Docket:
A-149-17
Citation: 2018 FCA 24
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CORAM:
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STRATAS J.A.
BOIVIN J.A.
LASKIN J.A.
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BETWEEN:
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VANCOUVER AIRPORT AUTHORITY
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Appellant
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and
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COMMISSIONER OF COMPETITION
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Respondent
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REASONS FOR JUDGMENT
STRATAS J.A.
[1]
The Vancouver Airport
Authority appeals from the order dated April 24, 2017 of the Competition
Tribunal (per Gascon J.): 2017 CACT 6.
[2]
In the Competition Tribunal,
the Commissioner of Competition has brought competition proceedings against the
Airport Authority for alleged abuse of dominant position. In proceedings such
as these, parties whose conduct is impugned are entitled to pre-hearing
disclosure. The Commissioner has disclosed many documents to the Airport
Authority. But he has refused to produce roughly 1,200 documents. He says that
these documents are covered by a class privilege that protects the
confidentiality interests of those who have given him documents and information
during his investigations.
[3]
In response, the Airport
Authority brought a motion seeking disclosure of the documents. Before the
Competition Tribunal, it submitted that the alleged class privilege does not
exist and so the documents should be disclosed.
[4]
In well-expressed, clear and
comprehensive reasons, the Competition Tribunal found that the alleged class
privilege exists. Key to its reasons is its application of earlier authorities
of this Court that it believed confirmed the existence of a class privilege. By
order dated April 24, 2017, the Competition Tribunal dismissed the Airport
Authority’s motion for disclosure.
[5]
The Airport Authority
appeals from that dismissal. The appeal turns on whether the alleged class
privilege exists. I find that it does not. The earlier authorities of this
Court that the Competition Tribunal invoked in support of its decision do not
apply. In any event, they have been overtaken by later Supreme Court
jurisprudence. This jurisprudence is against recognizing a class privilege in
this case.
[6]
Therefore, I would allow the
appeal, quash the order of the Competition Tribunal and remit the motion to it
for redetermination.
A.
Background
[7]
The Commissioner of
Competition has applied to the Competition Tribunal for relief against the
Airport Authority under section 79 of the Competition Act, R.S.C. 1985,
c. C-34. The relief stems from the Airport Authority’s decision to allow only
two in-flight caterers to operate at the Vancouver International Airport.
[8]
In his application, the
Commissioner alleges that the Airport Authority controls the market for “galley handling” at the airport, the Airport Authority acted
with an anti-competitive purpose when deciding to permit only two in-flight
caterers to operate at the airport, and a “substantial prevention or lessening of competition” has resulted, causing “higher prices, dampened innovation and
lower service quality.”
[9]
The Airport Authority denies
the Commissioner’s allegations and defends against the relief sought. It asserts
that it has been acting throughout to discharge its public interest mandate as
a non-profit entity, including enhancing the airport’s ability to attract and
retain flights, thereby generating economic development for Vancouver and, more
broadly, for British Columbia and the rest of Canada. The Airport Authority
adds that it determined, legitimately, that allowing additional caterers to
operate at the airport would imperil the viability of the two already operating
at the airport. It also alleges that it does not substantially or completely
control the market for galley handling at the airport, it did not have an
anti-competitive purpose, and its decision to restrict the number of caterers
at the airport did not lessen competition or cause deleterious effects.
[10]
In his investigation, the
Commissioner of Competition obtained a number of orders under section 11 of the
Act. These required four in-flight catering firms, two operating at the airport
and two who want to operate at the airport, to produce to the Commissioner a
broad array of documents.
[11]
The Commissioner of
Competition delivered an affidavit of documents in the proceeding. That
affidavit disclosed that the Commissioner had roughly 11,500 relevant documents
in his possession, power or control. But he was willing to produce fewer than
2,000. Most of these were the Airport Authority’s own documents.
[12]
Almost all of the remaining
documents, roughly 9,500, were withheld in whole or in part on the basis of an
alleged public interest class privilege. These documents comprise much of the
case the Commissioner has against the Airport Authority.
[13]
The Airport Authority
brought a motion for disclosure of the 9,500 documents. On the day the motion
was to be heard, the Commissioner delivered an amended affidavit of documents.
In that affidavit, he waived privilege over roughly 8,300 documents. This is 86%
of the documents originally said to be covered by a class privilege. Roughly
1,200 documents—12% of the documents originally withheld—remained withheld
exclusively on the basis of a public interest class privilege.
[14]
The motion for disclosure
went forward and concerned these 1,200 documents. The Commissioner continued to
assert that these remaining documents were covered by a class privilege and
could not be disclosed. The Commissioner argued that this class privilege
covered all “records created or
obtained by the Commissioner, [his] employees, servants, agents or solicitors
or obtained from third parties during the Commissioner’s investigations.”
[15]
The Airport Authority urged
the Competition Tribunal to reject the Commissioner’s assertion of a class
privilege. In its view, the Competition Tribunal should instead determine on a case-by-case
or document-by-document basis whether a public interest privilege exists
concerning any of the 1,200 documents.
[16]
In its decision, the
Competition Tribunal disagreed with the Airport Authority and dismissed its
motion for disclosure. It upheld the existence of the alleged class privilege
and, thus, none of the 1,200 documents needed to be disclosed. Given this, it did
not need to examine whether any of the individual documents were subject to
public interest privilege on a case-by-case or a document-by-document basis.
[17]
The Airport Authority
appeals from the dismissal of its motion for disclosure to this Court. The
appeal is under subsection 13(1) of the Competition Tribunal Act, R.S.C.
1985, c. 19 (2nd Supp.).
B.
Standard of review
[18]
In appeals to this Court
from the Competition Tribunal, legal questions are to be reviewed for
correctness: Tervita Corp. v. Canada (Commissioner of Competition), 2015
SCC 3, [2015] 1 S.C.R. 161 at paras. 34 and 39; Canada (Commissioner of
Competition) v. Superior Propane Inc., 2001 FCA 104, [2001] 3 F.C.R. 185.
[19]
In this appeal, the central
question before us is what is legally required for a court to recognize a class
privilege. This is a legal question to be reviewed for correctness. In my view,
for the reasons that follow, the Competition Tribunal erred in answering this
question. Alternatively, in recognizing a class privilege in the circumstances
of this case and based on this evidentiary record, the Competition Tribunal
proceeded on the basis of an error in law or in legal principle. Its decision
cannot stand.
C.
Preliminary considerations
[20]
The submissions to us, truly
excellent as they were, touched on many different concepts, some aspects of
which were complex. These included the admissibility of evidence, pre-hearing
disclosure obligations, and, more generally, procedural fairness obligations. The
complexity was magnified by the fact that these concepts potentially have
different content in court proceedings and administrative proceedings. At the
outset, it is worth describing these concepts, how they operate and interrelate,
and where they fit in the whole scheme of things.
