Director, Document Review Services
February 26, 2018
In Vancouver Airport Authority v. Commissioner of Competition, 2018 FCA 24, the Federal Court of Appeal denied the Commissioner of Competition a public interest class privilege over documents obtained during an investigation.
The investigation related to the Airport Authority’s decision to allow only two in-flight caterers to operate at the Vancouver International Airport. The Commissioner alleged that the Airport Authority behaved in an anti-competitive manner, resulting in “higher prices, dampened innovation and lower service quality”.
The Commissioner’s initial affidavit of documents listed 11,500 relevant documents. Approximately 9,500 of these records were withheld on the basis of an alleged public interest class privilege. The Commissioner subsequently delivered an amended affidavit of documents waiving privilege over approximately 8,300 documents. The remaining 1,200 documents were withheld exclusively on the basis of a public interest class privilege.
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”. He argued that without this class privilege, “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”.
The Competition Tribunal found that the alleged class privilege existed and dismissed the Airport Authority’s motion for disclosure. On appeal, the Federal Court of Appeal rejected the Commissioner’s claim to a public interest class privilege and quashed the order of the Competition Tribunal.
Writing for the court, Justice Stratas cited R. v. National Post,  1 SCR 477, 2010 SCC 16 and Canada (Citizenship and Immigration) v. Harkat,  2 SCR 33, 2014 SCC 37 to support his finding that “these days the sort of class privilege the Commissioner seeks should only be granted by Parliament”. Additionally, he was of the view that new class privileges can only be recognized with policy rationales as compelling as the class privilege over solicitor-client communications.
Justice Stratas found that the Commissioner failed to provide evidence to support his position that the fear of reprisal actually existed, that third party sources would be less inclined to assist, and that the Commissioner would be prevented from carrying out his mandate. In that regard, Justice Stratas noted that the Commissioner can compel evidence under section 11 of the Competition Act and that the rationale for protection is substantially reduced, if not eliminated, in these situations. Moreover, he concluded that the scope of privilege identified by the Commissioner (records obtained in the course of an investigation) was unnecessarily broad and did not have a sufficient nexus to the public interest asserted by the Commissioner.
Finally, it was telling that after conducting a detailed review, the Commissioner waived privilege over 8,300 documents, and said that some information in the remaining 1,200 could be disclosed by way of vetted summaries. These actions suggest that a broad class privilege such as that sought is unnecessary, that a case-by-case public interest privilege may be more appropriate, and that other lesser measures (such as redactions, undertakings, or sealed records) could be sufficient measures to protect confidentiality.