ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-10-8993-00 CL
DATE: 20130820
BETWEEN:
THE COMMISSIONER OF COMPETITION
Applicant
– and –
ROGERS COMMUNICATIONS INC. AND CHATR WIRELESS INC.
Respondents
J. Thomas Curry, Jaan Lilles,
for the Applicant
Kent E. Thomson, James D. Bunting,
for the Respondents
HEARD: June 7, 2012
MARROCCO J.
ruling concerning public interest privilege and litigation privilege
The Facts
[1] The Commissioner brought an Application in November 2010 seeking an Order that Rogers Communications Inc. (“Rogers”) engaged in reviewable conduct contrary to ss. 74.01(1)(a) and 74.01(1)(b) of the Competition Act, R.S.C. 1985, c. C-34. The applicant asserts that an ad campaign for Rogers’ subsidiary brand Chatr Wireless Inc. (“Chatr”), which boasted fewer dropped calls than the new wireless carriers, violated the Competition Act.
[2] The applicant asserts that at several points in cities in which the fewer dropped calls campaign was running, Chatr actually had a higher dropped call rate than one of the new entrants, resulting in false or misleading advertising contrary to s. 74.01(1)(a). Additionally, the applicant asserts that Chatr did not do sufficient testing to substantiate the claim of having fewer dropped calls before it began its advertising campaign contrary to s. 74.01(1)(b).
[3] Both sides have made document requests.
[4] The applicant requested Rogers’ dropped call data for its 2G network and the minimum retention and access levels on the 2G network.
[5] Rogers requested a number of documents consisting of communications between:
• The Applicant and Mobilicity;
• The Applicant and Public Mobile;
• The Applicant and Wind Mobile;
• The Applicant and Industry Canada; and
• Notes by Officers of the applicant.
[6] The communications between the applicant and Public Mobile consist primarily of e-mails exchanged between officers of the Competition Bureau and Public Mobile, as well as data provided by Public Mobile to the Competition Bureau. The documents relate to network data, including the following: dropped call rates; coverage maps; impact of sales; available customer plans; and technical specifications of the Public Mobile network.
[7] The communications between the applicant and Wind Mobile are similar to those exchanged between the applicant and Public Mobile. The communications are primarily e-mails concerning the complaint and requests for information from Wind Mobile. The network data requested is also similar, including the following: cell tower and switch data; dropped call rates; the impact of sales; the rate of obtaining new customers; coverage maps; and Wind Mobile drive testing results.
[8] The communications between the applicant and Mobilicity are comparable to the communications between the applicant and Public Mobile and Wind Mobile. The communications are primarily e-mails concerning the initial complaint against Rogers and requests by the applicant for information. Network data was provided, including the following: dropped call rates; coverage maps; network performance; performance of the company since Chatr’s launch; devices available from Mobilicity; and specifications for certain devices.
[9] Finally, Rogers and Chatr seek notes made by the Competition Commission regarding communications between the applicant and Industry Canada, Public Mobile, Wind Mobile, Mobilicity and Videotron. These are handwritten notes prepared by officers of the Competition Bureau that were created during phone calls or meetings.
[10] The applicant resists the Rogers and Chatr request, claiming public interest and litigation privilege over the documents.
The Law
Public Interest Privilege
[11] Public interest privilege protects the process of government decision-making. Public interest privilege also protects against the disclosure of information possessed by government where such disclosure is not in the public interest.
[12] In a judicial context, the question is whether the public interest in secrecy outweighs the public interest in ensuring that courts have access to all relevant information: see Robert W. Hubbard, Susan Magotiaux & Suzanne M. Duncan, The Law of Privilege in Canada, vol. 1 looseleaf (Toronto: Thomson Reuters Canada Limited, 2013) at 3-4 – 3-4.1.
[13] Public interest privilege is generally determined on a document-by-document basis: see Smerchanski v. Lewis (1981), 1981 1695 (ON CA), 31 O.R. (2d) 705 (C.A.). Generally, a document in respect of which public interest privilege is claimed is presumed to be admissible, and a compelling policy reason must justify its exclusion: see R. v. Trang, 2002 ABQB 19, 168 C.C.C. (3d) 145, at para. 32.
[14] Class privilege, in contrast, generally results in a presumption of inadmissibility concerning a class of documents.
[15] Public interest privilege in the context of the Competition Act has developed in its own unique way. The Federal Court of Appeal has recognized a class-based public interest privilege attaching to documents collected by the Competition Bureau during the course of an investigation. Class privilege means that a document in the class will only be disclosed for important public policy reasons: see Canada (Director of Investigation and Research, Competition Act) v. D & B Companies of Canada Ltd., 1994 19674 (FCA), 176 N.R. 62 (F.C.A), at paras. 3‑7, leave to appeal to S.C.C. refused, 24423 (February 23, 1995).