(1)
The admissibility of evidence
[21]
In court proceedings, the “fundamental ‘first principle’” is that “all relevant evidence” going to the
truth of the matter before the court “is admissible
until proven otherwise”: R. v. Gruenke,
[1991] 3 S.C.R. 263 at p. 288, [1991] 6 W.W.R. 673 at p. 688 and see, e.g.,
Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 161, 400 D.L.R.
(4th) 723 at paras. 79-82.
[22]
There are exceptions to this
first principle: sometimes relevant evidence is inadmissible. For example,
hearsay is ordinarily inadmissible. Another exception is public interest
privilege: evidence covered by a legally recognized public interest privilege
is inadmissible.
[23]
As in court proceedings,
administrative proceedings are often directed at getting at the truth of the
matter. What happened? Who did what? How was it done? Why? With what effects?
As a general rule, within the limits of materiality and proportionality,
administrative decision-makers want to receive all possible evidence bearing on
these questions. They too are on a quest for the truth of the matters before
them and they often formulate their evidentiary rules with that in mind. This
is certainly true for the administrative decision-maker here, the Competition
Tribunal.
[24]
And just like courts, many
administrative decision-makers recognize exceptions to general rules of
admissibility.
[25]
The law of evidence before
administrative decision-makers is not necessarily the same as that in court
proceedings. An administrative decision-maker’s power to admit or exclude
evidence is governed exclusively by its empowering legislation and any policies
consistent with that legislation: Tranchemontagne v. Ontario (Director,
Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513 at para. 16;
on how to interpret legislation that empowers administrators, see Chrysler
Canada Ltd. v. Canada (Competition Tribunal), [1992] 2 S.C.R. 394, 92
D.L.R. (4th) 609, Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27,
154 D.L.R. (4th) 193, Bell ExpressVu Limited Partnership v. Rex, 2002
SCC 42, [2002] 2 S.C.R. 559 and Canada Trustco Mortgage Co. v. Canada,
2005 SCC 54, [2005] 2 S.C.R. 601. The empowering legislation, properly
interpreted, might allow an administrative decision-maker to admit material
that courts would ordinarily reject as inadmissible.
[26]
This being said, privileges
designed to protect fundamental confidentiality interests such as legal
professional privilege have the same force in administrative proceedings as in
court proceedings. Any administrative decisions or legislation governing
administrative decision-makers that weakens or undercuts the privileges may be,
respectively, unreasonable or infringe the protection of privacy interests in
section 8 of the Charter: Pritchard v. Ontario (Human Rights Commission),
2004 SCC 31, [2004] 1 S.C.R. 809; Lavallee, Rackel & Heintz v. Canada
(Attorney General); White, Ottenheimer & Baker v. Canada (Attorney
General); R. v. Fink, 2002 SCC 61, [2002] 3 S.C.R. 209.
[27]
In the case before us, the
Competition Tribunal recognizes, and all before us accept, that evidence
covered by a legally recognized public interest privilege is inadmissible.
(2)
Pre-hearing disclosure obligations: an aspect of
procedural fairness
[28]
Administrative proceedings
must be procedurally fair. The level of procedural fairness that must be given
varies according to a number of factors: Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at
paras. 23-28.
[29]
Before us are administrative
proceedings that are adjudicative in nature. Usually in such proceedings, the
requirements of procedural fairness are high: Baker at para. 23; Bell
Canada v. Canadian Telephone Employees Association, 2003 SCC 36, [2003] 1
S.C.R. 884. This is particularly so where the proceedings have the potential to
significantly affect a party’s interests: Baker at para. 25; Kane v.
Board of Governors of the University of British Columbia, [1980] 1 S.C.R.
1105 at p. 1113, 110 D.L.R. (3d) 311 at p. 322; R. v. Higher Education
Funding Council, ex parte Institute of Dental Surgery, [1994] 1 All
E.R. 651 (Q.B.) at p. 667. The Competition Tribunal correctly found that “a high degree of procedural protection is
needed in Tribunal proceedings because of its court-like process” and “[t]he Tribunal resides very close to, if not at, the ‘judicial end
of the spectrum’, where the functions and processes more closely resemble
courts and attract the highest level of procedural fairness” (at para. 169).
[30]
The procedural fairness
obligations require the Commissioner of Competition to disclose to the Airport
Authority evidence that is relevant to issues in the proceedings. This is
necessary for the Airport Authority to know the case it has to meet and to
fairly defend itself against the allegations. Often—as the Commissioner has
recognized in this case by releasing roughly 8,300 documents from his
investigatory file—this includes exculpatory material or other material resting
in the investigatory file that could assist the party whose conduct is impugned
in testing the evidence called by the Commissioner or in building its own case:
see, e.g., in other contexts, Shooters Sports Bar Inc. v. Ontario
(Alcohol & Gaming Commission) (2008), 238 O.A.C. 9, 168 A.C.W.S. 580 (Div.
Ct.); Markandey v. Ontario (Board of Ophthalmic Dispensers), [1994] O.J.
No. 484 at para. 43 (Gen. Div.); Thompson v. Chiropractors’ Assn.
(Saskatchewan), [1996] 3 W.W.R. 675, 36 Admin. L.R. (2d) 273 at paras. 3-6
(Q.B.); Shambleau v. Ontario (Securities Commission) (2003), 26 O.S.C.B. 1629, [2003] O.J. No.
4089 at para. 6; Re Fauth, 2017 ABASC 3; Law Society of Upper Canada
v. Savone, 2015 ONLSTA 26 at para. 23, aff’d 2016 ONSC 3378, [2016] O.J.
No. 2988. In some cases, there may be limits on the obligation to disclose
based on materiality, proportionality, applicable legislative standards and the
nature of the proceedings: Ciba-Geigy Canada Ltd. v. Canada (Patented
Medicine Prices Review Board), [1994] 3 F.C. 425, 55 C.P.R. (3d) 482
(T.D.), affirmed (1994), 56 C.P.R. (3d) 377, 170 N.R. 360 (F.C.A.); Sheriff
v. Canada (Attorney General), 2006 FCA 139, [2007] 1 F.C.R. 3.
(3)
The relationship between issues of admissibility
and issues of pre-hearing disclosure
[31]
The obligation to disclose
is not necessarily limited by the law of admissibility. Material that is
inadmissible can be subject to a disclosure obligation.
[32]
To illustrate this, suppose
that an authority such as the Commissioner of Competition possesses a document
written by one person recounting a discussion with a particular individual.
Although that document may be hearsay and arguably inadmissible to prove the
contents of what the particular person said, nevertheless the requirements of
procedural fairness may require that it be disclosed. The document may be
extremely useful, indeed necessary, to the party whose conduct is impugned in
the proceedings.
