Date: 20260415

Docket: A-219-25

Citation: 2026 FCA 72

CORAM:

RENNIE J.A. BIRINGER J.A. PAMEL J.A.

 

BETWEEN:

DOMINIC ATKINSON and RORY MCGEE

Appellants

and

THE COMMISSIONER OF COMPETITION

Respondent

Heard at Ottawa, Ontario, on November 10, 2025.

Judgment delivered at Ottawa, Ontario, on April 15, 2026.

REASONS FOR JUDGMENT BY:	RENNIE J.A.
CONCURRED IN BY:	BIRINGER J.A. PAMEL J.A.

 

Date: 20260415

Docket: A-219-25

Citation: 2026 FCA 72

CORAM:

RENNIE J.A. BIRINGER J.A. PAMEL J.A.

 

BETWEEN:

DOMINIC ATKINSON and RORY MCGEE

Appellants

and

THE COMMISSIONER OF COMPETITION

Respondent

REASONS FOR JUDGMENT

RENNIE J.A.

[1] This appeal raises two questions: the first, substantive; the second, procedural.

[2] The substantive question centers on the duration of the Commissioner of Competition’s power under paragraph 11(1)(a) of the Competition Act, R.S.C. 1985, c. C-34 [Act], to obtain an ex parte order from a Federal Court judge (a section 11 order), compelling the production of documents and testimony.

[3] To be precise, the question is whether the commencement of proceedings before the Competition Tribunal under Part VII.1 (Deceptive Marketing Practices) or Part VIII (Matters Reviewable by Tribunal) of the Act terminates the Commissioner’s power to obtain a section 11 order. The Federal Court (2025 FC 860, per Gascon J. [Federal Court Decision]) found that the Commissioner’s right to seek a section 11 order did not end with an application before the Competition Tribunal. I agree with that conclusion.

[4] The procedural question is whether recourse for a person subject to an ex parte order lies in a motion to set aside under rule 399 of the Federal Courts Rules, S.O.R./98-106, in an appeal to this Court under section 27 of the Federal Courts Act, R.S.C. 1985, c. F-7, or both. I see no error in the judge’s consideration of the relationship between rule 399 and rights of appeal under section 27 of the Federal Courts Act and the conclusion that either route is available.

I. The Context

[5] On April 6, 2023, the Commissioner of Competition initiated an inquiry into allegations that Rogers Communications Inc. and Rogers Communications Canada Inc. had engaged in reviewable conduct under Part VII.1 of the Competition Act. The Commissioner’s inquiry concerned the veracity of Rogers’ representations to the public that Rogers Infinite Plans offer consumers unlimited data on their mobile phones. The inquiry was authorized under subparagraph 10(1)(b)(ii) of the Act:

[6] As part of the inquiry, the Commissioner made an ex parte application to the Federal Court for an order under section 11 requiring Dig Insights Inc. (Dig), a third-party market research firm retained by Rogers, to produce documents. The Federal Court granted the Commissioner’s application and ordered document production relevant to the inquiry. Dig subsequently produced documents in response to the order.

[7] Six months later, on December 23, 2024, the Commissioner filed an application before the Competition Tribunal under Part VII.1 of the Act, asserting that Rogers had made false and misleading representations in offering the Infinite Plan.

[8] On February 3, 2025, the Commissioner made a second section 11 application to the Federal Court, this time seeking an order compelling the appellants, both former and current employees of Dig, to attend for oral examination. Gascon J. granted the order on February 28, 2025.

[9] Shortly thereafter, on March 18, 2025, the appellants moved under rule 399 to set the order aside. Briefly, rule 399 contemplates motions to set aside orders in particular circumstances, including orders made ex parte.

[10] The appellants did not appeal or seek a stay of the section 11 order pending the disposition of the rule 399 motion, and the examinations were completed in April and May of 2025.

[11] Sections 10 and 11 of the Act and rule 399 are set out in Annex A to these reasons.

II. The Federal Court Decision

[12] Consistent with Federal Court practice, the motion under rule 399 to set aside the section 11 order came before Gascon J., being the judge who made the section 11 order against the appellants. The appellants argued that the order could not have been made because, the proceeding before the Competition Tribunal having been commenced on December 23, 2024, the power was spent. A section 11 order could no longer be in furtherance of a section 10 inquiry, or put otherwise, the commencement of proceedings meant that the section 10 inquiry had concluded.

