Reference: The Commissioner of Competition v Vancouver Airport Authority, 2017 Comp Trib 16

File No.: CT-2016-015

Registry Document No.: 135

IN THE MATTER OF an application by the Commissioner of Competition for one or more orders pursuant to section 79 of the Competition Act, RSC 1985, c C-34 as amended;

AND IN THE MATTER OF a motion by Vancouver Airport Authority to compel answers to questions refused on discovery.

BETWEEN: The Commissioner of Competition (applicant) and Vancouver Airport Authority (respondent)

Date of hearing: October 13, 2017

Before Judicial Member: D. Gascon J. (Chairperson)

Date of Order and Reasons for Order: October 26, 2017

ORDER AND REASONS FOR ORDER GRANTING IN PART RESPONDENT’S MOTION TO COMPEL ANSWERS TO QUESTIONS REFUSED ON DISCOVERY

I.  OVERVIEW

[1]  On September 29, 2017, the Vancouver Airport Authority (“VAA”) filed a motion before the Tribunal to compel the Commissioner of Competition (“Commissioner”) to answer several questions that were refused during the examination for discovery of the Commissioner’s representative, Mr. Kevin Rushton (“Refusals Motion”). VAA brought this Refusals Motion in the context of an application made against VAA by the Commissioner (“Application”) under the abuse of dominance provisions of the Competition Act, RSC 1985, c C-34 (“Act”).

[2]  In this Refusals Motion, VAA seeks the following conclusions:

1. An order requiring the Commissioner to answer, within fifteen days, the refusals set out in Schedule “A” to VAA’s Notice of Motion (specifically those refusals set out in VAA’s Memorandum of Fact and Law under the following categories: Category A – Facts known to the Commissioner (“Category A”), Category B – Questions regarding the third-party summaries (“Category B”) and Category C – Miscellaneous (“Category C”));
2. An order for VAA’s costs of this motion; and
3. Such further and other relief as the Tribunal deems just.

[3]  In its Notice of Motion, VAA identified a total of 55 questions that remained unanswered or insufficiently answered (“Requests”). This initial list of Requests was narrowed down at the hearing, as discussed below. The Category A Requests seek all the facts that the Commissioner knows in relation to various issues in dispute in this Application, including specific references to the Commissioner’s summaries of third-party information and to records in the Commissioner’s documentary productions. The Category B Requests seek third-party information that is subject to public interest privilege. The Category C Requests relate to miscellaneous questions.

[4]  For the reasons that follow, VAA’s Refusals Motion will be granted in part, but only with respect to the “reformulated” version of some Requests. Upon reviewing the materials filed by VAA and the Commissioner (including the transcripts of the examination for discovery of Mr. Rushton), and after hearing counsel for both parties, I am not persuaded that there are grounds to compel the Commissioner to provide answers to the Category B and C Requests listed by VAA, as well as to the Category A Requests as these were initially formulated at the examination for discovery of Mr. Rushton. However, I am of the view that, when read down and “reformulated” as counsel for VAA discussed at the hearing (at times, in response to questions from the Tribunal), some of VAA’s Category A Requests will need to be answered by the Commissioner’s representative along the lines developed in these Reasons. In essence, in order to properly and sufficiently answer these “reformulated” Category A Requests, the Commissioner will need to provide more than a generic statement solely referring to all materials already produced to VAA. Nevertheless, a subset of the “reformulated” Category A Requests will not have to be answered in any event, based on additional reasons raised by the Commissioner.

II.  BACKGROUND

[5]  The Commissioner filed his Notice of Application on September 29, 2016, seeking relief against VAA under section 79 of the Act.

[6]  VAA is a not-for-profit corporation responsible for the operation of the Vancouver International Airport (“VIA”). The Commissioner claims that VAA abused its dominant position by only permitting two providers of in-flight catering services to operate on-site at VIA, and in excluding and denying the benefits of competition to the in-flight catering marketplace. The Commissioner’s Application is based upon, among other things, allegations that VAA controls the market for galley handling at VIA, that it acted with an anti-competitive purpose, and that the effect of its decision to limit the number of in-flight catering services providers was a substantial prevention or lessening of competition, resulting in higher prices, dampened innovation and lower service quality.

[7]  In accordance with the scheduling order issued by the Tribunal in this matter, the Commissioner served VAA with his affidavit of documents on February 15, 2017 (“AOD”). The Commissioner’s AOD lists all records relevant to matters in issue in this Application which were in the Commissioner’s possession, power or control as of December 31, 2016. The AOD is divided into three schedules: (i) Schedule A for records that do not contain confidential information; (ii) Schedule B for records that, according to the Commissioner, contain confidential information and for which no privilege is claimed or the Commissioner has waived privilege for the purpose of the Application; and (iii) Schedule C for records that the Commissioner asserts contain confidential information and for which at least one privilege (i.e., solicitor-client, litigation or public interest) is being claimed. Since then, the original AOD has been amended and supplemented on a few occasions by the Commissioner (collectively, “AODs”).

[8]  The Commissioner states that, through the productions contained in his AODs, he has now provided to VAA all relevant, non-privileged documents in his possession, power or control (“Documentary Productions”). In total, the Commissioner says he has produced 14,398 records to VAA. Of these, 11,621 are in-flight catering pricing data records (i.e., invoices, pricing databases and price lists); 1,277 records were provided to the Commissioner by VAA itself and were simply reproduced by the Commissioner to VAA; and 342 records were email correspondence between VAA (or its counsel) and the Competition Bureau. Excluding these three groups of records, the Commissioner has thus produced 1,158 documents to VAA as part of his Documentary Productions.

[9]  In March 2017, VAA challenged the Commissioner’s claim of public interest privilege over documents contained in Schedule C of the AOD. This resulted in a Tribunal’s decision dated April 24, 2017 (The Commissioner of Competition v Vancouver Airport Authority, 2017 Comp Trib 6 (“VAA Privilege Decision”). In the VAA Privilege Decision, currently under appeal before the Federal Court of Appeal, I upheld the Commissioner’s claim of public interest privilege over approximately 1,200 documents.

[10]  As part of the proceedings, the Commissioner produced to VAA summaries of the facts obtained by him from third-party sources during his investigation leading up to the Application and contained in the records for which the Commissioner has claimed public interest privilege (“Summaries”). The first version of the Summaries was produced on April 13, 2017. As it was not satisfied with the level of detail provided in the Summaries, VAA brought a motion to challenge the adequacy and accuracy of the Summaries. Prior to the hearing of that motion, on June 6, 2017, the Commissioner delivered revised and reordered Summaries to VAA. The Summaries are divided into two documents on the basis of the level of confidentiality asserted and total some 200 pages.

[11]  On July 4, 2017, the Tribunal released its decision on VAA’s summaries motion (The Commissioner of Competition v Vancouver Airport Authority, 2017 Comp Trib 8 (“VAA Summaries Decision”)). In his decision, Mr. Justice Phelan dismissed VAA’s motion and concluded that VAA had not made the case for further and better disclosure of source identification in the Summaries, even in a limited form or under limited access.