[33]
For example, during a
party’s pre-hearing preparation, it may decide that it should interview the
particular individual whose words are recounted in the document. Perhaps it may
decide to call that person as a witness so that the truth of what was said is
in evidence. Maybe the fact that the discussion took place at a particular time
is an important fact in the scheme of things. And perhaps the document will be
necessary to put to an adverse witness during cross-examination.
[34]
However, sometimes inadmissible
evidence cannot be disclosed. One instance is where privileges that protect
fundamentally important interests in confidentiality apply, the privileges have
not been waived, and no other exception recognized by law applies. For example,
unless legal professional privilege has been waived, material covered by it is
normally confidential for all purposes, in just about all circumstances; only
the rarest of circumstances will displace the privilege, such as criminal cases
where innocence is at stake as a result of the non-disclosure: Alberta
(Information and Privacy Commissioner) v. University of Calgary, 2016 SCC
53, [2016] 2 S.C.R. 555 at para. 43.
[35]
The central issue before us
is whether the 1,200 remaining documents that the Commissioner refuses to
disclose are covered by a public interest class privilege. Assuming the
privilege exists, the Commissioner holds the privilege and has not waived it. At
least no one has argued waiver either by explicit act or implied conduct: see, e.g.,
Slansky v. Canada (Attorney General), 2013 FCA 199, [2015] 1 F.C.R. 81
at paras. 253-262 (dissenting, but the majority not disagreeing with the legal
principle). Accordingly, in the circumstances of this case, if the class privilege
exists, prima facie the Commissioner need not disclose any documents
covered by it. If the class privilege does not exist and the Commissioner wants
to maintain confidentiality over individual documents that were said to be in
that class, the Commissioner will have to claim a public interest privilege on
a document-by-document or case-by-case basis.
D.
The public interest privilege claimable on a
document-by-document or case-by-case basis compared with a class privilege: how
do they differ?
[36]
What is the nature of public
interest privilege, claimable on a document-by-document or case-by-case basis? When
does it exist?
[37]
Certain basic principles are
at stake in a claim for public interest privilege. In Carey v. Ontario,
[1986] 2 S.C.R. 637 at p. 647, 35 D.L.R. (4th) 161 at p. 169, the Supreme Court
identified a basic tension resting at the heart of a claim for public interest
privilege:
It is obviously
necessary for the proper administration of justice that litigants have access
to all evidence that may be of assistance to the fair disposition of the issues
arising in litigation. It is equally clear, however, that certain information
regarding governmental activities should not be disclosed in the public
interest.
[38]
Another formulation of this
is found in a classic British authority:
It is universally recognised that here there are two kinds of public
interest which may clash. There is the public interest that harm shall not be
done to the nation or the public service by disclosure of certain documents,
and there is the public interest that the administration of justice shall not
be frustrated by the withholding of documents which must be produced if justice
is to be done.
(Conway
v. Rimmer, [1968] 1 All E.R. 874 at p. 880.)
[39]
A leading Canadian text puts
the matter this way:
The court,
therefore, must balance the possible denial of justice that could result from
non-disclosure against the injury to the public arising from disclosure of
public documents which were never intended to be made public.
(Lederman,
Bryant and Fuerst, The Law of Evidence in Canada, 4th ed. (Markham,
Ont.: LexisNexis, 2014) at p. 1074.)
[40]
We engage with these competing interests by
rigorously assessing a claim for public interest privilege using four criteria:
First, the
[evidence] must originate in a confidence…. Second, the confidence must be
essential to the relationship in which the communication arises. Third, the
relationship must be one which should be ‘sedulously fostered’ in the public
good (‘Sedulous[ly]’ being defined in the New Shorter Oxford English Dictionary
on Historical Principles (6th ed. 2007), vol. 2, at p. 2755, as ‘diligent[ly]…
deliberately and consciously’). Finally…the court must consider whether in the
instant case the public interest served by [confidentiality over the evidence]
outweighs the public interest in getting at the truth.
(R. v. National Post, 2010 SCC 16,
[2010] 1 S.C.R. 477 at para. 53, citing Wigmore on Evidence (McNaughton
Rev. 1961), vol. 8, at § 2285.)
[41]
The four criteria from Wigmore
are not “carved in stone” but rather provide a “general framework within which policy
considerations and the requirements of fact-finding can be weighed and balanced
on the basis of their relative importance in the particular case before the
court”: Gruenke at p.
290 S.C.R., p. 689 W.W.R, cited with approval in National Post at para.
53; Globe and Mail v. Canada (Attorney General), 2010 SCC 41, [2010] 2 S.C.R. 592 at para. 54.
[42]
No one disputes that the
Commissioner could try to claim public interest privilege over the 1,200
remaining documents on a document-by-document or case-by-case basis. But in
this case, as his primary position, the Commissioner does not assert that
documents are covered by a case-by-case privilege.
[43]
Instead, the Commissioner
says that the 1,200 documents are part of a group of 9,500 documents, all of
which are covered by a class privilege. In this case, the class is said to
cover all “records created or obtained
by the Commissioner, [his] employees, servants, agents or solicitors or
obtained from third parties during the Commissioner’s investigations.”
[44]
The Commissioner says that
this class privilege is necessary. Without it, those complaining about
anti-competitive conduct, fearing reprisal, would be reluctant to complain to
the Commissioner and offer candid evidence in support of their complaints.
[45]
A class privilege applies if
the documents and information fall within a class that legally qualifies for blanket
protection from disclosure. Documents and information are protected from
disclosure only because of their membership in a protected class; their
contents and the circumstances surrounding them do not otherwise matter. In the
words of the Supreme Court, a class privilege applies “without regard to the particulars of the
situation” and “is insensitive to the facts of the particular
case”: National Post
at para. 42.
[46]
Class privileges are granted
because of the need to protect a particular relationship of importance. “Once the relevant relationship is
established between the confiding party and the party in whom the confidence is
placed, privilege presumptively cloaks in confidentiality matters properly
within its scope without regard to the particulars of the situation”: National Post at para. 42. The class
protection is granted because “anything
less than blanket confidentiality” would “fail
to provide the necessary assurance[s]” to parties in the relationship to perform as they must
within the relationship: National Post at para. 42; Lizotte v. Aviva
Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 52 at paras. 39-40.
[47]
In contrast, a case-by-case or
document-by-document public interest privilege looks at the nature of a
particular document or information and the circumstances surrounding it, not
its membership in a class. A party claiming the privilege over certain documents
must make an affirmative case, document-by-document, to successfully shield
them from disclosure. Unlike a class privilege, this sort of privilege offers
no presumptive or default protection from disclosure.
