The long running and jurisprudently bountiful class action
involving Pro-Sys Consultants Ltd. and Microsoft has resulted in
another interesting gift.1 In this most recent decision
the British Columbia Supreme Court considered whether the
Competition Bureau was required to provide to plaintiffs in a class
action all documents related to two of its prior investigations,
which were not directly related to the current class action
proceedings, and which the Competition Bureau had conducted some
10-15 years prior. Both Microsoft and the Competition Bureau
opposed the application on the basis that the documents were
privileged, and as well on the basis that they were not relevant,
that the request was overbroad, and that the production of such
documents would be disproportional.
In making its decision the court first noted that the fact that
the Bureau's investigations were undertaken under the
reviewable practices provisions of the Act, while the
class action alleged breach of the conspiracy provisions, did not
necessarily make the documents sought irrelevant to a civil claim
for conspiracy. The court then considered the question of public
interest privilege. It noted that earlier case law indicates that
Bureau documents are subject to a class based public interest
immunity in the context of legal proceedings which the Bureau is
engaged with Respondents. The Bureau argued that in the course of
conducting its investigation it receives confidential, proprietary
and commercially sensitive information from third parties who seek
assurances from the Bureau that the information will remain
The court distinguished the case of Imperial Oil v.
Jacques,2 which dealt with the disclosure of wire
tap evidence collected by the Bureau in a cartel investigation to
plaintiffs in a follow-on civil class action. The court noted that
the Imperial Oil case dealt only with communications
between the parties to the civil action, all but one of whom were
also parties to the criminal proceeding. Therefore it did not
involve information collected from third parties not involved in
litigation. Secondly, the disclosure there sought only information
already made available to defendants in the criminal proceeding.
The court also considered the decision of the New Brunswick Court
of Appeal in Forest Protection Ltd. v. Bayer
A.G..3 There the plaintiffs sought documents from
the Competition Bureau which had been seized from one of the
convicted parties in the criminal proceedings, and from an
individual defendant associated with another of the companies
convicted in the criminal proceeding. The court noted in the Forest
Protection case that third parties might be affected by document
disclosure, but that was not relevant to the specific case before
The court in the current Microsoft case also noted that
in neither the Imperial Oil nor Forest Protection
case was the issue of public interest immunity considered. In
making its decision in the present case the British Columbia
Supreme Court noted that public interest privilege in the context
of competition law has developed into its own unique way and is now
well established. It concluded that there was not a difference in
principle in the application of such privilege claims to an
investigation under the Act versus a private action under
Section 36 of the Act. It noted that third parties provide
information on the basis that it will remain privileged unless used
by the Bureau in litigation. "If this principle is to be
un-done, I think it should be left to a higher
With respect to information which Microsoft itself had given to
the Bureau and which was now sought from the Bureau, the court
noted the concerns about confidentiality did not apply to that
information. Such information might be subject to settlement or
other legal privilege but that there was not sufficient information
in the current record to make such a determination. With respect to
business documents which Microsoft had provided to the Bureau the
court noted that they would be caught in a production order made
against Microsoft directly in any case.
The result of the case represents a continuing refinement of the
balance struck between disclosure to plaintiffs in Competition
Act lawsuits and protection of confidential information in the
possession of the Competition Bureau, with particular implications
for the Bureau's ability to gather information and give
assurances of confidentiality to those who provide it. No doubt it
will not be the last word on the topic.
1 Pro-Sys Consultants Ltd. v Microsoft Corporation, 2016
B.C. S.C. 97.
2 Imperial Oil v. Jacques, 2014 S.C.C.
3 Forest Protection Ltd. v. Bayer A.G., 
N.B.J. No. 238, Affirmed in part  N.B. J. No.
4 Note 1 at ¶ 25.
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
The Canadian Competition Bureau issued a template document for use as a form of Consent Agreement, to be filed with the Competition Tribunal to resolve concerns the Bureau may have with proposed mergers.
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