r v. DANIEL THOUIN, 2015 QCCA 2159

Unofficial English Translation Canada (Attorney General) v. Thouin 2015 QCCA 2159 COURT OF APPEAL CANADA PROVINCE OF QUÉBEC COURT OFFICE OF QUÉBEC No. 200-09-009011-153 200-09-009012-151 (200-06-000135-114) DATE: DECEMBER 22, 2015 CORAM: THE HONOURABLE JEAN-FRANÇOIS ÉMOND J.A. ROBERT M. MAINVILLE J.A. ÉTIENNE PARENT J.A. No. 200-09-009011-153 ATTORNEY GENERAL OF CANADA APPELLANT – Third party intervenor v. DANIEL THOUIN AUTOMOBILE PROTECTION ASSOCIATION RESPONDENTS – Plaintiffs AND ULTRAMAR LTÉE LE GROUPE PÉTROLIER OLCO INC. IRVING OIL OPERATIONS LTD. / LES PÉTROLES IRVING INC. ALIMENTATION COUCHE-TARD INC.

DÉPAN-ESCOMPTE COUCHE-TARD INC. COUCHE-TARD INC. LES PÉTROLES CADRIN INC. GLOBAL FUELS INC. / LES PÉTROLES GLOBAL INC. GLOBAL FUELS (QUÉBEC) INC. / LES PÉTROLES GLOBAL (QUÉBEC) INC. PHILIPPE GOSSELIN & ASSOCIÉS LIMITÉE CÉLINE BONIN CAROLE AUBUT CLAUDE BÉDARD DANIEL DROUIN RESPONDENTS – Defendants No. 200-09-009012-151

PHILIPPE GOSSELIN & ASSOCIÉS LIMITÉE APPELLANT – Defendant v. DANIEL THOUIN AUTOMOBILE PROTECTION ASSOCIATION RESPONDENTS – Plaintiffs AND ULTRAMAR LTÉE LE GROUPE PÉTROLIER OLCO INC. IRVING OIL OPERATIONS LTD. / LES PÉTROLES IRVING INC. ALIMENTATION COUCHE-TARD INC. DÉPAN-ESCOMPTE COUCHE-TARD INC. COUCHE-TARD INC. LES PÉTROLES CADRIN INC. GLOBAL FUELS INC. / LES PÉTROLES GLOBAL INC. GLOBAL FUELS (QUÉBEC) INC. / LES PÉTROLES GLOBAL (QUÉBEC) INC.

CÉLINE BONIN CAROLE AUBUT DANIEL DROUIN RESPONDENTS – Defendants AND ATTORNEY GENERAL OF CANADA RESPONDENT – Third party intervenor DECISION [ 1 ] The Appellants are appealing an interlocutory judgment rendered on April 8, 2015 and rectified on April 28, 2015 by the Superior Court, district de Québec (the Honourable Bernard Godbout), which allowed the motions by the respondents-plaintiffs , Daniel Thouin and the Automobile Protection Association, for leave to examine the chief investigator of the Competition Bureau, a third party to the proceedings. [1] [ 2 ] For the reasons of Émond J.A., concurred in by Mainville, J.A. and Parent J.A.., THE COURT : [ 3 ] DISMISSES the appeals of the Attorney General of Canada and Philippe Gosselin & associés limitée, with costs in both cases.

JEAN-FRANÇOIS ÉMOND J.A. ROBERT M. MAINVILLE J.A. ÉTIENNE PARENT J.A. Mtre. Mariève Sirois-Vaillancourt Mtre. Bernard Letarte Department of Justice Canada For the Attorney General of Canada

Mtre. Claudia Lalancette, Counsel Mtre. Jessica Gaumond, Counsel Bernier, Beaudry inc. For Daniel Thouin and the Automobile Protection Association Mtre. Guy Paquette Paquette, Gadler inc. For Daniel Thouin and the Automobile Protection Association Mtre. Louis P. Bélanger Stikeman, Elliott For Ultramar ltée Mtre. Éric Vallières McMillan For the Groupe pétrolier Olco inc. Mtre. Elizabeth Meloche Osler, Hoskin & Harcourt For Irving Oil Operations Ltd. / Les Pétroles Irving inc. Mtre.

Louis-Martin O’Neil Davies, Ward, Philips & Vineberg For Alimentation Couche-Tard inc., Dépan-Escompte Couche-Tard inc. and Couche-Tard inc. Mtre. Daniel O’Brien (absent) O’Brien avocats For Les Pétroles Cadrin inc. and Daniel Drouin Mtre. Sébastien C. Caron (absent) LCM avocats For Global Fuels inc. / Les Pétroles Global inc. and Global Fuels (Québec) inc. / Les Pétroles Global (Québec) inc. Mtre. Michel C. Chabot Mtre. Guillaume Lavoie Gravel, Bernier, Vaillancourt For Philippe Gosselin & associés limitée and Claude Bédard Mtre. Louis Belleau (absent) Louis Belleau, Attorney Mtre.

Luc Jobin (absent) Tremblay, Bois, Mignault, Lemay For Céline Bonin Mtre. Richard Morin (absent) Les avocats Morin et associés inc. For Carole Aubut Date of the hearing: November 5, 2015 REASONS OF ÉMOND J.A. - I - [ 4 ] Can the chief investigator of the Competition Bureau, an agency of the federal Crown charged with enforcing the Competition Act [2] (“the Bureau”), be compelled to testify for discovery in proceedings which are not against the federal Crown and to which it is not a party?

Can the federal Crown object to the holding of such an examination for discovery by invoking a common law rule conferring on it a residual immunity in respect of provincial laws governing civil procedure? Does the proposed examination, which will cover an investigation record concerning more than 220,000 intercepted and recorded conversations and containing more than 630,000 pages of documents, respect the proportionality rule, one of the guiding principles of Québec civil procedure? Can the examination be justified in view of the nature, purpose and degree of complexity of the class action brought?

In other words, is the goal of seeking and discovering the truth reconcilable with the proportionality rule in the case at hand? [3]

[ 5 ] These are the questions raised by the appeal. - II - [ 6 ] In 2004 further to allegations of a conspiracy by oil companies and retailers to fix the price of gas at the pump in certain regions of Québec, the Bureau opened an investigation pursuant to

section 45 of the Competition Act . The investigation was given the code name “Octane”. To pursue its investigation, the Bureau obtained judicial authorizations allowing it to intercept and record private conversations. More than 220,000 conversations were recorded. A field investigation was also conducted. The Bureau seized thousands of documents in paper or electronic form and took numerous statements.

Based on the evidence amassed, the Bureau filed charges against some fifty persons having participated in the conspiracy, but only in the Thetford Mines, Victoriaville, Sherbrooke and Magog regions. [ 7 ] Subsequent to Octane, two class actions were brought. The first was filed in 2008 by Simon Jacques, Marcel Lafontaine and the Automobile Protection Association (“the Jacques case”).

It was aimed at oil companies, distributors and retailers involved in the conspiracy carried on in the Thetford Mines, Victoriaville, Sherbrooke and Magog regions, the one that gave rise to penal complaints further to the Octane investigation. The second action was filed several years later, in November 2012, by the respondents Daniel Thouin and the Automobile Protection Association (“the Thouin case”).

This action targeted the oil companies, distributors and retailers that had allegedly conspired to fix the selling price of gas at the pump in 14 other regions of Québec, but who had not been charged. [ 8 ] In 2012 the applicants in the Jacques case asked the Bureau to communicate all the recordings of telephone conversations disclosed to the persons charged in the penal proceedings, which the Bureau refused to do. Pursuing their efforts, they applied to the Superior Court. They argued that these recordings contained relevant information and that they could petition to obtain under

article 402 C.C.P. The Superior Court agreed. [4] The Court ordered the Bureau to communicate to them the recordings filed as evidence in the penal proceedings, but after filtering out any information concerning third parties not involved in the dispute so as to protect their privacy.

After the Court of Appeal denied leave to appeal from this judgment, Imperial Oil petitioned the Supreme Court, which authorized the appeal, but confirmed the Superior Court judgment on the merits . [5] [ 9 ] Further to this decision, in their search for the truth, the applicants in the two class actions asked the Superior Court for authorization to subpoena the Bureau ’s chief investigator. They wished to examine him concerning all the facts relating to Octane.

