NEW Commonwealth Marketing Group Ltd. et al. v. The Manitoba Securities Commission et al., 2008 MBQB 319 (CanLII)

  • December 01, 2008

Date: 2008-12-01. Docket: CI 04-01-37149. Schulman J. | Link 

The Manitoba Securities Commission (MSC) conducted an undercover investigation and taped conversations with employees of Skyward Management Inc. (“Skyward”) without the knowledge of the employees. An employee of the MSC transcribed the recordings to a Word document. The MSC and Douglas Brown, general counsel to the MSC, subsequently published an investor alert warning the public about the risks of investing with the plaintiffs and Skyward. Plaintiffs sued the MSC and Brown for defamation and abuse of public authority. On the advice of an investigator with an RCMP background, Brown directed that the audiotape and transcript be destroyed. The destruction was disclosed in the defendants’ affidavit of documents. The MSC had another copy of the transcript printed, but the steps taken to create this new copy was not clear from the evidence. The court barred the defendants from making any use of the transcript during the discovery process. The issue of spoliation, the decision on whether to strike out the statement of defence, and the impact on the plaintiff’s ability for a fair trial should be left for the trial judge.