Competition Tribunal Tribunal de la Concurrence Reference: Commissioner of Competition v. Saskatchewan Wheat Pool Inc., 2006 Comp.13 File No.: CT2005009 Registry Document No.: 0049
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 a joint venture between Saskatchewan Wheat Pool Inc. and James Richardson International Limited in respect of port terminal grain handling in the Port of Vancouver.
B E T W E E N : Commissioner of Competition (applicant)
and Saskatchewan Wheat Pool Inc. James Richardson International Limited 6362681 Canada Ltd. and 6362699 Canada Ltd. (respondents)
and Canadian Pacific Railway Company Canadian National Railway Company Canadian Wheat Board and Vancouver Port Authority (intervenors)
Decided on the basis of the written record Presiding Judicial Member: Simpson J. (Chairperson) Date of Order: February 24, 2006 Order signed by: Madam Justice S. Simpson
INTERIM CONFIDENTIALITY ORDER – ON CONSENT OF THE PARTIES
[1] FURTHER TO the motion by the Commissioner of Competition (the “Commissioner”) for an interim confidentiality order;
[2] AND FURTHER TO the draft interim confidentiality order filed on consent by the Parties;
THE TRIBUNAL ORDERS THAT: [3] For the purposes of this Order: (a) “Respondents” shall mean Saskatchewan Wheat Pool Inc., James Richardson International Limited, 6362681 Canada Ltd., 6362699 Canada Ltd. and their respective affiliates and predecessors and “Respondent” shall mean any of them.
(b) “Commissioner’s Documents” shall mean those documents originating with the Commissioner, documents listed in the Commissioner’s Affidavit of Documents, documents that may be otherwise filed or produced by the Commissioner in this Application or on any related motions, other than any of the Respondents’ Documents.
(c) “Commissioner’s Confidential Documents” shall mean the Commissioner’s Documents designated by the Commissioner as confidential. The Commissioner’s Confidential documents shall be designated as Level A or Level B confidential, to denote the persons who are permitted access to those documents. The Commissioner’s Confidential Documents which are designated as Level A confidential may be disclosed by the Respondents only in accordance with paragraph 16 below. The Commissioner’s Confidential Documents which are designated as Level B confidential may be disclosed by the Respondents only in accordance with paragraph 17 below. For greater certainty, only the Commissioner may assert a confidentiality claim over the Commissioner’s Documents.
(d) “Respondents’ Documents” shall mean those documents originating with the Respondent, documents listed in the Respondents’ Affidavit of Documents, documents that may be otherwise filed or produced by the Respondents in this Application or on any related motions, other than any of the Commissioner’s Documents.
(e) “Respondents’ Confidential Documents” shall mean those Respondents’ Documents designated as confidential by the Respondents. The Respondents’ Confidential Documents shall be designated as Level A confidential or Level B confidential, to denote the persons who are permitted access to those documents. The Respondents’ Confidential Documents may be disclosed by the Commissioner only in accordance with paragraph 13 below. For greater certainty, only the Respondents may assert a confidentiality claim over the Respondents’ Documents.
(f) The Commissioner’s Confidential Documents and the Respondents’ Confidential Documents are collectively referred to as the “Protected Documents”. For greater certainty, “Protected Documents” includes the information contained in those documents.
(g) “Parties” shall mean the Commissioner and the Respondents, and “Party” shall mean the Commissioner or any of the Respondents.
(h) “Independent Expert” shall mean an expert retained by a Party who (i) is not a current employee of the Respondents or their affiliates, (ii) has not been an employee of any of the Respondents or their affiliates within 5 years prior to the date of this Order, and (iii) is not a current employee of a competitor or customer of any of the Respondents or their affiliates.
(i) “Designated Representatives” shall mean those persons designated by any of the Respondents in accordance with paragraph 12 below.
[4] This Order shall apply to all persons, to the extent that they acquire access to Protected Documents in this application.
[5] Disclosure of documents containing any of the following type of information could cause specific and direct harm:
(a) Information relating to negotiations with customers on prices, rates and incentives;
(b) Private contractual arrangements between customers and the Respondents, Intervenors or third parties;
(c) Operational information; (d) Financial reports; (e) Budgets; (f) Strategic plans; (g) Internal market studies and analyses; (h) Records of negotiations between the Respondents; (i) Other documents containing competitively sensitive and/or proprietary information of the Respondents, Intervenors or third parties; and
(j) Documents provided to the Commissioner in the course of her inquiry on a confidential basis.
[6] 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 any further Order of the Tribunal.