They also announced that after the examination they might request the communication of all the recordings made and all the documents obtained in the course of the investigation, in addition to those disclosed in the course of the penal proceedings.

This request was particularly important for the respondents Thouin and the Association, who had little information in connection with collusion in the regions targeted by their actions, since the information obtained in the course of the Jacques cases further to the decision of the Supreme Court concerned, in principle, only the conspiracy carried on in the Thetford Mines, Victoriaville, Sherbrooke and Magog regions. [ 10 ] The federal Crown (the Attorney General of Canada: “the AGC”) contested these requests.

Since the Crown itself is not being sued, the AGC argued that the chief investigator cannot be compelled to submit to an examination for discovery. She based her position on a common law immunity rule.

This rule holds that the federal Crown is not subject to provincial laws governing procedure unless the federal Parliament has restricted this immunity rule by a specific provision of law . [6] According to the AGC, however, neither the Crown Liability and Proceedings Act [7] (“the CLPA”) nor the Crown Liability and Proceedings Regulations [8] (“the Regulations”) nor any other federal law subjects the federal Crown to a provincial rule of procedure governing examination for discovery where the proceedings are not against the Crown.

The AGC also argued that the examination contravenes the principle of proportionality. [ 11 ] Despite the AGC’s opposition, the Superior Court (the Honourable Bernard Godbout) authorized the examination of the Bureau ’s chief investigator, but exclusively in the Thouin case. [9] The judge held that the chief investigator could be compelled to testify in an examination for discovery even though the Bureau was not a party to the proceedings.

He indicated that his conclusion was based on the decision rendered by the Supreme Court in the Jacques case. [10] He held that the rules set forth in that decision concerning the disclosure of documents pursuant to

article 402 C.C.P. must also apply in the case of an examination for discovery. Citing that same decision, the judge stated his opinion that the proposed examination does not contravene the guiding principle of proportionality. He held that the information collected, if it proves to be relevant, will expedite the conduct of the proceedings. In sum, he held that it was more productive to examine the chief investigator for discovery than at trial. [ 12 ] Disagreeing with the judge’s viewpoint, the AGC appealed from his decision.

She expressed her opinion that the judge could not ground his decision on the judgment rendered by the Supreme Court in the Jacques case in order to reject her argument concerning the immunity enjoyed by the federal Crown in proceedings which are not taken against it. In her view, the Supreme Court did not rule on the question of the immunity enjoyed by the federal Crown in such a situation. She reiterated that, in the case at hand, the Bureau ’s chief investigator cannot be compelled to testify since the proceedings were not against the Crown.

She asked the Court to rule on this question which was left unanswered. Also, she continued to maintain that examination of the Bureau’s chief investigator would constitute a veritable “fishing expedition” contravening the principle of proportionality, all the more so in that all of the exhibits and recordings that were to be disclosed in the Thouin case had already been or were about to be disclosed. [ 13 ] The appellant Philippe Gosselin & associés inc., one of the distributors and retailers targeted by the action, also appealed the decision.

It supported the position defended by the AGC with respect to non-compliance with the rule of proportionality. It also argued that the judge could not authorize an examination at this stage of the proceedings since the defences had not yet been filed. As for the respondents Les pétrolières Ultramar ltée, Le groupe pétrolier Olco inc. and Irving Oil Operations LTD. / Les pétroles Irving inc., as well as the distributors Alimentation Couche-Tard inc., Dépan-Escompte Couche-Tard inc. and Couche-Tard inc. raised numerous issues.

While acknowledging that the chief investigator may be compelled to testify at trial, they support the AGC’s position with respect to both the immunity enjoyed by the Bureau in proceedings which are not against the Crown and non-compliance with the rule of proportionality. [ 14 ] The questions raised by the appeal are of the highest importance for the respondents Thouin and the Association. If they are unable to examine the chief investigator, their class action runs the risk of failure at the outset since the Bureau alone holds the evidence, if it exists, supporting their arguments.

- III - [ 15 ] The appeal raises four questions that I intend to address in the following order:

(1) Can one maintain, on the basis of Imperial Oil v. Jacques , [11] that a servant of the federal Crown may be compelled to submit to an examination for discovery in proceedings which are not against the Crown?

(2) If the answer is no, can the AGC object to examination of the chief investigator on the ground that the federal Crown is nor a party to the proceedings nor being sued? In other words, does the federal Crown enjoy immunity?

(3) If the federal Crown does not enjoy immunity, does the proposed examination of the chief investigator, which will cover all the facts concerning Octane, contravene the principle of proportionality?

(4) In the circumstances where the respondent oil companies and retailers have not yet filed their defences, can an examination of the chief investigator be authorized? Is this examination premature? - IV – Question 1 : Imperial Oil v. Jacques [ 16 ] In his judgment, the judge held that the Bureau ’s chief investigator can be compelled to submit to examination for discovery even if the federal Crown is not targeted by the class action. To support his finding, he cites the principles established by the Supreme Court in Imperial Oil v. Jacques .

Although that decision pertains exclusively to the rules governing the communication of documents in the possession of a third party not involved in the dispute [art. 402 C.C.P.], the judge expressed the opinion that the same principles must apply with respect to an examination for discovery of a third party. In sum, he held that a servant of the federal Crown can be compelled to testify for discovery in proceedings which are not against the Crown, but made no direct ruling on the question of whether the federal Crown enjoys immunity in such a situation.

This is what he writes: [TRANSLATION] [18] ... the argument of the Attorney General of Canada to the effect that a representative of the Crown cannot be subjected to examination for discovery in proceedings to which the Crown is not a party. [19] In Imperial Oil v. Jacques , the Supreme Court confirmed that the Crown must disclose to the plaintiffs all communications intercepted in the course of the “Octane” investigation pursuant to

article 402 C.C.P., even if it is a third party to the proceedings. [20] Thus, it can be considered that the absence of Crown immunity with respect of

article 402 C.C.P. likewise applies to subparagraph 3 of the first paragraph of

article 398 C.C.P. Both articles are in the same

chapter of the Code of Civil Procedure entitled: “Special proceedings relating to production of evidence”. [ 17 ] In my opinion, the comparison is flawed. While it is true that in paragraph [50] of Imperial Oil v.

Jacques the Supreme Court indicates that “it is easy to imagine counsel for the respondents wanting to examine [at trial] a representative of the Crown, a third party in possession of recordings of intercepted communications, in order to meet the conditions for admission of such physical evidence”, it remains that the Court did not rule specifically on the immunity purportedly enjoyed by the federal Crown with respect to an examination for discovery conducted in the course of proceedings governed by the provincial rules of practice and procedure and which are not taken against the Crown.

The Supreme Court’s analysis essentially concerns the confidential nature of the recordings made in the course of Octane within the meaning of

section 29 of the Competition Act , as well as the scope of

section 193 of the Criminal Code . [ 18 ] Incidentally, I note that in paragraph [80] of the decision, the Court is careful to point out that the application of

article 402 C.C.P. remains, in all circumstances, subject to statutory or judicially created rules allowing for the immunity of the federal Crown. But it does not elaborate any further on this question. This is no doubt due to the fact that the question of federal Crown immunity was not an issue raised by the parties, since the AGC acknowledged that the federal Crown enjoys no immunity with respect to the disclosure of documents before trial in proceedings which are not taken against the Crown. Indeed, she considers that

section 8 of the Regulations subjects the federal Crown to the provincial rules of practice and procedure which, like

article 402 C.C.P., govern the communication of documents by a person that is not a party to the proceedings. Although this

interpretation of

section 8 of the Regulations tends to support the judge’s finding, I recognize that the question of the Bureau ’s immunity in a context of examination for discovery remains open. Question 2 : The Bureau’s immunity [ 19 ] It is well known that, in Canada, the principle of equality of citizens suffers exceptions where the rights and responsibilities of the federal Crown are at stake. These exceptions confer on the Crown and its servants privileges and immunities exempting them from the application of the laws to which all citizens are normally subject. The rules governing these exceptions are of customary origin.

