File No.: CT- 2008-006 Registry Document No.:
COMPETTTlON TRIBUNAL IN THE MATTER OF the Competition Act R.S.C. 1985, c. C-34, as amended; IN THE MATTER OF an application by the Canadian Standard Travel Agent Registry, doing business as CSTAR, for an order pursuant to section 103.1 granting leave to make application under section 75 of the Competition Act,
AND IN THE MATTER OF an application by the Canadian Standard Travel Agent Registry, doing business as CSTAR for an order pursuant to rule 312 of the Federal Courts Rules and rule 34(1) of the Competition Tribunal Rules granting leave to file a supplementary affidavit in support of the application pursuant to section 103.1 granting leave to make an application under section 75 of the Competition Act
BETWEEN: CANADIAN STANDARD TRAVEL AGENT REGISTRY doing business as CSTAR
AND
INTERNATIONAL AIR TRANSPORT ASSOCIATION doing business as IATA
Respondent AFFIDAVIT OF SAMANTHA TROTTOLA Sworn June 10, 2008
Applicant
I, SAMANTHA TROTIOLA, of the City of Toronto, in the Province of Ontario, MAKE OATH AND SAY AS FOLLOWS: 1. I am a law clerk with the firm Gilbert's LLP, solicitors for the Applicant in this action and as such have knowledge of the facts to which I hereinafter depose. 2. I make this affidavit in support of the Applicant's motion for an order pursuant to Rule 312 of the Federal Courts Rules and rule 34(1) of the Competition Tribunal Rules granting leave to file a supplementary affidavit in support of the application pursuant to Section 103.1 granting leave to make an application under Section 75 of the Competition Act 3. Attached as Exhibit "A" to my affidavit is an email from Nawel Bailey of our office to Martin Low of McMillan LLP dated June 5, 2007. 4. Attached as Exhibit "B" to my affidavit is an email from Martin Low to Nawel Bailey dated June 5, 2008. 5. Attached as Exhibit "C" to my affidavit is an email from Nawel Bailey to Martin Low dated June 5, 2008. 6. I have been informed by Nawel Bailey, and I verily believe, that Gilbert's LLP will make the Applicant available for cross-examination on the supplementary affidavit if so requested by the Respondent. I have also been informed by Nawel Bailey, and I verily believe, that Gilbert's LLP is prepared to consent to a reasonable extension of the
Respondents 15-day response period as provided for in s. 119(1) of the Competition Tribunal Rules. SWORN BEFORE ME ) in the City of Toronto, in the ) province of Ontario, ) This t y of June, 2008 ) ) ) SAMANTHA TROTTOLA ) i oner for Taking Affidavits ) S""- <V\(A~ fVl (u ~ i 3
THIS IS EXHIBIT "A" REFERRED TO IN THE AFFIDAVIT OF SAMANTHA TROTTOLA SWORN BEFORE ME THIS~DAY ~-+.1"1 E, 2oos. -- tor
Re: Cross-Exam of B. Bishins Page 1of3 Samantha Trottola From: Nawel Bailey Sent: Thursday, June 05, 2008 4:04 PM To: Tim Gilbert; Alex Stack; Salim Dharssi Subject: FW: Cross-Exam of B. Bishins
See msg to Martin below. Nawel Bailey GILBERT'S LLP Lawyers I Patent and Trademark Agents
The Flatiron Building 49 Wellington Street.East Toronto, ON MSE 1C9 T: 416.703.1100 F: 416.703.7422 nawel@gilbertslaw.ca
This E-mail contains legally privileged and confidential information Intended only for the individual or entity named in the message. If you are not the intended recipient or the agent responsible to deliver it to the intended recipient, and this communication was received in error, please notify us by reply E-mail and delete the original message.
From: Nawel Bailey Sent: Thursday, June OS, 2008 4:04 PM To: 'Martin Low' Subject: Cross-Exam of B. Bishins
Hi Martin, I left a voicemail for you, but in case you haven't received it - we have decided to file a supplemental affidavit with additional evidence for Mr. Bishins. Accordingly, we thought you may want to push back cross-examining Mr. Bish ins until you have the additional materials. I would be grateful if you could let me know, and we can then discuss our expected filing date for the new material, and schedule a new date for the cross examinations. I am happy to write the court and let them know of the change in schedule if this is how you would like to proceed.
