Concerns over the effectiveness of safeguards designed to prevent evidence from one proceeding being used against the witness in another

The concerns about the effectiveness of protective orders raised in Catalyst Fund General Partner I Inc. v Hollinger Inc., [2005] OJ No 2191 (SCJ), aff'd [2005] OJ No 4666 (CA) were also central to a recent decision of Justice Goldstein in Neuwirth v DaCosta et al., 2014 ONSC 527.

In Neuwirth, United States (U.S.) class action plaintiffs brought an application to enforce letters rogatory issued by a U.S. District Court to obtain evidence in Canada from non-party employees of a Canadian subsidiary of one of the U.S. defendants. The respondents opposed the application on the basis that their privilege against self-incrimination could be violated. The U.S. action involved allegations of a price-fixing conspiracy among manufacturers of polyurethane foam, and the respondents asserted concerns about the possibility of a related investigation in Canada. Some of them were also defendants in a proposed Canadian class action. They feared that evidence given in the U.S. action could be used to further a Canadian Competition Bureau investigation which could lead to criminal charges or evidence in support of the Canadian class action. This, they said, would violate their privilege against self-incrimination.

Goldstein J. disagreed. In response to the respondents' claims that they were entitled to both use immunity and derivative use immunity over their evidence, Goldstein J. relied upon Treat America Limited v Leonidas, 2012 ONCA 748, leave to appeal to Supreme Court of Canada (SCC) refused, 2013 CanLII 28368 (SCC), which held that, according to the Supreme Court of Canada in R v Jarvis, 2002 SCC 73, where evidence is obtained during the course of an inquiry where the predominant purpose is a civil matter, there is no automatic bar to its introduction at a criminal trial; the trial judge will determine the admissibility of the evidence.

Goldstein J. acknowledged the Catalyst Fund concern but found that the protective order imposed by the U.S. District Court, which apparently was broader than the implied undertaking rule and prohibited U.S. counsel from providing any evidence to counsel in the proposed Canadian class actions, was sufficient. Goldstein J. was not prepared to assume that the lawyers would violate a court order. Surprisingly, he did not address the possibility of evidence being leaked by others. Goldstein J. ordered that the examinations of the respondents would be conducted pursuant to the Ontario Rules of Civil Procedure and that the respondents would receive all of the protections contained in the Charter and the relevant Evidence Acts.

The outcome was determined by the fact that, although there was a Competition Bureau investigation, the respondents acknowledged that they were not targets and so the risk to the respondents was merely the possibility that their evidence might be used against them in Canada (where Charter protections apply). Significantly, Justice Goldstein said that if the respondents had been targets of a U.S. criminal investigation, he might have taken a different view of the propriety of invoking the Fifth Amendment. We still await a case on those facts!