PUBLIC VERSION CT-2016-015 THE COMPETITION TRIBUNAL IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34, as amended; AND IN THE MATTER OF certain practices of Vancouver Airport Authority relating to the supply of in-flight catering services at Vancouver International Airport;
AND IN THE MATTER OF an application by the Commissioner of Competition for one or more orders pursuant to section 79 of the Competition Act.
BETWEEN: COMMISSIONER OF COMPETITION Applicant
– and – VANCOUVER AIRPORT AUTHORITY Respondent
SUPPLEMENTARY MOTION RECORD DEPARTMENT OF JUSTICE CANADA COMPETITION BUREAU LEGAL SERVICES Place du Portage, Phase I 50 Victoria Street, 22 nd Floor Gatineau QC K1A 0C9 Fax: 819-953-9267
Jonathan Hood Tel: 416-954-5925 Jonathan.hood@canada.ca
Katherine Rydel Tel: 819-994-4045 katherine.rydel@canada.ca
Ryan Caron Tel: 819-953-3889 ryan.caron@canada.ca
Fasken Martineau Bay Adelaide Centre 333 Bay Street, Suite 2400, PO Box 20 Toronto, ON M5H 2T6 Fax: 416-364-7813
Antonio Di Domenico Tel: 416-868-3410 adidomenico@fasken.com Counsel to the Commissioner of Competition
PUBLIC VERSION INDEX
TAB DOCUMENT PAGE Supplemental Memorandum of Fact and Law of the 1 Commissioner of Competition to the Respondent’s Motion 1 Challenging Adequacy and Accuracy of Summaries
2 Affidavit of Amani Syed, sworn June 22, 2017 12 A Exhibit A - Email: RE: Commissioner of Competition v. Vancouver Airport Authority – Schedule 14 B Exhibit B - Confidential Level B – Letter to J. Rosenthal dated May 30, 2017 19 C Exhibit C - Letter to J. Hood dated May 31, 2017 24 D Exhibit D - Letter to J. Rosenthal dated June 6, 2017 28
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CT-2016-015 THE COMPETITION TRIBUNAL IN THE MATTER OF the Competition Act, RSC 1985, c C-34; AND IN THE MATTER OF certain practices of Vancouver Airport Authority relating to the supply of in-flight catering services at Vancouver International Airport;
AND IN THE MATTER OF an application by the Commissioner of Competition for one or more orders pursuant to section 79 of the Competition Act.
BETWEEN: COMMISSIONER OF COMPETITION Applicant
– and – VANCOUVER AIRPORT AUTHORITY Respondent
SUPPLEMENTAL MEMORANDUM OF FACT AND LAW OF THE COMMISSIONER OF COMPETITION TO THE RESPONDENT’S MOTION CHALLENGING ADEQUACY AND ACCURACY OF SUMMARIES
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PART I: OVERVIEW 1. The Commissioner 1 relies on the arguments made in his memorandum of fact and law filed on May 24, 2017 (“Commissioner’s Memorandum”). As described in the Commissioner’s Memorandum, the Commissioner provided a 206 page TPS to VAA, summarizing information the Commissioner has obtained from third parties during his investigation that is contained in records that are subject to a class-based privilege. That TPS meets the requirements of Competition Tribunal jurisprudence by providing the facts while protecting the identity of the sources that provided those facts.
2. After reviewing VAA’s Memorandum of Fact and Law dated May 24, 2017 (“VAA’s Memorandum”), in an attempt to resolve this motion and advance this application, the Commissioner provided on June 6, 2017, a reordered third party summary (“Reordered TPS”). The Reordered TPS does not provide any additional information beyond what was contained in the TPS. Instead, the information in each section has been reorganized first by year and second, within each year, by like topic. By providing the Reordered TPS, the Commissioner has addressed two of the three issues raised in paragraph 135 of VAA’s Memorandum. The remaining issue is whether the Commissioner could provide sourcing information for each bullet.
3. As described in more detail below, the Commissioner is unable to provide further specificity on the source without revealing identities that are protected by public interest privilege. Given the market structure and volume of information that has been provided in the TPS and Reordered TPS, it simply is not possible to identify the pieces of information in the Reordered TPS without in the process revealing the identity of the 1 Where capitalized terms are not defined in this Supplementary Memorandum of Fact and Law, the Commissioner relies on those terms as they are defined in the Commissioner’s Memorandum of Fact and Law dated May 24, 2017.
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source and compromising the class-based public interest privilege of the underlying records upon which the Reordered TPS is based.
4. As with its initial motion, there is no evidence to support that there is any deficiency with the Reordered TPS, there is no evidence that VAA is prejudiced by the Reordered TPS, and there is no basis in law to support VAA’s request. VAA’s motion should be dismissed.
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PART II: SUMMARY OF FACTS Provision of the Reordered Third Party Summary 5. On September 29, 2016, the Commissioner applied to the Tribunal seeking to remedy the abuse of a dominant market position by VAA in excluding and denying the benefits of competition to the in-flight catering marketplace at Vancouver International Airport (“Commissioner’s Application”). 2 6. The Commissioner’s Application is scheduled to be heard from November 20 to December 20, 2017, pursuant to the scheduling order of the Honourable Mr. Justice Gascon dated December 20, 2016, as amended by further orders dated February 13, 2017, and February 16, 2017 (“Scheduling Order”).