Please give me or Alex Stack a call to discuss. Thanks, Nawel Nawel Bailey GILBERT'S LLP Lawyers I Patent and Trademark Agents The Flatiron Building 49 Wellington Street East Toronto, ON MSE 1C9 ; T: 416.703.1100 F: 416.703.7422 nawel@gilbertslaw.ca
This E-mail contains legally privileged and confidential information intended only for the individual or entity named in the message. If you are not the 6/9/2008
Re: Cross-Exam ofB. Bishins Page 2of3 intended recipient or the agent responsible to deliver it to the intended recipient, and this communication was received in error, please notify us by reply E-mail and delete the original message.
From: Martin Low [mailto:Martin.Low@mcmillan.ca] Sent: Monday, June 02, 2008 1:58 PM
To: Nawel Bailey Cc: Tim Gilbert; Alex Stack; David Kent; Eric Vallieres Subject: Re: Cross-Exam of B. Bishins
Thanks Nawel. I expect we'll need until noon on Friday, and we will arrange for expedited transcripts. Martin D. Martin Low t416.865.7100 f 416.865.7048 martin. low@mcmillan.ca
McMillan LLP Brookfield Place, 181 Bay Street, Suite 4400 Toronto, Ontario M5J 2T3
www.mcmillan.ca Please consider the environment before printing this e-mail. CONFIDENTIALITY NOTICE: This email, including any attachments, may contain information that is confidential and privileged. Any unauthorized disclosure, copying or use of this email is prohibited. If you are not the intended recipient, please notify us by reply email or telephone call and permanently delete this email and any copies immediately.
----- Original Message -----From: Nawel Bailey <nawel@gilbertslaw.ca> To: Martin Low Cc: Tim Gilbert <tim@gilbertslaw.ca>; Alex Stack <alex@gilbertslaw.ca> Sent: Mon Jun 02 11:52:38 2008 Subject: Cross-Exam ofB. Bishins
Martin,
9:30am at your offices to cross examine Mr. Bishins will be fine. Could you please provide an estimate of the amount of time you anticipate needing?
Thanks, Nawel Nawel Bailey GILBERT'S LLP
Lawyers I Patent and Trademark Agents
6/9/2008
Re: Cross-Exam ofB. Bishins Page 3of3 The Flatiron Building 49 Wellington Street East Toronto, ON MSE I C9 T:416.703.1100 F: 416.703.7422 nawel@gilbertslaw.ca
This E-mail contains legally privileged and confidential information intended only for the individual or entity named in the message. If you are not the intended recipient or the agent responsible to deliver it to the intended recipient, and this communication was received in error, please notify us by reply E-mail and delete the original message.
6/9/2008
THIS IS EXHIBIT "B" REFERRED TO IN THE AFFIDAVIT OF SAMANTHA TROTTO LA SWOR RE ME THIS.$'DAY J NE, 2008. lO <:gVv-
Re: Cross-Exam ofB. Bishins Page 1of3 Samantha Trottola From: Nawel Bailey Sent: Monday, June 09, 2008 2:30 PM To: Samantha Trottola Subject: FW: Cross-Exam of B. BitShins
Nawel Bailey GILB ER 1'S LLP Lawyers I Patent and Trademark Agents The Flatiron Building 49 Wellington Street East Toronto, ON M5E 1C9 T: 416.703.1100 F: 416.703.7422 nawel@gilbertslaw.ca
This E-mail contains legally privileged and confidential Information Intended only for the individual or entity named In the message. If you are not the Intended recipient or the agent responsible to deliver it to the intended recipient, and this communication was received In error, please notify us by reply E-mail and delete the ortglnal message.
