Court File and Parties

Court File No. 11-9192-00CL

Date: 20120119

SUPERIOR COURT OF JUSTICE

ONTARIO

Commercial List

IN THE MATTER OF an action pending in the United States District Court for the Middle District of Pennsylvania, entitled In Re Chocolate Confectionary Antitrust Litigation, bearing MDL Docket No. 1935 (Civil Action No. 1:08-MDL-1935)

APPLICATION under the Evidence Act , R.S.O. 1990, c. E.23, s. 60; the Canada Evidence Act , R.S.C. 1985, c. C-5, s. 46; and Rules 14.05(2) and 14.05(3) (h) of the Rules of Civil Procedure

BETWEEN: TREAT CANADA LIMITED, Applicant

AND: ROBERT G. LEONIDAS, Respondent

BEFORE: C. Campbell J.

COUNSEL:
Darryl T. Mann for the Applicant, Treat Canada Limited

Jay Naster for the Respondent, Robert G. Leonidas

James Sutton for the Public Prosecution Service of Canada

A D D E N D U M to Reasons for Decision

[ 1 ] On settlement of the Order following the decision of December 9, 2011, citation Treat Canada Limited v. Leonidas , 2011 ONSC 7325 , an issue was raised with respect to which of the Canada Evidence Act or the Ontario Evidence Act would be applicable to the examination of the Respondent.

[ 2 ] Counsel on behalf of the Applicant and counsel on behalf of Canada submitted that the Canada Evidence Act should apply, since the process that led to the Letter of Request and the Order of Judge Connor referred to evidence being given in accordance with the laws of Canada, which would include the witness protections provided in the Charter of Rights and Freedoms and the Canada Evidence Act.

[ 3 ] Mr. Naster submitted that the witness protection against incrimination provided for in section 60 of the Ontario Evidence Act should also apply.

[ 4 ] On reflection, I am satisfied that the provisions of both the Canada and the Ontario Evidence Acts , as well as those of the Charter of Rights and Freedoms , should apply.

[ 5 ] The rights of refusal to answer under section 50 of the Canada Evidence Act and s. 60 of the Ontario Evidence Act are to the same effect.

[ 6 ] This proceeding was launched under the Ontario Rules of Civil Procedure and the Order made is that of the Ontario Superior Court. I am satisfied in the circumstances that it is appropriate that the witness have the protection, to the extent that there is any difference, of both the Canada and Ontario statutes.

[ 7 ] At the moment, there are no civil or criminal proceedings pending in which Mr. Leonidas could be said to be at risk. Since he is a resident of Ontario, I am satisfied he should be entitled to avail himself of the protection of all the laws of Canada and this would include both the Federal and Provincial statutes.

[ 8 ] Mr. Naster also requested that this Court grant a stay of the decision until an appeal is heard in the Court of Appeal. While I recognize there is jurisdiction in this Court to order the stay, I conclude that it is appropriate that any issue of stay and/or expedition of appeal be dealt with by a judge of the Court of Appeal.

C. CAMPBELL J.

Released: