As argued by the Vancouver Airport Authority and as accepted by the Federal Court of Appeal, that class-based public interest privilege created a situation that was fraught with the potential for unfairness. While proceedings before the Competition Tribunal are subject to procedural fairness obligations at the highest level, akin to court proceedings, the class-based, or blanket, privilege permitted the Commissioner to withhold all documents obtained from third parties in his investigation.
In lieu of disclosure, the Commissioner would summarize that information on an aggregated basis, removing details that would identify the source of any given piece of information. The respondent was then expected to conduct examinations for discovery based upon those aggregated and anonymized summaries, as well as documents produced in the course of the proceedings that were not privileged or over which privilege was waived.
Compounding the difficulties faced by respondents was the fact that the Commissioner could choose to waive privilege over a selection of the withheld information at a time of his choosing (except with respect to documents relevant to witness statements, which he has an obligation to produce when the witness statements were delivered). The waiver could occur as late as the eve of trial, leaving the respondent with a very limited amount of time to review and consider how to make use of the information.
Thus, in the abuse of dominance case that was brought against the Vancouver Airport Authority and that gave rise to the appeal, the Commissioner initially refused to disclose more than 9,500 relevant documents on the basis that they were protected by public interest privilege. The Vancouver Airport Authority then brought a motion for production of the documents, arguing that the privilege should no longer be recognized. Shortly thereafter, once a confidentiality order was in place, the Commissioner agreed to produce approximately 8,300 of the withheld documents.
At first instance, the Competition Tribunal upheld the Commissioner’s public interest privilege, holding that the privilege had a solid policy justification, and that the Tribunal was bound by two decisions of the Federal Court of Appeal that had upheld earlier decisions recognizing the privilege.
On appeal, the Federal Court of Appeal — in a decision written by Justice David Stratas and concurred in by Justices Richard Boivin and John Laskin — reversed the Competition Tribunal’s decision, rejecting public interest privilege as a class-based privilege.
First, the Court held that the privilege was not necessary. It found that there was no evidence supporting the Commissioner’s argument that, without the blanket privilege, third-party sources would be less inclined to provide information to the Commissioner owing to a fear of reprisals, thereby making investigations less effective. The Court also noted the Commissioner’s assertion that class privilege applied even in the case of evidence that was compelled from third parties.
It further noted that similar “candour” arguments — i.e., that without such a privilege, sources will be less candid in providing information to investigators — have been viewed skeptically by the Supreme Court of Canada, with the skepticism being all the more warranted in the present case, given that competition authorities in the United States, Europe, Australia and New Zealand all manage to carry out their respective investigative mandates without such a privilege.
In addition, the Court noted that the candour argument simply could not apply in relation to documents obtained by the Commissioner by means of the compulsory process of a production order issued pursuant to section 11 of the Competition Act.
Second, the Court was concerned about the procedural unfairness that could result from such a blanket privilege. Without documentary production, a respondent’s ability to prepare its case is significantly impeded. It is denied information about potential witnesses, it lacks access to documents that could prove useful for cross-examination, and it obtains only that information which the Commissioner chooses to disclose. The Court held that the entire process is fraught with potential interference with procedural fairness rights.
Accordingly, the Court held that, if the Commissioner wished to assert a “public interest privilege,” he must establish such a privilege on a document-by-document or case-by-case basis, with the privilege claim being upheld only if the Commissioner can prove that the public interest to be served by continued secrecy outweighs the possible denial of justice that could result from non-disclosure of a particular document.
The Commissioner has advised that he will not seek leave to appeal the decision to the Supreme Court of Canada.
The Vancouver Airport Authority was represented by Goodmans LLP, with a team composed of Julie Rosenthal, Calvin Goldman, QC, and Ryan Cookson.
The Department of Justice and Fasken Martineau DuMoulin LLP represented the Commissioner of Competition with a team that included Jonathan Chaplan, Jonathan Hood, Katherine Rydel and Ryan Caron from the Department of Justice, as well as Antonio Di Domenico of Fasken Martineau DuMoulin LLP.