CT - 88 / 1 IN THE MATTER OF an application by the Director of Investigation and Research under subsection 64(1) of the Competition Act, R.S.C. 1970, c. C-23, as amended;
AND IN THE MATTER OF a Limited Partnership formed to combine the operations of the Reservec and Pegasus computer reservation systems;
AND IN THE MATTER OF The Gemini Group Automated Distribution Systems Inc.; AND IN THE MATTER OF an application by the Director of Investigation and Research Investigation and Research under section 106 of the Competition Act, R.S.C. 1985, c. C-34, as amended, to vary the Consent Order of the Tribunal dated July 7, 1989.
B E T W E E N : The Director of Investigation and Research Applicant - and -Air Canada PWA Corporation Canadian Airlines International Ltd. The Gemini Group Limited Partnership The Gemini Group Automated Distribution Systems Inc. Covia Canada Corp. Covia Canada Partnership Corp.
Respondents - and -Consumers' Association of Canada American Airlines, Inc. Attorney General of Manitoba Alliance of Canadian Travel Associations Bios Computing Corporation IBM Canada Ltd. VIA Rail Canada Inc. Unisys Canada Inc. Council of Canadian Airlines Employees
Intervenors
CONFIDENTIALITY (PROTECTIVE) ORDER
- 2 -Dates of Hearing: January 6 and 7, 1993 Presiding Member: The Honourable Mr. Justice Barry L. Strayer Counsel for the Applicant: Director of Investigation and Research Donald B. Houston Jean G. Bertrand
Counsel for the Respondents: Air Canada J. William Rowley, Q.C. Canadian Airlines International Ltd. and PWA Corporation Robert W. Thompson Jo'Anne Strekaf Richard Low
The Gemini Group Automated Distribution Systems Inc. Michael L. Phelan Peter Glossop
Covia Canada Corp. and Covia Canada Partnership Corp. Robert M. Nelson William L. Vanveen Todd J. Burke
- 3 -Counsel for the Intervenors: Consumers' Association of Canada Not represented American Airlines, Inc. Colin L. Campbell, Q.C. Attorney General of Manitoba Roland E. Savoie Alliance of Canadian Travel Associations Douglas Crozier IBM Canada Ltd. Not represented VIA Rail Canada Inc. Not represented Unisys Canada Inc. Not represented Council of Canadian Airlines Employees Bruce M. Graham
- 4 -COMPETITION TRIBUNAL CONFIDENTIALITY (PROTECTIVE) ORDER
The Director of Investigation and Research v. Air Canada et al.
WHEREAS the prompt and orderly resolution of this application requires that the discovery process proceed as expeditiously as possible;
AND WHEREAS many of the documents involved in the discovery process contain commercially sensitive information which merits protection;
UPON HEARING the submissions of counsel for the parties; THE TRIBUNAL ORDERS THAT:
- 5 -Designation of Confidential Documents 1. A party shall designate a document as confidential by stamping the cover or first page of the document and every page which contains confidential information with the words "CONFIDENTIAL: LEVEL A" or "CONFIDENTIAL: LEVEL B", where "LEVEL A" or "LEVEL B" refers to the permitted level of disclosure of the document pursuant to paragraph 5.
2. Only a document or a portion of a document which contains commercially sensitive information shall be designated as confidential.
Permitted Disclosure 3. No designated confidential document shall be disclosed except in accordance with the terms of this order or with the prior written consent of the party that originally designated the document as confidential.
4. Documents which are not designated as confidential 1 may be disclosed to the parties, counsel for the parties and independent experts retained by the parties. These documents are subject to the implied undertaking referred to in paragraph 7.
5. Subject to paragraph 6, designated confidential documents may be disclosed in the following manner:
1 During oral argument on January 6 and 7, 1993, these documents were referred to by counsel as "Level 1" or "Level 2" documents.
- 6 -(a) LEVEL A confidential documents may be disclosed to counsel for the parties, independent experts retained by the parties, employees of the Bureau of Competition Policy involved in this matter and two named individuals on behalf of each other party;
(b) LEVEL B confidential documents may be disclosed to counsel for the parties, independent experts retained by the parties and employees of the Bureau of Competition Policy involved in this matter. 2 6. Every person, except counsel and employees of the Bureau of Competition Policy, who is permitted by this order to examine designated confidential documents shall first execute a confidentiality agreement in the form attached as Appendix A.
Implied Undertaking Regarding Discovery 7. For greater certainty, counsel, parties, experts and employees of the Bureau of Competition Policy who obtain access to documents and information in the course of discovery in this application are subject to an implied undertaking to use the documents and information for the purposes of this application only.
Public Record 8. Documents which are not designated as confidential shall form part of the public record when introduced into evidence at the hearing, unless the Tribunal
2 Level A and Level B confidential documents are those referred to by counsel during oral argument on January 6 and 7, 1993 as, respectively, "Level 3" and "Level 4".
- 7 orders otherwise. Level A and Level B confidential documents shall not form part of the public record in the application, unless the Tribunal orders otherwise.
9.(1) Subject to subparagraph (2), at the hearing of this application counsel for the intervenors may be present during the discussion of documents not forming part of the public record, unless the Tribunal orders otherwise.
(2) Counsel for the intervenors shall undertake on the record and are so obliged not to disclose any confidential information obtained during the hearing to any person, including their clients, and not to use the information for any purpose other than in connection with the application.
Return of Designated Confidential Documents 10. Upon final disposition of this application and any appeals, all designated confidential documents and any copies shall be returned to counsel for the party that originally designated the document as confidential, unless counsel for that party indicates in writing that the documents may be disposed of in some other manner.
- 8 -Responsibility 11. Counsel for the parties are responsible for controlling the duplication of, access to and distribution of copies of documents in accordance with this order. In particular, counsel shall maintain all copies within their possession or control or ensure that the copies are in the possession of those persons entitled to disclosure of documents under paragraphs 4 and 5 of this order.
Disputes over Designation 12. On the motion of a party, the Tribunal may order that a designated confidential document is not entitled to the level of protection indicated by the designation.
Withdrawal of Designation 13. Paragraph 4 of this order shall apply to designated confidential documents with respect to which the party who originally designated the document as confidential has withdrawn the designation in writing, effective as of the date of the withdrawal.
- 9 -Modification of Order 14. This order is subject to further direction of the Tribunal. DATED at Ottawa, this 8th day of January, 1993. SIGNED on behalf of the Tribunal by the presiding judicial member. (s) B.L. Strayer B.L. Strayer
APPENDIX A COMPETITION TRIBUNAL CONFIDENTIALITY AGREEMENT
The Director of Investigation and Research v. Air Canada et al.
IN CONSIDERATION of being provided with documents in connection with this application over which claims of confidentiality have been advanced, I , of the City of in the of , agree to maintain the confidentiality of the documents. I shall not copy the documents or disclose their contents to any other person and I shall not use the information contained in the documents for any purpose other than in connection with this application.
Upon completion of my involvement in this proceeding, I agree to return any confidential documents to counsel from whom I obtained the documents.
SIGNED, SEALED AND DELIVERED before a witness this day of , 1993.
(Witness Signature) (Witness Name)
(Signature) (Print Name)