[12]  On August 23 and 24, 2014, the Commissioner’s representative, Mr. Rushton, was examined for discovery by VAA for two full days.

[13]  In its Notice of Motion, VAA had initially identified a total of 55 Requests for which it seeks an order from the Tribunal compelling the Commissioner to answer them. At the hearing of this Refusals Motion before the Tribunal, counsel for the parties indicated that Requests 126, 129 and 130 under Category B have been withdrawn and that Request 114 under Category C has been resolved. This leaves a total of 51 questions to be decided by the Tribunal: 39 in Category A, 11 in Category B and one in Category C.

III.  ANALYSIS

[14]  Each of the categories of disputed questions will be dealt with in turn.

A.  Category A Requests

[15]  The refusals found in Category A generally request the Commissioner to provide the factual basis of various allegations made in the Application. VAA also asks, in its Category A Requests, for specific references to the relevant bullets listed in the Summaries as well as to the relevant records in the Commissioner’s Documentary Productions.

[16]  While the exact wording of VAA’s 39 Category A Requests has varied over the course of the two-day examination of Mr. Rushton, VAA described all these questions using identical language in its Memorandum of Fact and Law, save for the actual reference to the particular allegation or issue at stake in each question. For example, Request 21 reads as follows: “Provide all facts that the Commissioner knows that relate to the market definition that does not include catering as alleged in paragraph 11 of the Commissioner’s Application, including without limitation references to bullets in the Reordered Summary of Third Party Information, Confidential-Level A and Confidential-Level B, as well as references to specific records in the documentary productions” [emphasis added]. All Category A Requests reproduce these underlined introductory and closing words. This is what counsel for both parties referred to as the “stock undertaking” during the examination for discovery of Mr. Rushton, and at the hearing before the Tribunal.

[17]  Through his counsel, the Commissioner had taken the 39 Category A Requests under advisement during the examination of Mr. Rushton. In his response provided to VAA after the examination, the Commissioner said that all Category A Requests have been answered, that he has already disclosed and provided to VAA all relevant facts in his possession at the time he produced his Documentary Productions and his Summaries, and that the answers to VAA’s Category A Requests are found in the Summaries and Documentary Productions. Accordingly, the Commissioner submits that he has provided VAA, through the Summaries and Documentary Productions, with all relevant, non-privileged facts that he knows in relation to each of the issues referenced in the Category A Requests.

[18]  The Commissioner repeated the same response for all Category A Requests. The Commissioner’s exact response reads as follows:

The Commissioner has produced to VAA all relevant, non-privileged information in the Commissioner’s possession, power and control and has further produced to VAA summaries of relevant third party information learned by the Commissioner from third parties in the course of the Competition Bureau’s review of this matter. Further, the Commissioner will comply with his obligations under the Competition Tribunal Rules as well as the safeguard mechanisms most recently discussed by Justice Gascon in Commissioner of Competition v Vancouver Airport Authority, 2017 Comp Trib 6 File No.: CT-2016-015. Accordingly, all relevant facts that the Commissioner knows regarding this issue have already been produced to VAA, subject to applicable privileges and safeguards described above. As previously advised, the Commissioner will provide VAA with a supplemental production and summary of third party information on 29 September 2017 pursuant to his ongoing disclosure obligations in order to make known information obtained since the Commissioner’s last production.

Further, and as described in a 30 August 2017 letter from counsel to the Commissioner to counsel to VAA, the Commissioner refuses to issue code the documents and information that the Commissioner has already produced to VAA. This question is improper and, in any event, disproportionally burdensome.

[19]  Echoing the “stock undertaking” language used by counsel for the parties, this is what I refer to as the Commissioner’s “stock answer” in these Reasons. In his Memorandum of Fact and Law, the Commissioner also identified additional reasons to justify his refusals with respect to 15 of the 39 Category A Requests.

[20]  It is not disputed that VAA’s Category A Requests relate to all facts known by the Commissioner, as opposed to facts relied on by the Commissioner. The distinction is important as it is well-recognized by the jurisprudence that, in an examination for discovery, a party can properly ask for the factual basis of the allegations made by the opposing party, but not for the facts or evidence relied on to support an allegation (Montana Band v Canada, [2000] 1 FCR 267 (FCTD) (“Montana Band”) at para 27; Can-Air Services Ltd v British Aviation Insurance Company Limited, 1988 ABCA 341 at para 19). I am also satisfied that the Category A Requests pose questions relating to topics and issues that are relevant to the litigation between the Commissioner and VAA in the context of the Application. Again, relevance is a primary factor in determining whether a question should be answered in an examination for discovery (Apotex Inc v Wellcome Foundation Limited, 2007 FC 236 at paras 16-17; Federal Courts Rules, SOR/98-106 (“FCR”), subsection 242(1)).

[21]  The main concern raised by the Commissioner results from the scope of what is being sought by VAA in its Category A Requests. The Commissioner claims that, given the level of specificity requested by VAA, the Category A Requests in effect ask the Tribunal to compel the Commissioner to “issue code” (i.e., to organize by issue or topic) his Summaries and his Documentary Productions for VAA. The Commissioner argues that the relief sought is unreasonable, unsupported by jurisprudence and unprecedented in contested proceedings before the Tribunal and civil courts. The Commissioner further pleads that VAA’s Category A Requests should be denied on the basis of proportionality, as they are disproportionately burdensome on the Commissioner and contrary to the expeditious conduct of the Application as the circumstances and considerations of fairness permit.

a.  The questions effectively asked by VAA

[22]  At the hearing before the Tribunal, a large part of the discussion revolved around the exact question effectively asked by VAA in its various Category A Requests, and the Commissioner’s contention that VAA was in fact asking him to “issue code” his Summaries and his Documentary Productions. Counsel for VAA submitted that, in its early questions at the beginning of the examination, VAA was not truly looking for specific references to the Summaries and Documentary Productions, but ended up asking for these references further to the responses given by Mr. Rushton and indicating that the “facts known” by the Commissioner were in the materials already produced. He claimed that VAA wanted the Commissioner to provide all the facts in relation to specific allegations in the pleadings that are within the Commissioner’s knowledge. He added that, if that could be achieved by the Commissioner without references to specific documents or summaries, this would be acceptable for VAA.

[23]  In other words, counsel for VAA clarified that, in its Category A Requests, VAA’s intention was to ask the Commissioner to answer the question regarding facts underlying an allegation or an issue in dispute, and that it was not necessarily seeking references to every specific bullet in the Summaries and to every specific document in the Documentary Productions.

[24]  I admit that there was some confusion at the hearing before the Tribunal regarding the exact scope of what VAA was seeking in its Category A Requests. However, I understand that, in the end, counsel for VAA essentially retracted from the actual wording of the Category A Requests used in VAA’s Memorandum of Fact and Law and now asks the Tribunal to read down its Requests and to ignore the language “including without limitation references to bullets in the Reordered Summary of Third Party Information, Confidential-Level A and Confidential-Level B, as well as references to specific records in the documentary productions” contained in the Requests.

