Case Documents

Reference: The Commissioner of Competition v. CCS Corporation et al., 2011 Comp. Trib. 5

File No.: CT-2011-002

Registry Document No.: 44

IN THE MATTER OF the Competition Act, R.S.C 1985, c. C-34, as amended;

AND IN THE MATTER OF an Application by the Commissioner of Competition for an Order pursuant to section 92 of the Competition Act;

AND IN THE MATTER OF the acquisition by CCS Corporation of Complete Environmental Inc.

BETWEEN: The Commissioner of Competition (applicant) and CCS Corporation, Complete Environmental Inc., Babkirk Land Services Inc., Karen Louise Baker, Ronald John Baker, Kenneth Scott Watson, Randy John Wolsey, and Thomas Craig Wolsey (respondents)

Decided on the basis of the written record.

Before Judicial Member: Simpson J. (Chairperson)

Date of Order: July 5, 2011

Order signed by: Madam Justice Sandra J. Simpson

CONFIDENTIALITY (PROTECTIVE) ORDER

[1]  FURTHER to the motion, on consent, by the Commissioner of Competition (the “Commissioner”) for a confidentiality (protective) order;

[2]  AND FURTHER to the draft confidentiality (protective) order filed on consent by the Commissioner, CCS Corporation, Complete Environmental Inc., Babkirk Land Services Inc., Karen Louise Baker, Ronald John Baker, Kenneth Scott Watson, Randy John Wolsey, and Thomas Craig Wolsey;

THE TRIBUNAL ORDERS THAT:

[3]  For the purposes of this Order:

1. “Commissioner” means the Commissioner of Competition appointed pursuant to section 7 of the Act or any person designated by the Commissioner to act on her behalf;

2. "Commissioner's Confidential Documents" shall mean the Commissioner's Documents designated by the Commissioner as "Confidential-Level A" or "Confidential-Level B", to denote the parties who are permitted access to those documents. For greater certainty, only the Commissioner may assert a confidentiality claim over the Commissioner’s Documents;

3. "Commissioner's Documents" shall mean those documents originating with or from the Commissioner that are listed in the Commissioner's Affidavit of Documents, documents that have been or may otherwise be filed or produced in this Application or on any related motions by the Commissioner, other than any of the Respondents' Documents;

4. "Corporate Respondents" shall mean CCS Corporation, Complete Environmental Inc., and Babkirk Land Services Inc. and "Corporate Respondent" shall mean any or either of them;

5. "Corporate Respondents' Confidential Documents" shall mean those Documents designated by the Corporate Respondents as "Confidential-Level A" or "Confidential-Level B", to denote the parties who are permitted access to those documents. For greater certainty, only the Corporate Respondents may assert a confidentiality claim over their respective Corporate Respondents' Documents;

6. "Corporate Respondents' Documents" shall mean those documents originating with or from the Corporate Respondents, documents listed in the Corporate Respondents' Affidavit of Documents, documents that have been or may otherwise be filed or produced in this Application or on any related motions by the Corporate Respondents, other than any of the Commissioner's Documents or Vendor Respondents’ Documents;

7. "Designated Representatives" shall mean those persons designated by any of the Respondents in accordance with paragraph 13 below;

8. "Expert" shall mean an expert retained by a Party.

9. "Party" shall mean the Commissioner or any of the Respondents and "Parties" shall mean both the Commissioner and the Respondents;

10. "Protected Documents" means, collectively and individually, the Commissioner's Confidential Documents, Corporate Respondents' Confidential Documents, Vendor Respondents’ Confidential Documents. For greater certainty, "Protected Documents" includes the information contained in those documents;

11. "Respondents" shall mean the Corporate Respondents and Vendor Respondents and "Respondent" shall mean any or either of them;

12. "Respondents’ Documents" shall mean the Corporate Respondents’ Documents and the Vendor Respondents’ Documents;

13. “Vendor Respondents” shall mean Karen Louise Baker, Ronald John Baker, Kenneth Scott Watson, Randy John Wolsey, and Thomas Craig Wolsey and “Vendor Respondent” shall mean any or either of them;

14. "Vendor Respondents' Confidential Documents" shall mean those Documents designated by the Vendor Respondents as "Confidential-Level A" or "Confidential-Level B", to denote the parties who are permitted access to those documents. For greater certainty, only the Vendor Respondents may assert a confidentiality claim over their respective Vendor Respondents' Documents;

15. "Vendor Respondents' Documents" shall mean those documents originating with or from the Vendor Respondents, documents listed in the Vendor Respondents' Affidavit of Documents, documents that have been or may otherwise be filed or produced in this Application or on any related motions by the Vendor Respondents, other than any of the Commissioner's Documents or Corporate Respondents’ Documents.

[4]  This Order shall apply to all persons, to the extent that they acquire access to Protected Documents through the proceedings in this Application, provided that information that is acquired independently of the proceedings in this Application and information that is or becomes available in the public domain (other than inadvertently or through any breach of this Order) shall not be considered confidential under this Order.