[16] In D & B Companies, the Federal Court of Appeal refused an application for an order requiring the Competition Bureau to disclose the following documents:
• The complaint made by a player in the industry;
• Notes and materials prepared by the Director and staff from meetings with the player; and
• Statements, notes and materials obtained or prepared by the Director or staff from meetings with various Canadian and U.S retailers, manufacturers and market research companies in the industry.
[17] The court stated that these documents were within the class of documents protected by public interest privilege for the following reasons:
• The Competition Bureau required cooperation from the industry concerned in order to perform its function; and
• In order to gain this cooperation, members of the industry had to be satisfied that their information would be kept in confidence and their identities not exposed unless they were called as witnesses.
[18] I adopt the following view of McKeown J., as summarized by the Federal Court of Appeal in D & B Companies, at para. 2:
[T]he Director has to be able to obtain information from the relevant industry in performing his functions under the Competition Act. To gain the cooperation of people in the industry he must be able to gather information in confidence.
[19] This was affirmed in Canada (Commissioner of Competition) v. Toshiba Canada Ltd., 2010 ONSC 659, 100 O.R. (3d) 535. In this case, Toshiba sought an internal memorandum created by the staff of the Competition Bureau. Toshiba asserted that the document could reveal either a conspiracy against it within the Bureau or that information was being gathered by the Bureau so it could be shared with non-Canadian regulatory bodies. Croll J. stated that class privilege regarding documents created or obtained in the course of an investigation by the Commissioner was “well-established”: see Toshiba, at para. 27.
[20] Public interest privilege is not absolute. As stated in Canada (Commissioner of Competition) v. Sears Canada Inc., 2003 CACT 19, 2003 Comp. Trib. 19, (2004) 28 C.P.R. (4th) 385, at para. 40, if a “more compelling competing interest” supplants public interest privilege, disclosure will be ordered. The Supreme Court of Canada stated in A.(L.L.) v. B.(A.), 1995 52 (SCC), [1995] 4 S.C.R. 536, at para. 65, that there is a heavy onus on the party attempting to override a class privilege.
Documents Requested Relating to Public Mobile
[21] Rogers and Chatr seek disclosure of documents that relate to the communications between Public Mobile and the Competition Bureau. Specifically, these documents date from the period of July 28, 2010, to December 30, 2010. Rogers asserts that these documents contain information about Public Mobile’s view of Chatr’s advertisements and dropped call rates. Rogers argues that having the fullest evidentiary record possible is a compelling public interest that outweighs the public interest in keeping documents provided by the industry to the applicant confidential. In determining the balance between these two competing interests, the actions of Public Mobile are relevant for the purpose of determining whether public mobile had an expectation of confidentiality in these documents.
[22] Public Mobile made several public announcements proclaiming its prominent role in the Competition Bureau’s investigation of the Chatr claims. Public Mobile made it clear that it wanted the public to know about the Competition Bureau’s investigation of Chatr and Public Mobile’s role in the investigation. Public Mobile’s well-publicized statements undermine any notion of cooperation with the Competition Bureau in return for confidentiality. When this weakened interest in confidentiality is balanced against the public interest in having the fullest evidentiary record possible, I find that the balance weighs in favour of disclosure.
Documents Requested Relating to Wind Mobile
[23] Similar to its requests for documents from Public Mobile, Rogers also seeks disclosure of documents relating to communications between Wind Mobile and the Competition Commission. These communications began in July 28, 2010. Rogers asserts that these communications contain references to the Chatr advertisements concerning dropped call rates—a fundamental issue in this litigation. Public statements and press releases highlighted Wind Mobile’s role in the investigation. Specifically, Wind Mobile itself made numerous public statements regarding the investigation and its role in bringing about the investigation. Like Public Mobile, Wind made it abundantly clear that it wanted its role in encouraging the applicant to investigate Rogers and Chatr to be publicly known. Wind Mobile’s well-publicized statements undermine any notion of cooperation with the Competition Bureau in return for confidentiality. When this weakened interest in confidentiality is balanced against the public interest in having the fullest evidentiary record possible, I find that the balance weighs in favour of disclosure.