[13] The Federal Court judge dismissed the motion, concluding that the appellants failed to disclose a prima facie case, either on the facts or law, why the order should not have been made. In the judge’s view the inquiry was ongoing, and the section 11 power remained available to the Commissioner notwithstanding the commencement of proceedings before the Tribunal. With respect to the burden on the moving party under rule 399, the Federal Court drew on Canada (Commissioner of Competition) v. Canada Tax Reviews Inc., 2021 FC 921 [Canada Tax Reviews], which also dealt with a motion to set aside a section 11 order:

[30] The general test for having an Order set aside or varied on a motion under Rule 399(1)(a) is whether the respondent has disclosed a prima facie case why the Order should not have been made. This requires the respondent to provide sufficient facts and law to justify a conclusion in its favour, in the absence of a response from the applicant: Ont. Human Rights Commission v Simpsons-Sears Limited, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at 558. For Orders issued under section 11 of the Act, this can be achieved by providing sufficient facts and law to justify one of the following conclusions: (i) that the Commissioner did not satisfy the elevated duty of disclosure that applies in such proceedings, (ii) that the Commissioner has not initiated a bona fide inquiry under section 10 of the Act, (iii) that some or all of the information that was ordered to be produced is irrelevant to the Commissioner’s inquiry, or (iv) that some or all of that information would be excessive, disproportionate or unnecessarily burdensome.

[Emphasis consistent with Federal Court Decision at para. 28.]

[14] The judge then reviewed previous decisions holding that filing a notice of application before the Competition Tribunal did not terminate the underlying inquiry under section 10 and that therefore, the Commissioner’s investigative power in section 11 remained extant (Warner Music Group Inc (Re), 1997 CarswellNat 1786 at paras. 8–9, 13, 78 C.P.R. (3d) 335 (F.C.) [Warner]; Canadian Pacific Ltd. v. Canada (Director of Investigation and Research), 1997 CanLII 12366 at paras. 7, 10, 74 C.P.R. (3d) 65 (Ont. C.J. (Gen. Div.)) [Canadian Pacific]). The judge considered that a case dealing with the ability to obtain an ex parte order under section 11 following the start of criminal proceedings under the Competition Act was inapplicable, as carriage and conduct of the prosecution was no longer in the hands of the Director, but with the Attorney General of Canada: TNT Canada Inc. v. Canada (Director of Investigation and Research), 1995 CanLII 3585, [1995] 2 F.C. 544 (F.C.) [TNT].

[15] The judge dismissed the argument that requiring the appellants to testify, potentially, in two different fora concurrently (proceedings before the Tribunal and under section 11) was prejudicial, noting that testimony obtained under a section 11 order is only admissible with leave of the Tribunal (Competition Tribunal Rules, S.O.R./2008-141, r. 73). He also noted that the Commissioner had advised the appellants of the intended scope of the examination, and that they, as did Rogers, had counsel during the examination and access to rulings by a special examiner (Federal Court Decision at para. 61). I note, parenthetically, that the Commissioner was not required to give notice of the scope of the examination.

III. The Appellants’ Arguments

[16] The appellants contend that section 11 is a tool by which the Commissioner can gather information to determine whether there are grounds to either bring a civil case before the Competition Tribunal or present evidence to the Attorney General that a criminal case should be prosecuted. Under this interpretation of section 11, an inquiry under section 10 necessarily ends once a civil or criminal proceeding has been brought against the subject of such inquiry, as its purpose is spent. The appellants also argue that compelling their testimony under section 11 risks the mischaracterization of their examinations, as this evidence could be introduced before the Tribunal without the opportunity for Rogers to test it by cross-examination.

[17] Once an application is brought, according to the appellants, any further gathering of evidence by the Commissioner is subject to the rules governing discovery in the Competition Tribunal Rules (with reference to the Federal Courts Rules specifically relating to non-party discovery), and not the investigative powers in section 11 of the Act.

