Documents and information that the Competition Bureau collects
from third parties during its investigations are protected by
public interest privilege from disclosure to plaintiffs in
private actions, the BC Supreme Court has ruled.
The plaintiffs in a class action alleging that
Microsoft conspired with various parties (including its own
subsidiaries) to reduce competition for software sought production
from the Bureau of documents and information it received from third
Microsoft, as well as notes taken by Bureau officers. The
Bureau had investigated allegations that
Microsoft had engaged in anti-competitive conduct in the early
Both Microsoft and the Bureau resisted production of these
Justice Myers rejected Microsoft's contention that because
the Bureau's inquiry was made under the Competition
Act's civil reviewable matters provisions (Part VIII) and
not its criminal provisions (Part VI), the information was not
relevant to a class action that alleged a violation of Part VI.
Myers J. accepted that documents and information that the Bureau
received from third parties were subject to public interest
privilege, however. He noted that public interest
privilege in Competition Act matters has developed in
its own a unique way. This is because, as the Bureau submitted,
In the course of conducting informal investigations or formal
inquiries, the Bureau receives confidential, proprietary and
commercially sensitive information voluntarily from third parties
or the subjects of an investigation. Parties that provide
information to the Bureau often ask for an assurance that the
information will remain confidential, and Bureau officials provide
such assurances based on ss. 10(3) and 29 of the Act and Bureau
Myers J. considered two cases in which courts ordered production
of documents by the Bureau: Imperial Oil (see
article) and Forest Protection. In both of these
cases, however, the information that was ordered produced came from
the defendants in the civil case. As well, in Imperial
Oil, the information sought, namely wiretaps, had already been
disclosed to the defendants in the criminal proceedings.
The plaintiffs argued that section 29, which protects the
confidentiality of information provided to the Bureau, but also
permits the Bureau to disclose it in order to enforce the Act, gave
them the right to information in the Bureau's possession, since
private actions are a means of enforcing the Act. Myers J.
disagreed. Section 29 "sets out prohibitions from disclosure;
it is not a source of the right to disclosure". Moreover,
while private actions are a way of enforcing the Act, this does not
mean that the plaintiffs stand in the shoes of the Commissioner of
The plaintiffs were also seeking two classes of documents that
Microsoft submitted to the Bureau. Myers J. held that the first,
correspondence and submissions from Microsoft to the Bureau, may be
subject to some head of privilege, but that he lacked sufficient
information to determine this. The second class, "business or
source" documents (presumably, pre-existing documents) will
need to be produced by Microsoft if they are relevant.
Often parties that provide information to the Bureau do so on
the express understanding that the information will be kept
confidential unless the Bureau needs to use it to enforce the Act.
This decision confirms that the courts will not require the Bureau
to breach third parties' expectation of confidentiality at the
behest of class action plaintiffs.
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