Competition Bureau Seeks Public Comment on its Information Bulletin on the Communication and Treatment of Information Under The Competition Act

By Hon. William P. McKeown, Q.C. and Jeanette J.C. Teh

The Competition Bureau (the "Bureau") has just released the new draft of its "Information Bulletin on the Communication and Treatment of Information under the Competition Act" (the "Bulletin")¹, recently updated to reflect amendments to the Competition Act (the "Act") made since its predecessor was first written in 1995. The Bulletin sets out the Bureau’s approach to how it will treat and communicate information it receives in the course of its investigations and general course of activities. This updated version reflects the Bureau’s increased openness to releasing information in certain circumstances, in accordance with the Commissioner of Competition’s view that the Bureau should be more transparent.

The Bureau generally receives information through: inquiries it commences to investigate offences that may have been committed; court-authorized orders for oral examination, production of records or information; court-authorized search and seizures or search warrants; pre-merger notification process; and any other voluntarily-provided information through complaints or responses to questionnaires, interviews or other investigative procedures. Section 29 of the Act prohibits the communication of information received by the Bureau (that has not already been made public or that it has not been permitted to make public by the provider of the information) unless it is to another Canadian law enforcement agency², or to administer or enforce the Act through specific examination or inquiry³. Foreign authorities, through mutual legal assistance treaties (that have their own specific confidentiality provisions) with Canada, may also request information from the Bureau to enforce their respective legislation in those foreign countries.

Hence, in accordance with the Bulletin, if information is provided, even on a voluntary basis, to the Bureau, and if the matter proceeds to the Tribunal or the courts, such information may become public. It thus becomes important to weigh the benefits of voluntarily disclosing information to the Bureau against the potentially higher costs of waiting until one is mandated to do so through the Commissioner’s investigative powers.

The Bureau will endeavour to oppose any subpoenas it receives from private parties in litigation, seek protective orders to maintain the confidentiality of the information, consider sealing orders, in-camera proceedings, or other procedures to further protect the confidentiality of the information, and will generally not voluntarily provide confidential information except as necessary. However, whether or not protective orders will be sought will be undertaken on an individual case basis. Therefore, there is no guarantee that such information will meet the standard required for the Bureau to invoke such procedures, resulting in the disconcerting implication that what one provides to the Bureau could ultimately end up being disclosed to a private plaintiff.

Further, even where the Bureau has granted the use of such protective measures, confidential information may still have to be disclosed to the other party (or other party’s counsel), expert witnesses, or to the court or Tribunal. In addition, the court or Tribunal has the option to not permit the use of such measures even where the Bureau has agreed to them.

More importantly, even outside the litigation context, the Bureau has the ability to publicize information through its press releases, newsletters, or other communications materials as necessary to remain transparent, or if it doing so would be in the public’s interest.

It is therefore crucial to keep in mind that although the Bureau endeavours to protect the confidentiality of the information it receives, any confidential information that it receives in the course of its investigation can potentially be disclosed to a private plaintiff, the courts or Tribunal, or may ultimately end up in the public domain, where such disclosure is deemed warranted.

The Bureau is accepting comments and/or suggestions from the public on the Bulletin until December 2, 2005⁴. Please note that unless confidentiality is specifically requested, all submissions will be posted on the Bureau’s website.

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