[25]  The problem with VAA’s modified position is that, on a motion to compel answers to questions refused on discovery, the Tribunal has to rule on the specific questions asked at the examination and which, according to the moving party, have been refused or improperly answered by the deponent. The questions asked are those formulated during the examination itself and which the deponent refused, was unable to answer or decided to answer in the way he or she did, at the examination itself or after having taken the questions under advisement. As rightly pointed out by counsel for the Commissioner, these are questions and answers arising from sworn testimony.

[26]  Further to my review of the transcripts of the examination for discovery of Mr. Rushton, and of the actual questions asked under the various Category A Requests, I find that what was effectively asked by VAA at the examination was not only all the facts underlying an allegation or an issue in dispute, but also in the same breath all references to specific bullets in the Summaries and to specific documents in the Documentary Productions. These were the questions posed to Mr. Rushton, and these were the questions to which the Commissioner’s representative responded. I understand that VAA’s original question or intention might not have been to ask such broad and wide-ranging questions, but this is what was done for the Category A Requests. I note that the so-called “original question” is not before the Tribunal, and indeed does not form part of the 39 Category A Requests identified by VAA.

[27]  I agree with VAA that questions asking for the factual basis of the allegations made by a party have been considered by the jurisprudence to be proper questions to ask on examinations for discovery. VAA was therefore entitled to ask for “all facts known to the party being discovered which underlie a particular allegation in the pleadings” (Montana Band at para 27). I am also ready to accept that, contrary to the Commissioner’s contention, the vast majority of VAA’s Category A Requests relate to specific and discrete topics and issues, as opposed to being generic, general or “catch-all” questions.

[28]  However, the problem is the level of specificity asked by VAA in its Category A Requests, in terms of specific references to the Summaries and Documentary Productions. Pursuant to Rule 242 of the FCR, a person can object to questions asking for too much particularity on the ground that they are unreasonable or unnecessary. The Tribunal has previously established that the Commissioner does not generally have to identify every particular document upon which he relies to support an allegation (Canada (Director of Investigation and Research) v Southam Inc, [1991] CCTD No 16 (“Southam”) at paras 17-18; Canada (Director of Investigation and Research) v NutraSweet Co, [1989] CCTD No 54 (“NutraSweet”) at para 29). If it is unreasonable to expect a party to identify every document or part thereof which might be relied upon to support an allegation, I conclude that it is likewise unreasonable and improper, on an examination for discovery, to ask a party to identify every document containing facts known to that party and which underlie a specific allegation (Southam at para 18).

[29]  I acknowledge that there could be situations where the volume and complexity of the documentation produced reach such a level that the specific identification of every document may become necessary (NutraSweet at para 29). Some courts have indeed held that, where documentary production is voluminous, a party may be required to identify which documents contained in its productions are related to or support particular allegations (Rule-Bilt Ltd v Shenkman Corporation Ltd et al (1977), 18 OR (2d) 276 (ONSC) (“Rule-Bilt”) at paras 27-28; International Minerals & Chemical Corp (Canada) Ltd v Commonwealth Insurance Co, 1991 CanLII 7792 (SKSB) (“International Minerals”) at paras 6-10). However, I am not persuaded that, in this case, VAA has established or demonstrated the existence of such a voluminous or complex document production so as to require the Commissioner to identify every specific reference to documents or portions of summaries. I note that, when VAA’s own productions and the catering pricing records are removed, the Commissioner’s Documentary Productions amount to 1,158 records and that the Summaries add up to some 200 pages. In my opinion, and in the absence of any evidence demonstrating the contrary, this cannot be qualified as onerously voluminous or inherently complex, having particular regard to VAA’s access to an electronic index and electronic data search function for these materials.

[30]  I thus find that, as drafted in VAA’s Memorandum of Fact and Law and as they were asked during the examination for discovery of Mr. Rushton, VAA’s initial Category A Requests are overbroad and inappropriate and, for that reason, they need not be answered by the Commissioner. I agree with the Commissioner that answering them as they were expressed would in effect require the Commissioner to “issue code” its Summaries and Documentary Productions. This, in my opinion, cannot be imposed on the Commissioner.

[31]  That being said, in the circumstances of this case, it would not be helpful nor efficient to end my analysis here. At the hearing, counsel for VAA indeed asked the Tribunal to also consider VAA’s “reformulated” questions, namely a severed version of the Category A Requests asking for “all the facts known to the Commissioner” without necessarily referencing specific documents or specific bullets in the Summaries. He suggested that the Tribunal could read down and truncate the final portion of the Requests if it found VAA’s initial Category A Requests too broad, and then assess whether those reformulated Requests were properly and sufficiently answered by the Commissioner.

[32]  It is true that, in this Order, I could only consider VAA’s Category A Requests as they were initially formulated, simply determine that they need not be answered because they are overbroad and unreasonable, and state that I decide so without prejudice to VAA returning in a further examination with read-down and reformulated questions addressing the same issues. However, in the context of this case and as the final steps for the preparation of the trial loom ahead, I am of the view that this option would not be a practical, expeditious and fair way to deal with the issues raised by VAA’s Refusals Motion. The questions as framed in VAA’s initial Category A Requests may be too broad but the subject matters of the questions are relevant. It is therefore much more preferable for me to deal with the “reformulated” Requests immediately, and this is what I will proceed to do.

b.  The issue of proportionality

[33]  I pause a moment to briefly address the subsidiary argument of the Commissioner based on the principle of proportionality, as it essentially applies in relation to the Commissioner’s concern about VAA’s request to “issue code” his productions and summaries. I know that, since I have just concluded that VAA’s Category A Requests are overly broad and need not be answered, it is not necessary to consider this issue of proportionality for the purpose of this Order. However, in light of the representations made by counsel for the Commissioner at the hearing, I make the following remarks.

[34]  The Commissioner claims that, in any event, the Tribunal should not order him to answer VAA’s Category A Requests because it would be unduly burdensome and onerous for the Commissioner to issue code the Summaries and Documentary Productions to the level of specificity sought by VAA. The Commissioner has not filed an affidavit to support his claim regarding the disproportionate burden he would face to answer VAA’s requests, but counsel for the Commissioner argues that, in this case, the Tribunal could determine this issue of proportionality in the Commissioner’s favour despite the absence of affidavit evidence. I disagree with the Commissioner’s position on this front.

[35]  I do not dispute that the proportionality rule applies to Tribunal proceedings. More specifically, on questions such as those raised in this Refusals Motion, the Tribunal must always take into account issues of proportionality (The Commissioner of Competition v Reliance Comfort Limited Partnership, 2014 Comp Trib 9 (“Reliance”) at paras 25-27). However, the case law is clear: claims invoking the principle of proportionality must be supported by evidence (Wesley First Nation (Stoney Nakoda First Nation) v Alberta, 2013 ABQB 344 at paras 93-94; Montana Band at para 33). It is not sufficient to merely raise the argument that it would be too onerous to comply with a request to provide answers to questions on discovery. Some evidence must be offered to support the claim and to establish how a request could be disproportionate to its value.

