IJ1rcct Dial. 5 14.847.48!>1 Direct Fax: 514.286.5474 clc febvrc(alog1 Iv yrcnau It.c om
SENT BY HAND Ottawa, May 21 , 2009 Honourable Justice Edmond Blanchard Competition Tribunal Thomas D'Arcy McGee Building #600-90 Sparks Street Ottawa, ON KIP 584
Dear Mr. Justice Blanchard: Re : Nadeau Poultry Farm Limited ("Nadeau'') v. Groupe Westco Inc. ("Wcstco") ct al. Tribunal File No. CT-2008-004 Nature of the Disclosure Required for Contempt Proceedings
Fut1her to the con ferencc call before Competition Tribunal on May 1 I , 2009 and the Tribunal 's Direction of the same date, these are the submissions of the Respondent Westco on the issue of the standard of disclosure applicable in contempt proceedings before the Tribunal. In the present case, proceedings have been brought by Nadeau pursuant to section 8 of the Competition 7'rihu11al Act (''CTA ") and Part 12 of the Federal Court:) Rules.
Summary of Wcstco's Position It is Westco's submission that in view of the criminal/quasi-criminal nature of contempt proceedings, full evidentiary disclosure is required of Nadeau's counsel. Westco does not bear a similar disclosure obligation. Nadeau's disclosure obligation would include not only documentary disclosure but also full witness statements for the witnesses Nadeau intends to call. If Nadeau intends to re-introduce documents that may have previously been produced during the Tribunal hearing, Nad~au woLJld, in Westco 's submission, be required to identify such d.ocuments.
As is the usual course, disclosure would have to be made by Nadeau before a date could be set for the hearing of the proceeding. The extent to which Westco will present evidence of its own will depend on the evidence adduced by Nadeau, bearing in mind that Nadeau bears the burden
OGILVY RENAULT LLP I S.E.N.C.R.L., s.r.l. Svite 1500 45 O'Connor Street Barristers & Solicitors Onawa, Ontario K1P 1A4 Patent & Trade-mark Agents CANADA Ottawa
T: 613. 780.865 1 ogllvyrenault.com F : 6 13. 230.5459 ottawa@ogllvyrenault.com Montr~al Quebec Toronto London
Page 2 or proving the alleged contempl beyond a reasonable doubt, and that the Tribunal must also be satisfied that a finding of contempt and punishment would be appropriate "in the circumstances" (CTA, section 8(3)).
Nature of Contempt Proceedings As confim1ed on several occasions by the Supreme Court of Canada, an allegation of contempt of court is criminal , or at least quasi-criminal, in nature. 1 Several procedural consequences flow from the quasi-criminal nature of such proceedings. Consistent with the procedure applicable in criminal proceedings, and as provided in the Federal Cour1s Rules, the constituent elements of the offence must be proven beyond a reasonable doubt. 2 As in criminal proceedings, the person alleged to be in contempt of court cannot be compelled to testify3 and has Lhe right to remain silent until such time as the moving party has discharged the onus of proof. 4 The Supreme Court or Canada has recently confirmed the criminal law application to such proceedings: In Canadian law, a contempt order is first and foremost a declaration that a party has acted in defiance of a court order. Consequently, a motion ror contempt of court cannot be reduced to a way to put pressure on a defaulting debtor or a means for an aggrieved party to seek indemnification. The gravity of a contempt order is underscored by the criminal law protections afforded to the person against whom such an order is sought. Not only is that person not compellable (Vidcotron, at p. I 078) but he or she is not competent to act as a witness for the prosecution: Canada Evidence Act, [citations omitted]. The significance or a contempt order is also evident from the sanction faced by the offender. In Canada, an individual in contempt of court can be committed to jail !citation omitted] or may face the imposition of any other sanction available for a criminal offence, such as a fine or community service [citation omittcdl. Thus, both the process used to issue a declaration of contempt and the sanction bear the imp1int of criminal law. 5 1 Bhat11agc!I" v. Canada (Minister of' Employment and Immigration), [1990] S.C.R. No. 62; Video1ron ltee v. Industries Micro/ec Produits Electroniques Inc., [1992) S.C.J. No. 79.
2 SOR/98-106, Rule 469. ' Federal Courts RulC!s, SOR/98-1 06, Rule 470(2). 4 Appl!' Cump1t1C!I'. Inc. v. Mockintosli Comp1m!1' Ltd , [1988] 17.C.J. No. 237 (FCA) [Apple Computer]. ' l 'l'O Swing Inc v. f.lta Golf Inc.:., 2006 SCC No. 52 a t para 35.
