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Charter - s.11(c) Compellability (2). Viterra Canada Inc. v. Grain Workers' Union (International Longshoreman’s Warehousemen’s Union, Local 333)
In Viterra Canada Inc. v. Grain Workers' Union (International Longshoreman’s Warehousemen’s Union, Local 333) (Fed CA, 2026) the Federal Court of Appeal considered seven appeals, all relating to "a dispute between the parties that dates from 2017 when Grain Workers’ Union Local 333 ILWU (the Union) filed two policy grievances alleging violation by Viterra Canada Inc. (Viterra) of the maximum work hours provisions of the Canada Labour Code".
In this contempt context, the court considers a Charter s.11(c) ['self-incrimination'] argument:[95] Further, Viterra argues specifically that the Federal Court erred in interpreting Rule 470(2) by relying on the recent decision in Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32 at para. 132 (Québec inc.) and the Supreme Court’s analysis of paragraph 11(c) of the Charter, the analogous constitutional provision. I do not agree.
[96] For ease of reference, paragraph 11(c) provides that any person charged with an offence has the right "“not to be compelled to be a witness in proceedings against that person in respect of the offence”".
[97] Well prior to its decision in Québec inc., the Supreme Court found that paragraph 11(c) of the Charter was intended to protect an individual against being compelled to testify "“out of his or her own mouth”" when charged (Amway at para. 35) and that "“a corporation cannot be a witness and therefore cannot come within s. 11(c)”": Amway at para. 35.
[98] In Québec inc., the majority of the Supreme Court agreed with the conclusion in Amway that corporations are not included in section 7 and paragraph 11(c) of the Charter, quoting Sopinka’s J.’s reference to the "“affront”" to an individual’s dignity and privacy should they be forced to testify and give evidence contrary to their own interests: Québec inc. at para. 132.
[99] The Federal Court did not err in finding support in the decision in Québec inc. for its conclusion that Rule 470(2) does not apply to a corporation and does not prevent its employees from being compelled to testify. A consideration of the Québec inc. case returns the Court to the text of Rule 470(2). Both the Rule and paragraph 11(c) use the word "“person”" and yet both provisions have been interpreted purposively to apply to individuals facing penal consequences. I acknowledge that paragraph 11(c), as a Charter provision, has a long interpretive history but the analogy to a court’s textual and purposive interpretation of Rule 470(2) is appropriate. It was open to the Federal Court to consider the analogous Charter protection cases in interpreting Rule 470(2): see, e.g., Canada v. BCS Group Business Services Inc., 2020 FCA 205 at paras. 25-32.
[100] Viterra makes much of the Federal Court’s statement that the concurring discussion by Justice Abella (as she then was) of paragraph 11(c) of the Charter "“offers a complete answer to”" Viterra’s argument. Viterra submits that this statement is an error of law because Rule 470(2) was not before the Supreme Court in Québec inc., Justice Abella’s conclusion was made in specific reference to Charter protections and no application under section 52 of the Charter was before the Federal Court. However, none of these factors precluded the Federal Court from looking to the Supreme Court’s treatment of paragraph 11(c) in interpreting Rule 470(2). Paragraph 11(c) of the Charter and Rule 470(2) use the same language and are directed at the same issue – the protection of the individual from being forced to testify when charged in a criminal or quasi-criminal proceeding, including civil contempt (Sutherland Estate v. Murphy, 2025 ONCA 227 at paras. 5, 30 et seq).
[101] In summary, I find no reviewable error in the Federal Court’s conclusion that the relevant case law, including Québec inc., supports the conclusion that Rule 470(2) does not apply to corporations. I would also make the finding that Rule 470(2) does not apply to corporations, consistent with the constitutional protection afforded to an individual in paragraph 11(c) of the Charter.
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