[48]
So, for example, take the
relationship of legal professional and client, established for the purpose of
the giving and obtaining of legal advice. Loosely put, the law recognizes that
the entire class of all communications within that relationship, including all
documents relating to the giving or seeking of legal advice, must be protected
on a default, blanket basis from disclosure. The blanket nature of the
privilege provides certainty. If only case-by-case or document-by-document privilege
could be claimed, uncertainty would be created about whether some information
or documents within the relationship might have to be disclosed. The
uncertainty might lead clients not to seek legal advice or the legal advice
would have to be couched or be less than frank, or both. The effect? The
democratic right of people to ascertain their full legal rights and make
well-informed decisions would suffer, with resulting damage to the
administration of justice. The paramount importance of the relationship between
legal professionals and their clients and the vital objectives served by it
justify the blanket, presumptive, default protection of confidentiality that class
privilege provides.
[49]
Due to the breadth and
generality of a class privilege, it can be blunt, sweeping and indiscriminate in
operation and, thus, can work against the truth-seeking purpose of a court or
administrative proceeding. A case-by-case or document-by-document privilege—tailored
and case-specific as it is—can be more consistent with the truth-seeking
purpose.
[50]
The Supreme Court put this
point as follows:
…[W]hile the result of any privilege is to impede the search for
truth, and thereby to run the risk of an injustice to the persons opposed in
interest to the claimant, a class privilege is more rigid than a privilege
constituted on a case-by-case basis. It does not lend itself to the same extent
to be tailored to fit the circumstances.
(National
Post at para. 46.)
[51]
In Carey, the Supreme
Court expressed concern about the “absolute character of [a class] protection…without regard to
subject matter, to whether [the documents] are contemporary or no longer of
public interest, or to the importance of their revelation for the purpose of
litigation” (at p. 659 S.C.R., p. 178 D.L.R.).
[52]
Because of these concerns,
traditionally courts have been reluctant to find class privileges. Only “very few” class privileges have been found: National Post at
para. 42. The Supreme Court has gone as far as to say that public interest
claims on a class basis will have “little chance of success”: Carey at p. 655 S.C.R., p. 175 D.L.R. Class
privileges can be found only where there is “clear and compelling evidence [they are] necessary” or “really necessary”:
R. v. Chief Constable of the West Midlands Police, ex parte Wiley,
[1994] 3 All E.R. 420 at p. 446; Conway, above at p. 888.
[53]
Recently, the Supreme Court
has set the threshold for finding new class privileges as high as can be. New
class privileges can be recognized only if they are supported by policy
rationales as compelling as the class privilege over solicitor-client communications:
National Post at para. 42; Guenke at p. 288 S.C.R., p. 688 W.W.R.
How compelling is that? The policy rationale behind solicitor-client privilege is
an interest protected by our highest law, the Constitution, specifically the
privacy interest under section 8 of the Charter: Lavallee, Rackel &
Heintz, above.
[54]
Commenting on this, Lederman
et al., above observe that new class privileges demand “that the external social policy in question
is of such unequivocal importance that it cannot be sacrificed before the altar
of the courts” (at p. 919).
[55]
The Supreme Court also
suggests that class privileges—privileges that are “more rigid than a privilege constituted on
a case-by-case basis” and
cannot “be tailored to fit the
circumstances”—are inapt
where the relationship said to give rise to the need for blanket
confidentiality varies in practice and depends upon the circumstances: National
Post at paras. 44-46; Bisaillon v. Keable, [1983] 2 S.C.R. 60 at pp.
97-98, 2 D.L.R. (4th) 193 at p. 223. Further, the existence of a comparable class privilege in
“other common law jurisdictions with whom we
have strong affinities” can assist in the
determination: National Post at paras. 43, 47-48.
[56]
The extremely high threshold
for the recognition of class privileges means that to date only four have been
recognized—legal professional privilege, litigation privilege, informer
privilege and settlement privilege: Lizotte, above at paras. 33-36.
[57]
As well, this extremely high
threshold has led the Supreme Court to opine that “in future such ‘class’ privileges will be
created, if at all, only by legislative action”: National Post at para. 42. For good measure, the
Supreme Court repeated this in Canada (Citizenship and Immigration) v.
Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33 at para. 87.
[58]
Harkat shows how high the threshold for establishing a
class privilege now is. In Harkat the provisions of the Immigration
and Refugee Protection Act concerning security certificates fell before the
Supreme Court for consideration.
[59]
Broadly speaking, security
certificates are issued against those who are reasonably believed to have come
to Canada, among other things, for the purpose of engaging in terrorism. Once
the certificates are issued, the Federal Court must assess their
reasonableness. If the security certificate is found to be reasonable, the
certificate becomes the equivalent of an order requiring the person named in
the certificate to be removed from Canada.
[60]
Often in the Federal Court
proceedings to assess reasonableness much sensitive evidence is adduced. This
can include evidence from human intelligence sources—evidence of the highest
level of sensitivity. Improper disclosure of that sort of evidence can have the
highest of consequences: the lives of sources whose identities are revealed can
be put at grave risk. It is notorious in international intelligence circles
that improper disclosure has sometimes killed human intelligence sources.
[61]
A stronger policy rationale
for a class privilege imposing blanket confidentiality over a class of evidence
can scarcely be imagined. But in Harkat, the Supreme Court—citing its
reluctance to recognize new class privileges in National Post—declined
to recognize a class privilege covering evidence from human intelligence
sources. As in National Post, it held that if a class privilege is
warranted, Parliament, not the courts, should enact one (at para. 87):
Nor, in my view,
should this Court create a new privilege for [Canadian Security Intelligence
Service] human sources. This Court has stated that “[t]he law recognizes very
few ‘class privileges’” and that “[i]t is likely that in future such ‘class’
privileges will be created, if at all, only by legislative action”: R. v.
National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, at para. 42. The
wisdom of this applies to the proposal that privilege be extended to [Canadian
Security Intelligence Service] human sources: Canada (Attorney General) v.
Almalki, 2011 FCA 199, [2012] 2 F.C.R. 594, at paras. 29-30, per
Létourneau J.A. If Parliament deems it desirable that [Canadian Security
Intelligence Service] human sources’ identities and related information be
privileged, whether to facilitate coordination between police forces and
[Canadian Security Intelligence Service] or to encourage sources to come
forward to [Canadian Security Intelligence Service] (see [dissenting] reasons
of Abella and Cromwell JJ. [in Harkat]), it can enact the appropriate
protections.
[62]
In light of these
authorities, it is perhaps not far from the truth to say that it is now practically
impossible for a court, acting on its own, to recognize a new class privilege.
E.
Analysis
[63]
Based on the foregoing
principles, the Commissioner’s claim to a public interest privilege over the
roughly 1,200 documents he has refused to disclose must be rejected. I offer
several reasons in support of this conclusion.
