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Report On Business Quebec price-fixing class action denied access to federal evidence

The Supreme Court of Canada building is seen in this file photo.

Sean Kilpatrick/The Globe and Mail

A class-action suit that alleges oil companies and fuel retailers in Quebec were engaged in fixing the price of gasoline hit a pothole Thursday when Canada's highest court blocked it from accessing evidence from a related criminal investigation.

The Supreme Court ruling means lawyers for the claimants in the class action cannot interview the chief investigator of the Competition Bureau or get access to evidence, including 220,000 wiretap conversations.

"Disappointed," said George Iny, executive director of the Automobile Protection Association, one of the parties behind the class-action suits.

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"It will make our case a lot harder, but it's still possible to do it."

However, Iny said the ruling pertains only to the discovery process — the preliminary work of gathering evidence for a possible trial. He said he hopes that during the trial itself, the investigator can be compelled to testify or produce documents.

In other words, he said, "We're still in the game."

A spokeswoman for the Competition Bureau called the decision a welcome one.

"It will allow the bureau to focus its efforts and resources on ongoing priority cases," Marie-France Faucher said in an email.

"The Competition Bureau has collaborated with the class-action plaintiffs and will continue to do so, within the scope of its mandate."

Iny's organization filed two class-action suits after the Competition Bureau found evidence of price fixing among gas retailers in four cities in Quebec and charged 39 individuals and 15 companies.

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A handful of the criminal cases are still before the courts, but most of the accused pleaded guilty or were convicted at trial, resulting in some jail sentences and fines.

Earlier this year, one of the class actions related to the four cities where charges were laid resulted in a $17-million settlement with two-thirds of the companies involved.

The second suit, however, involves retailers and companies in 26 other cities, where the Competition Bureau investigated evidence of price fixing but did not lay any charges.

That is the suit at the heart of the Supreme Court ruling.

When the lawyers for the protection association sought to interview the Competition Bureau's chief investigator and obtain thousands of documents and wiretap evidence uncovered during the investigation, the bureau's lawyers said no.

They cited a federal law which they say provides immunity to the Crown — in this case represented by the Competition Bureau — in cases where the Crown is neither suing or being sued.

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Lower courts in Quebec found the law didn't expressly grant such immunity and ruled the bureau had to submit to discovery.

The Supreme Court disagreed Thursday in a 7-0 ruling, saying that, in the absence of specific language in the law lifting the immunity when the Crown isn't directly involved, the assumption is that the immunity still exists.

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