PUBLIC CT-2018-005 THE COMPETITION TRIBUNAL
IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34, as amended; AND IN THE MATTER OF an application by the Commissioner of Competition for orders pursuant to section 74.1 of the Competition Act regarding conduct reviewable pursuant to paragraph 74.01(1)(a) and section 74.05 of the Competition Act;
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 COMMISSIONER’S MOTION RECORD (Response to the Respondents’ Motion on the Commissioner’s Refusals)
ATTORNEY GENERAL OF CANADA Department of Justice Canada Competition Bureau Legal Services Place du Portage, Phase I 50 Victoria Street, 22 nd Floor Gatineau QC K1A 0C9 Fax: (819) 953-9267
François Joyal Tel: (514) 283-5880 francois.joyal@justice.gc.ca
Paul Klippenstein Tel: (819) 953-3888 paul.klippenstein@canada.ca
Ryan Caron Tel: (819) 953-3889 ryan.caron@canada.ca
PUBLIC CT-2018-005 THE COMPETITION TRIBUNAL
IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34, as amended; AND IN THE MATTER OF an application by the Commissioner of Competition for orders pursuant to section 74.1 of the Competition Act regarding conduct reviewable pursuant to paragraph 74.01(1)(a) and section 74.05 of the Competition Act;
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 INDEX TAB PAGES 1 Commissioner of Competition’s Response to the Respondents’ 1-3 Notice of Motion 2 Affidavit of Melanie Dubeau, affirmed 28 March 2019 4-5 3 Exhibit A: Excerpts from the Transcript pf the Examination for 6-13 Discovery of Jared Smith, Volume II 4 Exhibit B: Exhibit 114 to the Examination of Lina Nikolova 14-15 5 Exhibit C: Commissioner’s responses to additional questions that had 16-28 previously been refused which were provided on 28 March 2019
THE COMPETITION TRIBUNAL IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34, as amended;
AND IN THE MATTER OF an application by the Commissioner of Competition for orders pursuant to section 74.1 of the Competition Act regarding conduct reviewable pursuant to paragraph 74.01(1)(a) and section 74.05 of the Competition Act;
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
COMMISSIONER’S RESPONSE TO RESPONDENTS’ NOTICE OF MOTION (Respondents’ Motion on Commissioner’s Refusals)
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2 PUBLIC PART I. GROUNDS ON WHICH THE MOTION IS OPPOSED 1. The Commissioner of Competition (“Commissioner”) has answered some of the questions that are the object of the Respondents’ motion. The Commissioner has properly refused to answer the remaining 18 questions.
2. The remaining refused questions are improper in that: a. The remaining refused questions grouped as “Issue 1 – Historic Conduct” constitute a fishing expedition into the Commissioner’s enforcement activities beyond any representations the Respondents may have relied upon;
b. The remaining refused questions grouped as “Issue 2 – Individual Respondent Allegations” improperly seek to have the Commissioner’s representative categorize the facts which have been identified as belonging to particular elements of the legal test; that is for the trier of fact to decide; and
c. The remaining refused questions under “Issue 3 – Industry Practices” is improperly vague and far-reaching.
3. The Respondents’ motion should be dismissed with costs. 4. Competition Act, RSC 1985, c C-34, ss 52, 74.01, 74.03, 74.05. 5. Federal Courts Rules, SOR/98-106, rr 240 - 242. 6. Such further and other grounds as counsel may advise and the Tribunal may permit.
3 PUBLIC PART II. EVIDENCE TO BE USED AT THE HEARING 7. The following documentary evidence will be used at the hearing on the motion:
a. the Affidavit of Melanie Dubeau, affirmed 28 March 2019; b. the pleadings; and c. such further and other grounds as counsel may advise and the Tribunal may permit.
RESPECTFULLY SUBMITTED THIS MARCH 28, 2019. ATTORNEY GENERAL OF CANADA Department of Justice Canada Competition Bureau Legal Services Place du Portage, Phase 1 50 Victoria Street, 22nd Floor Gatineau QC K1A OC9 Fax: (819) 953-9267
François Joyal Tel: (514) 283-5880 francois.joyal@justice.gc.ca
Paul Klippenstein Tel: (819) 934-2672 paul.klippenstein@canada.ca
Ryan Caron Tel: (819) 953-3889 ryan.caron@canada.ca
Counsel to the Commissioner
THE COMPETITION TRIBUNAL IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34, as amended;
AND IN THE MATTER OF an application by the Commissioner of Competition for orders pursuant to section 74.1 of the Competition Act regarding conduct reviewable pursuant to paragraph 74.01(1)(a) and section 74.05 of the Competition Act;
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
AFFIDAVIT OF MELANIE DUBEAU Affirmed 28 March 2019
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I, Melanie Dubeau, of the City of Ottawa, in the Province of Ontario, SOLEMNLY AFFIRM AS FOLLOWS:
1. I am a senior paralegal with the Competition Bureau Legal Services, lawyers for the Applicant, the Commissioner of Competition (“Commissioner”) in this proceeding. I have personal knowledge of certain matters affirmed herein. Where my knowledge is based on information provided by others, I state the source of that information and believe it to be true.
2. Ryan Caron, counsel for the Commissioner, provided me with copies of the transcripts of the examination for discovery of Jared Smith, dated 22 and 23 January 2019. Attached to this affidavit as Exhibit “A” is an excerpt of the transcripts.
