Canada: Responding To Compulsory Production Orders From The Competition Bureau: Federal Court Of Canada Provides Practical Guidance

Canada's Commissioner of Competition is armed with a variety of compulsory powers that he can use in pursuing investigations. One such power is the ability, with the permission of a court, to subpoena documents and information under section 11 of the Canadian Competition Act. Of late, the Commissioner has been using such orders quite extensively, against both targets of investigations and third parties. For instance, in two of his most recent investigations, the Commissioner obtained a total of 20 compulsory production orders against third parties, in addition to orders against the targets of the investigations themselves.

The Competition Act allows the Commissioner to apply for orders under section 11 on an ex parte basis, meaning that the recipients of the order are typically not represented before the court at the time of issuance. Section 11 orders are usually granted by the courts without the benefit of accompanying reasons and without significant changes to the terms sought by the Commissioner. In August, however, the Chief Justice of Canada's Federal Court, the Honourable Justice Paul Crampton, issued detailed reasons with respect to the issuance of section 11 orders sought by the Commissioner in connection with his ongoing inquiry into Apple's contracting practices in Canada.

Justice Crampton's decision provides practical guidance for parties faced with responding to compulsory production orders from the Bureau. We outline below some key points and practical implications of Chief Justice Crampton's decision.

Key Points

1. Time to respond

Generally, section 11 orders often give parties only 30 days to respond, subject to the right to obtain extensions. In this case, the Commissioner had initially asked for all of the requested information to be provided within 30 days, and then offered an extension to 75 days. However, Justice Crampton decided that 75 days was likely to be insufficient and allowed the recipients up to 90 days to respond. In reaching this determination, Justice Crampton took into account the complexity of the order (which requested information dating back to 2008) as well as the timing concerns that were raised by certain recipients during the customary consultation between the Commissioner and individual recipients before the issuance of the order (referred to as "pre-issuance dialogue").

Justice Crampton also provided some general guidance regarding the time to respond to future orders, stating that parties should expect to be allowed up to 90 days to respond for complex orders, but that 30 days would not be an unreasonable time period for responding to non-complex orders. In this context, it should be noted that the Apple matter involves an investigation into trade practices. A court may be relatively more willing to impose shorter time periods for compliance in the context of merger investigations in which the Commissioner faces statutory deadlines for determining whether to challenge a proposed transaction.

2. Avoiding an "excessive, disproportionate or unnecessary burden"

During pre-issuance consultation in the Apple inquiry, certain of the third parties had also raised concerns that responding to the order in its entirety would impose an excessive burden on them. Justice Crampton expressed sympathy for this concern and inserted language into the order that allowed the recipients to certify that they had made reasonable efforts to collect the responsive information and that further efforts to collect the information would be "excessive, disproportionate or unnecessarily burdensome". However, Justice Crampton also provided the Commissioner with the ability to challenge a party's position regarding the burden if the Commissioner disagreed.

In adopting this approach, Justice Crampton rejected the argument advanced by the Commissioner's counsel that if information was relevant and went to the "core" of the Bureau's case, by definition it could not be considered excessively burdensome to collect. Indeed, Justice Crampton noted that for certain aspects of the order, it should be sufficient for the Commissioner to receive a reasonable and reliable sampling of the information requested (rather than requiring the parties to collect all responsive documents dating back seven years).

3. Incorporation of the Bureau's E-Production Guidelines

The Commissioner sought to incorporate the requirements of the recently issued guidelines for the Production of Electronically Stored Information (E-Production Guidelines) into the section 11 orders at issue. The E-Production Guidelines, which were released in April of this year, provide the Competition Bureau's "preferred approach" to receiving electronically stored information (ESI). For instance, the E-Production Guidelines state that the Bureau prefers to receive responsive ESI on portable storage media (e.g., hard drives, USB keys) as opposed to via email or secure FTP site.

This case marks the first time that the Commissioner has sought to incorporate the E-Production Guidelines into a section 11 order. Justice Crampton approved the incorporation of these guidelines on the basis that the recipients had not raised any concerns regarding the E-Production Guidelines during the pre-issuance dialogue.

Practical Implications

Justice Crampton's careful review and consideration of the recipients' concerns regarding section 11 orders in this case are welcome and encouraging. His decision confirms that the Commissioner does not have the "final word" on what section 11 production orders will look like. Here are three particular lessons to draw from this case.

1. Review draft orders carefully and raise concerns before issuance

Parties and their counsel should take advantage of the opportunities available to seek amendments to provisions of section 11 orders that are unreasonable and burdensome. In particular, parties, assisted by counsel, should carefully review draft orders and raise specific concerns (including with respect to possible burdens and technical requirements) before issuance. Raising such concerns (preferably in writing) will help the court evaluate the necessity of any changes even if the Commissioner does not agree to the proposed changes during the pre-issuance dialogue.

2. Time to respond

Justice Crampton's decision indicates that courts should carefully assess the reasonableness of the time periods given to parties to respond and that 30 days should not be considered the "default" time period. To assess what is reasonable for them, parties and their counsel should consult with relevant custodians so that they can properly estimate how long it will take them to respond and whether an amendment to the proposed order is reasonable and necessary.

3. Consider Implications of E-Production Guidelines

If the Commissioner seeks to incorporate the E-Production Guidelines into any future section 11 order, it would be prudent for parties to review and consider the format and approach that is reflected in the guidelines and raise any concerns (such as security concerns regarding providing sensitive data on portable media) before the issuance of the order. In the end, these are guidelines only and it should be open for parties to suggest why it is appropriate to depart from the guidelines in certain circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Mark C. Katz
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions