (s. 24) and to the applicable procedure in such
proceedings (ss. 25 and 26). Section 27 completes the circle for
proceedings against the Crown by identifying the rules of practice and
procedure that will apply to them. Sections 23 to 27, which make up this
subpart, thus set out the rules relating to proceedings in which the Crown is a
party. Section 27, which is the last section in this subpart, simply
specifies what rules apply in such proceedings. It is clear from the subpart’s
other provisions that s. 27 can apply only if the Crown is a party. A
failure to consider s. 27 in light of these other provisions, which
concern “proceedings against the Crown” (“poursuites visant l’État”),
would result in a distorted picture of that section.
[31]
In our view, the words
“in which proceedings are taken” and “those proceedings” in the English version
of s. 27 necessarily refer to the provisions of the same subpart that
concern “proceedings against the Crown” (ss. 23, 24, 25 and 26). This is
also clearly the case in the French version of the CLPA , in which the words “les
instances” must necessarily refer to “poursuites exercées contre lui”
(ss. 24 and 25 ) and “procès instruits contre l’État” (s. 26 ).
[32]
Finally, s. 34, which is in the
subpart entitled “Regulations”, simply creates a
mechanism by which Crown immunity may be lifted. This section does not in
itself provide a basis for arguing that s. 27 applies in proceedings in
which the Crown is not a party. The immunity must still have been expressly
lifted. The words “by, against or involving” used in s. 34 could have been
used in s. 27 to lift the immunity in proceedings by, against or
“involving” the Crown, but they were not.
[33]
Moreover, despite the making of the Regulations,
which the parties cite and the relevant provision of which is reproduced above,
we agree with the appellants that s. 7 of these regulations can apply only
in proceedings in which the Crown is a party. This section merely equates the
Crown with a corporation and applies “where, under the provincial rules, there
is [a] provision under which, if an action were an action between a
corporation (other than an agency of the Crown) and another person, an officer
or servant of the corporation could be examined for discovery”. On its
face, this section is not a rule of practice in respect of proceedings
involving the Crown other than as a party. It does not lead to a different
conclusion than the one that results from the application of the principles of
interpretation to s. 27 of the CLPA .
(3)
Legislative History
[34]
The legislative and parliamentary history also
supports the position of the AGC and the other appellants in this appeal. The
legislative history of the CLPA is important in this case because the question
before the Court relates to Crown immunity, and Crown immunity may not be
lifted without clear statutory language. The parliamentary history is also
important for the purpose of clarifying what Parliament intended when it
amended the provision at issue in this case (P.‑A. Côté, in
collaboration with S. Beaulac and M. Devinat, The Interpretation
of Legislation in Canada (4th ed. 2011), at pp. 462‑68, and
Rizzo & Rizzo Shoes Ltd. (Re), at para. 35).
[35]
The legislative history
reveals that s. 14 of the Crown Liability Act, R.S.C. 1970,
c. C‑38, is the predecessor of the current s. 27 of the CLPA .
In this regard, certain passages drawn from the parliamentary history that led
to the revision of the CLPA are very helpful. These include the following:
[translation] Parliament used the reform
to specify which rules of procedure would apply to proceedings involving the
Crown in the provincial courts in question. In this regard, Minister of Justice
Doug Lewis stated the following in the House of Commons:
. . .
Sixth, consequent upon the increased role of provincial courts in the area of Crown proceedings, it is necessary that there be legislation dealing generally
with practice and procedure
when the Crown is a party
to litigation. [Emphasis in original.]
(A.F., at para. 50, quoting House of Commons Debates, vol. IV,
2nd Sess., 34th Parl., November 1, 1989, at p. 5415.)
[36]
These words confirm the
intention that emerges from the CLPA . That Act has evolved such that the
obligation to submit to discovery in proceedings in which one is a party
now applies to the Crown, but it does no more than that.
[37]
Thus, both the fact
that Parliament has not imposed a clear obligation to submit to discovery in
proceedings in which the Crown is not a party and the legislative and
parliamentary history of s. 27 of the CLPA favour the recognition of a
residual immunity in such cases.
[38]
It should be noted that this view is shared by Hogg, Monahan and Wright. In their opinion,
the Crown’s immunity from discovery continues to exist in proceedings in which
the Crown is not a party:
In Canada, the United Kingdom Act became the
basis for the Uniform Model Act of 1950, which in turn became the basis for
provincial Crown proceedings statutes. Each province has now subjected the
Crown to discovery. So has the federal Parliament.
. . .
These
statutory provisions have not completely abolished the Crown’s immunity from
discovery. . . . In the United Kingdom, New Zealand, most
Australian jurisdictions, the Canadian federal jurisdiction and British
Columbia, the Crown is subject to discovery whenever it is a “party”. Even in
these jurisdictions, the Crown would be immune from discovery if it was not a
party. [Footnotes omitted; pp. 91‑92.]
