Canada: Public Interest Privilege: What Secrets Can The Competition Bureau Keep?

Last Updated: February 9 2016
Article by James B. Musgrove

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 confidential.

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 it.

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 court".4

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. 66.

3 Forest Protection Ltd. v. Bayer A.G., [1996] N.B.J. No. 238, Affirmed in part [1998] N.B. J. No. 484.

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.

© McMillan LLP 2016

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.

James B. Musgrove
In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.