Commissioner of Competition v. X, 2018 ONSC 3374

Case Summary

The applicant, an alleged participant in a price-fixing conspiracy in the fresh commercial bread industry, sought a non-publication order to protect their identity in four Informations to Obtain (ITOs) used to secure search warrants. The applicant was not a target of the search warrants and had not been charged. The court applied the Dagenais/Mentuck test and section 487.3 of the Criminal Code, finding that the applicant was an 'innocent person' whose reputation and livelihood would suffer serious and irreversible prejudice if their identity were disclosed. The court granted the non-publication order in large part, concluding that the salutary effects of protecting the applicant's identity outweighed the deleterious effects on the open court principle, while still allowing public access to the majority of the ITOs.

Court File and Parties

COURT FILE NO.: 17-13302

DATE: 2018/05/30

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

COMMISSIONER OF COMPETITION

Respondent

– and –

Applicant

Marisa Ferraiuolo and Gary Caracciolo, Public Prosecution Service of Canada, Competition Law Section, for the Respondent

Scott K. Fenton and Lynda E. Morgan, for the Applicant

– and –

THE GLOBE AND MAIL INC., CANADIAN BROADCASTING CORPORATION, POSTMEDIA NETWORK INC., AND CTV NEWS, A DIVISION OF BELL MEDIA INC.

Interveners

Tae Mee Park and Peter M. Jacobsen, for the Interveners

HEARD: April 26, 2018

DECISION ON APPLICATION by PERSON X

ratushny J.

[1] Person X (also, the "Applicant") is an alleged participant in a price-fixing conspiracy in the fresh commercial bread industry in Canada.

[2] Person X seeks an Order prohibiting the publication of specific information in four Informations to Obtain (the "ITOs") that directly or indirectly reveal the Applicant's identity.

1. The Facts

[3] On March 3, 2015, the Competition Bureau (the "Bureau") granted an immunity marker to Loblaw Companies Limited/Weston Foods (Canada) Incorporated (the "Immunity Applicants"). The Immunity Applicants provided proffers to the Bureau pursuant to the Bureau's Immunity Program under the Competition Act, R.S.C. 1985, c. C-34.

[4] In December 2016 and March 2017, respectively, the Bureau interviewed two of the Immunity Applicants' witnesses whose identities are presently redacted from public view.

[5] In August 2017, the Bureau commenced an inquiry to investigate allegations that Canada Bread Company Limited ("Canada Bread"), the Immunity Applicants, Wal-Mart Canada Corporation ("Walmart"), Sobeys Incorporated ("Sobeys"), Metro Incorporated ("Metro

Commissioner of Competition v. X, 2018 ONSC 3374

Case Summary

Court File and Parties

DECISION ON APPLICATION by PERSON X

1. The Facts

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 2