Treat Am. Ltd. v. Leonidas, 2012 ONCA 748

• Judge: Goudge, Feldman and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 26, 2012
• Jurisdiction: Ontario
• Citations: 2012 ONCA 748;(2012), 306 O.A.C. 219 (CA)

Treat Am. Ltd. v. Leonidas (2012), 306 O.A.C. 219 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. MY.031

Treat America Limited (applicant/respondent) v. Robert G. Leonidas (respondent/appellant) and The Commissioner of Competition (intervener)

(C55002; 2012 ONCA 748)

Indexed As: Treat America Ltd. v. Leonidas

Ontario Court of Appeal

Goudge, Feldman and Blair, JJ.A.

November 27, 2012.

Summary:

Leonidas was the former president and chief executive officer of Nestlé Canada Inc. and was a target in a criminal investigation being conducted in Canada by the Commissioner of Competition respecting an alleged conspiracy by a number of chocolate manufacturers to unreasonably enhance the price of chocolate candy. The Commissioner initiated the investigation by obtaining search warrants based on Informations to Obtain (ITO's). Following the execution of the warrants, the ITO's were filed in court and the information contained in them became available to the public. As a result, various class actions were commenced in multi jurisdictions in the United States against a number of chocolate manufacturers there and in Canada for damages suffered from the alleged conspiracy. Those lawsuits were combined into Multidistrict Litigation (MDL). Although Nestlé Canada was originally one of the defendants, the action was dismissed against it on jurisdictional grounds. There remained one Canadian defendant, Hershey Canada Inc. Leonidas was not a defendant. The plaintiffs in the class action sought to examine Leonidas and applied for a Letter of Request for International Judicial Assistance (LOR) to compel him to attend for a deposition and provide oral testimony under oath as a witness in the MDL. The Commissioner was granted intervener status in the MDL and sought a number of conditions respecting the LOR.

The Ontario Superior Court, in decisions reported at [2011] O.T.C. Uned. 7325 and [2012] O.T.C. Uned. 464, issued an LOR subject to a number of conditions designed to protect the interests of Leonidas. Leonidas appealed on the basis that the order was contrary to Canadian public policy respecting his right to remain silent and that it was unduly burdensome on him.

The Ontario Court of Appeal dismissed the appeal but, with the Commissioner's consent added three more protective conditions to the LOR.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi criminal proceedings - Right to remain silent and protection against self-incrimination (Charter, s. 7) - Leonidas was a target in a criminal investigation being conducted in Canada by the Commissioner of Competition respecting an alleged conspiracy to enhance the price of chocolate candy - The Commissioner initiated the investigation by obtaining search warrants based on Informations to Obtain (ITO's) - Following the warrants' execution, the ITO's were filed in court and became available to the public - As a result, various class actions were commenced in the United States against a number of chocolate manufacturers - Those lawsuits were combined into Multidistrict Litigation (MDL) - Leonidas was not a defendant - The class action plaintiffs applied in Ontario for a Letter of Request for International Judicial Assistance (LOR) to compel Leonidas to attend for a deposition and provide oral testimony under oath as a witness in the MDL - The application judge issued an LOR subject to conditions designed to protect Leonidas' immunity rights in respect of his compelled testimony, while also honouring Canada's comity obligations to the U.S. court - The Ontario Court of Appeal affirmed that the LOR's enforcement would not breach Leonidas' s. 7 Charter right to silence - The targets of the Commissioner's investigation had not sought a sealing order over the ITO's and it was unlikely one would have been granted - The fact that the American litigants acted on the ITO's did not, in itself, make the Commissioner responsible for Leonidas losing his right to silence - Neither a stay of the civil proceedings nor a constitutional exemption under s. 7 were requested, nor were the criteria for such met - As Leonidas was compelled to testify, he was protected by the use immunity in s. 13 - The court agreed with the judge's imposition of protective conditions - The protections were properly based on public policy and sovereignty considerations - See paragraphs 23 to 51.

Civil Rights - Topic 4304.1

Protection against self-incrimination - General - Compellability - Exemption - [See Civil Rights - Topic 3160 ].

Civil Rights - Topic 4463

Protection against self-incrimination - Use of incriminating evidence in other proceedings - Proceedings pursuant to Competition Act - [See Civil Rights - Topic 3160 ].

Practice - Topic 3742.2

Evidence - Letters rogatory (or letters of request) - When available - [See Civil Rights - Topic 3160 ].

Practice - Topic 3744

Evidence - Letters rogatory (or letters of request) - Evidence that can be taken - Leonidas was a target in a criminal investigation being conducted in Canada by the Commissioner of Competition respecting an alleged conspiracy to enhance the price of chocolate candy - Various class actions were also commenced in the United States against a number of chocolate manufacturers - Those lawsuits were combined into Multidistrict Litigation (MDL) - Leonidas was not a defendant - The class action plaintiffs applied in Ontario for a Letter of Request for International Judicial Assistance (LOR) to compel Leonidas to attend for a deposition and provide oral testimony under oath as a witness in the MDL - The application judge issued an LOR subject to conditions designed to protect Leonidas' immunity rights in respect of his compelled testimony - Leonidas appealed, asserting that, inter alia, the merits aspect of the examination pre-certification would not be allowed in an Ontario class action and that testifying on the action's merits aspect was an undue burden - The Ontario Court of Appeal rejected the assertion - The application judge identified five specific areas for examination and stated that the proposed examination was narrowly tailored - In a previous LOR, the Court acknowledged the judge's explanation that a rigorous examination of the record was required at the certification stage, requiring a more extensive record to be presented - There was no challenge to the "Friction test" criteria (the test for enforcement of an LOR) to the necessity and relevance of the evidence sought - The MDL was also included six individual cases that had no certification barrier and would continue regardless of the outcome of the certification proceedings - See paragraph 55.

