Seven takeaways from the Competition Bureau’s draft bulletin on disclosure in private litigation

Plaintiffs in follow-on competition law class actions routinely seek information from Canada’s Competition Bureau (Bureau) in aid of their actions. The Bureau’s general position on this, as found in its 2013 bulletin on communicating confidential information, is to decline such requests. Last week, the Bureau invited comments on a new draft information bulletin that provides a more detailed explanation of its position on this important issue.

Background

Any person who has suffered a loss or damages incurred as a result of a breach of the Competition Act’s criminal provisions, or by a person’s failure to comply with an order made under the Act can recover those amounts under section 36 of the Act. To support their cause of action, litigants often seek disclosure of records and information the Bureau may have obtained during the course of its own review of the conduct in question. Notwithstanding that sections 29 and 10(3) of the Act require that all inquiries be conducted confidentially and in private, the Bureau nevertheless receives requests from s. 36 litigants to share information collected by the Bureau in the course of its inquiries and proceedings. 

Key points

The draft bulletin contains the following important positions taken by the Bureau for information requests by s. 36 litigants:

• the Bureau’s general position is to not voluntarily provide information to persons contemplating, or who are parties to, proceedings under section 36 of the Act;

• producing information in the Bureau’s possession or control during an ongoing examination, inquiry or enforcement proceeding under the Act would potentially interfere with the ongoing examination, inquiry or enforcement proceeding;

• the Bureau has a statutory duty to conduct its inquiries in private and to maintain the confidentiality of information it receives pursuant to the Act;

• the Bureau’s ability to administer and enforce the Act is affected by its ability to maintain confidentiality of the information it obtains since the Bureau benefits from the cooperation of those who voluntarily provide information to the Bureau under an assurance of confidentiality;

• the Bureau will rely upon applicable privileges to protect against disclosing information in its possession or control, including public interest privilege that attaches to information collected or created by the Bureau during the course of an examination, inquiry, or proceeding;

• courts have consistently found that neither s. 29 nor s. 36 of the Act compels the Bureau to disclose information in its possession, even though s. 29(1) allows the Bureau to disclose information to administer or enforce the Act, which includes section 36; and

• the costs incurred by the Bureau in responding to information requests are prohibitive and against the public interest since information sought from the Bureau is typically voluminous.

The Bureau notes that, if served with a subpoena, it will notify the information provider and oppose the subpoena if compliance would potentially interfere with an ongoing examination, inquiry or enforcement proceeding or otherwise adversely affect the administration or enforcement of the Act. The Bureau will also seek protective court orders to maintain the confidentiality of the information in question.

The draft bulletin supplements the position taken by the Bureau in its September 30, 2013, bulletin on communicating confidential information under the Act, which sets out the Bureau’s general framework on the disclosure of confidential information.

Judicial treatment

The Bureau’s position also largely tracks the British Columbia Supreme Court’s reasoning in Pro-Sys Consultants Ltd. v Microsoft Corporation which refused to order disclosure of Bureau-held documents sought by the plaintiffs in an indirect purchaser competition class action. In that case, the court held that an action under s. 36 is an “enforcement of the Act” within the exception to the confidentiality requirements provided by s. 29(1) of the Act.

However, the well-established principle of public interest privilege shielded the Bureau’s information from disclosure to the plaintiffs. The court emphasized that third parties provided information on the basis it would remain privileged unless used by the Bureau in litigation and it would be anomalous to allow the defendant access to information from its competitors in the context of the class action, through disclosure to the plaintiff, but not in the context of the Bureau’s own prosecution or investigation.

The court distinguished two prior cases, Imperial Oil and Forest Protection, where courts ordered the disclosure of Bureau-held documents to s. 36 litigants. In those cases, the information disclosed to class plaintiffs was provided to the Bureau by defendants to the class action themselves, rather than third parties uninvolved in the s. 36 litigation. The court also noted that public interest privilege was not argued in either case. This gives rise to some uncertainty as to whether defendants to s. 36 actions can rely on public interest privilege to block disclosure to private litigants that the defendants themselves provided to the Bureau. 

Conclusion

Interested parties are invited to provide their views on the draft bulletin to the Bureau no later than May 7, 2017. Please contact us if you would like assistance in preparing a submission to the Bureau.