Canada: Federal Court Of Appeal Eliminates Commissioner Of Competition's ‘Public Interest' Class Privilege

Last Updated: February 9 2018
Article by Canadian Appeals Monitor and James S.S. Holtom

Most Read Contributor in Canada, September 2018

For nearly thirty years, the Commissioner of Competition has been able to assert 'public interest' privilege – on a class basis – to prevent the disclosure of documents obtained from informants in the course of its investigations.1 Not anymore.

Access by litigants to the Commissioner's investigation file is an important and developing issue.2 In Vancouver Airport Authority v. Commissioner of Competition, 2018 FCA 24, Justice Stratas, writing for a unanimous panel with Justices Boivin and Laskin, held that the Commissioner can no longer invoke 'public interest' privilege on a class-wide basis to prevent access.3 While the Commissioner can still invoke public interest privilege, it can now only do so document-by-document.4

Background

In the underlying litigation, the Commissioner brought an abuse of dominance application against the Vancouver Airport Authority. The Commissioner alleged that the Airport Authority had acted anti-competitively by allowing only two in-flight catering businesses to operate at the Vancouver International Airport, resulting in a "substantial prevention or lessening of competition" and, in turn, "higher prices, dampened innovation and lower service quality."5

In the course of the application, the Commissioner delivered an affidavit of documents containing thousands of documents, the majority of which were claimed to be protected by a public interest class privilege and were withheld. The Airport Authority disputed the privilege claim and moved in the Competition Tribunal to compel production. By the time the motion was heard, the Commissioner had capitulated on the majority of the documents, and only twelve-hundred documents remained in dispute. The Tribunal dismissed the Airport Authority's motion, upholding the Commissioner's class privilege claim. The Airport Authority appealed.

The Appeal

The Federal Court of Appeal allowed the appeal, issuing fulsome reasons on a number of notable issues, many of which apply broadly to both administrative and court proceedings.

Chief among these, Justice Stratas eliminated the longstanding public interest class privilege that the Commissioner frequently invoked to refuse disclosure. As a class privilege, these documents were protected from disclosure by virtue of their membership in the class – documents containing information obtained from informants – "without regard to the particulars" of the documents and "insensitive to the facts of the particular case".6

Justice Stratas' reasons for eliminating the public interest class privilege were twofold. First, he held that the earlier Federal Court of Appeal authorities cited by the Commissioner as recognizing the class privilege – D&B Companies of Canada Ltd. v. Canada (Director of Investigation & Research) and Hillsdown Holdings (Canada) Ltd. v. Canada (Director of Investigation and Research) – were, in reality, cases where a deferential standard of review was applied to the Tribunal's application of the class privilege.7 As a result, no Federal Court of Appeal authority had ever held that the public interest class privilege was good law.8

Second, Justice Stratas rejected the public interest class privilege on its merits. Relying on Supreme Court authority, Justice Stratas held that the threshold for finding new class privileges is "extremely high" – "as high as can be". It could only be recognized where supported by policy rationales as compelling as those underlying solicitor-client privilege, a class privilege enshrined in the Charter.9

In conclusion, Justice Stratas held that "it is perhaps not far from the truth to say that it is now practically impossible for a court, acting on its own, to recognize a new class privilege" – legislation would be required.10

But, legislation had not created the public interest class privilege.11 Instead, the Commissioner argued that the common law test to recognize a class privilege was met: "anything less than blanket confidentiality" would "fail to provide the necessary assurance[s]" to informants to come forward and alert the Commissioner to anti-competitive behaviour.12 Without confidentiality and fearing reprisal, informants may be reluctant to complain to the Commissioner and offer candid evidence in support of their complaints.13

This argument was rejected. The Commissioner:

  • filed no evidence in support and the Supreme Court had previously casted doubt over similar arguments.14 As a policy rationale, this argument did not rise to the level of those underlying solicitor-client privilege;15
  • has the power to coerce informant cooperation under the Competition Act;16
  • can waive its privilege at any time, erasing any confidentiality benefits to informants;17 and
  • could not point to any analogous bodies, in Canada or abroad, who found it necessary to assert any similar class privilege.18

Last, the Commissioner argued that, in practice, its public interest class privilege did not create any procedural unfairness. Justice Stratas rejected this argument too. The Commissioner's argument begged the question whether there was a sufficient, proven reason for the class privilege to exist in the first place.19

In the end, Justice Stratas held it would be open to the Commissioner to claim privilege on a document-by-document basis.20

Post Script

The Commissioner has announced that it will not seek leave to appeal to the Supreme Court of Canada.21

Case Information

Vancouver Airport Authority v. Commissioner of Competition, 2018 FCA 24

Docket: A-149-17

Date of Decision: January 24, 2018

Footnotes

1 The Commissioner of Competition v. Vancouver Airport Authority, 2017 CACT 6 at para. 1.

2 See, e.g., Canada (Attorney General) v. Thouin, 2017 SCC 46 at paras. 16-17 (Crown immunity precludes the Commissioner being ordered to submit to third party discovery in civil proceedings) and Imperial Oil v. Jacques, 2014 SCC 66 (our commentary, here and here).

3 Importantly, prior to commencing litigation, the Commissioner is precluded from disclosing any information obtained from informants: Competition Act, R.S.C. 1985, c. C-34, s. 29.

4 The Commissioner can still invoke other recognized class privileges available to all litigants, including solicitor-client privilege, settlement privilege, and litigation privilege.

5 At para. 8.

6 At para. 45, citing R. v. National Post, 2010 SCC 16 at para. 42 ("National Post").

7 D&B Companies of Canada Ltd. v. Canada (Director of Investigation & Research) (1994), 58 C.P.R. (3d) 353 (Fed. C.A.) and Hillsdown Holdings (Canada) Ltd. v. Canada (Director of Investigation and Research), [1991] F.C.J. No. 1021 (C.A.).

8 At paras. 71-74. To the extent these authorities did recognize the class privilege, Justice Stratas held that they were overruled by Supreme Court authority: at para. 75.

9 At paras. 53, 56-57, citing Canadian Charter of Rights and Freedoms, s. 8, National Post, R. v. Gruenke, 1991 3 S.C.R. 263, Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, and others.

10 At paras. 56-57, 62.

11 At paras. 78-81.

12 At para. 46, citing National Post at para. 42; Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 at paras. 39-40.

13 At para. 44.

14 At paras. 82-93, citing Carey v. Ontario, [1986] 2 S.C.R. 637 at 657, 659.

15 At para. 94-97.

16 At paras. 100-02, citing Competition Act, s. 11.

17 At para. 103, unlike informer class privilege which belongs jointly to the Crown and to the informer and cannot be waived without the informer's consent: R. v. Leipert, [1997] 1 S.C.R. 281 at para. 15.

18 At paras. 106-09.

19 At paras. 110-14.

20 At para. 47.

21 News Release: Competition Bureau will not appeal court decision regarding public interest privilege (January 29, 2018).

To view the original article click here

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 Mondaq.com.

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

Authors
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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