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BODIES UNDER REVIEW - Boards, tribunals and commissions - Discovery and disclosure - Production and inspection of documents

Tuesday, February 13, 2018 @ 8:50 AM  

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Appeal by the Vancouver Airport Authority from a Competition Tribunal order. The appellant was the subject of Tribunal proceedings alleging anti-competitive abuse of a dominant position in respect of limiting in-flight catering to two operators. In the course of pre-hearing disclosure, the Competition Commissioner refused production of approximately 1,200 documents on class privilege grounds in respect of those who had provided information during the investigation. The appellant brought a motion for disclosure. The Tribunal found the existence of the alleged class privilege based on Federal Court of Appeal jurisprudence and refused production. The Airport Authority appealed.

HELD: Appeal allowed. The earlier Federal Court of Appeal authorities invoked by the Competition Tribunal in support of its decision were not applicable, and had been overtaken by later Supreme Court of Canada jurisprudence against recognizing a class privilege. Here, lesser avenues to protect confidentiality were available under the Competition Act and Rules short of the extreme step of recognizing a public interest class privilege over all materials gathered by the Commissioner from third parties during his investigation. Even if the threshold for recognition of class privilege was below that set by the Supreme Court of Canada, there was no evidentiary basis for recognition in this case. Nowhere did the Competition Tribunal find that blanket confidentiality protection was necessary for the preservation of the relationship or the continuance of the information flow. It followed that the Tribunal erred in law in finding a class privilege. The Tribunal was directed to reconsider whether each document was subject to public interest privilege.

Vancouver Airport Authority v. Canada (Commissioner of Competition), [2018] F.C.J. No. 57, Federal Court of Appeal, D.W. Stratas, R. Boivin and J.B. Laskin JJ.A., January 24, 2018. Digest No. TLD-Feb122018004