Competition Tribunal IN THE MATTER OF an application by the Director of Investigation and Research for orders pursuant to section 92 of the Competition Act, R.S.C. 1985, c. C-34;
AND IN THE MATTER OF the merger whereby CP Containers (Bermuda) Limited acquired certain assets held by The Cast Group Limited and of the acquisition by 3041123 Canada Inc. of all the shares of Cast North America Inc. by way of agreements entered into between or among Royal Bank of Canada, The Cast Group Limited, 3041123 Canada Inc., CP Containers (Bermuda) Limited and Canadian Pacific Limited.
B E T W E E N: The Director of Investigation and Research Applicant - and - Canadian Pacific Limited Canada Maritime Limited CP Containers (Bermuda) Limited 3041123 Canada Inc. Cast North America Inc. Royal Bank of Canada Respondents
- and - Montreal Port Corporation Intervenor
- and - Canada United Kingdom Freight Conference Canadian Continental Eastbound Freight Conference Applicants for Leave to Intervene
REASONS FOR ORDER DENYING REQUEST FOR LEAVE TO INTERVENE _________________________________________________________________________
Tribunal de la Concurrence CT-1996/002 – Doc # 108a
Date of Pre-hearing Conference: April 25, 1997 Member: McKeown J. (presiding) Counsel for the Applicant: Director of Investigation and Research Robert S. Russell Adam F. Fanaki
Counsel for the Respondents: Canadian Pacific Limited Canada Maritime Limited CP Containers (Bermuda) Limited 3041123 Canada Inc. Cast North America Inc.
Mark C. Katz Russell Cohen
Royal Bank of Canada Peter L. Roy Annie M. Finn
Counsel for the Intervenor: Montreal Port Corporation Adam Bobker Counsel for Applicants for Leave to Intervene: Canada United Kingdom Freight Conference Canadian Continental Eastbound Freight Conference
Marc-André Blanchard
COMPETITION TRIBUNAL REASONS FOR ORDER DENYING REQUEST FOR LEAVE TO INTERVENE ___________________________________________________________________________
The Director of Investigation and Research v. Canadian Pacific Limited et al.
At the pre-hearing conference held on April 25, 1997, the Tribunal denied leave to intervene in this matter to the Canada United Kingdom Freight Conference and the Canadian Continental Eastbound Freight Conference (“Conferences”). The Tribunal indicated that reasons would follow. These are those reasons.
The Conferences are associations of ocean carriers whose members include the respondents Canada Maritime Limited and Cast North America Inc. In their request for leave to intervene, the Conferences state that they wish “to intervene in the proceedings for the sole purpose of making representations concerning the confidentiality of the documents provided to the Director by the Conferences and seeking a confidentiality order pursuant to subsection 16(2) of the Competition Tribunal Rules” and “to demonstrate that unrestricted disclosure of the documents would cause specific, direct harm to the Conferences and their members.”
The documents in question were provided to the Director of Investigation and Research (“Director”) pursuant to an order obtained under section 11 of the Competition Act (“Act”) against Peter Raimondo, the Chairman of the Conferences. The Director has listed the documents
in his affidavit of documents. The Director has chosen to claim public interest privilege over certain of the documents provided to him by the Conferences; he has claimed confidentiality over others. According to the material filed with the Tribunal by the Director and the Conferences, the documents over which privilege is claimed contain sensitive data provided to the Conferences by their individual members on a confidential basis and used by the Conferences to generate statistical information in aggregate form. The individual member data are not shared with other members; the statistics generated by the Conferences are circulated among the members. The documents subject to a claim for confidentiality are largely documents circulated among Conference members but not outside of that group.
At the hearing of the request for leave to intervene, the Conferences took a different approach to that set out in the request for leave to intervene. They submitted that, based primarily on the Supreme Court of Canada decision in R. v. O’Connor 1, they have a privacy right in their documents. They argued that intervenor status would provide the mechanism to allow them to protect their privacy interest throughout these proceedings. In his reply, counsel for the Conferences made clear that he was not at the time making any claim of privilege on the part of his clients over the documents, and that any problems that the Conferences might have with privilege or confidentiality with respect to their documents would come “somewhere down the road” . The Conferences have asserted that they have a constitutional right which guarantees them standing to make submissions to the Tribunal each time the Director proposes to do _ __________________________ 1 [1995] 4 S.C.R. 411. The Conferences also relied on the Supreme Court’s decision in M.(A.) v. Ryan (6 February 1997), 24612, [1997] S.C.J. No. 13 (QL). This case deals solely with the issue of the availability of a privilege claim in therapeutic records. It adds nothing to the Conferences’ case beyond O’Connor.
something with their documents to which they object and, presumably, to challenge any Tribunal rulings with which they disagree. These are not assertions to be made lightly. Yet, the case upon which the Conferences place primary reliance is in such a completely different context that I have difficulty seeing how it can be applied to the facts before me. R. v. O’Connor dealt with when and how therapeutic records in the hands of third parties (and not the Crown) should be produced to the accused in a sexual assault case. The Court balanced the right to privacy of the third parties against the right to full answer and defence of the accused to arrive at a two-stage procedure to govern requests for production of such documents by an accused. The accused must establish “likely relevance” and then the court engages in a balancing of the interests at stake. At each stage, “all interested parties should be permitted to make submissions” 2. This is the basis upon which the Conferences asserted a right to be heard as an intervenor on all issues involving disclosure of their documents in this proceeding.