[5]  No Protected Document shall be disclosed, except with the prior written consent of the Party that claimed confidentiality over the Protected Document or in accordance with this Order or further order of the Tribunal.

[6]  This Order shall not apply to any copies, whether in paper or electronic format, of any Protected Documents that came into the possession of a Party independent of and prior to the disclosure procedure in this Application.

[7]  Confidential-Level A Documents may be disclosed only in accordance with paragraph 12 below. Confidential-Level B Documents may be disclosed only in accordance with paragraphs 14 and 15 below.

[8]  Confidential-Level A Protected Documents shall be clearly marked "Confidential-Level A" on the face of the document and on each page that is claimed as confidential. Confidential- Level B Protected Documents shall be clearly marked "Confidential–Level B" on the face of the document and on each page that is claimed as confidential. Inadvertent failure to assert a confidentiality status when producing a document or to mark a document or other materials in accordance with this paragraph does not constitute a waiver of the effect of this Order, but a Party claiming confidentiality shall remedy any such inadvertent failure as soon as it comes to that Party’s attention.

[9]  The Parties shall use their best efforts to resolve any issues that may arise between them concerning a claim of confidentiality or appropriate level of confidentiality for the Protected Documents. In the event of a disagreement regarding the confidentiality or appropriate confidentiality designation for any document, the document in issue shall be deemed to be Confidential-Level A pending the resolution of that disagreement. If agreement cannot be reached, any of the Parties may apply to the Tribunal to determine the confidentiality or appropriate level of confidentiality of any document.

[10]  A Party may, at any time and with prior reasonable notice to the other Parties, change the confidentiality designations of any of its Protected Documents or re-designate any of its Protected Documents as non-confidential. Documents re-designated as non-confidential shall cease to be confidential and shall form part of the public record if introduced into evidence at the hearing of this Application, unless the Parties agree otherwise or the Tribunal orders otherwise.

[11]  Nothing in this Order prevents or affects the ability of a Party from applying to the Tribunal for further order or directions with respect to the use or disclosure of documents or information produced by another Party.

[12]  Protected Documents designated as Confidential-Level A may be disclosed only to the Commissioner, counsel for the Commissioner, counsel's staff and Commissioner’s staff involved in the Application, outside counsel for the Respondents involved in the Application, counsel's staff directly involved in the Application, third party litigation support vendors (“Litigation Support Vendors”) retained by any of the Parties and, where disclosure is required to carry out their mandate, the Experts retained by the Parties and the staff of the Experts directly involved in the Application.

[13]  Protected Documents designated as Confidential-Level B may be disclosed only to the persons identified in paragraph 12 above, and paragraphs 14 and 15 below.

[14]  The Corporate Respondents may designate up to three representatives (the "Corporate Designated Representatives") who will be permitted to access those documents designated as Confidential-Level B within the Commissioner’s Confidential Documents and Vendor Respondents’ Confidential Documents. The designation of the Corporate Designated Representatives shall be made by written notice to the Tribunal, with a copy sent simultaneously to all Parties.

[15]  The Vendor Respondents may designate up to two representatives (the "Vendors’ Designated Representatives") who will be permitted to access those documents designated as Confidential-Level B within the Commissioner’s Confidential Documents and Corporate Respondents’ Confidential Documents. The designation of the Vendors’ Designated Representatives shall be made by written notice to the Tribunal, with a copy sent simultaneously to all Parties.

[16]  Nothing in this Order shall affect the Parties’ implied undertaking, and nothing in the implied undertaking shall affect this Order, provided however that if there is any conflict or inconsistency between the terms of this Order and the implied undertaking, then it shall be the terms of this Order and not the implied undertaking, that shall apply in respect of such conflict or inconsistency.

[17]  Nothing in this Order prevents the Commissioner from disclosing the Commissioner's Confidential Documents to any person for the purpose of preparing for the hearing of this Application. However, this Order does not relieve the Commissioner of any other obligations she may have in respect of such documents, including the limits prescribed in section 29 of the Competition Act.

[18]  Nothing in this Order shall in any way restrict the use (including without limitation, the disclosure) by a Respondent of any of that Respondent’s Protected Documents.

[19]  Experts, Litigation Support Vendors, and Designated Representatives shall not copy or disclose Protected Documents directly or indirectly to any other person, except for their staff directly involved in the application and persons permitted to receive such Protected Documents in accordance with this Order or any other order of the Tribunal.

[20]  Prior to gaining access to Protected Documents, each Expert, Litigation Support Vendor, Designated Representative and court reporter attending a pre-hearing examination for this Application, shall execute a confidentiality agreement in the form attached as Schedule A to this Order ("Confidentiality Agreement").

