Competition Tribunal Tribunal de la Concurrence Reference: Canadian Waste Services Holdings v. Commissioner of Competition, 2003 Comp. Trib. 17 File no.: CT2003005 Registry document no.: 0028
IN THE MATTER of the Competition Act, R.S.C. 1985, c. C-34; AND IN THE MATTER of an application by Canadian Waste Services Holdings Inc., Canadian Waste Services Inc. and Waste Management, Inc. under section 106 of the Competition Act;
AND IN THE MATTER of the acquisition by Canadian Waste Services Inc. of the Ridge Landfill in Blenheim, Ontario, from Browning-Ferris Industries Ltd.
B E T W E E N: Canadian Waste Services Holdings Inc. Canadian Waste Services Inc. Waste Management, Inc. (applicants)
and The Commissioner of Competition (respondent)
and The Corporation of the Municipality of Chatham-Kent (intervenor)
Date of teleconference: 20030909 Member: Simpson J. (Chairperson) Date of Order: 20030910 Order signed by: Madame Justice Sandra J. Simpson
ORDER REGARDING THE COMMISSIONER’S APPLICATION FOR THE PRODUCTION OF INFORMATION BY THE APPLICANTS
ORDER [1] UPON the Commissioner of Competition’s (the “Commissioner”) application for production of the following material:
(i) all strategy or decision documents relating to the current applications to expand the Warwick and Richmond landfills (including the EA and EPA processes) (the “Expansions”);
(ii) all minutes of meetings, notes, memoranda, correspondence, etc., which relate to the Expansions and the completed expansion at the Petrolia landfill in the custody of the applicants and the managers of the three projects; and
(iii) if CWS has considered or taken steps toward acquisition or expansion of any other landfills in Ontario since July 1, 2000, all documents relating to such acquisitions or expansions;
[2] AND UPON reviewing the material filed and hearing the submissions of counsel for the Commissioner and for the applicants by teleconference on September 9, 2003;
[3] AND UPON determining that, on an application pursuant to paragraph 106(l)(a) of the Competition Act, R.S.C. 1985, c. C-34, it is relevant for the Competition Tribunal (the “Tribunal”) to be able to distinguish between facts which have arisen since the original order was made and facts which were known or ought to have been known at the time the original order was made;
[4] AND UPON relying for this view on the Tribunal’s decision in Southam Inc. et al v. Canada (Director of Investigation and Research), 78 C.P.R. (3d) 341, [1998] C.C.T.D. No. 1 (QL) where the Tribunal said:
. . . . if it can be demonstrated that an applicant under paragraph 106(a) held back evidence or failed to advance a particular argument or that facts existed prior to the original decision that the applicant now attempts to introduce under the guise of changed circumstances, the doctrine of res judicata would operate to preclude such introduction. However, where matters arise subsequent to the making of the original order, the doctrine of res judicata does not preclude them from being the basis of an application under paragraph 106(a). That is the purpose of paragraph 106(a).
NOW THEREFORE THIS TRIBUNAL ORDERS THAT: [5] CWS is to produce the following material: (i) all strategy or decision documents prepared since January 1, 1998, which have not already been produced and which relate to the current applications to expand Warwick and Richmond (including the EA and EPA processes);
(ii) all minutes of meetings, notes, memoranda, correspondence, etc., prepared since January 1, 1998, which have not already been produced and which have been exchanged between CWS and project managers relating to the current Warwick and Richmond expansions and to the completed Petrolia expansion; and
(ii) if CWS has taken steps toward the acquisition or expansion of any other landfills in Ontario since July 1, 2000, all documents not already produced in relation thereto.
DATED at Ottawa this 10 th day of September, 2003. (s) Sandra J. Simpson
APPEARANCES For the applicants: Canadian Waste Services Holdings Inc. Canadian Waste Services Inc. Waste Management Inc.
Shawn C.D. Neylan Nicholas P. McHaffie
For the respondent: The Commissioner of Competition Donald B. Houston W. Michael G. Osbome
For the intervenor: The Corporation of the Municipality of Chatham-Kent Not represented