Case Documents

Competition Tribunal

Tribunal de la Concurrence

Date: May 8, 2017

Subject: CT-2016-015 - The Commissioner of Competition v Vancouver Airport Authority

Direction to Counsel (from Mr. Justice Gascon, Chairperson)

FURTHER TO the request for a case management conference made by Vancouver Airport Authority (“VAA”) and also on behalf of the Commissioner of Competition (the “Commissioner”) to address: (i) VAA’s request for more complete and accurate summaries of documents over which the Commissioner has claimed privilege (the “Summaries Motion”); (ii) the specific scheduling of such motion; and (iii) the parties’ disagreement as to whether the motion should proceed before or after the examinations for discovery of the Commissioner’s representative(s) (the “discoveries”);

UPON having considered the documents attached to VAA’s request, namely (i) the confidential summaries provided by the Commissioner to VAA (the “Summaries”) and (ii) VAA’s draft Notice of Motion which is entitled “Motion Challenging Adequacy and Accuracy of Summaries” and seeks an order from the Tribunal requiring the Commissioner to produce to VAA complete, adequate and accurate summaries of those documents that the Commissioner has refused to produce on the basis of an asserted public interest privilege;

AND UPON having heard the oral submissions made by counsel for VAA and for the Commissioner at a case management conference held by telephone on May 4, 2017;

AND UPON considering VAA’s submissions to the effect that: (i) the Summaries are on their face wholly inadequate; (ii) the Tribunal’s jurisprudence is silent on whether a motion such as the Summaries Motion is required to proceed before or after discoveries; (iii) it would be more efficient to allow VAA’s motion to be heard before discoveries to avoid splitting the discovery process; and (iv) the Summaries Motion is seeking to challenge both the adequacy and accuracy of the Summaries;

AND UPON considering the Commissioner’s submissions to the effect that: (i) VAA’s motion is premature and not an efficient use of the Tribunal’s resources since the issues raised by VAA regarding the Summaries would likely be clarified though the discovery process; (ii) having the Summaries Motion heard after discoveries is consistent with the Tribunal’s procedure and practice; and (iii) the Summaries are more than adequate since they consist of over 200 pages and are produced by topic;

AND UPON noting the observation made by counsel for VAA that scheduling VAA’s Summaries Motion before discoveries is not expected to disrupt and imperil the schedule currently in place for this matter, as there is flexibility built into the Tribunal’s Scheduling Order (in particular in July and August) which could offset any delays associated with the hearing of the Summaries Motion before discoveries;

AND UPON noting that counsel for VAA is ready to proceed with the examinations for discovery of VAA’s representative(s) on the dates already agreed to with counsel for the Commissioner, in parallel with the hearing and consideration of VAA’s Summaries Motion by the Tribunal;

AND UPON noting that the purpose of this Direction is strictly to deal with the timing of VAA’s Summaries Motion and not to address or decide the merits of VAA’s Summaries Motion or any of the substantive issues raised by the contemplated motion itself;

AND UPON considering the principles set out in sub-section 9(2) of the Competition Tribunal Act, RSC 1985, c 19 (2^nd supp) and in Rule 2 of the Competition Tribunal Rules, SOR/2008-141 (the “Rules”), which direct the Tribunal to deal with all matters as informally and expeditiously as the circumstances and considerations of fairness permit;

AND UPON concluding the following:

1. There are no precedents from the Tribunal explicitly stating that motions challenging the adequacy and/or accuracy of Summaries necessarily have to be brought after discoveries, though the Tribunal understands that, according to the Commissioner, this has apparently been the “practice” so far and that previous statements made by the Tribunal have referred to this process in such terms;

2. The Tribunal does not agree that, as a matter of principle, considering VAA’s Summaries Motion before discoveries would be inefficient. The Tribunal is instead satisfied that hearing and considering VAA’s Summaries Motions before discoveries could serve to deal with this proceeding more efficiently and more expeditiously, though it acknowledges that there is no guarantee that this will necessarily be the case;

3. The principles of procedural fairness direct the Tribunal to allow a respondent to present such a motion before discoveries where the respondent claims, as is the case here, that the alleged inadequacy and/or inaccuracy of the Summaries affects its right to know the case against it and to have a meaningful opportunity to prepare its own case;

