Federal Court Of Appeal Eliminates Commissioner Of Competition's ‘Public Interest' Class Privilege

For nearly thirty years, the Commissioner of Competition has been able to assert 'public interest' privilege - on a class basis - to prevent the disclosure of documents obtained from informants in the course of its investigations.1 Not anymore.

Access by litigants to the Commissioner's investigation file is an important and developing issue.2 In Vancouver Airport Authority v. Commissioner of Competition, 2018 FCA 24, Justice Stratas, writing for a unanimous panel with Justices Boivin and Laskin, held that the Commissioner can no longer invoke 'public interest' privilege on a class-wide basis to prevent access.3 While the Commissioner can still invoke public interest privilege, it can now only do so document-by-document.4

Background

In the underlying litigation, the Commissioner brought an abuse of dominance application against the Vancouver Airport Authority. The Commissioner alleged that the Airport Authority had acted anti-competitively by allowing only two in-flight catering businesses to operate at the Vancouver International Airport, resulting in a "substantial prevention or lessening of competition" and, in turn, "higher prices, dampened innovation and lower service quality."5

In the course of the application, the Commissioner delivered an affidavit of documents containing thousands of documents, the majority of which were claimed to be protected by a public interest class privilege and were withheld. The Airport Authority disputed the privilege claim and moved in the Competition Tribunal to compel production. By the time the motion was heard, the Commissioner had capitulated on the majority of the documents, and only twelve-hundred documents remained in dispute. The Tribunal dismissed the Airport Authority's motion, upholding the Commissioner's class privilege claim. The Airport Authority appealed.

The Appeal

The Federal Court of Appeal allowed the appeal, issuing fulsome reasons on a number of notable issues, many of which apply broadly to both administrative and court proceedings.

Chief among these, Justice Stratas eliminated the longstanding public interest class privilege that the Commissioner frequently invoked to refuse disclosure. As a class privilege, these documents were protected from disclosure by virtue of their membership in the class - documents containing information obtained from informants - "without regard to the particulars" of the documents and "insensitive to the facts of the particular case".6

Justice Stratas'...