– I –
[64]
The Commissioner stresses
that he is not asking this Court to recognize a new class privilege. He says
that this Court has already recognized a class privilege covering all documents
and information supplied to the Commissioner from third party sources during
the Commissioner’s investigation: D&B Companies of Canada Ltd. v. Canada
(Director of Investigation & Research) (1994), 58 C.P.R. (3d) 353, 176
N.R. 62 (C.A.); Hillsdown Holdings (Canada) Ltd. v. Canada (Director of
Investigation and Research), [1991] F.C.J. No. 1021.
[65]
The Commissioner adds that
in cases like National Post, the Supreme Court has not cast doubt on
already recognized class public interest privileges, such as the one recognized
in D&B Companies and Hillsdown.
[66]
Thus, to the Commissioner,
this case is a simple one: we need only apply the class privilege recognized in
D&B Companies and Hillsdown.
[67]
The Competition Tribunal
stated, properly, that it is bound by decisions of our Court. Accordingly, it
considered itself bound by this Court’s recognition of the class privilege in D&B
Companies and Hillsdown. It applied the class privilege to the 1,200
documents and refused to order that they be disclosed.
[68]
The Airport Authority
disagrees with both the Commissioner and the Competition Tribunal. It submits
that this Court’s decisions in D&B Companies and Hillsdown do
not recognize the class privilege the Commissioner seeks to assert in this
case. In those cases, this Court applied a deferential standard of review and
decided only that the Competition Tribunal had made, in today’s terms, a
reasonable decision. Whether the Competition Tribunal was correct in
recognizing the class privilege was not before this Court. After D&B
Companies and Hillsdown, the standard of review changed to
correctness as a result of Superior Propane and Tervita, both
above. Thus, according to the Airport Authority, the case at bar is the first
time this Court has been called upon to assess on the standard of correctness
whether the Commissioner has the class privilege it asserts.
[69]
In the alternative, the
Airport Authority says that if those cases do recognize the class privilege, D&B
Companies and Hillsdown can no longer be seen as good authority
because they have been overborne by later Supreme Court jurisprudence: Miller
v. Canada (Attorney General), 2002 FCA 370; 220 D.L.R. (4th) 149
(circumstances where this Court may depart from earlier authorities); National
Post.
[70]
I agree with the Airport
Authority. First, I shall examine D&B Companies.
[71]
D&B Companies must be seen in light of the standard of review
this Court applied in that case. In D&B Companies, this Court
applied a deferential standard of review. It stated that “a certain curial deference is due to
tribunals even on statutory appeals when the issue in question, whether factual
or legal, is within the particular expertise of the tribunal” (at p. 357 C.P.R., para. 5 N.R.). In this
Court’s view, the necessary balancing of the interests between disclosure and
confidentiality drew upon “special
expertise in the problems of protecting competition in the market place” and, thus, was within the preserve of the
Competition Tribunal (ibid.). Accordingly, the Court “should not lightly substitute its own views
of the proper balance in these circumstances” (ibid.).
[72]
This Court also observed
that class privileges “are
created as a matter of policy”
and the assessment of policy was “within the competence” of the Competition Tribunal, not the Court (at p. 358
C.P.R., para. 7 N.R.). In its view, the Supreme Court decision in Gruenke,
above, on the recognition of class privileges generally, was not inconsistent
with what the Tribunal had done (ibid.).
[73]
In my view, this Court
decided in D&B Companies that the Tribunal’s recognition of a public
interest privilege was owed deference and could not be interfered with. This
Court did not affirm for itself, nor did it need to affirm for itself given the
deferential standard of review, that a class privilege exists.
[74]
Hillsdown is similar to D&B Companies. There,
the Competition Tribunal did not allow disclosure of certain interview notes.
It relied on an earlier Tribunal decision that acknowledged the need to keep
certain notes confidential in the public interest so that those making a
complaint would not suffer reprisal. This Court applied a deferential standard
in its review of the Tribunal’s decision, finding “no reviewable error” because the conclusion was “reasonably open” to the Tribunal (at paras. 1-2). In Hillsdown,
this Court did not affirm for itself that a class privilege exists.
[75]
I would add that had this
Court in D&B Companies or Hillsdown affirmed that the public
interest class privilege actually exists, these holdings can no longer stand in
light of later Supreme Court cases such as National Post and Harkat.
To some extent this point has been made during the discussion of these cases
earlier in these reasons at paras. 46-62. And this point will be developed
further below when I measure the Commissioner’s claim for a class privilege
against these cases.
[76]
The Commissioner cites other
cases that support the existence of the public interest class privilege it
asserts: Canada (Commissioner of Competition) v. Rogers Communications Inc.,
2013 ONSC 5386, 23 A.C.W.S. (3d) 922 at para. 15; Pro-Sys Consultants Ltd.
v. Microsoft Corporation, 2016 BCSC 97, 262 A.C.W.S. (3d) 883 at paras. 11
and 25; Commissioner of Competition v. Toshiba of Canada Ltd., 2010 ONSC
659, 10 O.R. (3d) 535 at para. 27; Canada (Commissioner of Competition) v.
Air Canada, 2012 Comp. Trib. 21 at paras. 3-6; Canada (Commissioner of
Competition) v. United Grain Growers Ltd., 2002 Comp. Trib. 35 at para. 59.
None of these bind this Court. All of these rely directly or indirectly upon D&B
Companies, Hillsdown, or both.
[77]
In dismissing the Airport Authority’s
motion for disclosure, the Competition Tribunal described D&B Companies,
Hillsdown and its own case law as “long standing and unanimous” on the existence of the class privilege, considered it
binding, and relied upon it in dismissing the Airport Authority’s motion (at
para 5.). This was an error in law.
– II –
[78]
It is not possible on the
jurisprudence for this Court or the Competition Tribunal to recognize a new
class privilege in these circumstances. See the discussion at paras. 46-62,
above. The blunt, sweeping nature of a class privilege, even over the public
interest in the truth-finding function of the Competition Tribunal, is not
supportable in these circumstances. Further, as both National Post and Harkat
suggest, these days the sort of class privilege the Commissioner seeks should
only be granted by Parliament.
[79]
Parliament has already
spoken to confidentiality and privilege concerns in the Act. Its failure to enact the class privilege the
Commissioner seeks is noteworthy. This provides another reason why this Court
should not construct one itself.
[80]
The Competition Act and
Competition Tribunal Rules, SOR/2008-141 provide a scheme to address the
Commissioner’s concerns about confidentiality and privilege. For example, the
Act requires inquiries to be private (subsection 10(3)), allows third parties
to claim solicitor-client privilege (section 19), demands that the Bureau keep
a wide range of information obtained confidential (subsection 29(1)) and
provides protection for whistleblowing employees against employer reprisals
(sections 66.1-66.2). The Rules explain that the public is entitled to access
all documents filed or received in evidence subject only to a confidentiality
order (sections 22, 66).