Page 3 Broad Obligation of Disclosure on Nadeau A further proccdurnl consequence necessarily flows from the quasi-criminal nature of contempt proceedings. Indeed, just as does the prosecution in a criminal case initiated pursuant to the Crirninal Code, the prosecuting party in contempt proceedings, in this case cow1sel for Nadeau, has the obligation to disclose all documents, evidence and infomrntion that has been brought to tits attention, whether inculpatory or exculplllOty, which may be relevant to the conduct of the defcnce. 6 In addition to documentary evidence, this obligation would notably include will-say statements of witnesses and notes taken during meetings with any potential witnesses. 7 The Supreme Court of Canada stated in R. v. Stinchcornbe: With respect lo what should be disclosed, the general principle to which 1 have refen-ed is that all relevant information must be disclosed subject to the reviewable discretion of the Crown. The material must include not only that which the Crown intends to introduce into evidence but also that which it docs not. No distinction should be made between inculpatory and exculpatory evidence. 8 (emphasis added) The prosecution's obligation of pre-trial disclosure rests primarily on an accused's right to make full answer and defence to the charge brought against it, which constitutes a pillar of the common law criminal justice system. 9 It is also a fundamental component of contempt proceedings. Indeed, speaking of contempt proceedings, Rouleau J. stated:
It cannot be argued that a contempt of court motion is an "ordinary" motion. Committal or substantial fines can be imposed -if a conviction results. Consequently, the courts have always insisted that a quasi-criminal procedure be strictly adhered to and that the accused be entitled to all the protections traditionally offered to a person charged with a criminal offence. 10 {)Merck & Co. Inc. v. Apotex Inc, [1997] F.C.S. No. 1458 lMerckl 7 R. v. Stinchcombe, l 1991 J S.C.J. No. 83, at para 33 [Srinchcombe]. ~ Srinchcumbe, supra. al para 29. <; S/ill(:/i cu111be, supra. at para 17. 10 Seleclirm Tes1i11g Consult a lions ln1emarional ltd. v. llumcmex l11r.ernalio.11al Inc., [ 1987] F.C.J. No. 146 at page 3 IS election Testing].
Page4 Consequently, as the Federal Court of' Appeal has stated: Whether contempt of Court proceedings are characteri7.ed as cnminnl or civil, the person charged shall always be entitled to the unassailable bastion of common law, that is the right to know the particulars of the accusation and the right to remain silent until the accusor has met and discharged the onus. 11 (emphasis added) These fundamental tenets or the common law, which also encompass pre-trial disclosure, are further protected by the Canadian Charter°[ Rights and Freedoms, in both sections 7 and 11 (d) depending on the identity of the "accused". 1 Although there exists relatively little jurisprudence on the specific issue of pre-trial disclosure in contempt proceedings, the application of the criminal standard of disclosure in such proceedings was indeed confinned by the Federal Court in Merck. 13 In that case, in the context of an application to quash several subpoenas duces recum served upon representatives or the moving party for a finding of contempt, Mackay J. addressed the nature of disclosure applicable to the proceedings before it. Over and above the inherent quasi-criminal nature of contempt, having regard in particular to tbe penalties assessable should contempt be found, Mackay .I. confirmed that the protections generally available to the accused in conventional criminal proceedings should be applicable, including disclosure. The broad pretrial disclosure obligation existing in conventional criminal proceedings, and described in Srinchcombe, was accordingly applied:
The principal production is by application of the principle of disclosure to en sun: that the alleged contcmners have lul I opportunity to answer and defend against the allegations which they are directed to answer. That applies t.!ven to documents which may otherwise be subject to solicitor/client privilege. 1 ~ 11 Apple Computer, ~·upru at para 13, citing Rouleau J. in Selection Testing, supra. 12 Canadian Charter of Rights and f reedoms, Constirution Act, 1982, Schedule B. to Canada Act 1982 (U .K .); R. v. Rosr. [ 1998) S.C.J. No. 8 1 at para . 47 (Reasons of Binnie J.) and 96 (Reasons of Cory, lucobucci and Bastarache J J. ).
11 Merck. supra. IJ Merck supra, al para 17.
Page 5 Mackay J. fu11hcr stated: ln these proceedings, [the] issues are defined primarily by the Order of Pinard J. dated April 27, 1995, and the matters arising from those tcnns. It is information concerning those issues that the principle of disclosure requires to be produced to permit full answer and defence by Apotex and Dr. Shcrman. 15 For illustrative purposes, on the specific facts of that case, Mackay J. concluded that those issues referred to above would primarily concern whether the alleged contemners bad knowledge of the prohibitions included in the judgment, whet.her they acted in contravention of those prohibitions and whether there were factors to be considered in determining any penalty, should contempt be found. 16 In addition to the general factors mentioned above by Mackay J. , the evidence disclosed in the motion seeking the show cause order may also be relevant in assessing relevance.