They date from the time when the Sovereign was the source of all rights. They were aimed at maintaining for the State, in the form of prerogatives, the rights enjoyed by sovereigns in order to enable its administrative bodies to accomplish their public interest mission. Over time, these customary rules or prerogatives were recognized and defined by the courts to become common law rules in English and Canadian law. [12] [ 20 ] Today most of the common law rules recognizing the federal Crown’s rights, privileges and immunities have been delimited and restricted by enactments of the federal Parliament.

However, there are still rules for which this has not been done. In these cases, the rules continue to apply without restriction. This principle derives from another, broader common law rule, which holds that the rights, prerogatives and immunities of the federal Crown cannot be restricted except by an express provision of law or by “necessary implication” or logical deduction, where a law demonstrates Parliament’s manifest intention to restrict one of the Crown’s prerogatives or its immunity or where the law would be meaningless if the Crown were not subject to it. [13] Moreover, this rule was embodied by the

federal Parliament in

section 17 of the

Interpretation Act : [14] 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 . 17. Sauf indication contraire y figurant, nul texte ne lie Sa Majesté ni n’a d’effet sur ses droits et prérogatives . [ 21 ] In Alberta Government Telephones v. Canada ( Canadian Radio-television and Telecommunications Commission ), the Supreme Court explained the scope of the

interpretation rule set forth in

section 17 of the

Interpretation Act (formerly

section 16) and how this rule must be applied: [15] In my view, in light of PWA and Eldorado , the scope of the words “mentioned or referred to” must be given an

interpretation independent of the supplanted common law. However, the qualifications in Bombay , supra , are based on sound principles of

interpretation which have not entirely disappeared over time.

It seems to me that the words “mentioned or referred to” in s. 16 are capable of encompassing (1) expressly binding words (“Her Majesty is bound”), (2) a clear intention to bind which, in Bombay terminology, “is manifest from the very terms of the statute”, in other words, an intention revealed when provisions are read in the context of other textual provisions, as in Ouellette , supra , and, (3) an intention to bind where the purpose of the statute would be “wholly frustrated” if the government were not bound, or, in other words, if an absurdity (as opposed to simply an undesirable result) were produced.

These three points should provide a guideline for when a statute has clearly conveyed an intention to bind the Crown . [ 22 ] The principle legislative measures delimiting and restricting the rights, privileges and immunities of the federal Crown are contained in the CLPA and the Regulations. This Act and the Regulations attenuate several rules conferring privileges and immunities on the federal Crown so as to render it accountable for its actions. But the CLPA and the Regulations do not eliminate all of them.

In many cases, the federal Crown still continues to enjoy privileges and immunities in the absence of legislative provisions restricting these. For example, many consider that the provincial rules governing substantive law and procedure, such as the Civil Code of Québec and the Code of Civil Procedure , cannot be raised against the federal Crown. In that respect, it appears that the federal Crown still enjoys certain immunities.

On this subject, authors Baudouin, Deslauriers and Moore write: [16] [TRANSLATION] 1-127 – Background – Originally in British public law, the principle of total Crown non-liability, and consequently Crown immunity in extracontractual civil liability, was enshrined by the maxim “The King can do no wrong”. Being himself the first source and the fountain of justice, the Sovereign could not, indeed, be arraigned before his own courts. Consequently, no court of justice had the power to compel him to appear before it.

Canada at first faithfully followed this principle, a part of British public law that was transmitted to it. However, after Confederation, a series of rules was established by the federal Parliament to attenuate the rigours and the injustices resulting from this immunity, until in 1953 the first enactment was made seeking to place the federal Crown on the same footing as an ordinary individual.

This Crown Liability Act , which abolished the old system of petition of right — under which a citizen had to petition Her Majesty for permission to sue her — became the Crown Liability Act of 1985, then in 1990 the Crown Liability and Proceedings Act . It was finally amended in 2001 to harmonize it with Québec civil law. Despite this historical evolution, it must be acknowledged that the new statutory regime does not reduce Her Majesty in right of Canada to the rank of an ordinary citizen either substantively or procedurally . [Emphasis added.

References omitted.] [ 23 ] The positions defended by the parties to the proceedings illustrate this phenomenon. The AGC maintains that the servants of the federal Crown cannot be examined for discovery in proceedings which are not against the Crown.

Although the CLPA provides that the federal Crown is subject to the provincial rules of practice and procedure of the court in which proceedings are taken (article 27) and empowers the Governor in Council to make regulations prescribing rules of practice and procedure applicable in proceedings by, against or involving the federal Crown (article 34), she argues that, in the current state of the legislation, no provision of the CLPA expressly subjects the federal Crown to the provincial rules of practice and procedure applicable with respect to examination for discovery in proceedings which are not taken against the Crown. [ 24 ] To support her

interpretation of the CLPA and the Regulations, the AGC cites several precedents: Canada Deposit Insurance Corporation v. Prisco [17] of the Court of Appeal of Alberta; two judgments of the Superior Court of Québec: Festival canadien des films du monde c. Téléfilm Canada [18] and Conseil québécois sur le tabac et la santé c. JTI-Macdonald Corp. ; [19] and Faltenhine v. Bragg Communications Inc. [20] of the Supreme Court of Nova Scotia. Nonetheless, she acknowledges that the case law bearing on this question is contradictory, as demonstrated by Temelini v. Wright [21] and Lantheus Medical Imaging Inc. v.

Atomic Energy of Canada Ltd . [22] from the Court of Appeal for Ontario, in which that Court concluded, citing

section 27 of the CLPA , that the federal Crown is subject to the rules of practice and procedure of the court in which the proceedings are taken, without regard to whether or not the proceedings are against the Crown. [ 25 ] Not surprisingly, the respondents Thouin and the Association do not share the viewpoint expressed by the AGC. According to them, the CLPA subjects the federal Crown to the provincial rules of practice and procedure applicable in the court where the proceedings are taken, including those applicable with respect to examination for discovery, whether the Crown is or not being sued or is or not a party to the proceedings. They base their position on

section 27 of the CLPA . They incline to the

interpretation of the Court of Appeal for Ontario in Temelini v. Wright , supra . In addition, they submit that

section 7 of the Regulations , which must be read in conjunction with

section 34 of the CLPA, provides expressly, if not by necessary implication, that the federal Crown is subject to the provincial rules of practice and procedure governing examination for discovery in all proceedings, whether or not these are against the Crown or the Crown is a party thereto . [ 26 ] To assess the parties’ claims, first I will analyze the relevant provisions of the CLPA (Part II and more specifically sections 21 to 27 and 34) and the Regulations (section 7) by interpreting them in their global context based on the ordinary and grammatical meaning of the terms read harmoniously with the spirit of the Act, the object of the Act and the intention of Parliament . [23] I will thus adopt the

modern principle of legislative

interpretation preferred by the Supreme Court and defined by Professor Elmer A. Driedger in the following excerpt: [24] Today 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. [ 27 ] Second, I will examine the contradictory precedents to which the parties refer us, from the earliest to the most recent, taking into account the legislative context applicable at the time each of these decisions was rendered. I will conclude my analysis by reconciling my

interpretation of the CLPA and the Regulations with the precedents dealing with this issue, which will necessarily lead me to take a position on the divergent viewpoints they represent, by concluding that the federal Crown is subject to the provincial rules of practice and procedure governing examination for discovery. (

a) The CLPA and the Regulations: [ 28 ] The CLPA has two parts. The first is entitled “Liability”. It sets forth the general rules under which federal Crown liability may be incurred. The second is entitled “Proceedings”. It describes the rules of practice and procedure to which the federal Crown is subject.

These concern the jurisdiction of the courts asked to hear proceedings taken against the Crown (ss. 21 and 22), the procedure applicable to proceedings taken against the Crown (ss. 23 to 26), the procedure applicable to proceedings taken in a court (s. 27), costs (s. 28), execution of judgments (ss. 29 and 30), interest on judgments (ss. 31 and 31.1), tenders (s. 31.2), the rules of prescription and limitation (ss. 32 and 33), the powers devolving to the Governor in Council to make regulations prescribing rules of evidence, practice and procedure applicable in proceedings by, against or involving the Crown (s. 34) and agencies of the federal Crown (ss. 35 and 36). [ 29 ] Because of the language used by Parliament, most of the provisions of

Part II, excluding sections 27, 33 and 34, set forth rules of practice and procedure that can apply only to proceedings against the federal Crown.