[81]
These avenues to protect
confidentiality under the Act and Rules also show that lesser measures are
available, short of the extreme step of recognizing a public interest class
privilege over all materials gathered by the Commissioner from third parties
during his investigation: see also the discussion in Canada (Commissioner of
Competition) v. Canada Pipe Company (2003), 28 C.P.R. (4th) 335 at para. 69
(Comp. Trib.).
– III –
[82]
Even if the threshold for
judicial recognition of a class privilege were not as high as the Supreme Court
has set it, a class privilege could not be recognized on the basis of the evidentiary
record in this case.
[83]
In order to establish a
class privilege covering all documents and information received from third
parties during his investigations, the Commissioner must prove that the relationship
between him and third party sources warrants blanket confidentiality
protection. In practical terms, like the example of the legal professional and
client discussed at para. 48 above, the Commissioner must prove that anything
less than blanket confidentiality protection would substantially impair the
relationship, thereby frustrating the Commissioner’s ability to discharge his
legislative responsibilities.
[84]
The Commissioner says just
that. He says that if anything less than blanket confidentiality protection
were afforded to documents and information supplied by third party sources,
there might be reprisals or the threat of reprisals against them. Thus, third
party sources might be less inclined to act. And the Commissioner would be less
able to discharge the important responsibilities Parliament has assigned to him
in the Competition Act. The public interest would suffer.
[85]
The Commissioner did not
file any evidence before the Competition Tribunal establishing these matters.
Thus, in this case, there is no evidentiary basis to support the existence of a
class privilege. On this evidentiary record, a class privilege cannot be
recognized. Given the consequences of recognizing a class privilege and the
high threshold that must be met, the unsworn say-so of the Commissioner in
submissions cannot suffice.
[86]
In upholding the existence
of the class privilege, the Competition Tribunal appeared to assume that the
prerequisites for it were met (at para. 62). Is this permissible?
[87]
In the abstract, I accept that,
provided procedural fairness obligations are respected, some administrative
decision-makers in some circumstances can make assessments without evidence, relying
on facts gleaned from their own experience and expertise in their field. As
discussed earlier, the rigorous evidentiary requirements in court proceedings
do not necessarily apply in certain administrative proceedings: it depends on
the text, context and purpose of the legislation that governs the
administrative decision-maker.
[88]
In another case, I put this
point as follows:
The investigator
[of the Public Service Commission] did not need specific evidence [that if a
vacant public service position were advertised, candidates would apply].
Parliament did not vest decision-making authority over this subject-matter in a
body of generalist judges sitting in court who will need evidence of every last
thing. Rather, Parliament chose to vest decision-making authority in the Public
Service Commission, including investigators employed by it—a body acting within
a specialized area of employment, armed with expert appreciation of the nature
and functioning of this area.
The Commission
knows the skills and capabilities of people who apply for various types of
public service positions and the operational needs and pressures bearing upon a
staffing decision. From this, the Commission can determine whether an
advertising process likely would have found qualified candidates for the
position in a timely way.
To insist that the
Commission have the sort of evidence a court would require on every element of
this determination is to ossify and over-judicialize a process that Parliament
intended to be fair and more informal, one enriched by knowledge and insights
built from years of administrative specialization and expertise. We should not
depart from the decades-old principle of administrative law that “[t]he
purposes of beneficent legislation must not be stultified by unnecessary
judicialization”: Re Downing and Graydon (1978), 92 D.L.R. (3d) 355 at
p. 373, 21 O.R. (2d) 292 at p. 310 (C.A.).
(Canada
(Attorney General) v. Shakov, 2017 FCA 250 at paras. 94-96 (dissenting, but
the majority not disagreeing with the legal principle).)
[89]
Even accepting for
argument’s sake that the Competition Tribunal can sometimes draw on its own
experience and expertise to make certain assessments in certain circumstances, I
am not persuaded that the Competition Tribunal could do so here on its own or
by adopting its earlier decisions on this issue.
[90]
I accept that the
Competition Tribunal might be in a position to accept in a general way that
third party sources might have a fear of reprisal if they assist the
Commissioner in an investigation. But the Competition Tribunal is in no
position to make definitive conclusions without evidence about the Commissioner’s
relationship with third party sources if the class privilege is not recognized.
In particular, without evidence it cannot conclude that the fear of reprisal actually
exists, third party sources will be less inclined to assist, and the
Commissioner will be prevented from carrying out his investigation and
enforcement mandate under the Competition Act.
[91]
The knowledge about third
parties’ possible fear of reprisal if they cooperate lies with the Commissioner
that deals with third party sources, not the Competition Tribunal. From its
legislative mandate and the cases it hears, the Competition Tribunal is not
well placed to know whether third party sources are reluctant to complain to
the Commissioner. But the Commissioner is. It was incumbent on the Commissioner
to adduce evidence on this point and allow the Airport Authority to test it.
[92]
The Competition Tribunal’s
decision in this case and the Tribunal decisions it relies upon all assume that
a public interest class privilege is necessary in order to cause third party
sources to come forward and be candid. But in another public interest privilege
context, the Supreme Court has cast doubt on the validity of assumptions about
the need for candour, particularly where a blanket privilege over a broad class
of documents is sought: Carey, above at p. 659
S.C.R., p. 178 D.L.R. In Carey, Justice La
Forest put it this way (at p. 657 S.C.R., p. 176 D.L.R.):
I am prepared to attach some weight
to the candour argument but it is very easy to exaggerate its importance.
Basically, we all know that some business is better conducted in private, but
generally I doubt if the candidness of confidential communications would be
measurably affected by the off‑chance that some communication might be
required to be produced for the purposes of litigation. Certainly the notion
has received heavy battering in the courts.
[93]
In these circumstances, I conclude that it was
incumbent on the Commissioner to adduce evidence before the Competition
Tribunal establishing the prerequisites of the public interest class privilege.
It did not.
[94]
The Competition Tribunal
found that the class privilege asserted by the Commissioner had “sound policy rationales” (at para. 20) based on previously decided
jurisprudence. An examination of that jurisprudence, particularly Competition
Tribunal jurisprudence, shows only the most general, and often cursory,
consideration of the matter, with the possible exception of Canada
(Commissioner of Competition) v. Sears Canada Inc., [2003] C.C.T.D. no. 16
(Q.L.), 28 C.P.R. (4th) 385. Rather, in these cases, the Competition Tribunal
should have examined in a rigorous way whether the blanket confidentiality
protection afforded by a class privilege—one that protects from disclosure all
documents gathered from third party sources in the course of the Commissioner’s
investigation—was needed in order to ensure a sufficiently uninhibited sharing
of information by third party sources with the Commissioner: see Kent Thomson,
Charles Tingley and Anita Banicevic, “Truncated Disclosure in Competition Tribunal Proceedings in the
Aftermath of Canada Pipe: An Experiment Gone Wrong,” (2006), 31 The Advocates’ Quarterly 67
at p. 104.
