Law Times

Page 10 March 26, 2018 • Law TiMes www.lawtimesnews.com 'This decision will result in fairer fights' Clarification over document privilege welcome move BY SHANNON KARI For Law Times T he recent clarification of the powers of the fed- eral Commissioner of Competition to assert privilege over documents is an opportunity for more efficient and fair proceedings in the fu- ture, say lawyers who practise in the competition field. For more than two decades, the federal agency had claimed a "class privilege" over all docu- ments in a Competition Bureau investigation other than those of the respondent or those that were publicly accessible. But in a ruling earlier this year, the Federal Court of Ap- peal concluded this was a legal error and the commissioner did not have a public interest class privilege, overturning a decision of the Competition Tribunal. The Federal Court of Appeal relied heavily on R. v. National Post, a 2009 Supreme Court de- cision that found there was no blanket or class privilege for re- porters protecting a confidential source. "The Supreme Court has set the threshold for finding new class privileges as high as can be," wrote Justice David Stratas, with justices Richard Boivin and John B. Laskin concurring. "The extremely high thresh- old for the recognition of class privileges means that to date only four have been recognized — legal professional privilege, litigation privilege, informer privilege and settlement privi- lege," the ruling stated. "Due to the breadth and generality of a class privilege, it can be blunt, sweeping and in- discriminate 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," stated Stratas. The appellate court also re- jected the argument that third parties might be less willing to assist if there was not the right to a blanket privilege. It also noted that the com- missioner was claiming a unique power. "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," wrote Stra- tas. Julie Rosenthal, a partner in the litigation group at Good mans LLP in Toronto, says the require- ment for the commissioner to assert privilege on a document- by-document or group-of-doc- uments basis will change the dynamic in Competition Act en- forcement proceedings. "This decision will result in fairer fights. It also could make settlements more likely," she sug- gests. The challenge to the claim of class privilege was brought by the Vancouver Airport Au- thority, which is alleged to have acted in an anti-competitive fashion by permitting only two in-f light caterers to operate at the airport. The commissioner was origi- nally willing to release 2,000 of the 11,500 documents in his pos- session as a result of the Compe- tition Bureau investigation. Eventually, there was an agreement to release all but 1,200 documents on the basis of a public interest class privilege. Rosenthal, who is co-counsel for the Airport Authority, says her client complied with the rules and provided its relevant documents in a timely fashion. "We got back almost nothing because of [the claim of ] public interest privilege. How can we defend a case?" asks Rosenthal. The Federal Court of Appeal ultimately sent the matter back to the Competition Tribunal in accordance with its ruling on privilege. Shortly after the decision was issued, the commissioner announced that he would not seek leave to appeal to the Su- preme Court. As a result, future proceedings will be heard with any disputes on the privilege of documents being litigated on a case-by-case basis. Nikiforos Iatrou, a partner at Weir Foulds LLP in Toronto, says it may lead to "proper dis- covery" of documents between parties in these proceedings. "It is a good ruling to get more facts on the table. More docu- ments will see the light of day," suggests Iatrou, chairman of the firm's Competition Group and a FOCUS Julie Rosenthal says the requirement for the commissioner to assert privilege on a document-by-document or group-of- documents basis will change the dynamic in Competition Act enforcement proceed- ings. The competition bar has for a long time been calling for more focused requests [for documents]. It is costly to our clients to respond to broad bureau requests. Nikiforos Iatrou See May, page 12 LEGAL PROFESSIONAL DEVELOPMENT LEARN | NETWORK | OBTAIN CREDITS In Class & Live Online Access 10 TH ANNUAL ADVERTISING AND MARKETING LAW CONFERENCE April 17 th | Toronto & Webinar 3 RD ANNUAL DUTIES AND RISK FOR DIRECTORS May 1 st | Toronto & Webinar 6 th ANNUAL Anti-Bribery and Corruption Compliance May 10 th | Toronto & Webinar COURSE LEADER: BRENDA PRITCHARD, GOWLING WLG COURSE LEADERS: STEPHANIE STIMPSON, TORYS LLP CORNELL WRIGHT, TORYS LLP COURSE LEADER: JOHN W. BOSCARIOL, MCCARTHY TÉTRAULT LLP • Changes | Trending now: Keeping you in the know • Québec - The Last Frontier • Privacy compliance: New technologies, changing law, and increased exposure • Transformation of Trademark Law in Canada and Beyond • Entertainment issues: CGC – Third party rights in disguise • Food, drugs and NHPS: The blurring lines • Influencer led disaster: More than meets the eye • The Necessity of Strategic Planning: In the Normal and Hostile Times • Subsidiary Governance and Managing Risks Abroad • Leveraging Technology to Protect What Matters • Cyber Risk • The Role of D&O Insurance • Introduction and overview of the anti-corruption landscape for Canadian companies • Anti-corruption enforcement: the view from the rcmp • The US foreign corrupt practices act (fcpa): what canadian companies need to know • An industry perspective on anti-corruption enforcement and compliance: The view from snc-lavalin • Perspective from in house counsel: key compliance challenges and solutions • Investigating potential breaches within the company and dealing with enforcement EARLY BIRD &95&/%&%50 MARCH TH EARLY BIRD ENDS APRIL 2 ND EARLY BIRD ENDS APRIL 9 th For questions and group rates, please contact: Toll-Free: 1-877-298-5868 Direct: 416-609-5868 Fax: 416-609-5841 Email: lexpert.questions@thomsonreuters.com *Discount applies to in-class only REGISTER NOW & SAVE OVER $300* www.lexpert.ca/legal-programs TAKE ADVANTAGE OF THE EARLY BIRD Untitled-4 1 2018-03-14 2:29 PM

• Cover