Bumpy Landing Ends Competition Commissioner’s Privilege Claim

A unique and expansive privilege asserted for many years by the Commissioner of Competition has come back down to Earth with a bumpy landing.

The Federal Court of Appeal has held that the Commissioner can no longer claim a class-based public interest privilege over all the documents collected during a Competition Bureau investigation. And the Competition Tribunal’s hearing in Commissioner of Competition v. Vancouver Airport Authority, which was scheduled to start next week, has been adjourned to a future, undetermined date.

The Court of Appeal’s decision¹ does not stop the Commissioner from claiming a document-by-document privilege over materials collected during an investigation. Nor does it affect other legal privileges or the confidentiality protections under the Competition Act and current Tribunal practices.

The decision may however have an impact on when parties, or their counsel and experts, will see copies of the documents in the Commissioner’s possession during a litigated case before the Tribunal. The Court emphasized the important procedural fairness protections available to parties sued by the Commissioner.

The Commissioner has announced that he will not seek leave to appeal to the Supreme Court of Canada. There is an opportunity now to make additional improvements to the pre-hearing process before the Competition Tribunal.

During investigations and formal “inquiries” under the Competition Act, Competition Bureau staff gather a lot of information from private parties, including documents and competitively sensitive information. Under the Act, inquiries must be conducted in private, and information provided to the Commissioner must be kept in confidence, subject to certain exceptions including for the “administration and enforcement” of the Act.²

In litigation before the Competition Tribunal, however, both the Commissioner and the responding party must provide copies of all relevant documents in their possession to the other side.

For over 20 years, the Commissioner has successfully claimed a blanket privilege over the entire class of documents collected during the investigation, other than the respondent’s own documents and information collected from public sources. In Tribunal litigation, the Commissioner’s initial documentary productions have often been modest; the responding party has received very few new documents informing it about the Commissioner’s case...