Case Documents

Reference: The Commissioner of Competition v Vancouver Airport Authority, 2018 Comp Trib 15

File No.: CT-2016-015

Registry Document No.: 351

IN THE MATTER OF an application by the Commissioner of Competition for one or more orders pursuant to section 79 of the Competition Act, RSC 1985, c C-34 as amended;

AND IN THE MATTER OF a motion by Vancouver Airport Authority objecting to the admissibility of certain proposed evidence;

BETWEEN: The Commissioner of Competition (applicant) and Vancouver Airport Authority (respondent)

Date of hearing: September 24, 2018

Before Judicial Member: D. Gascon J. (Chairperson)

Date of Order: September 28, 2018

ORDER RELATING TO THE MOTION BY VANCOUVER AIRPORT AUTHORITY OBJECTING TO THE ADMISSIBILITY OF CERTAIN PROPOSED EVIDENCE

[1]  FURTHER TO the application filed by the applicant, the Commissioner of Competition (“Commissioner”), against the respondent, Vancouver Airport Authority (“VAA”), pursuant to section 79 of the Competition Act, RSC 1985, c C-34, as amended (“Application”);

[2]  AND FURTHER TO the witness statements of Ms. Barbara Stewart, former Senior Director of Procurement at Air Transat A.T. Inc. (“Air Transat”), and of Ms. Rhonda Bishop, Director for In-flight Services and Onboard Product of Jazz Aviation LP (“Jazz”), that were served by the Commissioner on VAA and filed with the Tribunal on July 4, 2018 (“Witness Statements”);

[3]  AND FURTHER TO a motion filed by VAA on September 10, 2018, objecting to the admissibility, as proposed evidence in this Application, of certain portions of the Witness Statements on the basis that they constitute improper opinion evidence by lay witnesses and/or inadmissible hearsay (“Disputed Evidence”), and asking the Tribunal to immediately rule that the Disputed Evidence is inadmissible (“Motion”);

[4]  AND UPON reviewing the Witness Statements and considering the materials and written submissions filed by both parties with respect to the Motion;

[5]  AND UPON hearing the oral submissions made by counsel for both parties at a hearing held on September 24, 2018;

[6]  AND UPON considering that, in its submissions, VAA alleges that:

1. In their respective Witness Statements, Ms. Stewart and Ms. Bishop testify as to what their respective companies would have saved and as to increased expenses incurred (or to be incurred in the future), but the Witness Statements contain no indication as to who performed the calculations to arrive at the Disputed Evidence, how the figures were calculated, which data was used, and⁄or who prepared the documents attached to support these figures;
2. Ms. Stewart and Ms. Bishop express opinions with respect to the Disputed Evidence but did not personally observe (and do not testify to) the facts upon which their respective opinions are purportedly based, and lay out insufficient evidentiary foundations to be able to testify on their conclusions;
3. The conclusions reached by Ms. Stewart and Ms. Bishop with respect to the Disputed Evidence are not within their personal knowledge and appear to be those of other unknown persons, based on facts observed and calculations performed by other unknown persons;
4. The Disputed Evidence should not be admitted into evidence and be excluded as it contains improper opinion evidence and inadmissible hearsay.

[7]  AND UPON considering the following elements with respect to the Witness Statements:

1. In her witness statement dated October 31, 2017, Ms. Stewart states that, in 2015, Air Transat completed a request-for-proposal process for in-flight catering (“Air Transat 2015 RFP process”) and refers to savings allegedly realized, or to be realized in the future, at airports across Canada except for the Vancouver International Airport (“YVR”), as well as to increased expenses allegedly incurred, or to be incurred in the future, by Air Transat at YVR as a result of that process;
2. In her witness statement (including Exhibits 10 and 13) dated November 10, 2017, Ms. Bishop states that, in 2014, Jazz conducted a request- for-proposal process for in-flight catering (“Jazz 2014 RFP process”) and refers to savings allegedly realized, or to be realized in the future, at airports across Canada except for YVR, as well as to increased expenses allegedly incurred, or to be incurred in the future, by Jazz at YVR as a result of that process;
3. In their respective Witness Statements, Ms. Stewart and Ms. Bishop each state that they have “personal knowledge of the matters” discussed in the statements unless indicated otherwise, and provide background information on their specific experience, credentials and roles in their respective companies;
4. In her witness statement, Ms. Stewart indicates that she was responsible for all procurement activities regarding in-flight catering at Air Transat from 2014 to 2017, including the Air Transat 2015 RFP process. She also sets out some background information with respect to her role in the RFP process and to the alleged savings and increased expenses at Air Transat;
5. In her witness statement, Ms. Bishop indicates that she had day-to-day responsibility for the Jazz 2014 RFP process and provided strategic direction to the 2014 RFP process team. She also mentions that she conducted monthly reviews to maintain targets and costs in all areas and oversaw the budget and billings for all in-flight catering, and she provides some background information with respect to the alleged savings and increased expenses at Jazz;

[8]  AND UPON observing that, in its written submissions to the Tribunal, VAA frequently states that the paragraphs containing the Disputed Evidence “appear” not to be within the personal knowledge of Ms. Stewart and Ms. Bishop, and “appear” to be based on reports and calculations from other unknown persons;

