since Bank of Montreal Building Offices in Regina and Saskatoon 1895 700 - 2103 11th Avenue Regina, SK Canada S4P 4G 1 Balfour Moss Business: (306) 347-8300 LLP Facsimile: (306) 347-8350 BARRISTERS & Website: www.balfourmoss.com SOLICITORS April 5, 2007 VIA EMAIL Registrar-Competition Tribunal Thomas D'Arcy McGee Building 90 Sparks Street, Suite 600 Ottawa, ON K1 P 584
Dear Sir/Madam: Re: The Commissioner of Competition v. Saskatchewan Wheat Pool Inc. and James Richardson International Limited et al., CT-2005-009 Our file: 626.21-685 PTB
We are legal counsel for Saskatchewan Wheat Pool Inc. ("SWP"), 6362681 Canada Ltd. and 6362699 Canada Ltd.
We have had an opportunity to review the draft schedule proposed by counsel for James Richardson International Limited ("JRI"), as well as several draft schedules proposed by counsel for the Commissioner.
We substantially agree with the schedule proposed by JRl's counsel. In our submission, the schedule proposed by the Commissioner is unrealistic and incomplete. The Commissioner's schedule does not, in our view, provide adequate time for further disclosure and production of documents. Counsel for JRI refers to additional documents in the possession of the Commissioner related to her inquiry into the ____t akeover _proposals by SWP and JRI, respectively, for Agricore United, as well as records concerning the outstanding divestiture by Agricore United of a terminal in Vancouver. As this divestiture will affect the analysis of the impact of the joint venture on competition, particularly if the Commissioner's market definition is accepted, it is essential that counsel for the Respondents have an opportunity to review this information. We do not know whether the Commissioner agrees that all of this material must be produced; if not, the schedule must allow for motions to compel production. Even if the Commissioner agrees to produce these documents, counsel for the Respondents must have a reasonable opportunity to review them before the commencement of oral discoveries.
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-2-Another category of records that must also be disclosed relates to the joint venture operations. Continued operation of the joint venture since the schedule was suspended in this matter means that relevant records exist that are not currently part of the parties' disclosure. These records must be compiled by the clients, reviewed by counsel, listed, scanned electronically, and produced to other counsel before the oral discov.eries.
We submit that the length of time proposed by counsel for the Commissioner for completion of document production is insufficient.
The schedule proposed by the Commissioner is also very compressed in the fall of 2007. Given the uncertain status of (1) AU's sale of one of the Vancouver terminals, (2) SWP's takeover bid, (3) JRl's takeover bid; and (4) the Canadian Wheat Board's monopoly over the sale of barley, it is very likely that additional examinations for discovery will be required on a number of issues prior to the hearing. The schedule does not leave any room for such further examinations. [Of course, if some events come to pass - if, for example, SWP's takeover bid is successful - this proceeding may become moot.] We are doubtful that the schedule proposed by the Commissioner can be met, even with the parties' best efforts.
We would be pleased to address these matters further at a conference call with the Tribunal if required.
Yours truly, BALFOUR MOSS LLP
Peter T. Bergbusch Direct Line: (306) 347-8328 Direct Fax: (306) 347-8351 Internet Address: peter.bergbusch@balfaunnoss.com PTB/