[36]  Indeed, in the Tribunal’s decision relied on by the Commissioner, Mr. Justice Rennie’s finding that the request to compel answers would be too burdensome and disproportionate was predicated upon actual evidence coming from two affidavits detailing the costs, human resources and time needed to comply with the request made (Reliance at paras 32, 39 and 42). Similarly, in The Commissioner of Competition v Air Canada, 2012 Comp Trib 20 (“Air Canada”), affidavit evidence was filed to demonstrate how the questions asked would impose a massive and disproportionate burden (Air Canada at para 24).

[37]  In the current case, the Commissioner has offered no evidence to support his plea of burdensomeness and disproportionality, and this alone would have been sufficient to reject his claim in this respect. I am not excluding the possibility that, in some circumstances, proportionality could dictate that disclosure requirements imposed on the Commissioner or a private litigant in an examination for discovery be more limited. These questions are highly fact- specific and will depend on the circumstances of each case. But, in each case, a claim of disproportionate burden will always require clear and convincing evidence meeting the balance of probability threshold (FH v McDougall, 2008 SCC 53 at para 46).

c.  The “reformulated” questions asked by VAA

[38]  I now consider VAA’s “reformulated” Category A Requests, namely the questions asking for “all the facts that the Commissioner knows” with respect to a particular issue or allegation without necessarily referencing specific bullets in the Summaries or specific documents in the Documentary Productions. Of course, I understand that, as restated, these Requests were not actually put to Mr. Rushton during his examination for discovery and that neither Mr. Rushton nor the Commissioner has yet had an opportunity to consider them and to respond to them. In this regard, I accept that the responses already given by the Commissioner to VAA’s initial Category A Requests, including his “stock answer”, cannot simply be assumed to reflect what Mr. Rushton and the Commissioner would effectively respond to the “reformulated” version of these Requests. In fact, I do not exclude the possibility that the overly broad nature of the Category A Requests formulated by VAA and of the “stock undertaking” used at Mr. Rushton’s examination for discovery may have contributed to polarize the Commissioner’s responses and to prompt him to reply with the “stock answer” he resorted to. In that context, Mr. Rushton and the Commissioner certainly deserve to be afforded the opportunity to effectively respond to the “reformulated” Category A Requests before the Tribunal can determine whether or not such questions have been properly and sufficiently answered.

[39]  However, I believe that, in the circumstances of this case, it is also useful and practical for me to discuss what, in my view, would constitute a proper and sufficient answer by the Commissioner to such “reformulated” Category A Requests from VAA. As stated above, I am ready to accept that VAA was entitled to ask the Commissioner for “all facts known” with respect to a particular issue or allegation (Montana Band at para 27). What remains to be determined are the parameters that can assist the parties in defining what would constitute an acceptable answer by the Commissioner to questions seeking “all facts known” by him.

[40]  In this regard, VAA’s Refusals Motion raises some fundamental questions on the extent of the disclosure obligations of the Commissioner in the context of examinations for discovery, and it is worth taking a moment to look at this issue from the more global perspective of oral discovery in Tribunal proceedings.

i.  Examinations for discovery

[41]  It is well-accepted that the purpose of discovery, whether oral or by production of documents, is to obtain admissions to facilitate proof of all the matters which are at issue between the parties, and to allow the parties to inform themselves prior to trial of the nature of the other party’s position, so as to define the issues in dispute (Canada v Lehigh Cement Limited, 2011 FCA 120 (“Lehigh”) at para 30; Southam at para 3). The overall objective of examinations for discovery is to promote both fairness and the efficiency of the trial by allowing each party to know the case against it (Bell Helicopter Textron Canada Limitée v Eurocopter, 2010 FCA 142 at para 14; Montana at para 5).

[42]  It is also generally recognized that courts have taken a liberal approach to questions seeking “all facts known” by a party and that, in examinations for discovery, the relevant facts should be provided with sufficient particularity so that the information is not being buried in a mass of documentation or information. A sufficient level of specificity contributes to render the trial process fairer and more efficient. As such, a party will typically be entitled to know not only which facts are referred to in the pleadings but also where such description of facts is to be found (Dek-Block Ontario Ltd v Béton Bolduc (1982) Inc (1998), 81 CPR (3d) 232 (FCTD) at paras 26-27). Providing adequate references to relevant facts and their description in the documentary productions may require work, time and resources from the party on whom the burden falls but, in large and complicated cases, the fact that “the marshalling of facts and documents may require a great deal of work is something with which the parties simply have to live” (Montana Band at para 33). It remains, however, that answers to questions on examination for discovery will always depend on the facts of the case and involve a considerable exercise of discretion by the judge.

[43]  Other factors colour the examination for discovery process in Tribunal matters. First, the Commissioner is a unique litigant in proceedings before the Tribunal. The Commissioner is a non-market participant and his representatives have no independent knowledge of facts regarding the market and behaviour at issue. Rather, all of the facts or information in the Commissioner’s possession, power or control arise from what he has gathered from market participants in the course of his investigation of the matter at stake. The Commissioner and his representatives do not have the direct and primary knowledge of the facts supporting the Application. This means that it may typically be more difficult and challenging for a representative of the Commissioner to exhaustively describe “all facts known” to the Commissioner.

[44]  Second, expeditiousness and considerations of fairness are two fundamental elements of the Tribunal’s approach and proceedings. Subsection 9(2) of the Competition Tribunal Act, RSC 1985, c 19 (2^nd Supp) directs the Tribunal to conduct its proceedings “as informally and expeditiously as the circumstances and considerations of fairness permit”. Ensuring both expeditious litigation and adequate protection of procedural fairness is thus a statutory exigency central to the Tribunal’s functions. The Tribunal endeavours to make its processes quick and efficient and, at the same time, never takes lightly concerns raised with respect to the procedural fairness of its proceedings. Furthermore, as I have indicated in the VAA Privilege Decision, since proceedings before the Tribunal are highly “judicialized”, they attract a high level of procedural fairness (VAA Privilege Decision at para 159). It is well-established that the nature and extent of the duty of procedural fairness will vary with the specific context and the different factual situations dealt with by the Tribunal, as well as the nature of the disputes it must resolve (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at paras 25-26; VAA Privilege Decision at paras 165-170).

[45]  Proceedings before the Tribunal move expeditiously and the Tribunal typically adopts schedules which are much tighter than those prevailing in usual commercial litigation, both for the discovery steps and the preparation of the hearing itself. These delays are generally measured in a limited number of months. This is the case for this Application, as the scheduling order provided for a timeframe of a few months to conduct documents and oral discovery. This entails certain obligations for all parties involved, and for the Tribunal. In determining what is proper and sufficient disclosure, concerns for expeditiousness always have to be balanced against fairness and efficiency of trial.