[18] The appellants also argue that the judge erred in his treatment of Warner, TNT, and Canadian Pacific. With respect to Warner, the appellants say that it concerned a section 11 order issued against third parties before proceedings were brought under Part VIII of the Act and not after, as is the case here. With respect to Canadian Pacific, the appellants argue that this decision stands for the proposition that section 11 powers can be utilized by the Commissioner to determine whether to assert additional grounds beyond those already pleaded in a proceeding before the Tribunal. In this case, the Commissioner has not suggested that the purpose of the examinations was to identify additional grounds to assert against Rogers.

[19] They also contend that the Federal Court Decision is inconsistent with the decision of this Court in Charette v. Commissioner of Competition, 2003 FCA 426 [Charette]. The appellants argue that the purpose of section 10, according to Charette, is to assist the Commissioner in the exercise of his discretion to decide whether to commence a proceeding. That decision having been made, the power has served its statutory purpose and section 11 is exhausted. The judge distinguished Charette, stating that the decision “was not about whether applications to the Tribunal terminate inquiries” (Federal Court Decision at para. 52).

[20] The appellants’ second argument is that the judge erred in dismissing their motion on the basis that they ought to have appealed. They point to the judge’s comment that “a motion under Rule 399 is not a procedural vehicle where a party can ask the Court to revisit its decision because it is not happy with the result” and that “Rule 399 cannot be used as a form of ‘backdoor appeal’” (Federal Court Decision, at para. 49). Relying on Empire Company Limited v. Canada (Attorney General), 2024 FC 810 [Empire], the appellants argue that the proper procedural route to challenge an ex parte section 11 order is under rule 399.

[21] The appellants request that the Court order that the Commissioner destroy or be prohibited from using or relying on the transcripts at the hearing.

IV. Whether the appeal is moot

[22] There is a threshold issue. The Commissioner argues the matter is moot; the examinations have been completed, the section 11 order is spent and there is no longer any live controversy between the parties.

[23] I agree. However, there remains the question whether we should exercise our discretion to hear the appeal notwithstanding its mootness.

[24] I believe we should, as many of the factors identified in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, 57 DLR (4th) 231, weigh in favour of deciding the appeal. The issue was fully argued in an adversarial context. The question whether the commencement of an application in the Competition Tribunal extinguishes recourse to section 11 is an important and recurring question, and, absent a stay of a section 11 order by this Court pending its appeal or rule 399 review, may be evasive of review. It is difficult to see how the smooth and efficient unfolding of proceedings before the Competition Tribunal, the interests of the bar, and the effective use of the time of this Court are served by skirting the issues.

[25] I begin with the procedural question of what recourse is available from an ex parte order.

V. Appeal or Motion

[26] The appellants contend that the judge erred in requiring them to have appealed the section 11 order to this Court as opposed to moving under rule 399.

[27] I do not agree with the appellants’ characterization of the reasons of the Federal Court. The judge did not dismiss the appellants’ motion on the basis that they ought to have appealed; the motion failed because the appellants did not establish a prima facie case that the judge ought to reconsider his decision.

[28] Rule 399 and section 27 of the Federal Courts Act serve different purposes. Either recourse, a motion to set aside or an appeal, is open to a party, but they have different procedures, burdens and standards of review.

[29] On a motion under rule 399, the burden is on the moving party to make a prima facie case as to why the order ought not to have been made, and, in an effort to discharge that burden, a party may lead new evidence. On an appeal, in contrast, the Housen standards of review apply and the appellant must demonstrate an error of law or a palpable and overriding error of fact or mixed fact and law in the lower court’s decision(Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Canada (Health) v. Elanco Canada Limited, 2021 FCA 191 at paras. 32–33; Export Development Canada v. Canada (Information Commissioner), 2025 FCA 50 at paras. 31–32).

[30] The judge noted that as the appellants did not “offer any evidence or legal basis that was not already before the Court”, they were, in effect, re-arguing the same issues before the same judge (Federal Court Decision at para. 48). As their principal objection was a purely legal one—that the section 11 power was spent—they could have brought the question to this Court via an appeal of the section 11 order. The choice was theirs to make; a motion to set aside and appeal each come with their own substantive and procedural considerations. However, having led no evidence, the judge correctly characterized the motion as an effort to re-argue a legal point already determined—something, which, as I will explain, is not the purpose of rule 399.

