Documentary Discovery… of the Competition Bureau?
June 19, 2017
By Jennifer McKenzie
On March 8, 2017, the Competition Bureau released a bulletin for public consultation entitled “Information requests from private parties in proceedings for recovery of loss or damages”. The bulletin outlines the Bureau’s position on access to information requests from parties who are thinking of starting or have already started a proceeding under section 36 of the Competition Act and believe the Bureau possesses helpful information. In the midst of flurry of class actions seeking damages under this section, the release is timely.
Section 36 provides private parties with an ability to recover any loss of damage as a result of anti-competitive conduct regulated as an offence and this includes false or misleading representations made knowingly or recklessly for the purpose of promoting the sale of a product or business interest.
The Competition Bureau states that these private actions are important for two reasons: one, they provide “an additional and important enforcement mechanism”; and two, serve the “broader public interest of deterrence.”
However, there is a statutory duty on the Competition Bureau of confidentiality and the Bureau describes it as its “governing principle” underlying the effect administration and enforcement of the Act. The Bureau relies heavily on information voluntarily provided that is often confidential, proprietary and/or commercially sensitive, and this information flow could be compromised by the prospect that any information shared may be disclosed to private parties in response to an access request, even if the case it refers to has been closed. For this reason, the Bureau states that its position is to not voluntarily provide information. The Bureau states that it will oppose a subpoena for production of information if compliance would potentially interfere with an ongoing examination, inquiry or enforcement, and will rely on privileges, such as public interest privilege, to protect against disclosure. If the opposition is unsuccessful, the Bureau will seek a protective order. The Bureau also states that the financial and opportunity costs associated with responding to requests for access to information ought to be taken into account by persons requesting information. It is not clear whether this last point means that the Bureau thinks such costs should be borne by the requestor of information, or whether it is merely asking requestors to take heed of this fact. The consultation period ended on May 7, 2017. Stay tuned for the final guidelines.
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