[46]  In sum, what both the parties and the Tribunal are trying to achieve with examinations for discovery is a level of disclosure sufficient to allow each side to proceed fairly, efficiently, effectively and expeditiously towards a hearing, with sufficient knowledge of the case it has to meet. There is no magic formula applicable to all situations, and a case-by-case approach must always prevail to determine the appropriate level of disclosure required in examinations for discovery. The scope of permissible discovery will ultimately depend “upon the factual and procedural context of the cases, informed by an appreciation of the applicable legal principles” (Lehigh at para 24). In that context, determining whether a particular question is permissible on an examination for discovery is a “fact based inquiry” (Lehigh at para 25).

ii.  The “stock answer” of the Commissioner

[47]  In the case at hand, the first part of the Commissioner’s response to VAA’s initial Category A Requests summarily stated that he has produced to VAA all relevant, non-privileged information in the Commissioner’s possession, power and control and has further produced to VAA summaries of relevant third-party information learned by the Commissioner from third parties in the course of the Competition Bureau’s review of this matter. While he referred to his upcoming obligations under the Competition Tribunal Rules (SOR/2008-141) and in terms of issuance of witness statements, the Commissioner essentially said in this “stock answer” that the facts known to him in respect of the various questions raised by VAA could be found in the Summaries and Documentary Productions, with no further detail or direction.

[48]  In my view, simply relying on this type of generic statement would not amount to a proper and sufficient answer by the Commissioner to the “reformulated” Category A Requests in the context of VAA’s examination for discovery [1] . In the course of an examination for discovery of his representative, the Commissioner cannot just retreat behind his Summaries and his Documentary Productions and not take proper steps to provide more detailed answers and direction in response to specific questions and undertakings, beyond a reference to the mere existence of the materials he has produced. Stated differently, resorting to the “stock answer” that the Commissioner has used in this case would not be enough to meet the requirements of fairness, expeditiousness and efficiency of trial that should generally govern the examination for discovery process in Tribunal proceedings.

[49]  Oral discovery has to mean something, including when the Commissioner is involved (Commissioner of Competition v United Grain Growers Limited, 2002 Comp Trib 35 (“UGG”) at para 92). In my opinion, the Commissioner cannot cloak himself with the blanket of a generic statement that all documents and summaries have been produced, that there is nothing else, and that all relevant acts known to him are found somewhere in his documentary productions and summaries of third-party information, without any more detail or direction, and claim that this is sufficient to meet his disclosure obligations to relevant questions raised in an examination for discovery. Being an atypical litigant does not imply that the Commissioner can be insulated from the basic tenets of oral discovery or above the examination for discovery process (NutraSweet at para 35). In my view, if the Tribunal were to accept a generic statement like the “stock answer” used by the Commissioner in this case as constituting a proper and sufficient answer to VAA’s Category A Requests, it could only serve to transform the oral discovery of the Commissioner’s representative into a masquerade. It would reduce it to an empty, meaningless process. This is not an acceptable avenue for the Tribunal to follow, and it is certainly not a fair, efficient or even expeditious way to prepare for trial in this case.

[50]  While I accept that requesting the Commissioner to “issue code” his documentary productions and summaries of third-party information and to identify every relevant document or piece of information in his materials is generally improper in the context of examinations for discovery in Tribunal proceedings, I find that simply responding that all relevant facts are contained somewhere in his documentary productions and summaries, without detail or direction, is equally an improper answer from the Commissioner. Neither of these two extremes is an acceptable option (International Minerals at para 7). I use the term “generally” as I am mindful that the disclosure requirements in an examination for discovery will vary with the circumstances of each case and that the decisions of the Tribunal on motions to compel answers always involve an exercise of discretion by the presiding judicial member seized of the refusals.

[51]  I pause to make one observation regarding the examination for discovery of Mr. Rushton in this case. In making the above comments on the Commissioner’s response to VAA’s initial Category A Requests, I am by no means suggesting that resorting to the “stock answer” was reflective of the overall approach espoused by the Commissioner in the examination of Mr. Rushton, or of the testimony given by Mr. Rushton. On the contrary, throughout the two-day examination, most questions asked to Mr. Rushton did not lead to requests for undertakings by VAA as Mr. Rushton appears to have responded satisfactorily to the vast majority of them, notably by providing information, examples and sufficiently specific references to portions of the Summaries or of the Documentary Productions, and by referring to many facts that came to his mind. In fact, my reading of the examination tells me that Mr. Rushton was a cooperative and forthcoming witness over the two days of his examination. Unanswered questions were the exception rather than the rule and, at the end of two full days of examination, a total of only 39 Category A Requests emerged. For most questions raised during his examination, Mr. Rushton was far from simply retreating behind the Commissioner’s Summaries and Documentary Productions and instead provided sufficient answers and direction in response to the questions asked by VAA.

[52]  I observe that about three-quarters of the unanswered Category A Requests arose on the second day of Mr. Rushton’s examination. A review of the transcripts leaves me with the impression that, as the examination progressed, counsel for both VAA and the Commissioner jumped somewhat hurriedly to simply flagging the “stock undertaking” and providing the “stock undertaking under advisement”, without always giving an opportunity to Mr. Rushton to attempt to respond to some of the questions. This was followed by the “stock answer” eventually given by the Commissioner in response to the Category A Requests.

iii.  Proper and sufficient answer to the “reformulated” questions

[53]  Now, having said that about the “stock answer”, how could the Commissioner properly and sufficiently respond to the “reformulated” Category A Requests in this case? Of course, I understand that determining whether a particular question is properly answered is a fact-based inquiry and will ultimately depend on the context of each question. Also, the Tribunal always retains the discretion to determine what amounts to a satisfactory and sufficient answer in each case. But, in light of the above discussion, I believe that some general parameters can be established to guide the Tribunal and the parties in making that determination.

[54]  First, I accept that, like any other litigant, VAA has the responsibility to build and prepare its own case. It is not for the Commissioner to do the work for VAA. It is VAA’s task to review and organize the materials produced by the other side, and the Commissioner does not have to give VAA a precise roadmap to find documents in the AODs or relevant extracts in the Summaries. To a certain extent, it is incumbent upon the recipient of a documentary disclosure to comb through it and sort it out. The Commissioner has acknowledged that it has already produced all documents in its power, possession or control that could answer VAA’s Requests, and both VAA and the Commissioner are in a position to perform the work of identifying the facts and sources underlying the various allegations made by the Commissioner. To some extent, the Commissioner is in no better position than VAA to do the work.

[55]  At the same time, on discovery, VAA has the right to be provided with the relevant factual information underlying the Commissioner’s Application and allegations therein (NutraSweet at paras 9, 35). It is entitled to know the case against it and to obtain sufficient information respecting the specific relevant facts (The Commissioner of Competition v Direct Energy Marketing Limited, 2014 Comp Trib 17 (“Direct Energy”) at para 16; NutraSweet at paras 30, 42). Broadly speaking, the usual rules of discovery in civil proceedings apply.

[56]  Another tempering element in this case, as is usually the situation for most respondents in proceedings initiated by the Commissioner before the Tribunal, is the fact that VAA is a market participant. VAA has considerable knowledge about the industry, its operations and the players and potential players. VAA already has a good sense of the information in the Commissioner’s possession about the market in which it is alleged to have engaged into an abuse of dominant position. As observed earlier, 1,619 records produced by the Commissioner originate from VAA itself. Practicality dictates that I thus need to be mindful of VAA’s own capability and knowledge.