Practice - Topic 3750

Evidence - Letters rogatory (or letters of request) - Restriction on use of evidence taken - [See Civil Rights - Topic 3160 ].

Practice - Topic 3750

Evidence - Letters rogatory (or letters of request) - Restrictions on use of evidence taken - Leonidas was a target in a criminal investigation being conducted in Canada by the Commissioner of Competition respecting an alleged conspiracy to enhance the price of chocolate candy - Various class actions were also commenced in the United States against a number of chocolate manufacturers - Those lawsuits were combined into Multidistrict Litigation (MDL) - Leonidas was not a defendant - The class action plaintiffs applied in Ontario for a Letter of Request for International Judicial Assistance (LOR) to compel Leonidas to attend for a deposition and provide oral testimony under oath as a witness in the MDL - The application judge issued an LOR subject to conditions designed to protect Leonidas' immunity rights in respect of his compelled testimony - Leonidas appealed, asserting that there was a potential for his testimony to be disclosed to, and used by, the Commissioner - The Ontario Court of Appeal dismissed the appeal, but with the Commissioner's consent imposed three further protective conditions - With the new conditions, Leonidas was protected from the Commissioner having any advance access to his testimony unless it became public in the MDL - That addressed his desire for protections that reached beyond the immunity he would have from the use of his testimony - See paragraphs 57 to 63.

Cases Noticed:

Friction Division Products Inc. v. E.I. Du Pont de Nemours & Co. (No. 2) (1986), 56 O.R.(2d) 722 (H.C.), refd to. [para. 19].

Treat America Ltd. v. Nestlé Canada Inc. (2011), 282 O.A.C. 311; 340 D.L.R.(4th) 707; 2011 ONCA 560, refd to. [para. 19].

R. v. Zingre, Wuest and Reiser, [1981] 2 S.C.R. 392; 38 N.R. 272; 10 Man.R.(2d) 62, refd to. [para. 20].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81; 120 D.L.R.(4th) 12, refd to. [para. 28].

R. v. Mentuck (C.G.), [2001] 3 S.C.R. 442; 277 N.R. 160; 163 Man.R.(2d) 1; 269 W.A.C. 1; 2001 SCC 76, refd to. [para. 28].

R. v. Toronto Star Newspapers Ltd. et al., [2005] 2 S.C.R. 188; 335 N.R. 201; 200 O.A.C. 348; 2005 SCC 41, refd to. [para. 28].

MacIntyre v. Nova Scotia (Attorney General), Grainger and Canada (Attorney General) et al., [1982] 1 S.C.R. 175; 40 N.R. 181; 49 N.S.R.(2d) 609; 96 A.P.R. 609, refd to. [para. 28].

Commissioner of Competition v. Falconbridge Ltd. et al. (2003), 170 O.A.C. 299; 173 C.C.C.(3d) 466; 225 D.L.R.(4th) 1 (C.A.), refd to. [para. 28].

United States of America v. Pressey (1988), 27 O.A.C. 304; 65 O.R.(2d) 141 (C.A.). leave to appeal denied (1989), 102 N.R. 154 (S.C.C.), refd to. [para. 33].

R. v. Henry (D.B.) et al., [2005] 3 S.C.R. 609; 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1; 2005 SCC 76, refd to. [para. 35].

R. v. Nedelcu (M.) (2012), 436 N.R. 1; 297 O.A.C. 93; 2012 SCC 59, refd to. [para. 35].

Doucette v. Wee Watch Day Care Systems Inc. et al., [2008] 1 S.C.R. 157; 372 N.R. 95; 252 B.C.A.C. 1; 422 W.A.C. 1; 2008 SCC 8, refd to. [para. 37].

R. v. Singh (J.), [2007] 3 S.C.R. 405; 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 2007 SCC 48, refd to. [para. 41].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 42].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 248; 322 N.R. 205; 199 B.C.A.C. 45; 326 W.A.C. 45; 2004 SCC 42, refd to. [para. 43].

R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161, refd to. [para. 43].

Nash v. Ontario (1995), 27 O.R.(3d) 1 (C.A.), refd to. [para. 45].

United States of America v. Ross (1995), 100 C.C.C.(3d) 320 (Que. C.A.), refd to. [para. 45].

Catalyst Fund General Partner I Inc. v. Hollinger Inc. (2005), 203 O.A.C. 383; 79 O.R.(3d) 70 (C.A.), refd to. [para. 45].

EchoStar Satellite Corp. et al. v. Quinn et al., [2007] B.C.T.C. Uned. E52; 71 B.C.L.R.(4th) 172; 2007 BCSC 1225, refd to. [para. 63].

Counsel:

Jay L. Naster, for the appellant;

Darryl T. Mann, for the respondent;

James D. Sutton and Belinda Peres, for the intervener.

This appeal was heard on March 26, 2012, by Goudge, Feldman and Blair, JJ.A., of the Ontario Court of Appeal. Feldman, J.A., released the following judgment for the court on November 27, 2012.