Reference: The Commissioner of Competition v Live Nation Entertainment, Inc et al, 2019 Comp Trib 3

File No.: CT-2018-005

Registry Document No.: 84

IN THE MATTER OF an application by the Commissioner of Competition for orders pursuant to section 74.1 of the Competition Act, RSC 1985, c C-34 regarding conduct allegedly reviewable pursuant to paragraph 74.01(1)(a) and section 74.05 of the Act;

AND IN THE MATTER OF a motion by the Respondents to compel answers to questions refused on discovery.

BETWEEN: The Commissioner of Competition (applicant) and Live Nation Entertainment, Inc, Live Nation Worldwide, Inc, Ticketmaster Canada Holdings ULC, Ticketmaster Canada LP, Ticketmaster L.L.C., The V.I.P. Tour Company, Ticketsnow.com, Inc, and TNOW Entertainment Group, Inc (respondents)

Date of hearing: April 2, 2019

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

Date of Order and Reasons for Order: April 5, 2019

ORDER AND REASONS FOR ORDER GRANTING IN PART THE RESPONDENTS’ MOTION TO COMPEL ANSWERS TO QUESTIONS REFUSED ON DISCOVERY

I.  INTRODUCTION

[1]  On March 21, 2019, the Respondents filed a motion to compel the Commissioner of Competition (“Commissioner”) to answer several questions that were refused during the examination for discovery of the Commissioner’s representative, Ms. Lina Nikolova (“Refusals Motion”). Ms. Nikolova was examined for one day and a half on January 31 and February 1, 2019.

[2]  In their Refusals Motion, the Respondents seek the following conclusions:

• An order compelling Ms. Nikolova to answer a list of questions that remained unanswered further to her examination for discovery and the expiry of the deadline provided for fulfilling answers to discovery undertakings (“Refused Questions”);
• An order compelling Ms. Nikolova to attend for continued examination on discovery on behalf of the Commissioner or to provide follow-up answers in the form agreed upon by the parties, all in accordance with the scheduling order most recently amended on February 11, 2019;
• An order for the Respondents’ costs of this motion; and
• Such further and other relief as the Tribunal deems just.

[3]  At the hearing, the Respondents informed the Tribunal that they were no longer seeking an order compelling Ms. Nikolova to be further examined should the Tribunal order her to answer the Refused Questions, and that responses in writing would be satisfactory.

[4]  In their Notice of Motion, the Respondents had initially identified a total of 34 Refused Questions grouped into four categories. However, in his response materials and in the days leading up to the hearing of this motion, the Commissioner provided answers to some of the questions that had been previously refused. In addition, the Respondents withdrew one of the Refused Questions for which they were seeking answers. The initial list of Refused Questions was thus narrowed down to 14 questions to be decided by the Tribunal, divided in two categories: (1) “Historical Conduct – Estoppel, Waiver and Remedy”, which contained six outstanding questions relating to the Commissioner’s review of the Respondents’ conduct in 2009 (“Category 1 Questions”); and (2) “Individual Respondent Allegations – Liability”, which referred to eight outstanding questions seeking details on which individual Respondents were specifically concerned by certain facts and allegations in the Commissioner’s pleadings (“Category 2 Questions”).

[5]  The Respondents brought this Refusals Motion in the context of an application made against them by the Commissioner (“Application”) under the deceptive marketing practices provisions of the Competition Act, RSC 1985, c C-34 (“Act”). In his Application, the Commissioner is seeking orders pursuant to section 74.1 of the Act regarding conduct allegedly reviewable under paragraph 74.01(1)(a) and section 74.05 of the Act. More specifically, the Commissioner alleges that one or more of the Respondents engaged in deceptive marketing practices by promoting the sale of tickets to the public on certain internet websites and mobile applications (“Ticketing Platforms”) at prices that are not in fact attainable, and then supplied tickets at prices above the advertised price on these platforms. The Commissioner’s Notice of Application alleges that the reviewable conduct dates back to 2009, and continues until today. The relief sought by the Commissioner includes a prohibition order and administrative monetary penalties.