4. The option of presenting a motion such as the Summaries Motion is one of the safeguard mechanisms endorsed by the Tribunal to compensate for the limited disclosure of information resulting from the Commissioner’s claims of public interest privilege. Echoing its Reasons for Order and Order dismissing VAA’s motion challenging the Commissioner’s claims of public interest privilege, issued on April 24, 2017 (the “Reasons”), the Tribunal reiterates that these safeguard mechanisms have been and remain a key element of the Tribunal’s treatment of the Commissioner’s public interest privilege. In the absence of evidence showing that a respondent is abusing the process or using it as a delaying tactic, it is therefore an option that a respondent should be able to exercise. In other words, if this safeguard mechanism is to have any meaning, the Tribunal should not lightly refuse a respondent the opportunity of using it in a timely fashion;

5. The Tribunal is mindful of the comments contained at paragraphs 85 and 176 of its Reasons, referring to previous Tribunal cases (at paragraph 85) and to the option mentioned by the Commissioner in the current proceedings (at paragraph 176). In the Tribunal’s view, these paragraphs do not exclude the option for a respondent, in the particular circumstances of a given case, to present a motion challenging the adequacy and/or accuracy of Summaries before discoveries. In all situations, it will always remain the burden of the moving party to provide the required evidence to support, at the time of its motion, its allegations and the reliefs sought from the Tribunal;

THE TRIBUNAL DIRECTS AS FOLLOWS:

1. The Tribunal is satisfied that, in the circumstances of this case, VAA’s Summaries Motion can be considered by the Tribunal before discoveries are commenced, and VAA is therefore authorized to serve and file its Summaries Motion before discoveries.

2. The Tribunal is also satisfied that, in the circumstances, proceeding with VAA’s Summaries Motion before discoveries will not be prejudicial to the Commissioner and that considerations of fairness permit it.

3. At this stage, the Tribunal is not in a position to determine whether or not the remedies sought by VAA in its contemplated motion will require a review of the underlying documents forming the basis of the Summaries.

4. The Tribunal is therefore of the view that, in the circumstances, it is preferable that VAA’s Summaries Motion be heard by a judicial member not sitting on the panel that will eventually hear the Commissioner’s underlying application, in case deciding the motion or part of it might require the judicial member to review the underlying documents forming the basis of the Summaries. In addition, this approach may facilitate and allow the Tribunal to deal more expeditiously with subsequent steps in this proceeding if they are determined to be warranted or needed.

5. A non-sitting judicial member of the Tribunal is available to hear VAA’s Summaries Motion on May 23, 2017.

6. In order to proceed with a hearing of VAA’s Summaries Motion on May 23, 2017, VAA will have to promptly serve and file its motion materials.

7. The Tribunal realizes that proceeding with a hearing of VAA’s Summaries Motion on May 23, 2017 would require a shortening of the delays otherwise provided in the Rules. Counsel for the parties are strongly encouraged to agree on a compressed schedule for the service and filing of VAA’s notice of motion, of the Commissioner’s response and of the parties’ respective memorandum of facts and law, so that the motion can be heard on May 23, 2017. If the parties cannot agree on a compressed schedule to serve and file their respective pleadings and submissions in time for a hearing on May 23, 2017, they are to advise the Tribunal by the end of the day on May 10, with proposed alternative dates for the hearing of VAA’s Summaries Motion.

8. The Tribunal emphasizes that, by deciding to accept to hear VAA’s Summaries Motion before discoveries, the Tribunal should not be taken to have accepted the merits of VAA’s request regarding the inadequacy and/or inaccuracy of the Commissioner’s Summaries. This is a matter to be decided by the judicial member who will hear the motion. Similarly, the assignment of a non-sitting judicial member to preside over VAA’s Summaries Motion should not in any way be construed as an indication that the Tribunal is taking a position regarding the outcome of the motion or, more specifically, that a review of the underlying documents by a non-sitting judicial member is warranted.

Andrée Bernier

A/Deputy Registrar

Competition Tribunal

600-90 Sparks, Ottawa ON K1P 5B4

Tel.: 613-954-0857