[31] Rule 399 is an important safety valve. The authority of the Court to set aside its own orders is necessary to deal with the case where the court made a decision in the absence of a party or based on misleading or incomplete information. Rule 399(2)(a) confers discretion on the Court to vary or set aside a decision “by reason of a matter [« faits nouveaux » in the French version] that arose or was discovered subsequent to the making of the order.” Orders may also be set aside if it is established that the party seeking an ex parte order did not fulfill the obligation to make full disclosure. This is why evidence is admissible on a rule 399 motion.

[32] While the rule serves to guard against unfairness that could arise from an ex parte hearing, its role is not to invite judges to reconsider their decisions.

[33] The principle of finality of judicial decisions means that setting aside a judgment must be based on serious or compelling grounds: Siddiqui v. Canada (Citizenship and Immigration), 2016 FCA 237 at para. 12, citing Collins v. Canada, 2011 FCA 171 at para. 12. That is why the burden on a rule 399 motion, that of establishing a prima facie case, is a high one. In commenting on the text of the predecessor to rule 399, Marceau J.A. noted in C.U.P.W. v. Canada Post Corp., [1987] 3 F.C. 654, 1986 CanLII 6804 (F.C.A.), “the words used to describe the power reserved in Rule 330 are not consistent with the idea of simply repeating the operation performed by the first judge so as to determine its validity” (at pp. 660–61). While Marceau J.A. was writing in dissent, the same point was made by Lacombe J.A. for the majority, who noted that a party seeking to set aside an ex parte order needed to show a “fundamental defect” in the original decision, such as a finding made in a complete absence of evidence, and could not simply ask the reviewing judge to “substitute his view of the evidence for that of the Judge who had made the ex parte order”: Canada Post at pp. 672–73.

[34] It is in this context that I understand Gascon J.’s comments. The appellants were asking him to revisit his decision on a point of law, already determined. If that is the objective, the proper recourse is to appeal, not to try to convince the motions judge to change their mind. Gascon J. refused to do so, and rightly so.

[35] I flag, however, a reservation with respect to Canada Tax Reviews, which sets out a limited list of grounds that may be available under rule 399(1) to a party who seeks to challenge a section 11 order:

(i) that the Commissioner did not satisfy the elevated duty of disclosure that applies in such proceedings, (ii) that the Commissioner has not initiated a bona fide inquiry under section 10 of the Act, (iii) that some or all of the information that was ordered to be produced is irrelevant to the Commissioner’s inquiry, or (iv) that some or all of that information would be excessive, disproportionate or unnecessarily burdensome.

Canada Tax Reviews at para. 30.

[36] While these grounds are well-established, I do not think it advisable to consider the list of circumstances that may support setting aside an ex parte order as a closed list in the context of a section 11 order or that there should, more generally, be a closed list.

[37] Ex parte orders are authorized under a great number of statutes, and it is impossible to foresee the mix of facts and law that might support a motion under rule 399, save to say that the circumstances must be exceptional. Ex parte orders are made in intellectual property matters, as is the case with Anton Piller orders and Mareva injunctions, and in contempt proceedings. In motions to set aside default judgment, for example, the criteria differ and require a reasonable explanation for the delay, the existence of a prima facie defence, and diligence in bringing the motion after learning of default judgment (Babis (Domenic Pub) v. Premium Sports Broadcasting Inc., 2013 FCA 288).

[38] I would therefore dismiss this ground of appeal and turn to the substantive question.

VI. Duration of a Section 10 Inquiry

[39] The text, context, and purpose of sections 10 and 11 lead to the conclusion that an inquiry is not terminated upon filing an application under either Part VII.1 (Deceptive Practices) or Part VIII (Reviewable Matters) of the Act.

[40] Nothing in section 10 nor section 11 explicitly or implicitly limits the term of an inquiry based on the filing of an application before the Competition Tribunal. The language of section 10 is broad and unconstrained. It authorizes the Commissioner to inquire “into all such matters as the Commissioner considers necessary to inquire into with a view to determining the facts.” Had Parliament wanted to set a limit, it could have done so expressly. It did just that in section 22 of the Act, which provides the Commissioner the power to discontinue an inquiry at its discretion. This suggests that Parliament turned its mind to the question of the circumstances that put an end to an inquiry. Section 22 also reinforces the broad discretion accorded investigatory agencies in determining the scope, focus and duration of their inquiries.