O’Connor was, of course, a criminal case. This is, in itself, a fundamental distinction. What applies to a criminal proceeding cannot always be adopted without modification for civil proceedings before the Tribunal. For example, the strict disclosure obligations of the Crown established for indictable offences by R. v. Stinchcombe have been held not to apply to Tribunal proceedings 3.
_______________________________ 2 O’Connor, ibid. at 495 (L’Heureux-Dubé J.). 3 Director of Investigation and Research v. A.C. Nielsen Co. of Canada (22 September 1994), CT9401/82, Reasons
and Order Regarding Matters Considered at Pre-hearing Conference on September 14, 1994, [1994] C.C.T.D. No. 15 (QL), aff’d (1994), 176 N.R. 62, 58 C.P.R. (3d) 353 (F.C.A.), leave to appeal denied [1995] 1 S.C.R. vi.
Beyond that, however, O’Connor dealt with a situation where the records in question were in the possession of a “third party” and production to the accused by the third party was sought. 4 The Conferences’ documents are in the possession of the Director, a party to the litigation, pursuant to a validly obtained section 11 order. The Conferences’ documents bear no resemblance whatsoever to therapeutic records; they are business records, as would generally be the case for documents subject to a section 11 order obtained by the Director during an investigation. The comments of La Forest J. in Thomson Newspapers Ltd. v. Director of Investigation and Research 5 cast real doubt as to whether the Conferences can simply assert, without more, that they have a “reasonable expectation of privacy” in respect of their documents on the facts before me. In Thomson, the majority of the Supreme Court found that section 17 of the Combines Investigation Act (“CIA” ), which is, in essence, now found in section 11 of the Act 6, violated neither section 7 (as a compulsion to testify) nor section 8 (as an unreasonable seizure of records) of the Charter. 7 La Forest and L’Heureux-Dubé JJ. held that the CIA, and thus section 17, forms part of administrative or regulatory law and not criminal law. From this it follows that, in the words of La Forest J.: ______________________________ 4 The Conferences rely on the judgment of L’Heureux-Dubé. While other members of the Court made “comments” on the Crown’s obligation of disclosure of information in its possession, they were obiter and related to the particular criminal context and to therapeutic records.
5 [1990] 1 S.C.R. 425. 6 Section 11 is worded differently. It imposes requirements for issuance of an order which are at a higher level than those in its predecessor.
7 La Forest and L’Heureux-Dubé JJ. held that section 17 was a reasonable seizure and did not violate section 8 of the Charter. Sopinka J. held that it was not a “seizure” at all and, thus, section 8 was not violated.
. . . the degree of privacy that can reasonably be expected within the investigative scope of the Act is akin to that which can be expected by those subject to other administrative and regulatory legislation, rather than to that which can legitimately be expected by those subject to police investigation for what I have called Areal” or “true” crimes 8.
La Forest J. stated that business records, the usual object of a section 17 order, raise only a “limited privacy interest” and that while such records are “not devoid of any privacy interest, it is fair to say that they raise much weaker privacy concerns than personal papers 9”. They do not attract the same expectation of privacy as do papers and records which reflect the manner in which one chooses to live one’s private life, one’s individual identity and other intimate details10. L’Heureux-Dubé J., who wrote the judgment in O’Connor from which the Conferences quoted extensively, also commented that “public interest in the freedom and protection of citizens in the market-place prevails over the minimal infringement of the privacy interests of those required to disclose information of an economic nature.” 11
If the Conferences’ expectation of privacy in their documents was low before the section 11 order was executed, it cannot be any higher once those documents are in the hands of the Director. Production under section 11 may be an “invasion” of whatever privacy rights exist in those documents but the Supreme Court has held that, on balance, that invasion is not unreasonable. Once completed, however, any reasonable expectation of privacy in those documents must be severely diminished if not exhausted altogether. This is an entirely different situation from that dealt with in O’Connor. ______________________________ 8 Thomson, supra, note 5 at 516-17. 9 Ibid. at 517. 10 Ibid. at 517-18. 11 Ibid. at 596.
The Conferences point to O’Connor as conclusive of their right to privacy and their right to standing before this Tribunal. Their arguments provided no illumination on any of the various points of difference in the two situations. Given those fundamental differences, I cannot agree that O’Connor is applicable in the manner submitted and therefore, the request to intervene on that basis was denied.
Notwithstanding the fact that the Conferences have no constitutional right to privacy in the documents produced to the Director, the Tribunal recognizes that valid claims of confidentiality or privilege may still be made in respect of these documents. As with any other documents which enter into the Tribunal’s processes, there may be legitimate reasons for the Tribunal to limit disclosure of the documents in this proceeding. The Competition Tribunal Rules provide procedures through which these claims may be made. Although in the normal course it is the parties who are the appropriate persons to make and support the claims, the Tribunal might, in its discretion, grant permission to a third party to make submissions to it in a particular instance. Third parties were permitted to file written submissions on confidentiality for the April 25, 1997 pre-hearing conference. The Conferences in fact availed themselves of that opportunity.
DATED at Vancouver, this 9 th day of May, 1997. SIGNED on behalf of the Tribunal by the presiding judicial member. (s) W.P. McKeown W.P. McKeown