[57]  Indeed, I note that the number of documents other than VAA’s records and in-flight catering pricing data records total less than 1,200 records and cannot be said to be voluminous, that the Summaries amount to just over 200 pages, and that these materials are fully searchable by both VAA and the Commissioner.

[58]  I further observe that the Tribunal has previously recognized that it is “sufficient if a party on discovery indicates the significant sources on which it relies for its allegation” (Southam at para 18). Providing the main facts, significant sources, or categories of documents described in sufficient detail to enable to locate the facts has been found by the case law to be a proper and sufficient answer to questions raised in examinations for discovery (Southam at paras 18-19; NutraSweet at paras 30-35; International Minerals at paras 8-10). The degree of particularity needed will vary with the circumstances and complexity of the case, the volume of documents involved, and the familiarity of the parties with the documents (Rule-Bilt at para 25). While some of these precedents appear to have dealt with situations where the questions asked related to facts relied on, I am satisfied that these observations on the sufficiency of “significant sources” remain applicable to a certain extent for questions asking for relevant facts known to the Commissioner.

[59]  Finally, and it is important to emphasize this, the Commissioner has clearly stated, and reiterated, that he has produced to VAA all relevant, non-privileged information in the Commissioner’s possession, power and control, and that all relevant information learned by the Commissioner from third parties in the course of his investigation and subject to public interest privilege has been produced through the Summaries. Accordingly, it is not disputed that all relevant facts known to the Commissioner are already in the materials produced to VAA.

[60]  In light of the foregoing, I consider that, for an answer to VAA’s “reformulated” Category A Requests asking for “all facts known” to the Commissioner on a particular topic to be proper, it would be sufficient for the Commissioner to provide a description of the significant relevant facts known to him, with direction as to those sections, parts or range of pages of the Summaries and of the Documentary Productions where the significant sources of relevant facts are located. In other words, the Commissioner does not have to offer a complete roadmap to VAA, but he must at least provide signposts indicating what the significant facts known to the Commissioner are and offering direction as to where the information is located in the Commissioner’s materials. In my view, answering the “reformulated” Category A Requests along these lines will result in a level of disclosure sufficient to allow both parties to proceed fairly, efficiently, effectively and expeditiously towards a hearing in this case.

[61]  No magic formula exists to determine the precise level of description and direction needed, as it will evidently vary with the facts surrounding each particular case and question. If no agreement can be reached by the parties on a given question despite the above guidance, it will have to be assessed and determined by a presiding judicial member in the exercise of his or her discretion. However, I believe that the parties should generally be able to sort it out without the Tribunal’s intervention if VAA and the Commissioner make good faith efforts to ask proper questions and provide proper answers.

[62]  This means that the Commissioner will not have to go to the extreme advocated by VAA in this case, and precisely identify every single fact and document known by the Commissioner for each specific question asked by VAA in the “reformulated” Category A Requests. This, in my view, would be an unreasonable requirement in the context of an examination for discovery in this case. For greater clarity, describing the significant relevant facts, and providing direction to the significant sources containing the relevant facts will therefore not necessarily mean that these facts or sources identified by the Commissioner’s representative constitute an exhaustive recount of “all” the facts known to the Commissioner. Again, requiring such an absolute level of disclosure would likewise not be fair or practical, nor would it promote expeditiousness and efficiency at trial.

[63]  I should add that requiring the Commissioner to provide an indication of the significant relevant facts or sources known to him should not be interpreted or construed as being a disguised way of requiring the Commissioner to identify the facts “relied upon” for his allegations at this stage of the proceedings. As indicated above, it is trite law that this is not something that can be requested in examinations for discovery.

iv.  Specific assessment of the “reformulated” questions

[64]  Having examined and considered VAA’s 39 “reformulated” Category A Requests under that lens, I conclude that 24 of these Requests will need to be answered by Mr. Rushton and the Commissioner, using the approach developed in these Reasons as guidance. The remaining 15 “reformulated” Category A Requests will not need to be answered because of other compelling reasons discussed below.

[65]  I observe that this subset of 24 Requests embodies different situations in terms of the answers already provided by Mr. Rushton and the Commissioner. Indeed, VAA had referred to two different categories of Category A Requests in its Memorandum of Fact and Law: one where no specific answer was given and another where some partial information was provided. Among these 24 Category A Requests, there are instances where the response already provided by Mr. Rushton contained no reference whatsoever to any particular facts, and no direction as to where the relevant information was located in the Summaries or the Documentary Productions, and where he only mentioned that “nothing immediately comes to mind”. There are others where Mr. Rushton provided references to “some information”, “some communications” or “some examples” in the Summaries or Documentary Productions, where he mentioned facts but did not recall where the information was, where he was uncertain as to whether other responsive facts existed, or where he indicated that there could be some facts or references but needed to verify where such information was. In the latter group of answers, there was therefore an onset of response provided by Mr. Rushton. However, for none of these 24 Category A Requests did Mr. Rushton refer to “significant” facts or direct VAA to “significant” sources.

[66]  In light of the foregoing, the following 24 “reformulated” Category A Requests will need to be answered by the Commissioner along the lines developed in these Reasons (i.e., through a description of the significant relevant facts known to the Commissioner, with direction as to those sections, parts or range of pages of the Summaries and of the Documentary Productions where the significant sources of relevant facts are located):

Request 24 (recent in-flight catering business changes) [2] ;

Request 30 (West-Jet’s switching to in-flight catering);

Request 47 (double-catering);

Request 49 (factors considered by airlines when deciding whether to operate at an airport);

Request 50 (VAA’s ability to dictate terms upon which it supplies access to the airside);

Request 57 (whether VAA participates in the market for galley handling other than sharing in revenue);

Request 58 (VAA’s competitive interest in the market for galley handling);

Request 61 (exchange between a supplier and VAA about the supplier’s renting requirements);

Request 62 (VAA having a competitive interest in the market for supply of galley handling);

Request 64 (whether in-flight caterers and galley handling firms operate on- or off- airport in North America);

Request 67 (innovation, quality, service levels and more efficient business models new entrants would have brought);

Request 74 (VAA’s purposely excluding new entrants);

Request 77 (intended negative exclusionary effect of VAA’s practice);

Request 78 (leasing land or having a kitchen located on the airport);

Request 82 (actual events of exclusion/refusal to new entrants);

Request 83 (reasons for not granting a particular licence);

Request 84 (whether reasons expressed in a particular letter for the denial of a licence by VAA were the actual ones);

Request 86 (airports in Canada and beyond Canada that limit the number of galley handlers and number of galley handlers in Canadian airports);

Request 89 (food as being of particular importance to Asian airlines);

Request 91 (importance of food to business/first class passengers);

Request 93 (flight delays’ effect on an airline’s willingness to launch or offer routes to that airport);

Request 96 (access issues raised by VAA);

Request 102 (ability of existing galley handlers at VIA to service demand); and

Request 103 (why a particular supplier left in 2003).