II.  LEGAL PRINCIPLES

[6]  I agree with the Respondents that, when dealing with refusals in the context of examinations for discovery, the Tribunal should not lose sight of the overarching objective of the discovery process, whether oral or by production of documents. The purpose of discovery is to render the trial process fairer and more efficient by allowing each side to gain an appreciation of the other side’s case, and for the respondents to know the details of the case against them before trial (Canada v Lehigh Cement Limited, 2011 FCA 120 (“Lehigh”) at para 30; The Commissioner of Competition v Direct Energy Marketing Limited, 2014 Comp Trib 17 at para 16). It is now well-recognized that a liberal approach to the scope of questioning on discovery should prevail (Lehigh at para 30). What the parties and the Tribunal are both trying to achieve with examinations for discovery is a level of disclosure sufficient to allow each side to proceed fairly, efficiently, effectively and expeditiously towards a hearing, with sufficient knowledge of the case each party has to meet (The Commissioner of Competition v Vancouver Airport Authority, 2017 Comp Trib 16 (“VAA”) at para 46). If a party does not disclose relevant facts or information known to it until trial, the other side will be unfairly disadvantaged.

[7]  The Competition Tribunal Rules, SOR/2008-141 (“CT Rules”) do not deal specifically with refusals in examinations for discovery. However, subsection 34(1) of the CT Rules provides that, when a question arises as to the practice or procedure to be followed in cases not provided for by the rules, the Federal Courts Rules, SOR/98-106 (“FC Rules”) may be followed. FC Rule 240 provides that a person being examined for discovery must answer, to the best of the person’s knowledge, information and belief, any question that is relevant to the unadmitted facts in the pleadings. In addition, FC Rule 242 states that a party may object to questions asked in an examination for discovery on the ground that the answer is privileged, the question is not relevant, the question is unreasonable or unnecessary, or it would be unduly onerous to require the person to make the inquiries referred to in FC Rule 241.

[8]  Relevance is the key element to determine whether a question is proper and should be answered. At the discovery stage, relevance is a generous and flexible standard (Apotex Inc v Sanofi-Aventis, 2011 FC 52 at para 19). Doubts on the issue of relevance are to be resolved in favour of disclosure, and questions will typically need to be answered unless they are clearly improper. In Lehigh at paragraph 34, the Federal Court of Appeal noted the broad scope of relevance on examinations for discovery:

The jurisprudence establishes that a question is relevant when there is a reasonable likelihood that it might elicit information which may directly or indirectly enable the party seeking the answer to advance its case or to damage the case of its adversary, or which fairly might lead to a train of inquiry that may either advance the questioning party’s case or damage the case of its adversary.

[9]  And to determine the relevance of a question, one must look at the pleadings.

[10]  That being said, even when questions do meet the standard of relevance, courts have nonetheless delineated some boundaries to the type of questions that may be asked on examinations for discovery. A party can properly ask for the factual basis of the allegations made by the opposing party and for the facts known by such party, but it cannot ask for the facts or evidence relied on by the party to support an allegation (VAA at paras 20, 27; Montana Band v Canada, [2000] 1 FC 267 (FCTD) (“Montana Band”) at para 27; Can-Air Services Ltd v British Aviation Insurance Company Limited, 1988 ABCA 341 at para 19). In Apotex Inc v Pharmascience Inc, 2004 FC 1198, aff’d 2005 FCA 144 (“Apotex”), the Federal Court further established that witnesses are not to testify on pure questions of law: a fundamental rule is that an examination for discovery may seek only facts, not law. Accordingly, the following types of questions have generally been found not to be proper subject matters for discovery: (i) questions seeking expert opinion, (ii) questions seeking the witness to testify as to questions of law, (iii) questions seeking law or argument, as opposed to facts, and (iv) questions where the witness is being asked “upon what facts do you rely for paragraph x of your pleading” (Bard Peripheral Vascular, Inc v W.L. Gore & Associates, Inc, 2015 FC 1176 at para 19).