[95]
And “sound policy rationales” are not enough to recognize the class
privilege. It will be recalled that the policy rationales supporting a class
privilege must be as compelling as those supporting the class privilege over
solicitor-client communications and these are extremely compelling, at the
level of constitutionally protected interests: see discussion at paras. 53-54,
above.
[96]
The gist of the Competition
Tribunal’s finding on the alleged public interest class privilege appears in
para. 62 of its reasons:
By its very
nature, the Commissioner’s mandate and statutory functions require the
collection of commercially sensitive information from businesses and actors in
various sectors of the economy. In undertaking his investigations of alleged
anti-competitive conduct, the Commissioner requires the input from the industry
and from various players in the marketplace, including customers, suppliers and
competitors of persons under investigation. The Commissioner thus relies on the
cooperation of these third parties and on information provided by them, either
voluntarily or through compulsion. Disputed matters coming before the Tribunal,
such as applications challenging an alleged abuse of dominance, mergers alleged
to be anti-competitive or civil arrangements between competitors, involve
situations where customers, suppliers and competitors in the marketplace may be
at a commercial disadvantage vis-à-vis the respondents targeted by the
Commissioner. Protecting their identities and information through public
interest privilege claims reduces the risk of witness intimidation or
reluctance to provide information, and thus preserves the effectiveness of the
Competition Bureau’s investigations. To gain and secure this cooperation,
sources of information must not be concerned about fear of reprisal in the
marketplace or other potential adverse consequences, and must be satisfied that
their information will be kept in confidence and their identities will not be
exposed, unless they are called as witnesses. This is true whether the
information is provided voluntarily or pursuant to a Section 11 order.
[97]
In my view, this is nothing more
than an expression that a class privilege would be desirable in increasing the
flow of useful information to the Commissioner. Nowhere does the Competition
Tribunal find that blanket confidentiality protection is necessary for the
preservation of the relationship or the continuance of the information flow. As
we shall see in the next section of these reasons, even if the Competition
Tribunal could have acted without evidence I doubt that it could have made such
a finding.
– IV –
[98]
Even putting aside the
absence of a satisfactory evidentiary record and taking the Commissioner’s
submissions at face value, the Commissioner has not established that blanket
confidentiality protection is absolutely necessary for the preservation of the
relationship. The Commissioner falls short in a number of respects.
[99]
The relationship between the
Commissioner and third party sources very much depends upon the circumstances,
the type of assistance sought and the nature of the particular investigation.
For example, sometimes cooperation from a third party source is voluntary;
other times it is not. In such circumstances, a rigid class privilege is inapt;
a case-by-case or document-by-document privilege may be more appropriate: see National
Post at paras. 43 and 47-49 and Bisaillon, above at pp. 97-98; and
see the discussion in these reasons at para. 55, above. Perhaps due to the fact
that a determination of public interest privilege often depends on the specific
circumstances and particular documents in issue, some opine that while public
interest privilege is possible on a case-by-case basis, a public interest class
privilege is not: Hubbard, Magotiaux and Duncan, The Law of Privilege in
Canada (looseleaf) Aurora, Ont.: Canada Law Book, 2006 (loose‑leaf
updated December 2017) at §3.20; of interest is that these commentators are
aware that the Commissioner asserts a public interest class privilege (see ibid.
at §3.50.50).
[100]
The class privilege the
Commissioner asserts applies even in the case of evidence it compels from third
parties under section 11 of the Competition Act. When a witness is
compelled to cooperate fully with an investigation, there is far less need to
motivate a party to come forward or be any more forthcoming in providing
evidence: the candour rationale for protection is markedly reduced or, in some
situations, even eliminated. In the words of one commentator, “if [an] agency can obtain…information by
compulsion of statute then the sources cannot be said to ‘dry up’ if the
confidentiality is breached”:
T.G. Cooper, Crown Privilege, (Aurora, Ont: Canada Law Book, 1990) at p.
56.
[101]
Similarly, the class
privilege is said to apply regardless of whether any promise or undertaking of
confidentiality was made to persons with information and documents and whether
they relied upon any such promise or undertaking in providing documents and
information. This makes no sense:
Where the
information is provided to government agencies by outsiders, there is a greater
prospect that the providers of that information may be less frank or will not
provide the information at all if there is a prospect of disclosure. Of
course, where no expectation of confidentiality exists, the candour argument is
without merit. [emphasis added]
(Lederman,
above at p. 1079; see also Gruenke at pp. 291-292 S.C.R., p. 691 W.W.R.)
[102]
Indeed, there is material
suggesting that those providing information to the Commissioner can never have
any assurance or expectation of confidentiality. In proceedings before the
Competition Tribunal, the Commissioner has consistently taken the view that “anyone providing information to the
[Commissioner] either voluntarily or pursuant to an order under s. 11 [of the
Act] must expect that such information may be used by the [Commissioner] in the
administration of the Act including the bringing of an application before this
Tribunal under the Act”: Canada
(Director of Investigation and Research) v. Air Canada (1993), 46 C.P.R.
(3d) 312 at p. 316 (Comp. Trib.).
[103]
Further, as the facts of
this case demonstrate, the alleged public interest class privilege, if asserted
by the Commissioner, is waivable by the Commissioner and only the Commissioner at
any time. Thus, there is no assurance of confidentiality. This differs from the
informer class privilege, which the law recognizes. Informer class privilege
belongs jointly to the Crown and to the informer and cannot be waived without
the informer’s consent: R. v. Leipert, [1997] 1 S.C.R. 281, 143 D.L.R.
(4th) 38 at para. 15.
[104]
Further, the purported scope
of the privilege—“records
created or obtained by the Commissioner, [his] employees, servants, agents or
solicitors or obtained from third parties during the Commissioner’s
investigations”—is unnecessarily broad and detached from the compelling public interest
asserted by the Commissioner. At
the very least, there must be some nexus between these documents and the
identity of a third party source and/or information provided by those third
party sources to be captured by any public interest privilege. If a document
emanates from outside of the purportedly essential relationship between the
Commissioner and third party sources, there is no need for the privilege to
attach.
[105]
In these circumstances, measures
falling short of a blanket class privilege might suffice to protect the
confidentiality interests and preserve the relationship between the
Commissioner and third party sources who can assist his investigation. For
example, it may be possible for confidentiality to be protected by redactions
of documents, undertakings of confidentiality, sealed volumes of documents, or in
camera sessions.
[106]
At the hearing of this
appeal, we asked the parties whether any other regulator, competition or
otherwise, domestic or foreign, has found it necessary to assert the sort of
class privilege the Commissioner seeks here. The parties were unable to
identify even one. Nor is this Court aware of any.
