In March, we reported that the Competition Bureau of Canada (Bureau) was soliciting comments on a draft bulletin concerning requests for disclosure by plaintiffs in follow-on competition law class actions. This November, the Bureau released the final form of its bulletin on such requests for information by private parties in proceedings under section 36 of the Competition Act (the Act).
Disclosure to s. 36 litigants
Section 36 of the Act provides that any person who has suffered a loss or damages as a result of a breach of the Act’s criminal provisions, or by a person’s failure to comply with an order made under the Act can recover those amounts through a civil action. Section 36 has proven a fertile ground for class action plaintiffs who often issue claims after the Bureau has announced or conducted its investigation. While sections 29 and 10(3) of the Act require all inquiries to be conducted confidentially and in private, this has not stopped s. 36 litigants from seeking production of the Bureau’s investigation files as a shortcut to obtaining information and documents they hope will advance their lawsuits.
The Bureau’s position
The Bureau confirmed many of the critical points in its draft bulletin, including:
the Bureau’s general position is not to voluntarily provide information to persons contemplating, or who are parties to, proceedings under s. 36 of the Act;
the Bureau relies heavily upon voluntarily provided information, and the Bureau’s ability to administer and enforce the Act would be seriously compromised if it could not give providers of such information an assurance of confidentiality;
if served with a subpoena, the Bureau will inform the information provider so it has knowledge of, and an opportunity to intervene;
the Bureau will, if appropriate, oppose a subpoena for production of information if compliance would potentially interfere with an ongoing examination, inquiry or enforcement proceeding or otherwise adversely affect the administration or enforcement of the Act;
if the Bureau's opposition is unsuccessful, it will seek protective court orders to maintain the confidentiality of the information in question;
the Bureau has a statutory duty to conduct its inquiries in private and to maintain the confidentiality of information it receives pursuant to Subsection 10(3) of the Act; and
the Bureau will rely upon applicable privileges to protect against the disclosure of information in its possession or control, including public interest privilege.
Common interest privilege and Crown immunity
As we also reported in March, the Bureau’s position continues to follow the reasoning of the British Columbia Supreme Court 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 plaintiffs acknowledged the long-standing principle that public interest privilege shielded information from disclosure in the context of Bureau investigations and enforcement proceedings, but argued that public interest privilege did not apply in the context of information requests from civil litigants.
The court disagreed, holding that public interest privilege applied in both circumstances, and further held that the confidentiality provisions under s. 29(1) of the Act did not provide the plaintiffs a right to the same disclosure as the Bureau even though an action under s. 36 is an “enforcement of the Act.”
Since then, the Supreme Court of Canada released its decision in Canada (Attorney General) v Thouin overturning the Quebec Superior Court and Court of Appeal’s decisions granting the plaintiffs in a price-fixing class action disclosure of a large volume of documents collected during the Bureau’s investigation and the right to examine the Bureau’s lead investigator for discovery. The Supreme Court found that the Crown Liability and Proceedings Act did not contain clear and unequivocal statutory language sufficient to override the common law principle of Crown immunity in cases where the Crown was not a party to the litigation.
Notwithstanding the Bureau’s stated position and the growing body of case law supporting it, given the potential value of the Bureau’s file to s. 36 litigants, we expect these disclosure requests to continue. As a result, the law should continue to develop in this area in the coming years, and the Bureau’s bulletin provides helpful guidance on the position it can be expected to take in the debates to come.