[11]  It remains, however, that answers to questions on examination for discovery will always depend on the particular facts of the case and involve a considerable exercise of discretion by the judicial member seized of a refusals motion. There is no magic formula applicable to all situations, and a case-by-case approach must prevail to determine the appropriate level of disclosure required in examinations for discovery. The scope of permissible discovery will ultimately depend “upon the factual and procedural context of the case, informed by an appreciation of the applicable legal principles” (Lehigh at paras 24-25; see also VAA at paras 41-46).

III.  CATEGORY 1 QUESTIONS

[12]  The six Category 1 Questions deal with the Commissioner’s knowledge of a prior investigation into the Respondents’ price displays in 2009 and 2010. The Respondents submit that these Refused Questions are relevant as they relate to the Respondents’ pleading of estoppel and waiver, and to the issue of remedy, since the duration of the alleged reviewable conduct and the manner and length of the investigation are factors to be taken into account when determining any administrative monetary penalties. The Respondents claim that the Commissioner reviewed the Respondents’ Ticketing Platforms for deceptive marketing practices in 2009, but raised no issues about the displays of prices that he now alleges were deceptive. In fact, say the Respondents, the Commissioner did not raise his current complaints with the Respondents until 2017. They therefore contend that the Commissioner’s 2009-2010 review, and his eight-year delay in proceeding, are relevant both to the Respondents’ pleading of estoppel and waiver and to the determination of any remedy by the Tribunal. In this context, they argue that they should be permitted to ask the Category 1 Questions about the Commissioner’s 2009-2010 investigation. The Commissioner replies that the Category 1 Questions are improper and not relevant, and that they are unreasonable, unnecessary and unduly onerous.

[13]  I agree with the Respondents that, in the context of this Application, questions relating to the 2009-2010 investigation and to what the Commissioner had previously reviewed are generally relevant in light of the Respondents’ pleading on estoppel and waiver and on the issue of remedy. It cannot be said that these questions are totally unrelated to the issues in dispute. Moreover, I observe that facts surrounding the Competition Bureau’s prior investigation of the Respondents’ conduct have been referred to by the Commissioner in his own materials. The Commissioner has produced, as relevant documents in the Commissioner’s documentary production in this Application, some customer complaints from the 2009 period, as well as records relating to the Competition Bureau’s investigation of certain Ticketing Platforms in 2009 and 2010. Indeed, the questions in dispute in this first category relate to particular factual issues emanating from specific documents produced by the Commissioner, such as Exhibit 114.

[14]  I further note that, in her examination for discovery, Ms. Nikolova has already provided answers to many questions asked about the 2009-2010 investigation. I am not persuaded – subject to the caveat explained below with respect to the two “why” questions – that the remaining outstanding questions have gone too far and should be treated any differently. The facts surrounding the 2009-2010 investigation are relevant to the Respondents’ pleading, and the Commissioner cannot select what he wants to answer and what he prefers not to disclose. The Commissioner should instead provide all relevant facts relating to this prior investigation. In the same vein, I do not share the Commissioner’s views that the Category 1 Questions constitute a fishing expedition into the Commissioner’s previous investigation. Nor do I find that question 679 is overly broad as it focuses on the 2009 or 2010 fee display.

[15]  The Commissioner further argues that, since the Category 1 Questions relate to the “conduct” of the 2009-2010 investigation, they need not be answered. I disagree. In light of the estoppel defence raised by the Respondents, the Commissioner’s conduct in the investigation is clearly at play in this Application, as well as the timing and dates of the Competition Bureau’s actions in that respect. Contrary to the situation in Canada (Director of Investigation and Research) v Southam Inc, [1991] CCTD No 16, 38 CPR (3d) 68, at paragraphs 10-11, the conduct of the Commissioner is one of the issues before the Tribunal, and it is directly relevant to the present proceedings on the basis of the pleadings.

[16]  I pause to underline that the issue at this stage is not whether the estoppel argument raised by the Respondents in their pleading will ultimately be successful on the merits. It is whether the Category 1 Questions ask for relevant information. I am satisfied that the Respondents have established that they are relevant to their estoppel defence and to the issue of remedy.