[21]  A Party, a Designated Representative, a Litigation Support Vendor or an Expert who is required by law to disclose any Protected Document, or any portion thereof, shall, prior to disclosing any Protected Document, give prompt written notice, including a description of the Protected Document(s) to be disclosed, to the Party that claimed confidentiality in respect of the Protected Document(s) in issue so that the latter Party, as the case may be, has a reasonable opportunity to seek a protective order or other appropriate remedy.

[22]  Subject to a further agreement of the Parties or order of the Tribunal, documents over which no privilege or confidentiality claim has been asserted shall form part of the public record in this proceeding if introduced into evidence at the hearing of this Application or otherwise placed on the record.

[23]  The confidentiality of Protected Documents shall be maintained up to and throughout the hearing of the Application and thereafter. Protected Documents shall not form part of the public record in the Application or other proceeding, unless the Parties agree otherwise or the Tribunal orders otherwise after hearing the submissions of the Parties. If information from a Protected Document is incorporated into any other document and that document is introduced into evidence at the hearing of this Application or other proceeding, the document shall be a Protected Document having the same level of confidentiality as the level applicable to the Protected Document from which the information came.

[24]  The termination of proceedings in this Application shall not relieve any person to whom Protected Documents were disclosed pursuant to this Order from the obligation of maintaining the confidentiality of such documents in accordance with the provisions of this Order, subject to any further order of the Tribunal.

[25]  The Parties shall bear their own costs associated with the request for and issuance of this Order.

[26]  The Tribunal shall retain jurisdiction to deal with any issues relating to this Order, including, without limitation, the enforcement of this Order and any undertakings executed pursuant to this Order. This Order shall be subject to further direction or order of the Tribunal, including in relation to the use of Protected Documents at the hearing of the Application. Each Party shall have liberty to apply to vary this Order.

DATED at Ottawa, this 5th day of July, 2011.

SIGNED on behalf of the Tribunal by the Chairperson.

(s) Sandra J. Simpson

[27]  Schedule "A": Confidentiality Agreement

IN CONSIDERATION of being provided with information or documentation in connection with this Application over which claims for confidentiality have been advanced (the "Confidential Information"), I _______________________________, of the City of ___________________, in the Province/State of ___________________, hereby agree to maintain the confidentiality of the Confidential Information so obtained.

I will not copy or disclose the Confidential Information so obtained to any other person, except (a) my staff who are directly involved in this matter; (b) counsel for the party on whose behalf I have been retained, members of his firm who are directly involved in this Application and, in the case of the Commissioner, the Commissioner's staff involved in the Application; (c) other experts retained by or on behalf of the Party on whose behalf I have been retained and who have signed a similar confidentiality agreement with the Parties to this Application; and (d) persons permitted by order of the Competition Tribunal. Nor will I use the Confidential Information so obtained for any purpose other than in connection with this Application and any related appeals.

Upon completion of this Application and any related appeals, I agree that the Confidential Information, and any copies of same, shall be dealt with in accordance with instructions from counsel for the Party I am retained by or as prescribed by the Order of the Competition Tribunal.

I acknowledge that I am aware of the Order granted by the Competition Tribunal on ______________, in this regard, a copy of which is attached to this agreement and agree to be bound by same. I acknowledge that any breach of this agreement by me will be considered to be a breach of the said Order of the Competition Tribunal. I further acknowledge and agree that any Party shall be entitled to injunctive relief to prevent breaches of this agreement and to specifically enforce the terms and provisions hereof, in addition to any other remedy to which they may be entitled in law or in equity.

In the event that I am required by law to disclose any of the Confidential Information, I will provide the Commissioner, CCS Corporation, Complete Environmental Inc., Babkirk Land Services Inc., Karen Louise Baker, Ronald John Baker, Kenneth Scott Watson, Randy John Wolsey, and Thomas Craig Wolsey with prompt written notice so that the Party that claimed confidentiality over such Confidential Information may seek a protective order or other appropriate remedy. In any event, I will furnish only that portion of the Confidential Information that is legally required and I will exercise my best efforts to obtain reliable assurances that confidential treatment will be accorded to the Confidential Information.

I will promptly, upon the request of the person providing the Confidential Information, advise where such material is kept. At the conclusion of my involvement, I will, upon the request and direction of the person providing the Confidential Information, destroy, return or otherwise dispose of all Confidential Information received or made by me having been duly authorized and directed to do so.

I hereby attorn to the jurisdiction of the Competition Tribunal to resolve any disputes arising under this agreement.

DATED this _____ day of __________________, 2011.

SIGNED, SEALED & DELIVERED in the presence of:		(seal)
Witness		Name

COUNSEL:

For the applicant:

The Commissioner of Competition

Nikiforos Iatrou Jonathan Hood

For the respondents:

CCS Corporation, Complete Environmental Inc. and Babkirk Land Services Inc.

Linda M. Plumpton R. Jay Holsten

Karen Louise Baker, Ronald John Baker, Kenneth Scott Watson, Randy John Wolsey and Thomas Craig Wolsey

J. Kevin Wright Jonathan Gilhen