[9]  AND UPON noting the statement made by counsel for VAA at the September 24, 2018 hearing to the effect that representations made by counsel for the Commissioner at the hearing have dealt with some of her objections to the admissibility of parts of Ms. Stewart’s witness statement;

[10]  AND UPON considering that evidence from lay witnesses is generally admissible if a witness has personal knowledge of the observed facts and testifies to facts within his or her observation, experience and understanding of events, conduct or actions (Graat v The Queen, [1982] 2 SCR 819 at page 835; Toronto Real Estate Board v Commissioner of Competition, 2017 FCA 236 at paras 79-81, leave to appeal to SCC refused, 37932 (23 August 2018); Commissioner of Competition v Imperial Brush Co Ltd and Kel Kem Ltd (cob as Imperial Manufacturing Group), 2007 Comp Trib 22 at para 11);

[11]  AND UPON considering that, on this Motion, the question to be determined by the Tribunal is whether, at this preliminary stage, VAA has established on a balance of probabilities that the paragraphs containing the Disputed Evidence, as read in the context of the Witness Statements, constitute improper opinion evidence and/or inadmissible hearsay;

[12]  AND UPON considering that an assumption of lack of personal knowledge needs to be established in order to convince the Tribunal that proposed evidence should be ruled inadmissible at an early stage, and that only in clear cases would the Tribunal be ready to find proposed lay witness evidence inadmissible on a preliminary motion, prior to the witness being examined and cross-examined;

[13]  AND UPON finding that, at this stage, VAA has not persuaded the Tribunal that the facts as set out in the Witness Statements are not within the knowledge, understanding, observation or experience of Ms. Stewart and Ms. Bishop, or that Ms. Stewart and Ms. Bishop did not observe the facts contained in their respective Witness Statements with respect to the Disputed Evidence;

[14]  AND WHEREAS the Tribunal acknowledges that VAA was within its right to bring this issue of admissibility of proposed evidence to the Tribunal’s attention at this early stage, as dates had been set aside in the Scheduling Order for this Application to deal with motions relating to the evidence;

[15]  AND WHEREAS the Tribunal however has the discretion, depending on the factual circumstances before it, to defer a ruling on admissibility of evidence until later, as long as fairness is respected;

[16]  AND WHEREAS, given the language used by Ms. Stewart and Ms. Bishop in their respective Witness Statements, the Tribunal considers that it will be best placed at the hearing to determine whether or not the Disputed Evidence constitutes improper lay opinion evidence and/or inadmissible hearsay, and to rule on its admissibility;

[17]  AND WHEREAS both Ms. Stewart and Ms. Bishop will be called to testify by the Commissioner, under oath before the Tribunal, where they will be subject to examination by counsel for the Commissioner, to cross-examination by counsel for VAA and to questioning by the panel;

[18]  AND WHEREAS the scope of personal knowledge of Mss. Stewart and Bishop with respect to the Disputed Evidence is a matter that will be clarified at the time of their testimonies before the Tribunal;

[19]  AND WHEREAS the testimonies of Mss. Stewart and Bishop will provide better factual context to assist the Tribunal in making a determination on the admissibility of the Disputed Evidence;

[20]  AND WHEREAS the Tribunal is therefore of the view that, in the circumstances of this case, the preferable approach is to wait for the hearing before making a ruling on the admissibility of the Disputed Evidence, to allow the Disputed Evidence to be subject to cross- examination, and to then determine its admissibility if needed (Boroumand v Canada, 2016 FCA 313 at para 6; Nadeau Poultry Farm Ltd v Groupe Westco Inc, 2009 Comp Trib 6 at paras 80-81, aff’d 2011 FCA 188, leave to appeal to SCC refused, 34401 (22 December 2011));

[21]  AND WHEREAS VAA has not established that it would suffer prejudice if the Disputed Evidence is not ruled inadmissible at this time and, since VAA will have the ability to test the Disputed Evidence on cross-examination, the Tribunal is satisfied that no issue of procedural fairness arises if the Tribunal rules on the admissibility of the Disputed Evidence at a later stage;

[22]  AND WHEREAS, in exercising its discretion to defer ruling on the admissibility of the Disputed Evidence at this stage, the Tribunal still retains the ability to reject such evidence as inadmissible at the hearing, after the testimonies of each of Ms. Stewart and Ms. Bishop, or at the time of its decision on the merits;

[23]  AND WHEREAS, for the above reasons and in light of the particular circumstances of this case, a conclusion on the admissibility of the Disputed Evidence would be premature;

[24]  AND WHEREAS the written submissions and the oral submissions presented at the hearing of the Motion fail to satisfy the Tribunal that, at this stage, VAA’s Motion should be granted;

THE TRIBUNAL ORDERS THAT:

[25]  VAA’s Motion is dismissed, without prejudice to bring a motion at the hearing of the Application, further to the testimonies of each of Ms. Stewart and Ms. Bishop, with respect to the admissibility of the Disputed Evidence, or parts of it;

[26]  The decision as to costs is reserved until the Tribunal generally addresses the issue of costs.

DATED at Ottawa, this 28th day of September 2018

SIGNED on behalf of the Tribunal by the Chairperson

(s) Denis Gascon

APPEARANCES:

For the applicant:

The Commissioner of Competition

Jonathan Hood Katherine Rydel Ryan Caron Antonio Di Domenico

For the respondent:

Vancouver Airport Authority

Julie Rosenthal Rebecca Olscher