For example, Parliament uses the following terms and expressions: “a claim ... made against the Crown” (s. 21), “proceedings against the Crown” (s. 22), “[p]roceedings against the Crown” (s. 23) “any proceedings against the Crown” (ss. 24, 25 and 26), “[i]n any proceedings to which the Crown is a party” (s. 28), “[c]osts awarded to the Crown” (s. 28), “a judgment against the Crown” ( s. 29 ), “any proceedings against the Crown” (s. 31), “judgments against the Crown” (s. 31.1) and “any proceedings by or against the Crown” (ss. 32 and 36). [ 30 ] But in sections 27, 33 and 34 Parliament does not specify whether the rules set forth therein apply only in proceedings against the federal Crown or, on the contrary, whether they apply in all cases, regardless of whether the Crown is a party to the proceedings. [ 31 ] For example,

section 27 stipulates that “[e] xcept 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 ” without specifying whether the term “proceedings” refers solely to those against the Crown.

Section 33 is even less specific. It provides that “[e] xcept as otherwise expressly provided in this Act, nothing in this Act affects any rule of evidence or any presumption relating to the extent to which the Crown is bound by

an Act of Parliament ” without even using the term “proceedings”. Finally, unlike all the other provisions of

Part II,

section 34 CLPA expressly empowers the Governor in Council to make regulations prescribing rules of evidence, practice and procedure in proceedings by, against or involving the federal Crown. [ 32 ] As for the Regulations, they set forth special rules applicable to proceedings taken in a provincial court under

Part II. Except for sections 7 and 8, all the provisions of the Regulations set forth rules of practice and procedure which, here again because of the language used by Parliament, can apply only to proceedings against the federal Crown.

They concern service of proceedings on the Crown (s. 4), the time limit within which the Crown may file a defence (s. 5), enforcement of a judgment against the Crown (s. 6), assent to an application against the Crown or confession of judgment by the Crown (s. 9), calculation of the time limit for proceedings, with the Crown enjoying an additional 14 days over the time limit granted to individuals, barring of orders of security against the Crown, and non-application of provincial taxation rules between the AGC and the AGC’s agents (s. 12). [ 33 ] Sections 7 and 8 of the Regulations set forth rules concerning examination for discovery (s. 7) and filing of lists of documents (subs. 8(1)) or filing of documents (subs. 8(2)).

Unlike the other provisions of the Regulations, these sections do not expressly state whether the rules set forth therein apply only to proceedings against the Crown or whether they apply to all proceedings, whether the Crown is or not a party thereto. This aspect is totally ignored. However, subsection 8(2) stipulates that, where provincial rules grant a party the right to obtain documents for inspection as against or from the Crown, such documents may be obtained under an order of the court.

In view of the terms used in subsection 8(2), the AGC concedes that it applies in proceedings to which the Crown is not a party. [ 34 ] In view of the Supreme Court’s decision in Jacques , it would have been difficult to argue the contrary. [ 35 ] For the sake of brevity, I will cite below only sections 27, 33 and 34 of the CLPA and

section 7 of the Regulations, which are the focus of my analysis. However, the relevant provisions of the CLPA and the Regulations are provided in an appendix to my reasons: Sections 27 , 33 and 34 CLPA :

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 . ... 33. Except as otherwise expressly provided in this Act, nothing in this Act affects any rule of evidence or any presumption relating to the extent to which the Crown is bound by

an Act of Parliament . ... 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 . 27. Sauf disposition contraire de la présente loi ou de ses règlements, les instances suivent les règles de pratique et de procédure du tribunal saisi . ... 33. Sauf disposition expresse contraire, la présente loi n’a pas pour effet de modifier les règles de preuve ou présomptions établissant le degré d’obligation imposé à l’État par les lois fédérales . ... 34. Le gouverneur en conseil peut, par règlement :

a) prescrire des règles de pratique et de procédure applicables lors des poursuites intéressant l’État, à

titre de

partie ou autrement, ainsi que fixer les tarifs d’honoraires et les dépens ;

b) établir des modèles ou formulaires relatifs à ces poursuites ;

c) régir la délivrance des certificats de jugements rendus contre l’État ;

d) appliquer aux poursuites intéressant l’État, à

titre de

partie ou autrement, toute règle de preuve applicable entre particuliers;

e) d’une façon générale, prendre toute mesure nécessaire relativement aux poursuites intéressant l’État, à

titre de

partie ou autrement .

Section 7 of the Regulations :

Subject to sections 37 to 39 of the Canada Evidence Act , where, under the provincial rules, there is 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 . 7.

Sous réserve des articles 37 à 39 de la

Loi sur la preuve au Canada , lorsque les règles provinciales prévoient, pour une action entre une personne morale (autre qu’un organisme mandataire de l’État) et une autre personne, qu’un dirigeant ou un préposé de la personne morale peut être interrogé au préalable, un fonctionnaire ou un préposé de l’État ou de l’organisme mandataire de l’État, selon le cas, que le sous-procureur général ou le tribunal, par ordonnance, désigne à cette fin peut être interrogé au préalable dans le cadre d’une action, sous réserve des mêmes conditions et avec le même effet que s’il s’agissait de l’interrogatoire au préalable d’un dirigeant ou d’un préposé d’une personne morale . * * * [ 36 ] The AGC submits that the provisions of

Part II, except for

section 27, expressly indicate Parliament’s intention to subject the federal Crown to the provincial rules of practice and procedure only in proceedings against the Crown. She bases her

interpretation on the following expressions used therein: “a claim ... made against the Crown” (s. 21), “proceedings against the Crown” (s. 22), “[p]roceedings against the Crown” (s. 23), “any proceedings against the Crown” (ss. 24, 25 and 26), “[i]n any proceedings to which the Crown is a party” (s. 28), “[c]osts awarded to the Crown” (s. 28), “a judgment against the Crown” ( s. 29 ), “proceedings by, against or involving the Crown” ( s. 34 ) and “any proceedings by or against the Crown” (ss. 32 and 36). [ 37 ] According to the AGC,

section 27 must be read taking into account the intention expressed by Parliament in most of the other provisions of P art II . Despite the fact that Parliament does not specify in

section 27 that the proceedings referred to are those [TRANSLATION] “targeting the Crown or taken against the Crown ”, she suggests the provision should be read as if it contained those expressions. She argues that the rules of practice and procedure applicable to proceedings taken in the court, within the meaning of

section 27, can only be proceedings against the Crown. In her opinion, a contextual analysis of that provision, interpreting it in the overall context of

Part II based on the ordinary meaning of the words read harmoniously with the spirit of the Act, the object of the Act and the intention of Parliament, leads inexorably to this conclusion alone. In sum, although she considers that

section 27 raises no problem of

interpretation, she reads into it terms that do not appear there. [ 38 ] In respect of

section 7 of the Regulations, she maintains that it does not apply in proceedings which are not against the Crown. She adds that if Parliament had intended to make it possible for a servant of the Crown to be compelled to testify in an examination for discovery in proceedings to which it is not a party, it would have made that explicit. All the more so in that

section 34 empowers Parliament to make regulations for that purpose. She incidentally argues that regulations made to allow examination for discovery of a civil servant in proceedings to which the Crown is not a party must explicitly say so. As

section 7 of the Regulations does not make this explicit , she argues that it cannot serve as a basis for such an examination. She adds that

section 7, in its current language, was made at a time when

section 34 empowered Parliament only to prescribe rules of practice and procedure applicable to proceedings taken against the Crown and was never amended thereafter. [ 39 ] The respondents Thouin and the Association see things differently. First, they submit that the rule set forth in

section 27 applies to all court proceedings, without requiring that the Crown be a party to the proceedings. If Parliament had intended to restrict the rule only to proceedings against the federal Crown, it would have said so, as it does in all the other provisions of

