Shell Canada Ltd., Re, (1975) 7 N.R. 157 (FCA)

• Judge: Jackett, C.J., Thurlow, Pratte, Urie and Ryan, JJ.
• Court: Federal Court of Appeal (Canada)
• Case Date: February 14, 1975
• Jurisdiction: Canada (Federal)
• Citations: (1975), 7 N.R. 157 (FCA)

Shell Can. Ltd., Re (1975), 7 N.R. 157 (FCA)

MLB headnote and full text

Re Shell Canada Ltd.

Indexed As: Shell Canada Ltd., Re

Federal Court of Appeal

Jackett, C.J., Thurlow, Pratte, Urie and Ryan, JJ.

February 14, 1975.

Summary:

This case arose out of an investigation by the Director of Investigation and Research pursuant to the provisions of the Combines Investigation Act. The investigation related to petroleum and petroleum products. Pursuant to s. 10 of the Combines Investigation Act the Director of Investigation and Research requested that Shell Canada Ltd. produce documents in its possession containing lawyer client communications. The documents requested contained communications between employees of Shell Canada Ltd. and lawyers employed by Shell Canada Ltd. Shell Canada Ltd. refused to produce the documents. The Director of Investigation and Research applied to the Ontario Supreme Court pursuant to s. 10(5) of the Combines Investigation Act for an order to require Shell Canada Ltd. to produce the documents. The Ontario Supreme Court dismissed the application.

On appeal to the Federal Court of Appeal the appeal was dismissed and the judgment of the Ontario Supreme Court was affirmed. The Federal Court of Appeal stated that the authority to examine documents given to the Director of Investigation and Research pursuant to s. 10 of the Combines Investigation Act did not authorize the abridgment of the lawyer client privilege. The Federal Court of Appeal stated that the privilege came into existence at the time when the confidential communications were made. The Federal Court of Appeal stated that the privilege could be invoked during an investigation carried on by the government officials - see paragraphs 15, 16 and 21.

Evidence - Topic 4233

Witness - Privilege respecting lawyer client communications - Commencement of privilege and commencement of protection - Combines Investigation Act, s. 10 - During an investigation pursuant to s. 10 of the Combines Investigation Act, Shell Canada Ltd. refused to provide documents relating to confidential communications between employees of Shell Canada Ltd. and lawyers employed by Shell Canada Ltd. - The Federal Court of Appeal dismissed an application pursuant to s. 10(5) of the Combines Investigation Act for an order which would have required Shell Canada Ltd. to produce the documents containing lawyer client communications - The Federal Court of Appeal stated that the authority of the Director of Investigation to examine documents pursuant to s. 10 of the Combines Investigation Act did not authorize the abridgment of the lawyer client privilege - The Federal Court of Appeal stated that the privilege could be invoked during an investigation carried on by government officials - See paragraphs 15, 16 and 21.

Evidence - Topic 4230

Witnesses - Privilege respecting lawyer client communications - General principles - The Federal Court of Appeal outlined the public policy for the existence of the lawyer client privilege - See paragraph 12.

Evidence - Topic 4233

Witnesses - Privilege respecting lawyer client communications - Commencement of the privilege - The Federal Court of Appeal stated that the privilege comes into existence at the time when the confidential communications are made - See paragraph 21.

Courts - Topic 352

Judges - Exercise of authority - Judge acting as persona designata - The Federal Court of Appeal stated that a judge of the Ontario Supreme Court acted as persona designata when he heard and disposed of an application by the Director of Investigation and Research for an order under s. 10(5) of the Combines Investigation Act - See footnote 2.

Cases Noticed:

R. v. Colvin, [1970] 3 O.R. 612, refd to. [para. 4].

Re Director of Investigation and Research and Canada Safeway Limited (1972), 26 D.L.R.(3d) 745, refd to. [para. 4].

Commonwealth of Puerto Rico v. Hernandez (1973), 41 D.L.R.(3d) 549, folld. [para. 6].

Crompton Limited v. Customs and Excise Commissioners, [1974] A.C. 405, refd to. [para. 10].

George Wimpey & Co. Ltd. v. B.O.A.C., [1955] A.C. 169, refd to. [para. 14].

R. v. Jeu Jang How (1919), 59 S.C.R. 175, refd to. [para. 14].

Yar Slavutych v. Baker et al. (1975), 3 N.R. 587, refd to. [fn. 7].

Statutes Noticed:

Combines Investigation Act, R.S.C. 1970, c. C-23, sect. 10 [para. 3].

Counsel:

E. Sexton, for the appellant;

J.J. Robinette and T.G. Heintzman, for the respondent.

This appeal was heard by the Federal Court of Appeal at Ottawa, Ontario on February 13 and 14, 1975. Judgment was delivered by the Federal Court of Appeal on February 14, 1975 and the following opinions were filed:

JACKETT, C.J. - see paragraphs 1 to 18.

THURLOW, J. - see paragraphs 19 to 21.

RYAN, J. - see paragraph 22.

PRATTE and URIE, JJ., concurred with JACKETT, C.J. and THURLOW and RYAN, JJ.