Merck remains the definitive precedent as regards the nature of disclosure in contempt of court proceedings before the Federal Court. Although the specific requirements stemmiJ1g from Stinchcombe may vary in certain circumstances, the right to make full answer and defence to allegations of contempt entails a broad obligation of disclosure upon the prosecuting party, as it constitutes one of the protections offered to the accused in conventional criminal cases. 17 As the Federal Court has confirmed, t.he specific obligations would depend on the facts of the case. 18 Disclosure in these Proceedings is not Complete In the present case, although counsel for Nadeau raised the possibility that there may, in fact, be no new infom1ation or documents to be disclosed, there remain areas in respect of which disclosure appears to be incomplete. In particular (but without limiting the breadth of the disclosure obligation upon Nadeau):
• Counsel to Nadeau has not provided full disclosure of all relevant documents for the purpose of the show cause hearing - either by way of a complete list of documents with copies of all documents (including the disclosure of any relevant documents that were not produced in the context of the motion for the show cause order) or otherwise.
15 Merck, supra, at para 12. 16 Merc:k, ~·upra . 11 Co11illl' v. Cwwcla (Minister of Ci1ize11sliip and lmm.igratiu11) , 2001 FCT 932, at paras 17 • 20. tH Conilh~. supr(I , al para 21.
Page 6 • Informalion on the deliveries of chicken from the Respondents to Nadeau is incomplete and it appears Nadeau has relied (for the number of chicken confinned as having been received from the Respondents) upon its analysis of chicken received once condemned birds have been removed from the count as opposed to the total quantity of chicken delivered by the Respondents.
• There is either no information or incomplete info1mation confirming that chicken sold to Nadeau by Westco, or indeed by the other Respondents, is calculated not in terms of numbers of birds but rather in weight of chicken. There is an absence of information as to the circumstances, if any, under which Westco, or the other Respondents, would have supplied a quantity, as opposed to a volume, of chicken to Nadeau.
• Incomplete information or documents have been provided to Westco by Nadeau showing Nadeau's role in the testing of the fast-feathered initiative undertaken by Westco and Nadeau's knowledge of Westco's move to larger size chicken.
• Incomplete correspondence or other documents have been provided to Westco by Nadeau which relate to either Nadeau's or Westco's understanding as to how compliance with the Tribunal ' s interim order was to be achieved and Nadeau's responses (either internal or external) to such correspondence and other documents have not been produced.
The fact that such documents and information would likely be exculpatory in nature (from West co' s perspective) does not remove either the relevance of such infonnation to the forthcoming proceeding or counsel to Nadeau's obligation to disclose such information as part of this proceeding and in advance of the commencement of the hearing.
Absence of Disclosure Obligation upon Westco Although Nadeau has a broad disclosure obligation in such proceedings, il is clear that Westco does not. It is important to point out that owing to the right of the person alleged to be in contempt to remain silent, and its right to make full answer and defence, no reciprocal obligation of disclosure exists. Wcstco is entitled to know the full case it has to meet before it decides to present evidence, if any, in its defcncc. 19 Nor does Westco have an obligation to communicate any documents whatsoever to Nadeau prior to the hearing.
l'I 11pp/C! (°(i //lj}llfl!I', fllC., .\'l/fJ/'Cl.
Page 7 Impossibility of Setting Timetable prior to Disclosure by Nadeau Finally, given Wcstco's right to know the full case it has to meet before deciding what evidence to present in its defence, if any, it would, in Westco 's view, be premature at this stage to attempt Lo set a date for trial or, a fortiori, to set a timetable leading up to that hearing. Once disclos11..1re by Nadeau has been made, Westco will be in a better position to detem1ine the time needed to assess the adequacy of such disclosure and the hearing time needed for this proceeding.
Conclusion In light of the quasi-criminal nature of the contempt proceedings and Westco's unassailable right to make full answer and defence to the allegations brought against it, Westco submits that an obligation of full pre-trial disclosure based on the criminal standard lies upon Nadeau. In the instant case, just as in Merck. this standard should be equivalent to that set out by the Supreme Court of Canada in Stinchombe and adapted as necessary. Westco further submits that at this stage, without the benefit of pre-trial disclosure by counsel to Nadeau (both on documents and witness aspects), it would be prematw-e to attempt to set a date for the hearing of this proceeding.
Westco requests that a date be set by which disclosure must be completed. Westco further requests that a date for a case-management conference be set four (4) weeks following the date of completed disclosure by Nadeau, at which time a hearing date would be set along with a timclinc for pre-hearing procedures. Finally, and consistent with the jurisprudence of the Supreme Court of Canada, Westco requests that counsel to Nadeau be ordered to provide full disclosure of a ll relevant documents relating to the proceedings - whether inculpatory or exculpatory - and including witness statements, to Westco.
ALL OF WHICH IS RESPECTFULLY SUBMITTED Yours very truly,
OGILVY RENAULT LLP c.c. Leah Price, Fogler Rubinof]LLP Olivier Tousignant, Joli-Coeur, Lacasse, Geo./J'rion, Jette, St-Pierre Valerie Belle-Isle, Lave1y De Billy