Part II. Second, they argue that

section 7 of the Regulations, although it was adopted before the amendments to

section 34 enacted in 2006, must be read taking into account the new wording of

section 34. In essence, they maintain that Parliament was not required to amend

section 7 of the Regulations to specify that the federal Crown is subject to examination for discovery in proceedings to which is it is not a party, since

section 34 of the Act allowed this to be inferred. [ 40 ] I recognize from the outset that the

interpretation proposed by the AGC to the effect that all the provisions of

Part II, including

section 27, applies only to proceedings against the Crown is simple and appears seductive at first glance. All the more so in that it draws support from elements of case precedents. Nonetheless, I cannot accept it. If it is true that the use of terms such as “claims against the Crown”, “proceedings against the Crown”, “proceedings to which the Crown is a party” or “ proceedings by, against or involving the Crown ” in most of the other provisions of

Part II may lead the reader to believe that

section 27 likewise applies only to proceedings against the Crown, an analysis going beyond this generalization leads me to reject such an

interpretation. The absence of explicit terms limiting the application of

section 27 only to proceedings against the Crown is not inconsequential. [ 41 ]

Section 27 is the final provision under the heading entitled “Procedure” in

Part II of the CLPA . All the sections under that heading preceding it begin with expressions such as “proceedings against the Crown” and “ proceedings taken against the Crown ”. Because of the language used, these provisions apply only to proceedings against the Crown. However, when we come to

section 27, Parliament omits to use such an expression. On the contrary, it uses the term “proceedings” without defining or restricting it. What is more,

section 27 begins with “ Except as otherwise provided by this Act ” to indicate that it is stating a general rule. What conclusion is to be drawn? In my opinion, only one answer is possible.

Section 27 states a general rule to the effect that, in any proceedings involving the Crown, whether against it or otherwise, the applicable rules of practice and procedure are those of the court in which the proceedings are taken. [ 42 ] But, some will say, should not

section 27 be read as if the expression “against the Crown” appears after the term “proceedings”? Cannot this language be inferred from the fact that the other provisions preceding

section 27 indicate that they apply only to proceedings against the Crown ? Is not such an inference self-evident from the entire context of

Part II based on the ordinary meaning of the terms

read harmoniously with the spirit of the Act, the object of the Act and the intention of Parliament? I do not believe so. Parliament did notomit to define the term “proceedings” used in

section 27 by a mere oversight. If it had wanted the rule set forth in

section 27 to applyonly to proceedings against the Crown or to which it is a party, it would have specified that, as it systematically did no less than 14 timesin the other provisions of

Part II. Contrary to the AGC’s argument, I hold that this omission is significant. [43] In sum, I am of the opinion that

Part II of the CLPA contains simultaneously a general rule, exceptions applicable only toproceedings against the Crown, and an enabling provision allowing the Governor in Council to make rules of evidence, practice andprocedure in proceedings involving the Crown. The general rule is contained in

section 27. Under that rule, the federal Crown recognizesthat the rules of practice and procedure that are applicable to it in any proceedings are those of the court in which the proceedings aretaken, whether or not it is a party thereto. As for the exceptions applicable to proceedings against the Crown, they are contained in theother sections of

Part II, except for sections 33 and 34. These rules are designed to recognize, preserve or modify certain rights,privileges and immunities of the federal Crown in proceedings taken against it. Finally,

section 34 empowering the Governor in Councilto make additional rules of evidence, practice and procedure is meant to complement the rules set forth in sections 27 and 33. [44] There remains

section 7 of the Regulations. Is it aimed at allowing a servant of the Crown to be examined in any proceedings, asthe respondents Thouin and the Association maintain? Must it be read in conjunction with

section 34 CLPA, which concerns rulesprescribing the practice and procedure applicable to proceedings by, against or involving the federal Crown, in which case it would beredundant with

section 27, which defers to the practice and procedure of the court in which the proceedings are taken? Or, on thecontrary, does it concern only examination for discovery of a servant of the Crown in proceedings to which the Crown is a party, as theAGC claims? In such a case, must it be read with

section 34 as worded at the time when

section 7 was adopted, given that at that timethe Governor in Council was empowered to make regulations only for proceedings against the Crown? Or must it be read with

section 34as it is currently worded? [45] These are the principal questions raised by the parties based on the

interpretation they ascribe to the provision. For my part, Iinterpret it very differently. [46] In my opinion,

section 7 of the Regulations should be read not only with

section 34 CLPA, but also with

section 27, whichrecognizes, along with

section 34, the application of the rules of practice and procedure of the court in which the proceedings are taken,whether or not the Crown is a party to the proceedings. I add that

section 7 is not aimed at determining whether a servant of the Crowncan be examined for discovery since, under

section 27 CLPA, this question is governed by the Code of Civil Procedure of Québec.Section 7 of the Regulations simply stipulates that, where the provincial rules authorize examination of a servant of a corporation in anaction between the corporation and an individual, the same rules apply to the Crown or to an agency of the Crown, the Deputy AttorneyGeneral being responsible for designating the officer summoned to testify. In no way is this provision aimed at determining in whichcases an officer can be examined. (

b) Case law: [47] For nearly twenty years, questions concerning the immunity of the federal Crown with respect of provincial rules of practiceand procedure, including rules governing examination for discovery, have given rise to numerous disputes before the courts. This hasresulted in inconsistent and contradictory precedents. The parties have respectively made copious reference to the precedents to supportthe claims they advance. In order to rule on the appeal, I will focus on the precedents concerning the scope of sections 27 and 34 CLPA.In order, these are Canada Deposit Insurance Corporation v.

Prisco[25] of the Court of Appeal of Alberta, Temelini v. Wright[26] of theCourt of Appeal for Ontario, Faltenhine v. Bragg Communications Inc.[27] of the Supreme Court of Nova Scotia, Conseil québécois surle tabac et la santé c. JTI-Macdonald Corp.[28] of the Superior Court of Québec, and Lantheus Medical Imaging Inc. v. Atomic Energyof Canada Ltd.[29] of the Court of Appeal for Ontario. (

i) Canada Deposit Insurance Corporation v. Prisco: [48] In Canada Deposit Insurance Corporation v. Prisco rendered in 1997, the Court of Appeal of Alberta was asked to decidewhether a former minister of finance of the federal government could be compelled to testify for discovery in an action brought by theCanada Deposit Insurance Corporation, a corporation that is an agent of the federal Crown, and the federal Crown itself against thedirectors of a financial institution that had gone bankrupt.

One of the defendants in the action was seeking to examine the formerminister, who had been involved in the closing of the financial institution. He argued that the federal Crown was subject to the provincialrules governing practice and procedure, including rules related to examination for discovery. He cited

section 27 of the CLPA,

section 7of the Regulations and rule 200 of the Alberta Rules of Court, which provides that a director or employee of a corporation that is a partyto an action may be examined for discovery. [49] The trial judge authorized the examination, but the Court of Appeal overturned that decision. Citing the Supreme Court in A.G.of Quebec and Keable v. A.G. of Canada et al.,[30] the Court first noted the common law rule stating that representatives of the federalCrown cannot be compelled to testify in an examination for discovery unless that rule is restricted by a federal Act.

It concluded thatsection 7 of the Regulations limits Crown immunity with respect to examination for discovery of its officers and servants where theapplicable provincial rules of practice and procedure provide that an officer or employee of a corporation may be examined, but it heldthat neither

section 7 of the Regulations nor rule of procedure 200 authorize examination for discovery of a minister of the federalCrown. However, the Court did not decide the issue of whether

section 27 of the CLPA states a general rule applicable to allproceedings, including those to which the federal Crown is not a party:[31] 8 At common law, the Federal Crown enjoys an immunity or a prerogative right to refuse to submit to examinations for discovery.(See A.G. Quebec and Jean C[Ke]able v. A.G. Canada, (SCC), [1979] 1 S.C.R. 218 at 244-5; and the authorities citedtherein.) This prerogative right of the Federal Crown can only be removed by a federal statute, strictly interpreted.

The province cannotlegislate to affect the rights of the Crown in the Right of Canada. (See: A.G Quebec and Jean C[Ke]able v. A.G. Canada, supra; CentralCanada Potash Co. Limited v. A.G. Sask., (SK CA), [1974] 6 W.W.R. 379; Canadian Deposit Insurance Corporation v.Code (1988), 1988 ABCA 36 , 84 A.R. 241.)

... 22 ... The effect of the Federal legislation and regulations regarding examinations for discovery of officers and employees are far from clear. The Respondent submits that the federal Crown Liability and Proceedings Act specifically makes all the rules of practice and procedure in the province apply to the Crown in Right of Canada (s. 27) and it may be that Rule 200, does apply. However, Rule 200 says nothing regarding the Crown as a party, and says nothing about officers of the Crown . It refers specifically to “an officer of a corporate party”.