From: Martin Low [mailto:Martin.Low@mcmillan.ca] Sent: Thursday, June 05, 2008 4:59 PM To: Nawel Bailey Cc: David Kent; Eric Vallieres; Jonathan Hood Subject: RE: Cross-Exam of B. Bishins
Nawel, thanks for your message, below. First, as you are aware, you have no right to file a "supplementary" affidavit. Part 8 of the Rules is a complete code for motions under section 103.1 of the Act. Rule 115 makes it clear that the affidavit(s) in support of an application are to be filed with the application and the Rules do not contemplate serial filings by the applicant. The s. 103.1 application is supposed to be a simple and streamlined gatekeeping proceeding.
Second, the service of the application (including affidavit) triggers the respondent's statutory 15 day response period. We are not satisfied that this is a period that the Tribunal can extend. You are not entitled to interfere with our response period by filing late affidavits.
Third, we all attended on the telephone conference on Monday when a schedule was set by Justice Simpson. There was no mention of supplementary affidavits. It is too late now, having failed to raise the matter with Justice Simpson (all apart from the absence of any entitlement under the Rules), to unilaterally file new material and change that timetable.
Accordingly, we intend to proceed tomorrow as discussed and approved by Justice Simpson. ·If you intend to act otherwise, I expect that you will first seek the necessary leave of the Tribunal to do so.
Finally, you will understand that we will rely on this exchange of emails if the circumstances require. ff1cm1llan O. Martin low, Q.C. I. II Partner t 416.865.7100 f 416.865. 7048
martin.low@mcmillan.ca
McMillan LLP Brookfield Place, 181 Bay Street, Suite 4400 Toronto, Ontario MSJ 2T3
www.mcmillan.ca
coNr·roe·N:r~r;;:;~;-r:·y··N'O:rrEE~···:rti·,~ ...~ ~·a·1;;· .. 1nci;;d1;1g··~1·n·y .. d·tt~c1~·m·e;1cs·; ... m.ayM·co·~·ta·,~~···1n'f~;:;;a1:ion .. th·a-r1s .. con .;. rde·;1·t;·;;·;··a;1rr;;;i~iieg. .e ci~ .... 1tn·v··;;;;·;;u·tho;:i;.. e. d .. diS·c;o·st·~·;e; ............ .. copying or u~e of this errwll is prohibited. If you are not the intended recipient, please notify us by reply email or tefephone call and permanentfy delete this enrnfJ 1-rnd any copies immediately.
-----·-----------------------~--···· From: Nawel Bailey [mailto:nawel@gilbertslaw.ca] Sent: Thursday, June 05, 2008 4:04 PM To: Martin Low Subject: Cross-Exam of B. Bishins
6/9/2008
Re: Cross-Exam of B. Bishins Page 2 of3 Hi Martin, I left a voicemail for you, but in case you haven't received it- we have decided to file a supplemental affidavit with additional evidence for Mr. Bishins. Accordingly, we thought you may want to push back cross-examining Mr. Bishins until you have the additional materials. I would be grateful if you could let me know, and we can then discuss our expected filing date for the new material, and schedule a new date for the cross examinations. I am happy to write the court and let them know of the change in schedule if this is how you would like to proceed.
Please give me or Alex Stack a call to discuss. Thanks, Nawel Nawel Bailey GILB ER 1'S LLP Lawyers I Patent and Trademark Agents The Flatiron Building 49 Wellington Street East Toronto, ON MSE 1C9 T: 416.703.1100 F: 416. 703. 7422 nawel@gilbertslaw.ca
This E-mail contains legally privileged and confidential Information Intended only for the Individual or entity named in the message. If you are not the Intended recipient or the agent responsible to deliver It to the intended recipient, and this communication was received In emor, please notify us by reply E-mail and delete the original message.