[7] If requested by the other Party, a Party shall provide a copy of the Protected Documents listed in its affidavit of documents or otherwise produced by it in this application to external counsel for the Respondents or counsel to the Commissioner, as the case may be. Counsel for the Parties may make such copies of the Protected Documents as they require to prepare for and conduct the hearing of this application, but cannot disclose Protected Documents except in accordance with this Order.
[8] Within 14 days of service of their respective affidavits of documents, the Commissioner and Respondents shall provide written notice to the other Parties identifying the Confidential Documents and, with respect to each document, whether Level A or Level B confidentiality is claimed.
[9] As preparation for the hearing of this application proceeds, the Parties shall use their best efforts to resolve any issues that may arise between them concerning a claim of confidentiality or the appropriate level of confidentiality for the Protected Documents. If agreement cannot be reached, either Party may apply to the Tribunal to determine the confidentiality or level of confidentiality of any Protected Document.
[10] A Party may, at any time and with prior reasonable notice to the other Party, redesignate its Protected Documents as non-confidential or from Level A to Level B confidentiality. Documents redesignated as non-confidential shall then cease to be confidential and shall form part of the public record if introduced into evidence at the hearing of the application, unless the Parties agree otherwise or the Tribunal orders otherwise.
[11] In the event that it proves necessary, a pre-hearing conference shall be held (on a date to be fixed by the Tribunal), to deal with any unresolved issues of confidentiality concerning any Protected Documents likely to be adduced into evidence at the hearing of this application.
[12] The Respondents may each designate three individuals as their respective representatives (the “Designated Representatives”) who will be permitted access to documents designated by the Commissioner as Level B Protected Documents in accordance with the terms of this Order. Such designation shall be made by written notice to the Tribunal, with a copy sent concomitantly to the Commissioner.
[13] Counsel for the Commissioner may disclose the Respondents’ Confidential Documents designated by the Respondents as Level A Protected Documents only to counsel for the Commissioner’s staff directly involved in the application, the Commissioner, the Commissioner’s staff directly involved in the application and, the Commissioner’s Independent Experts.
[14] Counsel for the Commissioner may disclose the Respondents’ Level B Confidential Documents only to the persons identified in paragraph 13.
[15] Subject to paragraph 29 below, the Respondents are permitted to disclose any of the Respondents’ Confidential Documents to any person in the ordinary course of their businesses or for the purpose of preparing for the hearing of this application.
[16] Counsel for the Respondents may disclose the Commissioner’s Confidential Documents designated by the Commissioner as Level A Protected Documents only to outside counsel and their staff who are directly involved in the application and Independent Experts.
[17] Counsel for the Respondents may disclose the Commissioner’s Confidential Documents designated as Level B Protected Documents only to those entitled to view Level A Confidential Documents (as identified in paragraph 16), their Designated Representatives (as identified in paragraph 12) and internal legal counsel of the Respondents.
[18] Level A Protected Documents shall be clearly marked “CONFIDENTIAL - Level A” on the face of the document and on each page which is claimed as confidential. Level B Protected Documents shall be clearly marked “CONFIDENTIAL - Level B” on the face of the document and on each page which is claimed as confidential.
[19] Notwithstanding any provision of this Order, the Commissioner is permitted to disclose the Commissioner’s Confidential Documents to any person for the purpose of preparing for the hearing of this Application, subject to the limits prescribed in section 29 of the Competition Act.
[20] Independent Experts and Designated Representatives shall not copy or disclose Protected Documents directly or indirectly to any other person, except for persons permitted to receive such Protected Documents in accordance with this Order or any other Order of the Tribunal.
[21] Prior to gaining access to Protected Documents, Independent Experts and Designated Representatives shall execute a confidentiality agreement in the form attached as Schedule A (“Confidentiality Agreement”). A Confidentiality Agreement signed pursuant to this Order shall be filed promptly with the Registrar of the Tribunal who shall retain all such agreements in confidence until completion or final disposition of this application and any related appeals, at which time the Confidentiality Agreements may be disclosed to the Parties upon request.
[22] If a Party is required by law to disclose a Protected Document provided by the other Party, or if a Party receives written notice from a person who has signed a Confidentiality Agreement pursuant to this Order that they are required by law to disclose a Protected Document provided by the other Party, that Party shall give prompt written notice to the other Parties so that the Parties may seek a protective order or other appropriate remedy.
[23] For greater certainty, all persons, including the Commissioner and his staff, who obtain access to documents, including Protected Documents, through the discovery process in this application are subject to an implied undertaking to use any of the Respondents’ Confidential Documents and information contained therein, solely for the purposes of this application and any related appeals.