The Respondent argues that the provisions of the Provincial statute, the Crown Liability and Proceedings Act, are rules of practise and procedure which extend the meaning of Rule 200 to include the Crown and ministers of the Crown. We agree but only insofar as the Provincial Crown is concerned. The Crown Liability and Proceedings Act by its express terms applies only to the Crown in the Right of Alberta and does not purport to affect the rights of the Federal Crown.

Of course, as earlier indicated, the Province cannot legislate to abrogate Federal prerogative rights. 23 The Crown Liability and Proceedings (Provincial Court) Regulations, S.O.R./91-604 (24 Oct. 91), make the Crown subject to the Provincial rules of examination for discovery in limited circumstances.

Section 7 of the Regulations states that where the provincial rules of practice and procedure provide that an officer of a corporation may be examined for discovery, the Deputy Attorney General may designate an officer, or after such a designation by the Deputy Attorney General, the court may designate an officer to fulfil the same function. The Crown prerogative right to refuse to submit to discovery is removed for those designated officers.

S. 7 of the Regulations puts the designated officer or servant of the Crown, or agency of the Crown, into the same position as an officer or servant of a corporation for the purposes of examination for discovery . Federal legislation provides no machinery for other examinations for discovery as of right .

In our respectful view, the learned Chambers Judge erred in interpreting R. 200 as compelling examination for discovery of ministers of the Crown . [Emphasis added.] [ 50 ] Apart from reviewing the general principles of the common law rule granting immunity to the Crown with respect to an examination for discovery, this decision offers little of interest for the case at hand. (ii) Temelini v. Wright : [ 51 ] A year later, in Temelini v. Wright , the Court of Appeal for Ontario was asked to rule on the scope of

section 27 CLPA in an action brought by one Temelini against an officer and an employee of the RCMP for abuses they had committed against him in a criminal prosecution. The Court had to determine whether Temelini, under

section 27 of the CLPA and

section 30.10 of the Ontario Rules of Civil Procedure , a provision similar to

article 402 C.C.P., could compel the communication of files in the possession of the RCMP, despite the fact that the RCMP was not being sued nor was it a party to the proceedings in any capacity whatsoever. This application had been allowed by a judge, but was dismissed at the first level of appeal on the ground that the RCMP was not a party to the proceedings. [ 52 ] After analyzing the provisions of

Part II of the Act, and more particularly those under the heading “Procedure”, the Court of Appeal for Ontario concluded that the principle stated in

section 27 applies to the federal Crown, whether it is or not a party to the proceedings. Speaking for the Court, O’Connor J. wrote: [32] To what proceedings does s. 27 refer? The word “proceedings” is not defined in the CLPA . The language of s. 27 does not limit the proceedings to which the

section applies. There is no dispute that the word “proceedings” includes actions for damages and that it includes, as well, proceedings brought in the courts of the provinces. A major change in the 1990 amendments to the CLPA, that came into force in 1992, was to extend to the courts of the provinces concurrent jurisdiction with the Federal Court for proceedings brought against the federal Crown. The many references to “proceedings” in the Act very plainly mean proceedings in the courts of the provinces.

The respondents argue, however, that the “proceedings” referred to in s. 27 are limited to proceedings brought by or against the federal Crown and do not include proceedings, such as the appellant's action, in which the Crown is not a party. The ordinary meaning of the language of the

section does not contain this limitation. It would therefore be necessary to read into the

section the limitation contended for by the respondents. In determining the scope of the “proceedings” to which s. 27 refers, it is helpful to consider the other provisions in the Act that also refer to “proceedings”. In some instances, the application of a specific

section is limited to “proceedings against the Crown”: see ss. 22(1), 23, 24, 25 and 26. Other sections have a broader application but are nevertheless limited. For example, s. 28 applies to “proceedings to which the Crown is a party” and s. 34 (

a) gives the Governor in Council authority to make regulations in respect of “proceedings by or against the Crown”. In contrast, there are no words limiting the scope of the proceedings to which s. 27 applies. ... ... I would also note that there is nothing in the wording of s. 27 that limits the rules that apply to a proceeding to only those rules that affect the parties to the proceeding. If the

section applies to proceedings where the Crown is not a party, the clear meaning of the language of the

section includes those rules, like rule 30.10 , that apply to non-parties. [ 53 ] To justify his finding, O’Connor J. relied in part on the

interpretation rule calling for a presumption of consistent expression: [33] ... The inference, therefore, often called the presumption of consistent expression, is that it was the intent to include in s. 27 more than “proceedings against the Crown” and more than “proceedings to which the Crown is a party”. The presumption of consistent expression leads to the broader

interpretation of s. 27 that is consistent with the ordinary meaning of the language of the section. To read into the

section the words “where the Crown is a party” would be inconsistent with what appears to be a

careful pattern of expression in delineating to what proceedings particular sections of the CLPA apply. [54] He also noted that this

interpretation of

section 27 is consistent with the trend in modern law that seeks to reduce federal Crownimmunity with respect to the communication of documents or examinations at a preliminary stage so as to place it on an equal footingwith other litigants:[34] This

interpretation is also in keeping with the modern legislative trend to remove Crown immunity from pre-trial production anddiscovery obligations and to move towards putting the Crown on an equal footing with everyone else. [...] Indeed, the desirability of narrowing or removing Crown immunity from pre-trial discovery obligations is demonstrated by the facts ofthe present case. The appellant is suing two employees of the RCMP based on allegations of conduct carried out in the course of theiremployment.

The master found that the documents in the possession of the RCMP are relevant to the appellant's action and that it wouldbe unfair to require the appellant to go to trial without discovery of these documents. Given that it is open to the RCMP to assertprivilege, including public interest privilege, over these documents, there does not appear to be any reasonable policy argument againstproduction. Although the reasonableness of a result is not determinative of how a statutory provision should be interpreted, theacceptability of a particular

interpretation is a factor that may weigh in favour of one

interpretation rather than another. [55] Finally, while recognizing that the English title of the CLPA (An Act respecting the liability of the Crown and proceedings byor against the Crown) might suggest that it applies only to proceedings taken by or against the Crown, he considered that the title hasonly limited weight:[35] I recognize that an

interpretation of the word “proceedings” in s. 27 that includes proceedings in which the Crown is not a party goesbeyond what is described in the

long title of the CLPA which is as follows:

An Act respecting the liability of the Crown and proceedings by or against the Crown. The

long title may be used to suggest the purpose or scope of legislation but it is not determinative of the

interpretation to be attached toany particular provision in the Act. The

long title is one of many factors that may be considered and in the end, “the weight to beattached to a title and how it should be used depend on the circumstances of the case”: Driedger, supra, at p. 258. Greater weight may be attached to the

long title in those cases where the language of the section, or the language of the

section whenviewed in the context of the legislation as a whole, produces an ambiguous or uncertain result or a result that is unreasonable or unfair:Schiell v. Morrison, (SK CA), [1930] 4 D.L.R. 644 at p. 667, [1930] 2 W.W.R. 737 (Sask. C.A.). That is not this case. The language of s. 27, particularly when viewed in light of the language of other sections in the Act, is clear and aninterpretation that includes proceedings in which the Crown is not a party produces a reasonable and fair result. In my view, the

long titleof the CLPA ought not to be used to change what I otherwise consider to be the proper

interpretation of s. 27. [56] I agree that, in this decision, the Court of Appeal for Ontario is using an interpretive tool (the presumption of consistentexpression) that some consider of doubtful reliability.[36] But that does not alter its analysis, which is not limited to the application ofthis rule of

interpretation. This decision brings into focus the fact that Parliament is careful, in sections 21 to 26 of the CLPA, to establishrules applicable only to proceedings taken against the federal Crown (in no fewer than 14 instances in