Litigation Privilege
[24] Litigation privilege protects documents and correspondence prepared or created for the dominant purpose of actual or contemplated litigation. Litigation privilege creates a “zone of privacy” to allow counsel and clients to prepare for litigation: see General Accident Assurance Co. v. Chrusz (1999), (2000) 1999 7320 (ON CA), 45 O.R. (3d) 321 (C.A), at pp. 332‑333; and Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, at para. 32. Litigation privilege can extend to third parties; litigation privilege encompasses “communications between the client or his solicitor and third parties if made for the solicitor’s information for the purpose of pending or contemplated litigation”: see Alan W. Bryant and Sidney N. Lederman, The Law of Evidence in Canada (Toronto: Butterworths, 1992) at p. 653. This definition was endorsed by the Ontario Court of Appeal in Chrusz, at p. 330. Documents prepared or created for the dominant purpose of actual or contemplated litigation are protected from disclosure.
Litigation Privilege for Documents from Public Mobile and Wind Mobile
[25] The fact that public interest privilege does not apply to the documents and communications passing between Public Mobile, Wind Mobile and the applicant does not determine whether the documents in question are protected by litigation privilege.
[26] I am satisfied by the evidence adduced on this motion that litigation was the dominant purpose for communications between Public Mobile and Wind Mobile and the applicant from September 27, 2010, and on. At this point, the Competition Bureau was clearly contemplating bringing proceedings against Rogers in regard to the Chatr advertisement campaign.
[27] Accordingly, all documents and communications passing between Public Mobile, Wind Mobile and the applicant from and after September 27, 2010, are protected by litigation privilege and need not be disclosed.
Public Interest Privilege for Documents from Mobilicity
[28] Any data provided by Mobilicity concerning its dropped call rate would be relevant to the central issue in this case. Nevertheless, evidence from Mobilicity is not a part of the Competition Bureau’s case.
[29] An adverse inference may be drawn concerning Mobilicity’s dropped call rate at the relevant time if no evidence concerning that dropped call rate is produced by the applicant. The fact that the court can draw an adverse inference from the failure to produce this evidence weighs against the need for disclosure of the information provided by Mobilicity.
[30] Consequently, Rogers has not demonstrated a compelling competing interest warranting disclosure of communications passing between the applicant and Mobilicity.
Statement of Mr. McAlpine Regarding Mobilicity
[31] Mr. McAlpine’s statement, at paragraph 64 of his affidavit, that “Mobilicity provided insufficient dropped call information to allow for proper analysis and its data is not included” will be removed. This statement is contentious hearsay contrary to rule 39.01(5) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and will be disregarded.
Officers’ Notes and Communications with Industry Canada
[32] Rogers seeks disclosure of notes made by members of the Competition Bureau in respect to discussions with Industry Canada. These notes were prepared by staff of the applicant during meetings held between representatives of Industry Canada and the Competition Bureau. These notes were prepared for internal use at the Competition Bureau and were not intended for public distribution.
[33] Notes of communications between the Competition Bureau and Industry Canada are not relevant to this litigation. Any concerns which Industry Canada communicated to the Competition Bureau cannot affect whether Rogers’ dropped call rate between July and December, 2010, was lower or higher than the new wireless carriers.
[34] These notes fall into a class similar to that discussed in Toshiba. The notes are necessary for the Competition Bureau to effectively execute its investigative function. Competition Bureau employees must be able to take proper notes of interviews with other government agencies, and they cannot do so if they are concerned that the notes will be disclosed and thereby reveal the confidential information of another government agency.
[35] Finally, although not necessary for my decision, I am satisfied that any relevant communications between employees of the Competition Bureau and Industry Canada after September 17, 2010, were likely for the dominant purpose of litigation, and are thus shielded from disclosure by litigation privilege.
Disposition
Public interest privilege does not apply to communications between the applicant and Wind Mobile and Public Mobile after July 28, 2010, because their well-publicized statements proclaiming their prominent role in the Competition Bureau’s dropped call claim investigation undermine any notion of cooperation with the Competition Bureau in return for confidentiality.
An order for disclosure of documents and communications passing between Wind Mobile, Public Mobile and the applicant before September 27, 2010, concerning Rogers Communications Inc. and Chatr Wireless Inc. is granted.
An order for disclosure of documents and communications passing between the applicant and Public Mobile and Wind Mobile after September 27, 2010, is refused on the basis of litigation privilege.
An order for disclosure of the notes of employees of the Competition Bureau concerning their discussions with representatives of Industry Canada regarding this matter is refused on the basis of public interest privilege.
An order for disclosure of communications between the applicant and Mobilicity is refused on the basis of public interest privilege.
Marrocco J
Released: August 20, 2013
COURT FILE NO.: CV-10-8993-00 CL
DATE: 20130820
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THE COMMISSIONER OF COMPETITION
Applicant
– and –
ROGERS COMMUNICATIONS INC. AND CHATR WIRELESS INC.
Respondents
REASONS FOR JUDGMENT
Marrocco J
Released: August 20, 2013