Competition Bureau will not appeal court decision regarding public interest privilege

News Release

January 29, 2018 – OTTAWA, ON – Competition Bureau

The Federal Court of Appeal issued a decision last week on the Competition Bureau’s ability in legal proceedings to assert public interest privilege with respect to all records received from third parties. Following a careful review of this decision, the Commissioner of Competition has decided not to appeal.

In the course of its investigations, the Bureau obtains information and documentation (records) from third parties that may be used as evidence in legal proceedings. Before the ruling, all records relating to third parties were automatically protected from disclosure as a “class” under a public interest privilege. As a result of this ruling, the Bureau cannot claim this privilege on a “class” basis and will now need to demonstrate, on a case-by-case basis, why particular records should be protected from disclosure.

The Bureau remains committed to protecting confidential records received from third parties:

  • During its investigations, the Bureau will continue to rely on the confidentiality provisions of the Competition Act (section 29), which are not affected by the ruling, to protect the identity and confidential records of third parties.
  • During legal proceedings, in addition to asserting public interest privilege on a case-by-case basis where appropriate, the Bureau will continue to use additional tools such as a confidentiality order to protect confidential third party records from disclosure to the public.

The issues leading to the Federal Court of Appeal decision arose in the Bureau’s ongoing abuse of dominance litigation against the Vancouver Airport Authority (VAA). The Bureau continues to pursue this matter before the Competition Tribunal. The Bureau is committed to restoring competition for in-flight catering for the benefit of consumers and businesses.

Quick Facts

  • In September 2016, the Bureau filed an application against VAA with the Competition Tribunal.

  • The application sought an order requiring VAA to open Vancouver International Airport to greater in-flight catering competition.

  • The application followed a Bureau investigation that concluded that VAA is restricting competition by denying access to the airport to new suppliers of in-flight catering.

  • In April 2017, the Competition Tribunal ruled that public interest privilege could be asserted on a class basis. VAA appealed this decision to the Federal Court of Appeal in May 2017.

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