From: Martin Low [mailto:Martin,Low@mcmillan.ca] Sent: Monday, June 02, 2008 1:58 PM To: Nawel Bailey Cc: Tim Gilbert; Alex Stack; David Kent; Eric Vallieres Subject: Re: Cross-Exam of B. Bishins
Thanks Nawel. I expect we'll need until noon on Friday, and we will arrange for expedited transcripts. Martin D. Martin Low t 416.865. 7100 f 416.865. 7048 martin.low@mcmillan.ca
McMillanLLP Brookfield Place, 181 Bay Street, Suite 4400 Toronto, Ontario M5J 2T3
www.mcmillan.ca Please consider the environment before printing this e-mail. CONFIDENTIALITY NOTICE: This email, including any attachments, may contain information that is confidential and privileged. Any unauthorized disclosure, copying or use of this email is prohibited. If you are not the intended recipient, please notify us by reply email or telephone call and permanently delete this email and any copies immediately.
----- Original Message-----From: Nawel Bailey <nawel@gilbertslaw.ca> To: Martin Low Cc: Tim Gilbert <tim@gilbertslaw.ca>; Alex Stack <alex@gilbertslaw.ca> Sent: Mon Jun 02 11 :52:38 2008 Subject: Cross-Exam ofB. Bishins
Martin,
9:30am at your offices to cross examine Mr. Bishins will be fine. Could you please provide an estimate of the amount of time you anticipate needing? Thanks, Nawel Nawel Bailey GILBERT'S LLP
Lawyers I Patent and Trademark Agents
6/9/2008
Re: Cross-Exam ofB. Bishins Page 3of3 The Flatiron Building 49 Wellington Street East Toronto, ON M5E 1C 9
T: 416.703.1100 F: 416.703.7422 nawel@gilbertslaw.ca
This E-mail contains legally privileged and confidential information intended only for the individual or entity named in the message. If you are not the intended recipient or the agent responsible to deliver it to the intended recipient, and this communication was received in error, please notify us by reply E-mail and delete the original message.
6/9/2008
TH!S !S EXHIBIT "C" REFERRED TO IN THE AFFIDAVIT OF SAMANTHA TROTTOLA SWORN BEFORE ME THIS ~ODA~ ~{~
A Commissioner, etc.
Re: Cross-Exam ofB. Bishins Page 1of3 Samantha Trottola From: Nawel Bailey Sent: Thursday, June 05, 2008 6:05 PM To: martin.low@mcmillan.ca Cc: Tim Gilbert; Alex Stack; Salim Dharssi Subject: FW: Cross-Exam of B. Bishins
Martin, We do not agree with your interpretation of the Rules. We will proceed with the cross examination of Mr. Bishins as planned for B:OOam tomorrow at your offices. However, this is without prejudice to our right to file a supplemental affidavit, which we reserve the right to do.
Best, Nawel From: Martin Low [mailto:Martin.Low@mcmillan.ca] Sent: Thu 6/5/2008 4:59 PM To: Nawel Bailey Cc: David Kent; Eric Vallieres; Jonathan Hood Subject: RE: Cross-Exam of B. Bishins
Nawel, thanks for your message, below. First, as you are aware, you have no right to file a "supplementary" affidavit. Part 8 of the Rules is a complete code for motions under section 103.1 of the Act. Rule 115 makes it clear that the affidavit(s) in support of an application are to be filed with the application and the Rules do not contemplate serial filings by the applicant. The s. 103.1 application is supposed to be a simple and streamlined gatekeeping proceeding.
Second, the service of the application (including affidavit) triggers the respondent's statutory 15 day response period. We are not satisfied that this is a period that the Tribunal can extend. You are not entitled to interfere with our response period by filing late affidavits.
Third, we all attended on the telephone conference on Monday when a schedule was set by Justice Simpson. There was no mention of supplementary affidavits. It is too late now, having failed to raise the matter with Justice Simpson (all apart from the absence of any entitlement under the Rules), to unilaterally file new material and change that timetable.
Accordingly, we intend to proceed tomorrow as discussed and approved by Justice Simpson. If you intend to act otherwise, I expect that you will first seek the necessary leave of the Tribunal to do so.