[107]
In particular, American,
European, Australian and New Zealand competition authorities have not found it
necessary to recognize a class privilege over information and documents supplied
by third parties. Like the Commissioner here, these authorities gather
sensitive information from customers, suppliers and competitors of the party
under investigation, with every possibility of retaliation against them for
supplying the information. The same is true for domestic agencies which
regulate fields such as securities, tax, the environment, human rights and occupational
health and safety. All these competition authorities and domestic regulators
are able to conduct investigations and make orders without the benefit of a
class privilege over information and documents supplied by third parties.
[108]
In my view, this is a
salient legal consideration to be taken into account when assessing whether a
class privilege should be recognized. The Supreme Court has suggested that the
experience of foreign jurisdictions and whether they have recognized a class
privilege in other circumstances should be examined when considering whether to
recognize a class privilege: see discussion earlier in these reasons at para.
55 and National Post at paras. 43, 47-48. These considerations go
directly to the issue whether blanket confidentiality protection is necessary
or warranted for the preservation of the relationship between the Commissioner
and third party sources.
[109]
Contrary to this, the
Competition Tribunal considered that the experience of foreign competition
authorities and domestic regulators was of “no moment”
(para. 20). This was a legal error.
– V –
[110]
The Commissioner attempts to
support the existence of the alleged class privilege by suggesting that he does
not cause any procedural unfairness. The Commissioner reviews the documents
covered by the class privilege and exercises his discretion to provide the
documents necessary to fulfil his procedural fairness obligations. Respondents
to competition proceedings brought by the Commissioner receive summaries of the
information supplied by third party sources and, later, witness statements if
any third party sources are called to testify. Concerns about the adequacy of
the summaries can be brought before the Competition Tribunal. Further, if the
Commissioner intends to rely on a privileged document at a hearing, it must
disclose the document: subsection 68(1) of the Competition Tribunal Rules,
SOR/2008-141.
[111]
As an illustration of
fairness, the Commissioner points to what it did in this case. While some 9,500
documents were covered by the public interest privilege, the Commissioner
exercised his discretion to waive the privilege over roughly 8,300 of these
documents and disclose them to the respondent. Summaries of undisclosed
documents were vetted and provided to the Airport Authority.
[112]
As the discussion of case
law above shows, the recognition of a class privilege does not depend on
whether the beneficiary of the privilege is prepared to act fairly. And the
Commissioner cannot defend a class privilege on the basis that it does not
create procedural unfairness if there is no sufficient, proven reason for the class
privilege to exist in the first place. In any event, fairness is in the eye of
the beholder: the Airport Authority believes that the withholding of the 1,200
documents is working unfairness.
[113]
There is something to this.
If the class privilege urged by the Commissioner is recognized, something
incongruous emerges: Competition Tribunal proceedings are subject to procedural
fairness obligations at the highest level, akin to court proceedings, yet the
Commissioner can unilaterally assert a class privilege and withhold all
documents obtained from third parties in his investigation—here, the entire
case against the Airport Authority—unless the Commissioner unilaterally decides
to waive the privilege over some of the documents. Thus, as far as disclosure
of the case against the party whose conduct is impugned is concerned, that
party gets only what the Commissioner deigns to give it. And requests for more
disclosure may well be dismissed by the Competition Tribunal because, on the
authority of a decision by this Court upholding the class privilege, the
interests in confidentiality supporting the class privilege will be seen to be
very high. Perhaps summaries of withheld documents might be provided. But by
definition, summaries leave information out. What may seem innocuous or
irrelevant to the preparers of the summaries may be critical to the party whose
conduct is impugned. And the actual documents authored by participants in the
matters under investigation are often more useful for cross-examination than
summaries prepared by non-participants. This entire scenario is fraught with the
potential of interference with procedural fairness rights and the truth-finding
function of the proceedings: see discussion earlier in these reasons at paras.
28-33.
[114]
The Commissioner’s
submission that he has acted fairly by disclosing so many documents and by
providing summaries is also telling in a related way. After conducting a
document-by-document review of the documents covered by the alleged class
privilege in this case, the Commissioner found that confidentiality was
unnecessary for 86% of them and so it disclosed these documents. As for the
others, it says that some information can be disclosed by summaries. This tends
to show a number of things:
•
the blanket 100% confidentiality coverage of a
class privilege is unnecessary for maintaining the relationship between the
Commissioner and third party sources;
•
a case-by-case public interest privilege—one
that the Supreme Court says gives “the necessary
flexibility to weigh up and balance competing public interests in a
context-specific manner”, where established on the evidence, may be more
appropriate: National Post at para. 51; in any event, a class privilege that is
so significantly whittled down through waiver after a document-by-document
review is no more effective in maintaining the relationship between the
Commissioner and third party sources than a case-by-case, document-by-document
public interest privilege;
•
other lesser measures to protect confidentiality
and the relationship between the Commissioner and third party sources, even
short of asserting a public interest privilege, may be more appropriate for
many of the documents, such as redactions, non-disclosure undertakings, sealed
volumes or in camera portions of proceedings.
[115]
For the foregoing reasons, I
conclude that the Commissioner has not established that there is a class
privilege preventing disclosure of the 1,200 remaining documents. If, as a
policy matter, the Commissioner considers that there ought to be a class
privilege over information and documents supplied by third party sources during
his investigations, he can ask Parliament for it.
[116]
It follows that the
Competition Tribunal erred in law in finding a class privilege and, thus, erred
in dismissing the Airport Authority’s motion on that basis.
F.
Where does this leave the parties?
[117]
Because the Competition
Tribunal found the presence of a public interest class privilege over the 1,200
remaining documents, it did not assess whether any of them are covered by a case-by-case
or document-by-document public interest privilege. Under the disposition of
this appeal I propose below, the motion will be remitted to the Competition
Tribunal for redetermination. The Airport Authority agrees that in the
redetermination the Commissioner should have an opportunity to argue for
privilege over individual documents.
[118]
In considering whether a
particular document should be covered by a case-by-case or document-by-document
public interest privilege, the Competition Tribunal will wish to follow the
legal test discussed earlier in these reasons. In assessing the interests of
confidentiality and the extent to which they are sufficiently compelling, the
Competition Tribunal should consider whether alternative, lesser means of
protecting the relevant confidentiality interests are available, such as
redacting portions of individual documents, undertakings of confidentiality,
protective orders, sealed volumes of documents, in camera sessions, and
other effective measures that might be devised: see, e.g., the creative and detailed sealing order made in Health
Services and Support-Facilities Subsector Bargaining Association v. British
Columbia, 2002 BCSC 1509, 8 B.C.L.R. (4th) 281.
G.
Proposed disposition
[119]
I would allow the appeal,
and set aside the order of the Competition Tribunal, including its award of
costs. I would award the Airport Authority its costs of the appeal. I would
remit the motion to the Competition Tribunal for redetermination in accordance
with these reasons.
“David Stratas”
“I agree
Richard Boivin
J.A.”
“I agree
J.B. Laskin
J.A.”
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