[24] 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. Public documents which form part of the public record in this proceeding shall be marked “Public” on the face of the document.
[25] 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 if introduced into evidence at the hearing of this application, unless the Parties agree otherwise or the Tribunal orders otherwise after hearing the submissions of the Parties.
[26] The Commissioner shall not file on the public record any documents which are based on or incorporate the Respondents’ Confidential Documents or other confidential information provided to the Commissioner by the Respondents without first providing reasonable written notice to the Respondents, including a description of the confidential information to be disclosed, so as to provide the Respondents with a reasonable opportunity to seek a protective order or other appropriate remedy from the Tribunal.
[27] The Respondents shall not file on the public record any documents which are based on or incorporate the Commissioner’s Confidential Documents or other confidential information provided to the Respondents by the Commissioner without first providing reasonable written notice to the Commissioner, including a description of the confidential information to be disclosed, so as to provide the Commissioner with a reasonable opportunity to seek a protective order or other appropriate remedy from the Tribunal.
[28] Subject to paragraph 29 below, all documents produced by a Party during the course of discovery shall be deemed authentic with respect to such aspects of authorship, execution, copies, sending, service or delivery as they appear on the face of the document.
[29] At the hearing of the application, a Party may challenge the authenticity of a document in respect of any of the aspects referred to in paragraph 28 above, as long as notice of such challenge is provided to the other Party no later than 10 days prior to the commencement of the hearing of the application. The Party so challenging shall have the burden of proof.
[30] This Order does not determine the admissibility of any documents as evidence at the hearing of the application.
[31] In the event that any of the Respondents are precluded by an agreement between the Respondents and the Commissioner or an Order of the Tribunal from disclosing any particular information, including any documents, reports or other materials, to the other Respondents or any of the Respondents determines that it is not prepared to disclose to the other Respondents any particular information, unless additional restrictions are attached to its disclosure, the Respondents may require that certain information be disclosed only to Counsel for a Respondent, the Independent Experts or certain individuals employed by a Respondent. The Respondents on their own behalf hereby waive any rights they may have to receive documents or other information provided directly or indirectly to Counsel by another Party that is subject to a
restriction on disclosure and hereby instruct their Counsel not to disclose to them information or other documents pertaining to another Party so obtained. Information supplied only between Counsel in this manner shall be clearly identified as “for external counsel only”. The Parties acknowledge and agree that they shall not be entitled to access any information identified in this manner.
[32] 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 information in accordance with the provisions of this Order, any further Order of the Tribunal or any Confidentiality Agreement.
[33] 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.
DATED at Ottawa, this 24 th day of February, 2006. SIGNED on behalf of the Tribunal by the Chairperson. (s) Sandra J. Simpson
SCHEDULE A IN CONSIDERATION of being provided with the Commissioner’s Confidential Documents and the Respondents’ Confidential Documents, collectively referred to as the “Protected Documents” and which includes the information contained in those documents, I _______________________ ________________________of the City of , in the Province or State of __________________ hereby agree to maintain the confidentiality of the Protected Documents so obtained. I will not copy or disclose the Protected Documents 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 and members of his firm who are directly involved in this 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 Protected Documents 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 Protected Documents, 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 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 the Commissioner of Competition (the “Commissioner”), Saskatchewan Wheat Pool Inc., James Richardson International Limited, 6362681 Canada Ltd., 6362699 Canada Ltd. and their respective affiliates 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 Protected Documents, I will provide [insert name of retaining or employing party] with prompt written notice so that the person that claimed confidentiality over such Protected Documents may seek a protective order or other appropriate remedy. In any event, I will furnish only that portion of the Protected Documents that is legally required and I will exercise my best efforts to obtain reliable assurance that confidential treatment will be accorded to the Protected Documents.
I will promptly, upon the request of the person providing the Protected Documents, advise where such material is kept. At the conclusion of my involvement, I will promptly, upon the request of the person providing the Protected Documents, 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 and copies thereof received or made by me having been duly authorized and directed to do so.
I hereby attorn to the jurisdiction of the Federal Court of Canada and/or the Competition Tribunal to resolve any disputes arising under this agreement.
SIGNED, SEALED AND DELIVERED before a witness this day of 2006.
(Witness Signature) (Print name) _____ day of_________
(Signature) (Print Name)
COUNSEL: For the applicant: Commissioner of Competition André Brantz Jonathan Chaplan Valérie Chénard
For the respondents: Saskatchewan Wheat Pool Inc. 6362681 Canada Ltd. and 6362699 Canada Ltd.
Peter Bergbusch James Richardson International Limited Adam F. Fanaki Robert Russell