In a recent decision, the
Competition Tribunal granted the Commissioner of Competition's
motion requesting that the Toronto Dominion Bank (TD) produce
complete versions of a number of documents, including several that
had previously been produced in a redacted form. The motion was
part of the Commissioner's proceedings against Visa Canada and
Mastercard International under the Competition
Act's civil resale price maintenance
(RPM) provision, enacted as part of the substantial amendments to
the Competition Act in 2009. TD was granted leave to
intervene in that proceeding in respect of a
number of issues earlier this year.
The motion stemmed from the redaction by TD of certain documents
produced by it in response to the Tribunal's order granting it
leave to intervene, which also ordered it to produce documents
relative to the issues within the scope of its intervention. TD
submitted that redactions are permitted if information is
irrelevant and confidential, or if it is contained in an irrelevant
portion of a segmented document. The Tribunal rejected this view,
and held that, as a general rule, irrelevant portions of otherwise
relevant documents must be disclosed. After reviewing relevant
jurisprudence, the Tribunal held that redaction is permissible only
in exceptional circumstances, such as where the redacted
information is embarrassing or harmful or where there is an
"enormous" volume of redacted material.
Having set out the general rule, the Tribunal considered whether
any of TD's redactions could fit within the "exceptional
circumstances" exception. The Tribunal concluded that there
were no special circumstances to justify the redaction of the names
of merchants with whom TD interacted. TD maintained that the names
could not be disclosed on the basis of its contractual
confidentiality obligations, but the Tribunal found that the
relevant contracts permitted disclosure in the context of
The Tribunal similarly found a lack of supporting evidence to
justify the redaction of profit and loss statements and certain
government relations documents to exclude information about
business lines other than credit cards. Even had it found such an
evidentiary foundation, the Tribunal suggested that it might have
rejected the redactions nevertheless given that the documents
enjoyed the protections of a Tribunal-granted confidentiality
The Tribunal also ordered TD to disclose documents showing the
content of its pre-contractual negotiations with Visa and
Mastercard. The contracts themselves had already been disclosed,
and TD argued that pre-contractual documents were not relevant. The
Tribunal disagreed, finding that the documents were "clearly
relevant" on the basis that TD had been granted leave to
intervene on the issue of its "interactions" with the two
credit card companies.
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