7. In order for the Application to be heard on the scheduled dates, the Commissioner has proceeded as expeditiously as possible pursuant to the deadlines in the Scheduling Order, as detailed at paragraphs 10-15 of the Commissioner’s Memorandum. Accordingly, on April 13, 2017, the Commissioner provided the TPS to VAA, well in advance of the discovery of the Commissioner’s representative.
8. After receiving the TPS, counsel for VAA wrote on April 19, 2017, only to indicate that: “the summaries are wholly inadequate. The summaries comprise thousands of snippets of information, provided in a jumbled manner, wholly divorced from context, in such a way as to render their content meaningless”. 3 2 The paragraphs that follow provide a high-level summary for context. For full particulars, see the pleadings in the Motion Record of the Respondent, Volume II, Tab 7 and Tab 9. 3 Affidavit of Amani Syed affirmed June 22, 2017, (the “Syed Affidavit”) Motion Record of the Applicant, Tab A.
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9. VAA made similar statements in its request for relief in its Notice of Motion that was filed on May 10, 2017, after a dispute between the parties over whether this motion should be heard before or after the discovery of the Commissioner’s representative. There was no attempt by VAA to engage with the Commissioner about specific ways that VAA’s concerns could be addressed.
10. On May 24, 2017, VAA filed its Motion Record. At paragraph 135 of VAA’s Memorandum, VAA indicates specific changes that should be made to the TPS. In particular, VAA states that:
consideration should be given to the following, at a minimum: (a) Identify which pieces of information came from one source, and which came from a different source (of course, without revealing the identity of the source in question); (b) Imposing some coherence on the chronological organization of the information contained within any given “chapter” of the summaries; and (c) Imposing some coherence on the topical organization of the information contained within any given “chapter” of the summaries.
11. After reviewing this paragraph in VAA’s Memorandum, the Commissioner’s counsel sent VAA’s counsel a letter on May 30, 2017, indicating that he was willing to provide a summary that “more obviously organizes the information by year and by topic” in order to address the requests in subparagraphs 135(b) and 135(c). The Commissioner did this to move the Application along expeditiously even though the Commissioner was under no legal obligation to so. 4 4 The Syed Affidavit, Motion Record of the Applicant, Tab B.
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12. In the same letter, the Commissioner stated that with respect to the request in subparagraph 135(a), given the market structure and volume of the information provided in the TPS “it simply is not possible to identify the pieces of information in the Summary that came from the same source, without in the process revealing the identity of the source and compromising the class-based public interest privilege of the underlying records upon which the Summary is based”. The letter then provided examples to demonstrate why this is so. 5 13. On May 31, 2017, in response to the Commissioner’s point about the impossibility of providing further specificity on the source without revealing identities, counsel for VAA stated: “We do not agree with your assertion that it is “impossible” for the Commissioner to provide such further information, while still protecting the identity of the sources in question”. 6 While VAA disagrees with the Commissioner’s statement that it is impossible to provide further specificity on the source VAA has provided no explanation, either in its May 31, 2017, letter or since, as to why VAA could not determine the identities of the sources in the examples provided.
14. On June 6, 2017, the Commissioner provided the Reordered TPS. Despite the Commissioner’s efforts to resolve this matter, VAA informed Commissioner’s counsel on June 15, 2017, that VAA would still be pursuing this motion. 7 5 Ibid. 6 The Syed Affidavit, Motion Record of the Applicant, Tab C. 7 The Syed Affidavit, Motion Record of the Applicant, Tab D.
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PART III: ISSUE IN DISPUTE 15. This motion raises the following issue: whether the Commissioner should be ordered to provide a further and better TPS where there is no evidentiary basis on which to do so.
PART IV: SUBMISSIONS 16. VAA’s motion should be dismissed for the reasons in the Commissioner’s Memorandum, as well as for the following reason:
a. It is not possible to provide further specificity on the source of the information in the TPS or the Reordered TPS without revealing identities that are protected by public interest privilege.
A. It is not possible to provide further specificity on the source of the information in the TPS or the Reordered TPS without revealing identities that are protected by public interest privilege
17. The Commissioner explained to VAA that given the market structure and volume of the information provided it simply is not possible to identify all of the pieces of information in the TPS that came from the same source, without in the process revealing the identity of the source and compromising the class-based public interest privilege of the underlying records upon which the TPS is based. To demonstrate this point, the Commissioner provided a few examples. 8 18. The first example demonstrates that assigning an identifier to a market participant will enable VAA to determine, by necessary implication, the
8 The Syed Affidavit, Motion Record of the Applicant, Tab B.
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identity of the source of the information. Level B of the TPS contains the following information:
a. b.
10 . 19.