[17]  In light of the foregoing, questions 461, 462, 677 and 679 therefore need to be answered.

[18]  However, with respect to questions 685 and 1199 respectively asking why it took eight years for the Commissioner to raise the complaint with the Respondents and why the Commissioner did not do anything about investigations that he might have carried on, I am not satisfied that they are proper questions on this examination for discovery. True, they relate to the Competition Bureau’s 2009-2010 investigation, but they ask about the thought process of the Commissioner and essentially seek to obtain the opinion from the Commissioner on those two issues. What is relevant are the facts that the Commissioner apparently took eight years to raise the complaint with the Respondents and allegedly did not follow-up on complaints received in 2008, not the reasons or explanations behind those decisions of the Commissioner. Questions 685 and 1199 therefore need not be answered.

IV.  CATEGORY 2 QUESTIONS

[19]  Turning to the Category 2 Questions, they seek to obtain answers clarifying to which of the individual Respondents certain allegations made by the Commissioner relate. The Respondents argue that the Commissioner has named eight different Respondents, but that most of his allegations simply assert conduct by the “Respondents”, without distinguishing among them. In his Notice of Application, at paragraphs 10 to 18, the Commissioner states generally that the Respondents “have acted separately, jointly and/or in concert with each other” or that they “work together and/or individually” in making the impugned representations or in permitting them to be made. The Respondents submit that which Respondent is actually alleged to have taken what steps, and with whom, is relevant information that should be provided. The Respondents have pleaded that some of the Respondents are not proper parties and do not have any responsibility for the representations that the Commissioner says are misleading or deceptive. The Commissioner does not object to the Category 2 Questions on the basis of relevance but on the ground that, as formulated, they ask for a legal interpretation and are improper.

[20]  There is no doubt, in my view, that questions relating to individual Respondents and how the facts known by the Commissioner can be linked with each of them are relevant to this Application. The Commissioner’s pleadings do not specify with great detail how each of the Respondents are specifically linked to the allegations. In light of the Respondents’ pleading to the effect that several of the Respondents were not involved in the Ticketing Platforms and should not be targeted by this Application, I accept the general proposition that the Respondents are entitled to ask questions as to which of the Respondents the facts and allegations made by the Commissioner relate.

[21]  Indeed, in the order issued by the Tribunal on October 17, 2018 with respect to the affidavits of documents to be produced in this Application, Justice Phelan addressed the problem of attribution of documents to each Respondent and noted that the Respondents insisted on being treated separately, on defending separately, and on pleading that some Respondents were not proper parties to the Application. Accordingly, Justice Phelan ordered that separate affidavits of documents were required for each Respondent, as requested by the Commissioner, thus recognizing the relevance and importance of information tailored to each individual Respondent.

[22]  The problem raised by the Category 2 Questions lies in the way the questions have been formulated by the Respondents. It is useful to reproduce the eight questions in dispute. They read as follows:

• Q 285-286 -- [When you said that you are not aware of any facts linking VIP Tour Company to ticketmaster.ca at this time], does that include directly or indirectly by acting in concert or jointly with somebody else?
• Q 844-848 -- What facts are associated with Live Nation Entertainment Inc. [or any of the other seven respondents] acting jointly with another respondent in respect of the OneRepublic concert [referenced on page 12 of the Commissioner’s pleadings]?
• Q 845-848 -- What facts does the Commissioner have in association with whether Live Nation Entertainment Inc. [or any of the other seven respondents] acted in concert in respect of the OneRepublic concert [referenced on page 12 of the Commissioner’s pleadings]?
• Q 846-848 -- What facts or information is the Commissioner aware of with respect to whether Live Nation Entertainment Inc. [or any of the other seven respondents] acted separately, in any way, with respect to the OneRepublic concert [referenced on page 12 of the Commissioner’s pleadings]?
• Q 847-848 -- What information does the Commissioner have, or is the Commissioner aware of, with respect to, or in connection with, whether Live Nation Entertainment Inc. [or any of the other seven respondents] permitted some other respondent to act in any particular way with respect to the OneRepublic concert [referenced on page 12 of the Commissioner’s pleadings]?
• Q 1119 -- Which respondents are said to make the price representations in question and which respondents are said to permit others to make the price representations in question?
• Q 1120 -- I would like to have the Commissioner’s information with respect to the manner in which each of the respondents permits another respondent to make price representations
• Q 1121 -- I would like to have the Commissioner’s information as to the manner in which each respondent makes the price representations that are the subject of this application