[41] Moving from the text of sections 10 and 11, it is difficult to understand how the appellants’ interpretation aligns with the context and purpose of the Act. The Act establishes investigatory powers to support the Commissioner’s statutory mandate. In contrast, the Competition Tribunal Act, R.S.C. 1985, c. 19 (2nd Supp.) establishes an adjudicative scheme, wherein the Competition Tribunal determines whether the Commissioner’s allegations of anticompetitive behaviour are well founded or not. The powers are complementary, not binary. The appellants’ arguments do not reflect that distinction.

[42] Holding that a section 10 inquiry terminates upon the Commissioner filing an application would present the Commissioner with a choice in every inquiry. Either it must terminate the inquiry by filing an application, potentially limiting the evidentiary record before the Tribunal, or, alternatively, refrain from commencing an application to preserve the section 11 power, thereby allowing potential anticompetitive conduct to continue. In either case, this would hinder the Commissioner’s ability to pursue the stated purposes of the Act; it is only once a proceeding has been commenced that the Commissioner has access to interim and interlocutory remedies that can be ordered by the Competition Tribunal.

[43] The argument that there is nothing left to inquire into once the proceeding has been launched is, respectfully, naïve. The business environment in which the alleged anticompetitive conduct is situated may be complex and evolving, and new information, particularly with respect to the effects or consequences of the impugned conduct, may arise after an application has been filed and during the litigation. This concern is reflected by section 10.1, which mandates the Commissioner to inquire into “the state of competition in a market or industry”.

[44] This consideration is particularly acute in the context of mergers, where the Act imposes tight time frames on the Commissioner to decide whether to grant clearance to the merger. Holding that the section 11 power terminates with the application would frustrate the ability to fully examine the consequences of a merger, for example. This scenario is not hypothetical. In Commissioner of Competition v. Secure Energy Services Inc., 2023 Comp. Trib. 2, 2023 CanLII 27447 (C.T.) the Commissioner filed an application before the Tribunal objecting to a merger but did not have the evidence from third party competitors necessary to establish the price-effects of the merger. That evidence was obtained via section 11 orders and examinations, but only after the application was filed.

[45] Freezing the investigatory power at an early stage could also have consequences for the efficacy of proceedings before the Competition Tribunal. The record may be limited, leading to lengthier discoveries, and the grounds of the application may not be as precise as they would otherwise be, possibly necessitating amendments. This is, in effect, the concern addressed in Canadian Pacific which found that notwithstanding a notice of application having been filed, the inquiry continued, and the Director (now Commissioner) was entitled to determine if there were other grounds available to support a section 92 order by way of a section 11 order (Canadian Pacific at para. 7).

[46] It is important to note that while section 11 is central to the Commissioner’s mandate to investigate potential anti-competitive or reviewable conduct, it also serves as the tool by which the Commissioner can gather information from customers, distributors, suppliers and competitors to, from and with, the target of the inquiry and order. There are obvious sensitivities in voluntarily providing such evidence, hence the compulsory power of section 11 is essential in facilitating the overall objective of the Act.

[47] To conclude, I see no error in the judge’s understanding of the legislation nor in his appreciation of the relevant jurisprudence, both of which support the conclusion that an application to the Tribunal does not terminate either the inquiry under section 10 or recourse to section 11. One case requires comment, however.

[48] The appellants argue that this Court’s decision in Charette means that the inquiry ends upon the commencement of a civil or criminal case.

[49] In Charette, the appellant had been unsuccessful in the Federal Court in obtaining mandamus compelling the Commissioner to initiate a section 10 inquiry. On appeal, the issue was whether the Commissioner was required to initiate an inquiry under section 10 in response to complaints that had been thoroughly investigated by the Commissioner and found not to warrant a formal inquiry. This Court held that the Commissioner, having investigated Mr. Charette’s complaint of anticompetitive conduct, had discharged his legal duty under subsection 10(2) as he had “fully advised Mr. Charette of the results of his investigation and conclusion that an inquiry was not warranted under paragraph 10(1)(b)” (Charette at para. 47, per Rothstein J.A.).

[50] It was in this context that the Court stated that the purpose of section 10 is “for the Commissioner to gather information to determine whether there are grounds to either bring a civil case before the Competition Tribunal or present evidence to the Attorney General of Canada that a criminal case should be prosecuted” (Charette at para. 50). Ultimately, this Court concluded that that purpose would not be advanced by obligating the Commissioner to initiate an inquiry where he had already found, after extensive investigation, there was no reason to believe the Act was contravened. Therefore, the case speaks to the extent of the Commissioner’s public legal duty to commence an inquiry and does not address the question of whether section 11 is spent on the commencement of a proceeding before the Competition Tribunal.