Part II alone) while in

section 27 itomits to make this distinction. As I previously noted, and as the Court of Appeal for Ontario ruled, this omission is significant. I add that,paradoxically, it is instead the AGC who is relying on the presumption of consistent expression rule a contrario when she claims that theterm “proceedings” used in

section 27 must be understood as any proceedings against the Crown, because sections 21 to 26 refers solelyto proceedings taken against the Crown. [57] In sum, although it pertains to an application for the communication of documents at the preliminary stage, this decision hasalready set out the essence of my analysis of

section 27 CLPA. (iii) Faltenhine v. Bragg Communications Inc.: [58] In 2007 in Faltenhine v. Bragg Communications Inc., the Supreme Court of Nova Scotia was also asked to rule on anapplication for the communication of documents targeting the federal Crown in a case to which it was not a party. The judge declined toapply the principles set forth by the Court of Appeal for Ontario in Temelini. He stated his opinion that the Court of Appeal for Ontariodid not correctly interpret

section 27 CLPA because it ascribed too much weight to the presumption of consistent expressioninterpretation rule and not enough to the contextual

interpretation method.[37] He instead held that

section 27 CLPA must be read withsection 34—which, in his understanding, authorized Parliament only to make regulations prescribing rules of practice and procedure inproceedings taken against the Crown—and with

section 21 dealing with the jurisdiction of provincial courts:[38] 31

Section 34 is really a companion to s. 27. It empowers, in paragraph (c), Governor in Council to prescribe by regulation “rules ofpractice and procedure in respect of proceedings against the Crown”, and it provides other powers in respect of procedure and evidencein Crown proceedings. It is clearly limited to Crown proceedings.

Section 27 contrasts with this: “Except as otherwise provided by thisAct or the regulations”. It seems inconsistent to restrict the rule-making power in s. 34 to Crown proceedings and read the catch-all in s.27 expansively to cover situations in which the Crown is not a party, is not sought to be made a party, and does not seek to become aparty. For example, on the Temelini v. Wright

interpretation, rules could not be made under s. 34 to limit discovery of the Crown in casesto which it is not a party. 32 In my opinion, s. 21 is almost preclusive of the

interpretation in Temelini v. Wright.

Section 27 applies “the rules of practice andprocedure of the court in which proceedings are taken”.

Section 21 identifies the courts in which proceedings may be taken. In myopinion, “the court in which proceedings are taken” can only mean a s. 21 court.

Section 21 gives jurisdiction to a provincial superiorcourt “where a claim is made against the Crown”. It does not give jurisdiction to make an order against the Crown outside of a Crownproceeding.

[ 59 ] However, this judgment is vitiated by an error that alters the judge’s reasoning. At the time it was rendered,

section 34 had just been amended to stipulate that the Governor in Council could make regulations to prescribe rules of evidence, practice and procedure in “proceedings by, against or involving the Crown”. That said, despite this reservation, the judgment is not without interest. The judge’s comparison between sections 27 and 34 is interesting. First, the judge presumably might have concluded, had he taken into account the amendment made to

section 34 , that

section 27 CLPA applied to proceedings by, against or involving the Crown. Second, he highlighted the fact that at the time when

section 34 CLPA was amended to empower the Governor in Council to make regulations governing practice and procedure in proceedings involving the Crown, Temelini represented the state of the law concerning the scope of

section 27 CLPA. [ 60 ] I will address this question in greater depth a little later when I discuss the rule of

interpretation known as the “presumption of stability of the law”, which holds that “a Legislature is not presumed to depart from the general system of the law without expressing its intentions to do so with irresistible clearness” [39] . (iv) Conseil québécois sur le tabac et la santé c. JTI-Macdonald Corp. : [ 61 ] In 2009, in two class actions brought against three cigarette manufacturing companies, the Superior Court of Québec was also asked to rule on the scope of

section 27 CLPA ( Conseil québécois sur le tabac et la santé c. JTI-Macdonald Corp. [40] ), regarding the specific issue that concerns us: whether an officer of the federal Crown can be compelled to testify in proceedings which are not against it. The judge’s analysis essentially focused on the diverging opinions of the Court of Appeal for Ontario in Temelini v. Wright and the Supreme Court of Nova Scotia in Faltenhine v. Bragg Communications Inc.

The facts giving rise to the dispute are summarized below. [ 62 ] At the end of the 1990s, the Conseil québécois sur le tabac et la santé and two ex-smokers brought two class actions against three cigarette manufacturing companies. The applicants accused the corporate defendants of having marketed products they knew to be dangerous for health and that have caused serious illnesses for millions of smokers. Holding the opinion that the federal Crown was involved in the commission of the acts they were being held liable for, the corporate defendants called the Crown in warranty.

They served a subpoena duces tecum to examine before defence one of the Crown’s servants in the main action without first applying to the Court for the authorization to do so. They were of the opinion that the Crown, in its capacity as defendant in warranty, was a party to the proceedings and that its servant could therefore be examined as of right. [ 63 ] Further to the service of the subpoenas duces tecum , the Crown (the AGC) applied to the Court to set these aside . It urged two grounds relating to immunity.

First, it argued that the cigarette manufacturing companies, before subpoenaing the Crown’s servant, should have obtained an authorization from a judge under paragraph 3 of

article 397 C.C.P. because the Crown itself was not a party to the main proceedings. Second, likewise because it was not a party to the main proceedings, the Crown argued that such authorization, were it sought, could not be granted because the Crown enjoys immunity with respect to examination for discovery in proceedings which are not against the Crown. Citing the analysis of the Supreme Court of Nova Scotia in Faltenhine , it maintained that the CLPA did not restrict its immunity, that

section 27 subjects the federal Crown to the rules of civil practice and procedure only in proceedings against the Crown and that the Regulations contain no provisions derogating from that rule. [ 64 ] For their part, the cigarette manufacturing companies, citing Temelini v. Wright , argued that the CLPA restricts the federal Crown’s immunity in such a situation, since

section 27 subjects the Crown to the provincial rules of practice and procedure in all proceedings, whether or not it is a party thereto. They submitted that Faltenhine v. Bragg Communications Inc., was not a valid precedent, as the judge based his decision on

section 34 without taking into account the amendments that had been made thereto in 2006. They added that at the time Parliament amended

section 34 to empower the Governor in Council to make regulations prescribing rules of practice and procedure in proceedings by, against or involving the Crown, it was not unaware of the state of the applicable law after Temelini v. Wright . [ 65 ] In his judgment, the judge did not allow the claims of the corporate defendants. In his view, the amendments to

section 34 CLPA rendered Temelini v. Wright and Faltenhine v. Bragg Communications Inc. obsolete. Carrying on his own analysis, he concluded that the amendments to 34 CLPA reinforced the idea that the rule set forth in

section 27 applies only to proceedings against the federal Crown. Accordingly, Parliament entrusted the Governor in Council with responsibility for determining in which circumstances the provincial rules of practice and procedure would apply to the Crown. He also rejected the argument according to which modern law tends to restrict the rules of immunity rather that maintaining them. According to the judge, such an

interpretation contravenes the rule set forth in

section 17 of the

Interpretation Act : [41] [27] ... The amendment to s. 34 affects not only Faltenhine , but also, and moreso, Temelini . [28] Rendered before the amendment, Temelini 's presumption of consistent expression analysis requires that there be no language in the Act that specifically refers to proceedings in which the Crown is not a party. The introduction of the word “involving”, therefore, removes the foundation on which that analysis is based.

Today, that case could not be decided in the same way, at least for the same reasons. [29] What would be the result today were one to apply the presumption of consistent expression to the amended Act? [30] By introducing the word “involving”, was Parliament not adopting “a particular way of expressing a meaning”, i.e., the description of proceedings to which the Crown is not a party? Thus, by adding that word to s. 34 , but not to s. 27, Parliament appears, albeit in an indirect way, to have reinforced the exclusion of non-party proceedings from the ambit of s. 27 .

This would appear to answer the question at hand. At the very least, it opens the door to looking elsewhere for guidelines to interpret that provision. [31] In any event, Parliament is clearly saying that it prefers that the Governor in Council control the rules of practice and procedure for such proceedings, which is not illogical if it is the Federal Government's intention to reduce Crown prerogatives. [32] As part of their submissions, the Companies urge the Court to opt in favour of the modern trend to decrease Crown immunities, as mentioned in Temelini .

They argue that the modern view would see s. 27 as permitting non-party discovery of the Crown, unless a specific provision, presumably created under the Governor in Council's regulation-making powers, prohibits it.