[23]  As stated above, it is not disputed that the Respondents can rightfully ask for the factual basis behind the allegations made by the Commissioner and for the facts known by Ms. Nikolova, but they cannot ask for the facts or evidence relied on by the Commissioner to support an allegation. Moreover, a witness cannot be asked pure questions of law, as opposed to facts. Indeed, the Commissioner acknowledged that it would have been fine to ask questions on the facts linking each Respondent to the representations at stake, as long as the questions did not seek the facts relied on for the Commissioner’s legal arguments. For example, questions would have been proper and acceptable if they had asked about facts known to the Commissioner that relate to the involvement of the individual Respondents with respect to the representations in dispute.

[24]  However, the Commissioner argues that, as formulated, the Category 2 Questions go one step too far and in fact ask for a “legal interpretation” to be made by the witness, as they would require Ms. Nikolova to assess whether the facts sought by the Respondents effectively qualify as “acting in concert”, “acting jointly” or “acting separately”, or as “making” or “permitting” to make the impugned representations. The Commissioner submits that questions asking a witness to testify on questions of law or to provide argument as to what is relevant in order to prove a given plea are improper as examinations for discovery may only seek facts, not law (Apotex at para 19). The Commissioner pleads that the questions asked by the Respondents would in fact force Ms. Nikolova to think of the law applicable or relied upon for the Commissioner’s allegations, and to select facts in accordance with her understanding of the law.

[25]  I am ready to accept that this effectively happens when a party asks a discovery witness questions relating to the facts relied on in support of an allegation. However, I am not persuaded that this always happens when a witness is asked about facts in relation or in connection with allegations incorporating a legal test to be met, or simply because the questions contain language referencing provisions of the applicable legislation at stake or certain terms capable of having a legal connotation. Stated differently, I am not convinced that questions asking for facts or information known to the Commissioner’s representative being discovered in connection with a particular allegation in the pleadings can be deemed to be automatically improper (and not subject to answer) because they import or refer to a legal concept or to a specific element of the conduct being challenged in the application.

[26]  Depending on how they are actually formulated, questions seeking facts or information known to the Commissioner and underlying his allegations with respect to the various elements of an alleged conduct can be considered as appropriate questions on discovery, even if they contain a certain legal dimension. If I were to accept the Commissioner’s position, it would mean that, as soon as a question would include wording repeating the language of the Act or the elements of an alleged conduct that is the subject of an application, it would run the risk of being refused on the ground that it is considered as requiring a legal interpretation. This would significantly restrain the scope of any discovery of the Commissioner’s witness by the respondents, or risk transforming examinations for discovery into an exercise too focused on semantics, where counsel for the respondents would be expected to look for creative wording in order to avoid any reference to a term used in the Act or in the specific provisions at the source of the application.

[27]  There is, of course, no question that examinations on discovery are designed to deal with matters of fact. However, the line of demarcation between seeking a disclosure of facts and asking for evidence relied upon for an allegation is often hazy. Likewise, there is always a fine line between questions asking for facts relied on by a party in support of an allegation (which are always improper) and questions seeking facts known to a party that underlie an allegation (which are proper even when they may contain certain elements of law in them). Similarly, it is also difficult to distinguish between facts and law, and the boundary between them is often not easy to draw (Montana Band at paras 20, 23).