Finally, you will understand that we will rely on this exchange of emails if the circumstances require. mcrnrJ!an D. Martin Low, Q.C. I1 1P artner t 416.865.7100 F 416.865.'7048 martin.low@mcmillan.ca
McMlllan LLP Brookfield Place, 181 Bay Street, Suite 4400 Toronto, Ontario MSJ 2T3
www.mcmillan.ca Plea~e consider the environment before printin~J this e"n1ail. coN FlDENiiAifr'Y"'i:io+iEE:'ii1i'S"ema£Tncli1'diiii.i'ari'Y'a'i1:aciimeli'i:S; ..; ;;a·v .. coniai'ii···1;;i;;·;:;;;a·ti'oli'iiiai'i5"C'i.i;iii'deli"iiiiali·'d··'P;i\iiie9e'd:· .." A·;;:y···;;;;;;"Uiii'Ori'Ze'Ci''di5Ciosi1'ie;· .. copying or use of this email Is prohibited. If you are not the Intended recipient, please notify us by reply email or telephone call a11d permanently delete t/lis email amt any copies immediately.
From: Nawel Bailey [mailto:nawel@gilbertslaw.ca] Sent: Thursday, June 05, 2008 4:04 PM
To: Martin Low Subject: Cross-Exam of B. Bishins
Hi Martin,
6/9/2008
Re: Cross-Exam of B. Bishins Page 2of3 I left a voicemail for you, but in case you haven't received it - we have decided to file a supplemental affidavit with additional evidence for Mr. Bi shins. Accordingly, we thought you may want to push back cross-examining Mr. Bishins until you have the additional materials. I would be grateful if you could let me know, and we can then discuss our expected filing date for the new material, and schedule a new date for the cross examinations. I am happy to write the court and let them know of the change in schedule if this is how you would like to proceed.
Please give me or Alex Stack a call to discuss. Thanks, Nawel Nawel Bailey GILBERT'S LLP Lawyers I Patent and Trademark Agents The Flatiron Building 49 Wellington Street East Toronto, ON MSE 1C9 T: 416.703.1100 F: 416.703.7422 nawel@gilbertslaw.ca
This E-mail contains legally privileged and confidential information Intended only for the Individual or entity named in the message. If you are not the intended recipient or the agent responsible to deliver it to the Intended recipient, and this communication was received in error, please notify us by reply E-mail and delete the original message.
From: Martin Low [mailto:Martin.Low@mcmillan.ca] Sent: Monday, June 02, 2008 1:58 PM To: Nawel Bailey Cc: Tim Gilbert; Alex Stack; David Kent; Eric Vallieres Subject: Re: Cross-Exam of B. Bishins
Thanks Nawel. I expect we'll need until noon on Friday, and we will arrange for expedited transcripts. Martin D. Martin Low t416.865.7100 f416.865.7048 martih.low@mcmillan.ca
McMillan LLP Brookfield Place, 181 Bay Street, Suite 4400 Toronto, Ontario M5.l 2T3
www.mcmillan.ca Please consider the environment before printing this e-mail. CONFIDENTIALITY NOTICE: This email, including any attachments, may contain information that is confidential and privileged. Any unauthorized disclosure, copying or use of this email is prohibited. If you are not the intended recipient, please notify us by reply email or telephone call and permanently delete this email and any copies immediately. · -----Original Message-----From: Nawel Bailey <nawel@gilbertslaw.ca> To: Martin Low Cc: Tim Gilbert <tim@gilbertslaw.ca>; Alex Stack <alex@gilbertslaw.ca> Sent: Mon Jun 02 11 :52:38 2008 Su~ject: Cross-Exam ofB. Bishins
Martin,
9:30am at your offices to cross examine Mr. Bi shins will be fine. Could you please provide an estimate of the amount of time you anticipate needing? Thanks, Nawel Nawel Bailey GILBERT'S LLP
6/9/2008
Re: Cross-Exam of B. Bishins Page 3of3 Lawyers I Patent and Trademark Agents The Flatiron Building 49 Wellington Street East Toronto, ON MSE 1C 9 T: 416.703.1100 F: 416.703.7422 nawel@gilbertslaw.ca
This E-mail contains legally privileged and confidential information intended only for the individual or entity named in the message. If you are not the intended recipient or the agent responsible to deliver it to the intended recipient, and this communication was received in error, please notify us by reply E-mail and delete the original message.
6/9/2008