[67]  I mention that, further to my review of the transcripts of Mr. Rushton’s examination, I find that the Commissioner’s responses to the two following requests offer examples of instances where Mr. Rushton provided answers echoing, at least in part, the guidance developed in these Reasons. Request 47 on double-catering has been answered through several references made by Mr. Rushton to important relevant information and direction to a range of pages and even specific bullets in the Summaries. Similarly, Request 64 on whether in-flight caterers and galley handling firms operate on- or off-airport in North America contained references by Mr. Rushton to facts and to information being generally contained at certain pages and sections in the Summaries. These responses to Requests 47 and 64 are examples of minimal benchmarks that the Commissioner should use for constructing proper and sufficient answers.

[68]  Conversely, for the remaining 15 “reformulated” Category A Requests, I find that, even if the requirement for specific references to the Summaries and Documentary Productions were severed from the requests, and despite the limited, insufficient response offered so far through the “stock answer” given by the Commissioner, they still do not need to be answered by the Commissioner for other various compelling reasons.

[69]  First, I agree with the Commissioner that several of these requests from VAA remain improper in any event, as they invite economic analysis, opinion or conclusions from the Commissioner on certain issues, or require comparative analyses between different price and non-price factors, as opposed to the facts themselves (NutraSweet at paras 23, 38; Southam at paras 12-13). Such requests essentially seek to reveal how the Commissioner assessed and interpreted facts, and therefore need not be answered. These are:

Request 21 (market definition that does not include catering);

Request 25 (geographic market definition being characterized solely as VIA);

Request 48 (whether VIA competes with other airports);

Request 53 (land rents charged to in-flight catering firms by VAA compared to other North American airports);

Request 56 (VAA’s latitude in determining prices and non-price dimensions for the supply of galley handling at VIA);

Request 66 (whether concession fees charged by VAA are constrained by competition with other airports);

Request 71 (whether the business of certain catering suppliers at VIA are profitable);

Request 81 (market power of VAA in relation to galley handling affected by tying of airside access to leasing land at airport);

Request 100 (impact at VIA of reduction from two caterers to one);

Request 104 (scale and scope economies in catering and galley handling and how they would cross over from catering to galley handling);

Request 105 (competition between certain suppliers for galley handling and catering at VIA); and

Request 106 (how prices for catering/galley handling at VIA compare to prices at airports where new entry is not limited).

[70]  Second, as counsel for VAA conceded at the hearing, Request 60 on pricing data has already been answered through the more than 11,000 in-flight caterer pricing data records provided by the Commissioner.

[71]  Third, Requests 72 and 73 on certain meetings involving VAA need not be answered as VAA confirmed in its Memorandum of Fact and Law that it already has the facts. In addition, these requests are not asking for facts but, rather, for an interpretation or characterization of those facts by the Commissioner. Questions of this nature are improper and need not be answered.

B.  Category B Requests

[72]  VAA’s 11 Category B Requests relate to questions that Mr. Rushton declined to answer on the basis of the Commissioner’s public interest privilege. VAA claims that, to the extent the Commissioner asserts public interest privilege over information sought on oral discovery, he must establish that the information is in fact privileged and falls within that class of privilege. VAA contends that, in the challenged questions, the Commissioner simply made a bald assertion of public interest privilege, and that he has not addressed the scope of the public interest privilege or how such information falls within that scope.

[73]  I disagree.

[74]  As it was recently confirmed by the Tribunal in the VAA Privilege Decision, the Commissioner’s public interest privilege has been approved as a class-based privilege. This privilege recognizes the existence of a class of documents and communications, created or obtained by the Commissioner during the course of a Competition Bureau investigation, as being protected, such that they need not be disclosed during the discovery phase of proceedings before the Tribunal. It guarantees to those persons having provided information to the Commissioner that their information will be kept in confidence and that their identities will not be exposed unless specifically waived by the Commissioner at some point in the proceedings.

[75]  The assertion of the public interest privilege therefore allows, in the discovery process, the Commissioner to refuse to disclose facts that would reveal the source of the information protected by the privilege (UGG at para 93). I underline that this public interest privilege is limited, and extends only insofar as is necessary to avoid revealing the identity of the person or the source of the information gathered by the Commissioner. Needless to say, the privilege cannot be used by the Commissioner to avoid his normal disclosure obligations.

[76]  In this case, the Commissioner (and also through Mr. Rushton in his examination for discovery) has refused to answer VAA’s 11 Category B Requests in order to precisely avoid having to reveal the source of the information sought. In his sworn testimony, Mr. Rushton has indicated that answering those VAA questions would risk uncovering the identity of third-party sources. Accordingly, these questions are objectionable, as they encroach on the Commissioner’s public interest privilege.

[77]  VAA claims that, in the event the Commissioner asserts public interest privilege as the basis for refusing to respond to a question or undertaking, he is required to provide evidence as to how responding to the question would reveal or risk revealing the source. I do not share that view. I am instead of the view that the burden lies on the party seeking disclosure to demonstrate why a communication or document subject to a class-based privilege should be disclosed. This is true for the public interest privilege of the Commissioner as it is for other class privileges such as the solicitor-client privilege. Once it is established that the relationship is one protected by the privilege, the information is prima facie privileged, and it is up to the opposing party to prove that the privilege does not apply. For instance, it belongs to the party seeking disclosure of a solicitor-client communication to demonstrate that the privileged communication should be disclosed, by proving, for example, that the privilege has been waived.

[78]  In other words, it is incumbent upon VAA to demonstrate why the public interest privilege should be lifted in the case at hand. The burden does not suddenly shift back to the Commissioner to re-assert the class-based public interest privilege because VAA challenges it. The presumption of privilege is to be rebutted by the party challenging the privilege. VAA’s proposed approach would in fact turn the class-based public interest privilege of the Commissioner into a case-by-case privilege. Privileges established on a case-by-case basis refer to documents and communications for which there is a prima facie presumption that they are not privileged and are instead admissible, but can be excluded in a particular case if they meet certain requirements. In those situations, there is no presumption of privilege, and it is then up to the party claiming a case-by-case privilege to demonstrate that the documents and communications at stake bear the necessary attributes to be protected from disclosure. The analysis to be conducted to establish a case-by-case privilege requires that the reasons for excluding otherwise relevant evidence be weighed in each particular case. This does not apply to class-based privileges.

[79]  Furthermore, in the VAA Privilege Decision, I discussed the “unique way” in which the Commissioner’s public interest privilege has developed, and I referred to two elements in that regard: “the safeguard mechanisms put in place by the Tribunal to temper the adverse impact of the limited disclosure and the high threshold (e.g., compelling circumstances or compelling competing interest) required to authorize lifting the privilege” (VAA Privilege Decision at para 81).

[80]  The safeguard mechanisms have been mentioned by VAA in this Refusals Motion. They include: (1) the Commissioner’s obligation to provide, prior to the examinations for discovery, detailed summaries of all information being withheld on the basis of public interest privilege, containing both favourable and unfavourable facts to the Commissioner’s Application; (2) the option for the respondent to have a judicial member of the Tribunal, who would not be adjudicating the matter on the merits, to review the documents underlying the summaries to ensure they have been adequately summarized and are accurate; and (3) the fact that the Commissioner will have to waive privilege on relevant documents and communications and provide will-say statements ahead of the hearing, if he wants to rely upon information from certain witnesses in proceedings before the Tribunal (VAA Privilege Decision at paras 61, 82- 87). I pause to note that, in the current case, the first two safeguard mechanisms have already been used, and the third one will likely kick in when the Commissioner files his witness statements.