[28]  As such, determining when a question becomes a request for a legal interpretation that would be clearly improper on an examination for discovery is a highly case-specific exercise. Indeed, at the hearing, counsel for the parties have not referred to authorities providing guidance on this precise point. And I am not aware of decisions from the Tribunal or from the Federal Court addressing specifically whether, on examinations for discovery, a question about facts known to a witness that uses words with a legal connotation or legal language that is ultimately for the trier of fact to decide, such as language contained in an applicable legislation, would be improper. In my view, a distinction needs to be made between “pure” questions of law, and questions of fact that may imply a certain understanding of the law or that arise against a legal contextual background. It is well established that pure questions of law, such as questions asking a witness to provide a legal definition of words or terms or to explain a party’s position in law, are not permissible on examinations for discovery. However, the facts underlying questions of law can be discoverable. In the same vein, questions on discovery may mix fact and law. Questions relating to facts which may have legal consequences remain nonetheless questions of fact and may be put to a witness on discovery (Montana Band at para 23).

[29]  In Montana Band, Justice Hugessen expressed the view that “it is proper on discovery (although it may not be so at trial) to ask a party as to the facts underlying a particular conclusion of law” (Montana Band at para 28). Questions can thus ask for facts behind a conclusion of law and for facts underlying a particular allegation or conclusion of law (Montana Band at para 27). While it is not proper to ask a witness what evidence he or she has to support an allegation, it is quite a different thing to ask what facts are known to the party being discovered which underlie a particular allegation in the pleadings. Even when the answer may contain a certain element of law, it remains in essence a question of fact (Montana Band at para 27). Similarly, the Federal Court wrote that “[q]uestions which seek to identify the factual underpinning of [a] position are proper questions even if they require an interpretation of the [legislation]” (Sierra Club of Canada v Canada (Minister of Finance), 174 FTR 270, 1999 CanLII 8722 (FC) at para 9).

[30]  To deny the possibility of asking about such facts would amount to refuse and frustrate the very purpose of discovery, which is to learn the facts, or often equally more important, the absence of facts, underlying each and every allegation in the pleadings. Moreover, bearing in mind the principled approach to examinations for discovery, whenever there is doubt as to whether a question relates sufficiently to facts as opposed to law, the resolution should be in favour of disclosure. This is especially true when the questions at issue are clearly relevant, as is the case here for the Category 2 Questions.

[31]  In light of the foregoing, I am of the view that six of the eight Category 2 Questions disputed in this Refusals Motion need to be answered. They are questions 285-286; 844-848; 845-848; 846-848; 847-848 and 1119. As stated above, deciding on objections to questions on discovery is a fact-specific exercise and one needs to carefully look at what is being asked and how it is asked. As posed, these six questions require an answer of mixed fact and law which, in my opinion, do not require an improper “legal interpretation” to be conducted. They refer to terms which may be seen as having a legal connotation, but these terms are simply there as a contextual premise to answer what are factual questions.

[32]  The first four questions relate to facts in association with whether individual Respondents acted “separately”, “in concert” or “jointly” with other Respondents in respect of certain specific events. These words were used by the Commissioner in his pleadings; sometimes, the Commissioner also used the words “work together” and “jointly” as equivalents in referring to the Respondents. These are factual questions regarding which of the Respondents work together or in concert, and whether they act individually or separately.

[33]  Question 847-848, on its part, seeks information in connection with individual Respondents “permitting” others to make the representations. As to question 1119, it specifically asks about the individual Respondents that are “said to make the price representations” or “said to permit others to make” them (emphasis added). I acknowledge that these two questions specifically refer to terms found in the deceptive marketing practices provisions at issue in this Application: the term “make” is expressly used in paragraph 74.01(1)(a) of the Act and it includes “permitting a representation to be made” pursuant to subsection 52(1.2) of the Act.