[33] With respect, this would turn s. 17 of the

Interpretation Act on its head, along with s. 34 of the CLPA . The regulations under s. 34 seem destined, in our view, to create manageable exceptions to Crown immunities and prerogatives, not to reintroduce them. [Emphasis added.] [ 66 ] He held that a contextual analysis of

section 27 CLPA , that is, an analysis taking into account the provisions preceding it, sections 21 to 26 of

Part II, as well as

section 34, leads inexorably to only one conclusion:

section 27 CLPA can apply only to proceedings against the Crown. More specifically citing the expressions “claim is made against the Crown” and “proceedings against the Crown” used in sections 21 to 26 , he concluded that

section 27 CLPA must be read as if those expressions were included therein. If Parliament had intended to restrict the immunity of the federal Crown in all proceedings, including those to which it is not a party, it would have indicated so by adding, after the term “proceedings”, the expression “by, against or involving the Crown” which appears in

section 34 . This is how he sets out his position: [42] [39] Finally, we arrive at an analysis of the Act based on the entire context principle. [40] We note that s. 27 is the last provision in

Part II of the Act, entitled “PROCEEDINGS”.

In reading that Part, one cannot escape the rhythm created by the six other sections making up that Part: 21(1) In all cases where a claim is made against the Crown, ... 22(1) Where in proceedings against the Crown any relief is sought ... 23(1) Proceedings against the Crown may be taken ... 23(2) Where proceedings are taken against the Crown ... 24 In any proceedings against the Crown, the Crown may ... 25 In any proceedings against the Crown, judgment shall not ... 26 In any proceedings against the Crown, trial shall be ... [41] Coming in close pursuit of those provisions, s. 27 ’s language: “... the rules of practice and procedure of the court in which the proceedings are taken apply in those proceedings” cannot but be coloured by them.

As we have seen, one must read these words “harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”. Given the language of sections 21 through 26, the intention of Parliament appears to be clearly expressed. In such a context, it would be most “unharmonious” to attempt to apply the words of s. 27 to proceedings other than those covered by every other provision of this Part. [ 67 ] In my opinion, and I say this with respect for those holding the opposite view, the contextual

interpretation method does not lead to this

interpretation of

section 27. It seems to me difficult to infer that the use of expressions such as “claim made against the Crown” and “proceedings against the Crown” in sections 21 to 26 requires that

section 27 be read as if such an expression appeared therein. For my part, I infer from this an

interpretation that is diametrically opposed. As I have already mentioned, Parliament already uses these expressions 14 times in

Part II alone. If it had intended in

section 27 to establish a principle applicable only to proceedings taken against the federal Crown, it would have indicated it there also as it does elsewhere. In sum, the application of the same method of contextual

interpretation leads me to a very different conclusion. [ 68 ] That said, although I do not share the judge’s reasons, his decision is nonetheless interesting. As in Faltenhine , the judge interpreted

section 27 by referring to

section 34 of the CLPA . But contrary to Faltenhine , he did not hold that sections 27 and 34 must be read together or that they set forth complementary measures [in Faltenhine , the Court stated its opinion that

section 27 sets forth a general principle holding that provincial rules of practice and procedure apply only to proceedings against the federal Crown and that

section 34 expanded it by empowering the Governor in Council to prescribe additional rules of practice and procedure in proceedings against the Crown]. The judge held instead that sections 27 and 34 have different objectives. According to him, only regulations made under

section 34 can subject the Crown to provincial rules of practice and procedure in proceedings to which it is not a party. [ 69 ] For my part, I consider that sections 27 and 34 CLPA must be read together, but taking into account, of course, the amendments made to the wording of

section 34 in 2006. In this context, the applicable rule could be formulated as follows:

section 27 sets forth a general principle holding that provincial rules of practice and procedure apply in all proceedings by, against or involving the federal Crown, whereas

section 34 expands that statement by empowering the Governor in Council to prescribe other rules of practice and procedure in proceedings by, against or involving the federal Crown. (

v) Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd .: [ 70 ] Finally there is the decision of the Court of Appeal for Ontario in Lantheus Medical Imaging Inc. v. Atomic Energy of Canada Ltd . In this case, Lantheus Medical Imaging Inc. was seeking to obtain from Atomic Energy of Canada Ltd. documents containing information that would be useful to it in a suit brought against its insurers in the United States. After obtaining a “ letter of request” from an American court, it attempted to have it enforced by an Ontario court pursuant to

section 60 of the Ontario Evidence Act so that it could be set up against Atomic Energy of Canada Ltd. The latter contested the application, claiming the immunity enjoyed by the federal Crown in respect of provincial rules of practice and procedure in proceedings to which it is not a party. The judge declined to enforce the letter of request, hence the appeal by Lantheus Medical Imaging Inc. [ 71 ] In its decision, the Court of Appeal for Ontario overturned this judgment. Citing Temelini v. Wright , it reiterated that

section 27 of the CLPA restricts the rights and prerogatives of the federal Crown with respect of provincial rules of practice and procedure. It added that this restriction does not apply only to proceedings against the Crown, but to all proceedings. The Court reiterated the comments of O’Connor J. where he affirmed that the

interpretation of the term “proceedings” in

section 27 CLPA covers all proceedings taken in a

court, whether the Crown is or not a party to those proceedings.

It referred to the comment made by O’Connor J. that such aninterpretation is in line with the modern legislative trend toward limiting the rules granting immunity to the federal Crown so as to place the Crown on an equal footing with ordinary citizens, at least in commercial matters:[43] 43 In Temelini, this court concluded that s. 27 of the CLPA constituted the necessary federal authority pursuant to s. 17 of theInterpretation Act to render the Rules of Civil Procedure binding upon the Crown, and that the reference to “proceedings” in s. 27included proceedings in which the federal Crown was not a party.

Therefore, the Crown was subject to non-party discovery pursuant toRule 30.10. The court in Temelini did not need to consider the meaning of the phrase “rules of practice and procedure”. 44 O'Connor J.A., at paras. 49 and 50 of Temelini, stated that such an

interpretation was “in keeping with the modern legislativetrend to ... move towards putting the Crown on an equal footing with everyone else” and noted the “desirability of narrowing orremoving Crown immunity from pre-trial discovery obligations ...” 45 In my view, an

interpretation that s. 60 of the OEA is a “rule of practice and procedure” is similarly in keeping with the modernlegislative trend of moving towards putting the Crown on an equal footing with everyone else, at least in commercial matters. 48 I conclude that the procedure for enforcing a LoR set out in s. 60 of the OEA is correctly understood as a rule of practice andprocedure, and that the Crown is therefore bound by it pursuant to s. 27 of the CLPA. (vi) Other decisions: [72] I conclude this review of the precedents by noting that the parties referred us to several other Canadian court cases concerningthe CLPA and the Regulations (Thornhill v.

Dartmouth Broadcasting Limited (1981),[44] Waverley (Village) v. Nova Scotia (Minister ofMunicipal Affairs),[45] Gardiner v. New Cap Inc.,[46] Maplehurst Properties Ltd. v. Canada (Attorney General),[47] Corbett v.Samsports.Com Inc.,[48] Canada (Procureur général) c. Charbonneau[49] and Énergie atomique du Canada ltée c. Hydro Québec).[50]However, these decisions are of limited relevance since, in several cases, the Crown was a party to the proceedings, or the litigationtargeted a provincial Crown rather than the federal Crown. For this reason, I will not review them here. (

c) Conclusion: [73] The analysis of all the provisions of the CLPA and of the precedents convinces me that Parliament, in enacting

section 27CLPA, restricted the immunity enjoyed by the federal Crown with respect to provincial rules of practice and procedure, not only inproceedings against the Crown but also in proceedings where the Crown is involved in another capacity. If Parliament had intended forthe rule set forth in

section 27 to apply only to proceedings against the Crown, it would have made that explicit, as it did in all the otherprovisions under the heading “Procedure”, as well as 14 times in

Part II. Unlike others, I infer that by choosing not to limit the word“proceedings” in

section 27, Parliament expressed its intention to restrict the immunity of the federal Crown in respect of provincial rulesof practice and procedure so as to place it on an equal footing with other litigants, “except as otherwise provided by the CLPA”. [74] I add that by amending sec

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