Lexpert Magazine

LEXPERT MAGAZINE | MAY 2018 29 VANCOUVER AIRPORT AUTHORITY V. COMMISSIONER OF COMPETITION DECISION DATE: JANUARY 24, 2018 e Federal Court of Appeal has fundamen- tally changed the law of privilege applicable before the Competition Tribunal, signalling a major shi in the way that such cases are litigated. In Vancouver Airport Authority v. Commissioner of Competition, the federal ap- pellate court overturned 25 years of tribunal jurisprudence that had held the Commis- sioner enjoyed a class privilege (referred to as the "Commissioner's public interest privilege") covering all documents or infor- mation collected from third parties. As argued by the Vancouver Airport Au- thority 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 pro- ceedings before the Competition Tribunal are subject to procedural fairness obligations at the highest level, akin to court proceed- ings, 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. e respondent was then expected to conduct examinations for dis- covery based upon those aggregated and an- onymized summaries, as well as documents produced in the course of the proceedings that were not privileged or over which privi- lege was waived. Compounding the difficulties faced by respondents was the fact that the Commis- sioner 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). e 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. us, 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 docu- ments on the basis that they were protected by public interest privilege. e Vancouver Airport Authority then brought a motion for production of the documents, arguing that the privilege should no longer be recog- nized. Shortly thereaer, once a confidenti- ality order was in place, the Commissioner agreed to produce approximately 8,300 of the withheld documents. At first instance, the Competition Tribu- nal upheld the Commissioner's public inter- est privilege, holding that the privilege had a solid policy justification, and that the Tribu- nal was bound by two decisions of the Fed- eral 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 Competi- tion Tribunal's decision, rejecting public in- terest 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 ar- gument 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. e Court also noted the Commissioner's assertion that class privilege applied even in the case of evi- dence that was compelled from third parties. It further noted that similar "candour" ar- guments — i.e., that without such a privilege, sources will be less candid in providing infor- mation to investigators — have been viewed skeptically by the Supreme Court of Canada, with the skepticism being all the more war- ranted in the present case, given that com- petition authorities in the United States, Europe, Australia and New Zealand all man- age 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 Com- missioner by means of the compulsory pro- cess 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 doc- umentary 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. e 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. e Commissioner has advised that he will not seek leave to appeal the decision to the Supreme Court of Canada. e Vancouver Airport Authority was represented by Goodmans LLP, with a team composed of Julie Rosenthal, Calvin Gold- man, QC, and Ryan Cookson. e 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. A LOOK AT A DECISION IN WHICH THE FEDERAL COURT OF APPEAL CHANGED THE LAW OF PRIVILEGE APPLICABLE BEFORE THE COMPETITION TRIBUNAL, SIGNALLING A SIGNIFICANT SHIFT IN THE WAY THAT SUCH CASES ARE LITIGATED. THIS SUIT WAS SUBMITTED BY GOODMANS LLP | RECENT LITIGATION OF IMPORTANCE | BIG SUITS

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