[34]  I do not agree with the Commissioner that these six questions improperly ask for a legal interpretation to be made by the witness. In my opinion, asking whether individual Respondents acted in concert, jointly or separately are questions of fact that are highly relevant in the context of this Application, and as formulated, the questions do not venture into the forbidden territory of asking “pure” questions of law or seeking facts or evidence relied on by the Commissioner. The references to the Respondents acting separately, jointly and/or in concert are part of the Commissioner’s pleadings, and the Respondents are entitled to ask about the facts or information known to the Commissioner that underlie these allegations in connection with the various specific Respondents. I would add that terms like “acting in concert”, “acting jointly” or “acting separately” are ordinary words which are not found in the provisions of the Act forming the basis of this Application. While these terms may have a legal connotation, they are also common words, as opposed to technical terms or terms requiring a technical interpretation. They are the kind of terms that any person can understand. In my view, no conclusion of law is required to answer the questions incorporating them. The same is true for the terms “permitting”, “said to make” or “said to permit” used in Questions 847-848 and 1119 even though they echo wording used in the provisions of the Act at issue in the Application.

[35]  In addition, I would point out that Ms. Nikolova has been involved in the Competition Bureau’s investigation leading to the Application. It is reasonable to expect that she has a high level of knowledge of the context of the Application, and will be able to understand the terms used to frame these six Category 2 Questions and the specific factual questions being asked.

[36]  I am therefore not persuaded that, as formulated, these six Category 2 Questions bear the attributes that would render them improper and inacceptable in the context of an examination for discovery of the Commissioner’s representative. In my view, they do not require Ms. Nikolova to make a legal interpretation of the terms “make”, “permit”, “separately”, “in concert” or “jointly”, but instead ask for the facts allowing one to link the individual Respondents to the impugned deceptive marketing practices. The questions do not require her to assess whether the facts meet the precise legal test of paragraph 74.01(1)(a) and whether the facts indeed qualify as “making” or “permitting to make” the representations at issue.

[37]  Questions 1120 and 1121 raise a more delicate issue. They broadly ask for the “Commissioner’s information as to the manner in which each respondent makes the price representations” or “permits another respondent to make price representations”. These questions not only specifically refer to the terms “make” and “permit” found in the deceptive marketing practices provisions at issue in this Application, but they also amount to asking about all the facts and evidence that the Commissioner has with respect to the reviewable conduct at issue. I acknowledge that the word “rely” is not used in these two questions but, broadly formulated as they are, I find that they are essentially to the same effect and lead to a similar result. They effectively ask for admissions of law and for the evidence in support of the Commissioner’s allegations.

[38]  As formulated, I find that they are problematic and improper, and they need not be answered.

[39]  I make one last comment. Had the Respondents reformulated the Category 2 Questions and simply asked about facts or information known by the Commissioner in relation to the involvement of the various individual Respondents in the impugned representations on the Ticketing Platforms, those questions would have been allowed without hesitation, and without having to conduct the more detailed analysis described in these reasons. Determining whether questions are properly refused on examinations for discovery or cross the boundary into the territory of inappropriate questions is a fact-specific exercise, and it will ultimately depend on how the questions are formulated in the context of each given case. I agree that examinations for discovery should not be reduced to an exercise of semantics, but words used in questioning do matter. The parties will always be on safer grounds if the questions asked are carefully limited to the facts and do not import what may be perceived as legal language that the trier of fact will eventually have to interpret and assess.

FOR THE ABOVE REASONS, THE TRIBUNAL ORDERS THAT:

[40]  The Respondents’ motion is granted in part.

[41]  The Respondents’ questions 461; 462; 677; 679; 285-286; 844-848; 845-848; 846- 848; 847- 848; and 1119 need to be answered in writing by the Commissioner’s representative, Ms. Nikolova.

[42]  The Respondents’ questions 685; 1199; 1120 and 1121 need not be answered.

[43]  As success on this motion has been divided, and considering that 20 of 34 Refused Questions initially listed in the Notice of Motion have been answered by the Commissioner or resolved by the parties, costs shall be in the cause.

DATED at Ottawa, this 5th day of April 2019.

SIGNED on behalf of the Tribunal by the Chairperson.

(s) Denis Gascon

COUNSEL OF RECORD:

For the applicant:

The Commissioner of Competition

François Joyal Paul Klippenstein Ryan Caron Derek Leschinsky Katherine Rydel

For the respondents:

Live Nation Entertainment, Inc et al

Mark Opashinov David W. Kent Guy Pinsonnault Adam D.H. Chisholm Joshua Chad