For nearly thirty years, the Commissioner of Competition has been able to assert ‘public interest’ privilege – on a class basis – to prevent the disclosure of documents obtained from informants in the course of its investigations.[1] Not anymore.

Access by litigants to the Commissioner’s investigation file is an important and developing issue.[2] In Vancouver Airport Authority v. Commissioner of Competition, 2018 FCA 24, Justice Stratas, writing for a unanimous panel with Justices Boivin and Laskin, held that the Commissioner can no longer invoke ‘public interest’ privilege on a class-wide basis to prevent access.[3] While the Commissioner can still invoke public interest privilege, it can now only do so document-by-document.[4]

Background

In the underlying litigation, the Commissioner brought an abuse of dominance application against the Vancouver Airport Authority. The Commissioner alleged that the Airport Authority had acted anti-competitively by allowing only two in-flight catering businesses to operate at the Vancouver International Airport, resulting in a “substantial prevention or lessening of competition” and, in turn, “higher prices, dampened innovation and lower service quality.”[5]

In the course of the application, the Commissioner delivered an affidavit of documents containing thousands of documents, the majority of which were claimed to be protected by a public interest class privilege and were withheld. The Airport Authority disputed the privilege claim and moved in the Competition Tribunal to compel production. By the time the motion was heard, the Commissioner had capitulated on the majority of the documents, and only twelve-hundred documents remained in dispute. The Tribunal dismissed the Airport Authority’s motion, upholding the Commissioner’s class privilege claim. The Airport Authority appealed.

The Appeal

The Federal Court of Appeal allowed the appeal, issuing fulsome reasons on a number of notable issues, many of which apply broadly to both administrative and court proceedings.

Chief among these, Justice Stratas eliminated the longstanding public interest class privilege that the Commissioner frequently invoked to refuse disclosure. As a class privilege, these documents were protected from disclosure by virtue of their membership in the class – documents containing information obtained from informants – “without regard to the particulars” of the documents and “insensitive to the facts of the particular case”.[6]

Justice Stratas’ reasons for eliminating the public interest class privilege were twofold. First, he held that the earlier Federal Court of Appeal authorities cited by the Commissioner as recognizing the class privilege – D&B Companies of Canada Ltd. v. Canada (Director of Investigation & Research) and Hillsdown Holdings (Canada) Ltd. v. Canada (Director of Investigation and Research) – were, in reality, cases where a deferential standard of review was applied to the Tribunal’s application of the class privilege.[7] As a result, no Federal Court of Appeal authority had ever held that the public interest class privilege was good law.[8]

Second, Justice Stratas rejected the public interest class privilege on its merits. Relying on Supreme Court authority, Justice Stratas held that the threshold for finding new class privileges is “extremely high” – “as high as can be”. It could only be recognized where supported by policy rationales as compelling as those underlying solicitor-client privilege, a class privilege enshrined in the Charter.[9]

In conclusion, Justice Stratas held that “it is perhaps not far from the truth to say that it is now practically impossible for a court, acting on its own, to recognize a new class privilege” – legislation would be required.[10]

But, legislation had not created the public interest class privilege.[11] Instead, the Commissioner argued that the common law test to recognize a class privilege was met: “anything less than blanket confidentiality” would “fail to provide the necessary assurance[s]” to informants to come forward and alert the Commissioner to anti-competitive behaviour.[12] Without confidentiality and fearing reprisal, informants may be reluctant to complain to the Commissioner and offer candid evidence in support of their complaints.[13]

This argument was rejected. The Commissioner:

• filed no evidence in support and the Supreme Court had previously casted doubt over similar arguments.[14] As a policy rationale, this argument did not rise to the level of those underlying solicitor-client privilege;[15]
• has the power to coerce informant cooperation under the Competition Act;[16]
• can waive its privilege at any time, erasing any confidentiality benefits to informants;[17] and
• could not point to any analogous bodies, in Canada or abroad, who found it necessary to assert any similar class privilege.[18]

Last, the Commissioner argued that, in practice, its public interest class privilege did not create any procedural unfairness. Justice Stratas rejected this argument too. The Commissioner’s argument begged the question whether there was a sufficient, proven reason for the class privilege to exist in the first place.[19]

In the end, Justice Stratas held it would be open to the Commissioner to claim privilege on a document-by-document basis.[20]

Post Script

The Commissioner has announced that it will not seek leave to appeal to the Supreme Court of Canada.[21]

Case Information

Vancouver Airport Authority v. Commissioner of Competition, 2018 FCA 24

Docket: A-149-17

Date of Decision: January 24, 2018

________________________

[1] The Commissioner of Competition v. Vancouver Airport Authority, 2017 CACT 6 at para. 1.

[2] See, e.g., Canada (Attorney General) v. Thouin, 2017 SCC 46 at paras. 16-17 (Crown immunity precludes the Commissioner being ordered to submit to third party discovery in civil proceedings) and Imperial Oil v. Jacques, 2014 SCC 66 (our commentary, here and here).

[3] Importantly, prior to commencing litigation, the Commissioner is precluded from disclosing any information obtained from informants: Competition Act, R.S.C. 1985, c. C-34, s. 29.

[4] The Commissioner can still invoke other recognized class privileges available to all litigants, including solicitor-client privilege, settlement privilege, and litigation privilege.

[5] At para. 8.

[6] At para. 45, citing R. v. National Post, 2010 SCC 16 at para. 42 (“National Post”).

[7] D&B Companies of Canada Ltd. v. Canada (Director of Investigation & Research) (1994), 58 C.P.R. (3d) 353 (Fed. C.A.) and Hillsdown Holdings (Canada) Ltd. v. Canada (Director of Investigation and Research), [1991] F.C.J. No. 1021 (C.A.).

[8] At paras. 71-74. To the extent these authorities did recognize the class privilege, Justice Stratas held that they were overruled by Supreme Court authority: at para. 75.

[9] At paras. 53, 56-57, citing Canadian Charter of Rights and Freedoms, s. 8, National Post, R. v. Gruenke, [1991] 3 S.C.R. 263, Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, and others.

[10] At paras. 56-57, 62.

[11] At paras. 78-81.

[12] At para. 46, citing National Post at para. 42; Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 at paras. 39-40.

[13] At para. 44.

[14] At paras. 82-93, citing Carey v. Ontario, [1986] 2 S.C.R. 637 at 657, 659.

[15] At para. 94-97.

[16] At paras. 100-02, citing Competition Act, s. 11.

[17] At para. 103, unlike informer class privilege which belongs jointly to the Crown and to the informer and cannot be waived without the informer’s consent: R. v. Leipert, [1997] 1 S.C.R. 281 at para. 15.

[18] At paras. 106-09.

[19] At paras. 110-14.

[20] At para. 47.

[21] News Release: Competition Bureau will not appeal court decision regarding public interest privilege (January 29, 2018).