[81]  The second element I evoked in the VAA Privilege Decision was another mechanism available to VAA to challenge the public interest privilege of the Commissioner, namely by demonstrating the presence of “compelling” circumstances allowing one to circumscribe the reach of the Commissioner’s public interest privilege (VAA Privilege Decision at paras 88-91). The public interest privilege of the Commissioner is not absolute and can be overridden by “compelling circumstances” or by a “compelling competing interest”. But this requires clear and convincing evidence proving the existence of circumstances where the Commissioner’s public interest privilege could be pierced, and it is a high threshold. As I had mentioned in the VAA Privilege Decision, Madam Justice Dawson notably expressed the test as follows: “public interest privilege will prevail unless over-ridden by a more compelling competing interest, and fairly compelling circumstances are required to outweigh the public interest element” (Commissioner of Competition v Sears Canada Inc, 2003 Comp Trib 19 at para 40).

[82]  VAA had the option of bringing a motion to override the public interest privilege and to challenge the documents and information over which the Commissioner asserted a claim of public interest privilege, by demonstrating the presence of such compelling circumstances or compelling competing interests. It has not done so with respect to any of its 11 Category B Requests. Similarly, in the context of this Refusals Motion, VAA has offered no evidence sufficient for the Tribunal to even consider the potential exercise of its discretion to set aside the public interest privilege asserted by the Commissioner using that “compelling circumstances” mechanism. As admitted by counsel for VAA at the hearing, no evidence of compelling circumstances or compelling competing interests has been adduced or provided by VAA at this point, with respect to any of the Category B Requests. In the circumstances, I find that there are no grounds to compel the answers sought by VAA in its Category B Requests.

[83]  I make one last comment on the issue of public interest privilege. I do not agree with the suggestion that, in the VAA Summaries Decision, Mr. Justice Phelan recognized or implied that questions requiring a circumvention of the public interest privilege would be automatically proper at the time of oral discovery of the Commissioner’s representative. Mr. Justice Phelan instead stated that the identity of the sources “may be disclosed before trial if the Commissioner relies on the source for evidence”, in fact alluding to the third safeguard mechanism referred above, namely the stage at which the Commissioner files his witness statements (VAA Summaries Decision at para 23). Contrary to VAA’s position, I do not read Mr. Justice Phelan’s comments as signalling that the public interest in not identifying third-party sources of information or not giving information from which sources may be identified could be quietly lifted at the oral discovery stage, without having to go through the demonstration of “compelling circumstances” or “compelling competing interests”.

[84]  For those reasons, VAA’s Category B Requests 32, 39, 43, 117, 121, 122, 123, 124, 125, 127 and 128 need not be answered.

[85]  I would further note that I agree with the Commissioner that Requests 39 and 43 need not be answered for an additional reason, as they relate to the conduct of the Commissioner’s investigation and are thus not relevant to the Application (Southam at para 11).

[86]  As to Request 117, I also find that it needs not be answered by the Commissioner for another reason: it is premature at this stage of the proceedings. The Commissioner does not have to identify his witnesses prior to serving his documents relied upon and his witness statements (Southam at para 13). When the Commissioner does so on November 15, 2017 (as mandated by the scheduling order issued by the Tribunal), the third safeguard mechanism will require the Commissioner to waive his public interest privilege on relevant documents and communications from witnesses providing will-say statements, if he wants to rely on that information. The Commissioner does not have to identify his witnesses prior to that time and, if VAA believes that the Commissioner does not comply with his obligations when he serves his materials on November 15, 2017, it will be able to raise the issue with the Tribunal at that time.

[87]  That being said, by finding that VAA’s Request 117 is premature, I should not be taken to have determined that, in order to comply with his obligations at the witness statements stage, the Commissioner could simply waive his privilege claims over those documents and communications he will actually rely on in his materials, as opposed to all documents and communications related to the witness(es) for whom the privilege is waived. This is a fact based matter that the Tribunal will address as needed. I would however mention that, depending on the circumstances, considerations of fairness could well require that the privilege be waived on all relevant information provided by a witness appearing on behalf of the Commissioner, both helpful and unhelpful to the Commissioner, even if some of the information has not been relied on by the Commissioner (Direct Energy at para 16). As long as, of course, disclosing the information not specifically relied on by the Commissioner does not risk revealing the identity of other protected sources and imperil the public interest privilege claimed by the Commissioner over sources other than that particular witness.

C.  Category C Requests

[88]  I finally turn to VAA’s Category C Requests, where Request 110 is the only item remaining. Request 110 asks the Commissioner to “[p]rovide a list of the customary requirements in each category – health, safety, security, and performance – that the Commissioner is asking the Tribunal to impose as part of its order”. This Request need not be answered. I agree with the Commissioner that what makes any of these requirements “customary” will be determined through witnesses at the hearing of the Application on the merits, and that this is not a proper question to be asked from Mr. Rushton at this time.

IV.  CONCLUSION

[89]  For the reasons detailed above, VAA’s Refusals Motion will be granted in part, but only with respect to the “reformulated” version of some Requests. I am not persuaded that there are grounds to compel the Commissioner to provide answers to the specific Category B and C Requests listed by VAA, as well as to the Category A Requests as these were initially formulated by VAA at the examination for discovery of Mr. Rushton. However, I am of the view that, when considered in their “reformulated” version, 24 of VAA’s 39 Category A Requests will need to be answered by the Commissioner’s representative along the lines developed in the Reasons for this Order. The remaining 15 “reformulated” Category A Requests will not have to be answered in any event, based on the additional reasons set out in this decision.

FOR THE ABOVE REASONS, THE TRIBUNAL ORDERS THAT:

[90]  The motion is granted in part.

[91]  VAA’s Category B and C Requests as well as VAA’s Category A Requests as these were formulated at the examination for discovery of Mr. Rushton need not be answered.

[92]  The “reformulated” Category A Requests 24, 30, 47, 49, 50, 57, 58, 61, 62, 64, 67, 74, 77, 78, 82, 83, 84, 86, 89, 91, 93, 96, 102 and 103 need to be answered along the lines developed in the Reasons for this Order, by November 3, 2017.

[93]  The “reformulated” Category A Requests 21, 25, 48, 53, 56, 60, 66, 71, 72, 73, 81, 100, 104, 105 and 106 need not be answered.

[94]  As success on this motion has in fact been divided, costs shall be in the cause.

DATED at Ottawa, this 26th day of October 2017

SIGNED on behalf of the Tribunal by the Chairperson.

(s) Denis Gascon

COUNSEL:

For the applicant:

The Commissioner of Competition

Antonio Di Domenico Jonathan Hood Katherine Rydel Ryan Caron

For the respondent:

Vancouver Airport Authority

Calvin S. Goldman, QC Michael Koch Julie Rosenthal Ryan Cookson Rebecca Olscher