20. The second example demonstrates that assigning an identifier to a market participant will also enable VAA to determine, by process of elimination, the identity of the source of the information. Level B of the TPS contains the following information:
9 Confidential Supplementary Motion Record of the Respondent, Tab 3, p 165 (3 the bottom dated 2014). 10 Confidential Supplementary Motion Record of the Respondent, Tab 3, p 78 (1 the bottom dated 2015).
; 9 and
rd bullet from st bullet from
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a. ; 11 b. ; 12 and c. . 13 21.
11 Confidential Supplementary Motion Record of the Respondent, Tab 3, p 181 (3 from the top dated 2017). 12 Confidential Supplementary Motion Record of the Respondent, Tab 3, p 178 (5 the top dated 2012). 13 Confidential Supplementary Motion Record of the Respondent, Tab 3, p 183 (2 from the bottom dated 2016).
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rd bullet th bullet from nd bullet
10 PUBLIC VERSION 22. VAA has not provided any explanation, thus far, as to why VAA could not determine the identities of the sources in the examples above.
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Tab A
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S ed, Amani (IC) From: Rosenthal, Julie <jrosenthal@goodmans.ca > Sent: April-19-17 2:18 PM To: Hood, Jonathan (IC) Cc: Rydel, Katherine (IC); Caron, Ryan (IC); Antonio Di Domenico; Rushton, Kevin (IC); Foster, Alicia (IC); Bergeron, Francis (IC); Goldman, Calvin; Koch, Michael Subject: RE: Commissioner of Competition v. Vancouver Airport Authority - Schedule Jonathan, We have now had a chance to review the summaries, provided with your email below. The summaries are wholly inadequate. The summaries comprise thousands of snippets of information, provided in a jumbled manner, wholly divorced from context, in such a way as to render their content largely meaningless. As a result, they do not fulfill their intended purpose, as they do not inform us of the facts the Commissioner has gathered and do not enable us to know the case our client has to meet. Moreover, they will not permit us a fair and proper opportunity to prepare and conduct a meaningful examination for discovery, nor will they permit us to fairly and properly prepare and subsequently produce Mr. Richmond for discovery or to conduct any of the other necessary pre-hearing steps (including participating in a meaningful mediation). Such a state of affairs is not consistent with the requirements of procedural fairness.
In the circumstances, we have been instructed to bring a motion to challenge the adequacy and accuracy of the summaries. That motion needs to be heard and determined before we proceed to examinations for discovery.
We believe that a case conference with Justice Gascon is needed in order to address the scheduling of our motion and the resulting effect on the scheduling of examinations for discovery.
Please advise as to your availability for such a case conference either tomorrow at 10 or 10:30 or, alternatively, next Wednesday. Once we hear back from you, we will write to the Tribunal to request a case conference.
Regards, Julie From: Hood, Jonathan {IC) [mailto:jonathan.hood@canada.ca] Sent: Thursday, April 13, 2017 2:26 PM
To: Rosenthal, Julie Cc: Rydel, Katherine (IC); Caron, Ryan (IC); Antonio Di Domenico; Rushton, Kevin (IC); Foster, Alicia (IC); Bergeron,
Francis {IC); Goldman, Calvin; Koch, Michael Subject: RE: Commissioner of Competition v. Vancouver Airport Authority - Schedule Julie: Attached is the Commissioner's third party summary in this matter which is divided into two documents. The first contains information which the Commissioner claims as Level A pursuant to the Confidentiality Order. The second contains information which the Commissioner claims as Level B pursuant to the Confidentiality Order.
Subject to your client's right to challenge, it appears that we are in agreement that examination of our client will occur on May 31- June 2"d. We are prepared to conduct the discovery of your client on May 25 and 26 1 h though to do so will be a major inconvenience for Tony who will have to rearrange several engagements to be available. We would
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PUBLIC VERSION CT-2016-015 THE COMPETITION TRIBUNAL IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34, as amended;
AND IN THE MATTER OF certain practices of Vancouver Airport Authority relating to the supply of in-flight catering services at Vancouver International Airport;
AND IN THE MATTER OF an application by the Commissioner of Competition for one or more orders pursuant to section 79 of the Competition Act.
BETWEEN: COMMISSIONER OF COMPETITION
VANCOUVER AIRPORT AUTHORITY
SUPPLEMENTARY MOTION RECORD DEPARTMENT OF JUSTICE CANADA COMPETITION BUREAU LEGAL SERVICES Place du Portage, Phase I 50 Victoria Street, 22 nd Floor Gatineau QC K1A 0C9
Jonathan Hood Tel: 416-954-5925 Jonathan.hood@canada.ca
Katherine Rydel Tel: 819-994-4045 katherine.rydel@canada.ca
Ryan Caron Tel: 819-953-3889 ryan.caron@canada.ca
Fasken Martineau Bay Adelaide Centre 333 Bay Street, Suite 2400, PO Box 20 Toronto, ON M5H 2T6 Fax: 416-364-7813
Antonio Di Domenico Tel: 416-868-3410 adidomenico@fasken.com
Counsel to the Commissioner of Competition
Applicant – and –
Respondent