(4)
Case Law of Appellate Courts
[39]
We note that in the
instant case, the Court of Appeal cited Temelini v.
Ontario Provincial Police (Commissioner) (1999), 44
O.R. (3d) 609, in support of its conclusion that s. 27 of the CLPA lifts
the Crown’s immunity and that the rule it establishes applies to any proceeding
that might involve the Crown, whether as a party or otherwise (C.A. reasons, at
paras. 56‑57 (CanLII)). After considering other cases in which the
Ontario Court of Appeal’s decision in Temelini had been cited, it
applied that court’s reasoning to the case at bar. With all due respect, we are
of the opinion that the Ontario Court of Appeal’s interpretation in Temelini
is wrong. Regardless of the modern trend toward limiting Crown immunity (C.A.
reasons, at para. 54), the interpretation of the CLPA does not lead to the
conclusion that Parliament lifted the Crown’s immunity in proceedings in which
the Crown is not a party. The decisions in the case at bar and in Temelini
were based on the presumption of consistent expression (C.A. reasons, at
paras. 53 and 56). Given our interpretation of the CLPA , the presumption
of consistent expression cannot on its own suggest that Parliament has changed
the common law; a clear expression of its intention to do so is required.
[40]
We conclude that the common law immunity from
discovery continues to apply to the Crown in proceedings in which it is not a
party.
D.
The Question Raised by This Case Was Not Decided
in Jacques
[41]
In closing, we wish to
be clear that the Court of Appeal was right to conclude that this Court had
not, in Jacques, decided the question with respect to Crown immunity
under the CLPA that is raised by the instant case (C.A. reasons, at
para. 17). The issue in Jacques was instead whether a party in a
civil proceeding can request the disclosure of recordings of private communications
intercepted by the state in the course of a criminal investigation. To resolve
it, the Court considered ss. 29 and 36 of the Competition Act,
R.S.C. 1985, c. C‑34 , and s. 193 of the Criminal Code,
R.S.C. 1985, c. C‑46 , and held that they did not preclude the
disclosure of the recordings. The Court did not address Crown immunity under
the CLPA .
[42]
Nonetheless, we note that Jacques
confirmed that, in other areas of civil procedure, the immunity has been lifted
even in proceedings in which the Crown is not a party. This is true, as the AGC
concedes in the case at bar, for the disclosure of documents, as s. 8 of
the Regulations requires the Crown to submit, as if it were an ordinary
litigant, to an application for disclosure such as the ones provided for in
art. 402 of the C.C.P.; it was such an application that was at issue in Jacques.
As the AGC also concedes in this Court, the immunity has also been lifted where
the Crown is summoned to testify at trial; this has been recognized both
judicially (Canada Deposit Insurance Corp.) and in the academic
literature (Hogg, Monahan and Wright, at p. 92). Of course, the
application of provincial rules of civil procedure to the Crown remains subject
in each of the situations in question to the limits imposed by, among other
principles, the proportionality rule and the prohibition against fishing
expeditions. However, given that the respondents’ proceeding in this case
concerns neither of those situations, there is no need to address this other
aspect of the dispute between the parties.
VII.
Conclusion
[43]
Section 27 of the
CLPA does not clearly and unequivocally lift the Crown’s common law immunity
from discovery in proceedings in which the Crown is not a party. In the instant
case, that immunity meant that the Crown could not be required to submit to
discovery under the Quebec rules of civil procedure. In the absence of a clear
and unequivocal expression of legislative intent, it is not open to the courts
to depart from a recognized common law rule in this regard. The chief
investigator could refuse, on the basis of the Crown’s immunity from discovery,
to submit to the examination on discovery at issue in this case.
[44]
We would therefore
allow the appeal, set aside the decisions of the courts below and dismiss the
respondents’ motion for the examination on discovery of the chief investigator,
with costs to the appellants throughout.
Appeal
allowed with costs throughout.
Solicitor for the
appellant the Attorney General of Canada: Attorney General of Canada,
Ottawa.
Solicitors for the
appellants Ultramar Ltd., the Olco Petroleum Group ULC, Irving Oil Limited,
Alimentation Couche‑Tard inc., Dépan‑Escompte Couche‑Tard
inc., Couche‑Tard inc., Global Fuels Inc., Global Fuels (Québec) Inc.,
Philippe Gosselin & Associés ltée, Céline Bonin and Claude Bédard: Stikeman
Elliott, Montréal; McMillan, Montréal; Osler, Hoskin & Harcourt, Montréal;
Davies Ward Phillips & Vineberg, Montréal; LCM Avocats inc., Montréal; Gravel
Bernier Vaillancourt, Québec; Tremblay Bois Mignault Lemay, Sainte‑Foy,
Quebec.
Solicitors for the respondents: Bernier Beaudry inc., Québec; Paquette
Gadler inc., Montréal; LaTraverse Avocats inc., Montréal.
Solicitor for
the intervener: Attorney General of Quebec, Québec.