VII. Inconsistent Pleading

[51] The appellants contend that the Commissioner is taking an inconsistent position with respect to when a section 10 inquiry ends. In support, they point to the Commissioner’s representations to this Court in another appeal that the purpose of section 11 is to allow the gathering of evidence “to allow enforcement officials to make responsible and informed decisions about whether to commence legal proceedings” (Commissioner of Competition v. Amazon.com.ca, ULC and Amazon Mobile LLC, A-329-24 (Memorandum of Fact and Law, Appellant at para. 27)). Having decided to proceed civilly or criminally, the purpose of section 11 has been fulfilled.

[52] I do not read the Commissioner to be adopting an inconsistent position. The comments were made in the context of distinguishing section 11 orders from civil discovery and do not either expressly or implicitly, amount to the Commissioner taking the position that recourse to section 11 ends when an application to the Tribunal has been filed. This is reinforced elsewhere in the same representations:

Section 11 exists to enable the Commissioner to discharge his responsibility to “cause an inquiry to be made into all such matters as the Commissioner considers necessary to inquire into with the view of determining the facts” in respect of believed contraventions of the Act.

Commissioner of Competition v. Amazon.com.ca, ULC and Amzn Mobile LLC, A-329-24 (Memorandum of Fact and Law, Appellant at para. 25) (emphasis in original)

[53] This statement is consistent with the arguments before us; namely, that section 11 is an aid to the inquiry mandate in section 10, and the inquiry ends only when the Commissioner so concludes. In any event, even if the Commissioner took an inconsistent position, it is of no consequence. The interpretation of legislation rests with the judiciary, not the parties. A court’s understanding of the laws of Parliament prevails, unaffected by the conduct of the parties.

VIII. Section 11 Investigative Powers vs. Third-Party Discovery Rules

[54] The appellants argue that the Commissioner’s investigatory powers are not thwarted if the section 11 power terminates upon the commencement of an application. This is because the Competition Tribunal Rules include discovery and third-party examination rights which were engaged the moment the Commissioner filed his notice of application. Again, I do not agree.

[55] The purpose of section 11 is distinct from the purpose of the Federal Court’s third-party discovery rules. The former is investigative; the latter is in support of an adjudicative proceeding. Section 11 enables the Commissioner to investigate and collect facts “on any matter that is relevant to the inquiry”. In contrast, the Competition Tribunal Rules and third-party discovery are confined to matters relevant to or raised in the pleadings (Federal Courts Rules, r. 240(a)). Discovery is designed to allow a party to know the case they may have to meet at trial and to gain admissions; section 11 is designed to assist the Commissioner to determine if there is a case to bring forward, and if so, scope out its contours.

[56] The appellant’s argument reflects, again, a linear understanding of the relationship between the investigative powers in the Commissioner and the adjudicative powers of the Tribunal. Sections 10 and 11 are continuing investigative powers, not limited by the existence of an adjudicative proceeding. There is nothing in the Act that states or implies that right to discovery precludes resort to an order under section 11. To the contrary, the Tribunal Rules themselves contemplate the integration of section 11 evidence into the adjudicative process. As noted, rule 73 of the Competition Tribunal Rules requires leave of the Tribunal before section 11 evidence is admitted, which serves as a safeguard against the potential misuse of section 11 evidence (Commissioner of Competition v. Canada Pipe, 2003 CanLII 90068 (C.T.)).

[57] The argument that recourse to section 11 is constrained by the existence of the right to discovery has been considered, and rejected (see, e.g., Canada (Commissioner of Competition) v. Indigo Books & Music Inc., 2015 FC 256 at para. 40 [Indigo Books & Music]; Director of Investigation and Research v. Canadian Pacific Ltd., 74 C.P.R. (3d) 55, 1997 CanLII 2729 (C.T.) [Canadian Pacific 2]). Previous cases have concluded that section 11 is an available tool for the Commissioner to use to gather information parallel to an application and “[a]ny advantage which the [Commissioner] obtains through use of section 11 examinations is an advantage accorded to him under the Act” (Indigo Books & Music at para. 42, citing Canadian Pacific 2).