3. Mr. Caron also provided me with copies of the transcripts of the Commissioner’s representative, Lina Nikolova, dated 31 January and 1 February 2019, and the exhibits. Attached to this affidavit as Exhibit “B” is a copy of Exhibit 114 from the examination for discovery.
4. I was copied on an email from Mr. Klippenstein to Mark Opashinov, David Kent and Adam Chisholm of McMillan LLP, on 28 March 2019, attached to which was a letter and further answers to certain refusals. Attached to this affidavit as Exhibit “C” is a copy of the email and the attachments.
AFFIRMED before me, at the City of Gatineau, in the Province of Quebec, this 28th day of March 2019.
A Commissioner for taking Oaths
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Melanie Dubeau
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"Original Signed by Commissioner of Taking Affidavits: _____________________________________ This is Exhibit A to the Affidavit of Melanie Dubeau Affirmed 28 March 2019
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"Original Signed by Commissioner of Taking Affidavits: _____________________________________
This is Exhibit B to the Affidavit of Melanie Dubeau Affirmed 28 March 2019
15 PH A D O POUO BLO IC1 5 ~c. Sno9Aaymond: CB·BC
From: Bryenton, Larry: CB-BC Sent: March 6, 2009 10:28 AM To: Zuker, Lawrence: CB-BC C.c: Roger, Ian: CB-BC; Snow. Raymond: CB-BC; Ross, Brnndan: CB-BC Subject: FW: Ticketmaster -----Original Message-----From: Bryenton , Larry : CB-BC
Sent: March 6, 2009 9 :0 9 AM To: Ros n, Andrea : CB-BC Subject: RE: Ticketrnaster
-----Original Message-----From : Rosen, Andrea: CB- BC
S nt : M .rch 5 , 2009 11:09 PM To: B yenton , Larry: CB-BC
Subj c t : Ticketmaster
/ T:1i, is '/ Exhibit t-'o _ / I Lf
' t' < , 1, •·· n of: l-' AJ ~llo lo..;o._ \ I.I, \J, I I[.
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"Original Signed by Commissioner of Taking Affidavits: _____________________________________ This is Exhibit C to the Affidavit of Melanie Dubeau Affirmed 28 March 2019
17 PUBLIC From: Klippenstein, Paul (IC) Sent: March-28-19 2:02 PM To: David Kent; Mark Opashinov; Adam Chisholm; Joshua Chad; Nicole Rozario Cc: 'Joyal, Francois'; Caron, Ryan (IC); Dubeau, Melanie (IC); Kelly, Mallory (IC); Varela Lizardi, Miriam (IC) Subject: CoC v Live Nation et al - answers to certain refusals Attachments: 2019-03-28 Letter from P. Klippenstein re answers to certain refusals.pdf Counsel, Please find a letter and enclosure of today’s date. Paul Klippenstein Legal Counsel / Avocat Competition Bureau Legal Services / Services juridiques, Bureau de la concurrence Place du Portage I 50 Victoria Street, 22nd Floor Gatineau, QC K1A 0C9 Tel: (819) 934‐2672 paul.klippenstein@canada.ca
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28 PUBLIC CT-2018-005 THE COMPETITION TRIBUNAL
IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34, as amended;
AND IN THE MATTER OF an application by the Commissioner of Competition for orders pursuant to section 74.1 of the Competition Act regarding conduct reviewable pursuant to paragraph 74.01(1)(a) and section 74.05 of the Competition Act;
BETWEEN: 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
Respondents AFFIDAVIT OF MELANIE DUBEAU Affirmed 28 March 2019
ATTORNEY GENERAL OF CANADA Department of Justice Canada Competition Bureau Legal Services Place du Portage, Phase I 50 Victoria Street, 22 nd Floor Gatineau QC K1A 0C9 Fax: (819) 953-9267
François Joyal Tel: (514) 283-5880 francois.joyal@justice.gc.ca
Paul Klippenstein Tel: (819) 934-2672 paul.klippenstein@canada.ca
Ryan Caron Tel: (819) 953-3889 ryan.caron@canada.ca
THE COMMISSIONER OF COMPETITION Applicant – and – TNOW ENTERTAINMENT GROUP, INC.
PUBLIC CT-2018-005 THE COMPETITION TRIBUNAL
IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34, as amended;
AND IN THE MATTER OF an application by the Commissioner of Competition for orders pursuant to section 74.1 of the Competition Act regarding conduct reviewable pursuant to paragraph 74.01(1)(a) and section 74.05 of the Competition Act;
BETWEEN: 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
Respondents COMMISSIONERS MOTION RECORD (Response to the Respondents’ Motion on the Commissioner’s Refusals)
ATTORNEY GENERAL OF CANADA Department of Justice Canada Competition Bureau Legal Services Place du Portage, Phase I 50 Victoria Street, 22 nd Floor Gatineau QC K1A 0C9 Fax: (819) 953-9267
François Joyal Tel: (514) 283-5880 francois.joyal@justice.gc.ca
Paul Klippenstein Tel: (819) 934-2672 paul.klippenstein@canada.ca
Ryan Caron Tel: (819) 953-3889 ryan.caron@canada.ca
THE COMMISSIONER OF COMPETITION Applicant – and – TNOW ENTERTAINMENT GROUP, INC.