North American Van Lines Canada Ltd. v. Canada ( Director of Investigation and Research, Competition Act )
T-702-97
Richard J.
7/10/97
25 pp.
Application to quash Presiding Officer's exclusion order-Director of Investigation and Research commencing inquiry into conduct of Van Lines-At commencement of proceedings, counsel for Director bringing motion to exclude parties whose conduct being inquired into and their counsel from examinations of persons ordered to attend-After hearing submissions from counsel for Director, Van Lines, Presiding Officer holding in camera session with Director's counsel whereat received evidence, submissions-Also receiving evidence from complainant witness-Concluding presence of Van Lines at any examination other than own, prejudicial to effective conduct of examination and inquiry and would result in disclosure of confidential information relating to business of person being examined or employer-Only prejudice said by applicants to have been caused by exclusion that criminal charges could result from hearings-Whether Presiding Officer committing error of law or reviewable error of fact in issuing exclusion order, contravening principles of procedural fairness by holding in camera hearing-Applications dismissed-Presiding Officer's decision must be reviewed in proper context: oral examinations investigative, not adversarial; no substantive rights determined at examinations; all of what occurs at examinations will be revealed to them by way of Crown disclosure or discovery in civil proceedings in manner protecting confidentiality; Presiding Officer having no authority to rule on how parties who attend examinations may deal with any confidential information; even if counsel attending, having no right to call evidence or cross-examine or object to questions-Pursuant to Competition Act, s. 12(4), any person whose conduct being inquired into and that person's counsel entitled to attend examination of any other person unless established to satisfaction of presiding officer presence of person whose conduct inquired into would be prejudicial to effective conduct of examination or prejudicial to inquiry or resulting in disclosure of confidential commercial information relating to business of person being examined or employer-Once any of grounds set out in s. 12(4) established to satisfaction of presiding officer, affected person and that person's counsel not entitled to attend examination of other person-Counsel's right to attend coterminous with client's entitlement to attend examination-Issue of accommodation to allow counsel only to attend or to segment examination raised-Presiding Officer must consider segmentation where exclusion based solely on ground of confidentiality, provided examination not prejudiced by reason of being unreasonably segmented-Where exclusion based solely on ground of confidentiality, would require at least enforceable order or undertaking of confidentiality on part of counsel, thus defeating purpose of their attendance since can only be present, not participate in examination-Presiding Officer did address issue of severability-Conclusion of prejudice under s. 12(4)(a) supported by material, including sworn allegations of collusion, retaliation-Although held brief in camera session for stated purpose of determining nature of confidential information, already great deal of information before Presiding Officer concerning nature of confidential information being sought-Presiding Officer's finding not patently unreasonable-Fairness flexible concept-Content varying depending on nature of inquiry, consequences for individuals concerned-In camera session held not to receive information from witness, but to assist Presiding Officer in determination of application of s. 12(4)(b)-Counsel having notice of application to exclude parties whose conduct being inquired into, counsel having access to affidavits, given opportunity to make representations-Purpose of in camera session (to further determine nature of confidential information) not served by allowing parties and counsel to be present-Degree of procedural fairness required of Presiding Officer met-Competition Act, R.S.C., 1985, c. C-34 (as am. by R.S.C., 1985 (2nd Supp.), c. 19, s. 19), ss. 10 (as am. idem, s. 23), 11 (as am. idem, s. 24), 12 (as am. idem), 13 (as am. idem), 14 (as am. idem), 29 (as am. idem, s. 26).