[58] It is not inappropriate for the Commissioner to rely on its section 11 investigative power to obtain information, even when the Commissioner may have other means of obtaining that information. Rather, the presumption is that the Commissioner’s actions are bona fide and in the public interest: Canada (Commissioner of Competition) v. Pearson Canada Inc., 2014 FC 376 at para. 43 [Pearson]. The appellants have the onus of displacing that presumption, and they have failed to do so.

[59] But there is a third, and in my view, more compelling reason why I would reject this argument.

[60] Section 11 proceedings are ex parte for a reason. Section 11 orders are not only used against the target of the inquiry. Orders are sought against customers, suppliers, distributors and competitors of the target, many of which may be in a commercially sensitive or vulnerable relationship with the target. Commercially sensitive information lies at the core of any section 11 examination, canvassing, for example, the existence of preferred supplier arrangements or discounts, pricing, operating margins, geographic and product marketing information and the downstream price effects of a restricted practice or merger, to name but a few.

[61] Requiring the Commissioner to gather this evidence in a discovery would bring those parties, and their evidence, into direct contact with the respondent to the application. This would defeat one important purpose of section 11, which is to bolster the Commissioner’s ability to investigate and enforce competition law by incentivizing third parties who, for commercial reasons, might be otherwise reluctant to testify. Under the compulsion of a court order, they can do so without risk of compromising their business relationships or competitive position. Neither the target nor the third party has any right to participate in the application for a section 11 order, file evidence or cross-examine on the Commissioner’s affidavit; rather, their concerns are brought forward to the Court through the Commissioners duty of full disclosure. Importantly, the target is not entitled to attend the examination if it is prejudicial to the effective conduct of the examination, or if it would result in the disclosure of confidential commercial information relating to the business of the person being examined or its employer (Act, s. 12(4)). Considering the purpose of section 11 and the express statutory recognition of the sensitivities involved, attendance by the target should not be expected and requests to attend should not be routinely granted (Pearson at para. 92).

[62] To conclude, the distinctions in purpose and procedure between a section 11 examination and discovery are many and stark; discovery is not a surrogate for an investigatory power, a point made clear by the fact that failure to comply with a section 11 order can result in imprisonment up to two years or significant fines in the discretion of the court.

IX. Remedies

[63] While these reasons are sufficient to dispose of the appeal, I conclude with a brief comment on remedies.

[64] The appellants seek alternative remedies: either that the Commissioner destroy the transcripts, or that it be prohibited from using or relying on the transcripts at the hearing.

[65] The appellants have not cited any authority demonstrating that improperly obtained evidence can be destroyed in civil proceedings and I would be very cautious before making a statement in support of that proposition.

[66] The respondent cited a decision of the Federal Court where copies of evidence were destroyed in the context of a quasi-criminal case where the Court found a “significant” breach of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Even in that case, however, the originals were preserved (Harkat (Re), 2009 FC 659 at para. 74). Courts have sufficient tools to prevent the use of evidence before them that has been obtained without lawful authority, and at the risk of repetition, leave of the Tribunal must be obtained if the transcripts are to be used in a proceeding before the Tribunal.

[67] I would therefore dismiss the appeal with costs.

"Donald J. Rennie"

"I agree.

Monica Biringer J.A. "

"I agree.

Peter G. Pamel J.A. "

ANNEX A

 

 

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:	A-219-25
STYLE OF CAUSE:	DOMINIC ATKINSON AND RORY MCGEE v. THE COMMISSIONER OF COMPETITION
PLACE OF HEARING:		Ottawa, Ontario
DATE OF HEARING:		November 10, 2025
REASONS FOR JUDGMENT BY:		RENNIE J.A.
CONCURRED IN BY:		BIRINGER J.A. PAMEL J.A.
DATED:		april 15, 2026

APPEARANCES:

Scott Lemke Alexa Cheung	For The Appellants
Jonathan Hood Irene Cybulsky Kendra Wilson	FOR THE RESPONDENT

SOLICITORS OF RECORD:

Massey LLP Toronto, Ontario	For The Appellants
Marie-Josée Hogue Deputy Attorney General of Canada	FOR THE RESPONDENT