Court File and Parties

COURT FILE NO.: 17-13302 DATE: 2018/08/29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

COMMISSIONER OF COMPETITION Respondent – and – X Applicant

Counsel: 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

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

HEARD: By Written Submissions

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE APPLICANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.

RULING regarding REDACTED APPLICATION RECORD (FOR PUBLIC VIEWING)

ratushny J.

[1] On May 30, 2018, I released my decision on the application (the “Application”) by Person X for a non-publication order (the “Decision”). The Application was granted in large part.

[2] On June 14, 2018, I released my ruling (the “First Ruling”) in respect of the Decision, primarily dealing with the form of the Revised ITOs, as defined in the First Ruling, to be made available to the public.

[3] This is a second ruling (the “Second Ruling”) in respect of the Decision, dealing with approved redactions to all materials filed by all parties on the Application (the “Redacted Application Materials”), including by the applicant, the respondent, and the interveners.

[4] The purpose of the redactions is to carry out the Order made at paragraph 74(1) of the Decision: “An Order prohibiting the publication of information that could directly or indirectly reveal the Applicant’s identity, including from the 8 Paragraphs in the ITOs and from all materials filed on this application”.

[5] By letter dated July 26, 2018, the applicant submitted all materials filed by all parties on the Application (the “Application Materials”) and its proposed redactions to them.

[6] By letter dated August 3, 2018, the interveners submitted their response to these proposed redactions from the applicant, arguing that certain redactions were overbroad.

[7] By letter dated August 7, 2018, counsel for Loblaw Companies Limited, Weston Foods (Canada) Incorporated, and Immunity Applicant Witnesses (collectively, “Loblaw”) proposed further redactions to the Application Materials to ensure compliance with my Order dated March 22, 2018, which granted the media their present status as interveners on the Application. Loblaw had not filed any materials on the Application.

[8] By letter dated August 14, 2018, from the respondent on the Application, the Commissioner of Competition, indicated he did not oppose any of the suggested redactions from the applicant and Loblaw. The Commissioner made no comment on the proposed amendments to these redactions from the interveners.

[9] The Application Materials have been reviewed as have, of course, the proposed redactions from the applicant and the interveners.

[10] I accept all of the redactions proposed by the applicant except as indicated below. Overall, I have attempted to keep the informational component of the Application Materials as complete as possible for the public record, while at the same time approving redactions that could directly or indirectly reveal the applicant’s identity.

[11] I refer to the issues according to the manner in which the interveners have raised and organized them in their letter dated August 3, 2018, responding to the applicant’s proposed redactions. The last issue deals with my Order dated March 22, 2018.

[12] For ease of reference, I have italicized each location in the Application Materials where the applicant’s proposed redactions have been opposed by the interveners.

[13] For clarity, the Redacted Application Materials must include all the redactions proposed by the applicant except as otherwise indicated below and it is the Redacted Application Materials that are to be placed in the public court file.

1. Lack of Criminal Charges Against Person X

[14] I agree with the interveners that with the exception of any gender-identifying pronoun that is to be replaced with “Person X” or “it”, any reference to the applicant not having been charged with a criminal offence is to be included in the public record and not redacted. There is nothing in the language of this kind of information taken in isolation or read cumulatively with the rest of the Redacted Application Materials that would identify Person X.

[15] This applies to the Application Record, Notice of Application, page 12, paragraph 22, so that the public version of paragraph 22 is to be the following: “Person X has never been charged with a criminal offence”; as well as to the Application Record, Affidavit of M. Widdifield, paragraph 2, so that the public version of paragraph 2 is to be the following: “Person X has never been charged with a criminal offence.”

[16] In addition, as the interveners have pointed out, the public version of these statements, amended to include the above changes, will make them consistent with paragraph 20 of the Notice of Application, paragraph 23 of the Applicant’s Factum, and paragraph 21 of the Affidavit of M. Widdifield.

2. Person X’s Privacy Interest

[17] I agree with the applicant that all of paragraph 15 at page 10 of the Notice of Application in the Application Record be redacted. The information suggests a period that Person X could have been employed by Canada Bread, contrary to efforts taken to protect the timeframe that might lead to the identification of Person X. Accordingly, I do not accept the interveners’ request to remove the redaction from paragraph 15.

3. Various Details Related to Person X

[18] I agree with the interveners that statements of Person X being married with children, carrying on [Redacted From Original Confidential Second Ruling Released to the Parties] business, charitable and community commitments, being involved along with a spouse with their local communities, enjoying solid social networks and friendships, being involved in [Redacted From Original Confidential Second Ruling Released to the Parties] business endeavours, and the publication of Person X’s name having collateral prejudicial effects on another business entity do not, taken in isolation or in the context of the overall body of information, directly or indirectly identify Person X. With the exception of any contextual or qualifying information that would identify the nature or type of charitable or community commitments, or describe Person X’s family – for example, that Person X [Redacted From Original Confidential Second Ruling Released to the Parties], or has been involved in [Redacted From Original Confidential Second Ruling Released to the Parties], all information of a general or undescriptive nature is to be included in the public record and not redacted as the applicant has proposed. This applies to the Application Record, Affidavit of M. Widdifield, paragraphs 2, 4 and 23; the Supplementary Application Record, Affidavit of Person X, page 97, paragraphs 2 and 3, and page 104, paragraph 36.

[19] I agree in part with the interveners that there should be no redaction of information regarding the financial consequences for Person X should their identity be revealed. However, I find that even a general [Redacted From Original Confidential Second Ruling Released to the Parties]. Therefore, the fact that Person X’s damages [Redacted From Original Confidential Second Ruling Released to the Parties] should be redacted in the public record. The remainder of the sentence requested for release by the interveners is general in nature and is to be included in the public record. This applies to the Application Record, Affidavit of M. Widdifield, paragraph 24 and the Supplementary Application Record, Affidavit of Person X, page 106, paragraph 44. The public version of paragraphs 24 and 44 are to be the following: “From a financial perspective, the publication of these allegations could result in personal damages [Redacted] arising from the loss of business ventures and options for the business with which Person X is involved.”

[20] I also agree in part with the interveners that there should be no redaction of the fact that there may be consequences to Person X’s professional reputation should their identity be revealed, as stated in the Supplementary Application Record, Affidavit of Person X, page 103 at paragraph 32. The applicant has requested redaction of all of that paragraph, however, I have determined that only the reference to Person X being [Redacted From Original Confidential Second Ruling Released to the Parties] should be redacted, as well as to it [Redacted From Original Confidential Second Ruling Released to the Parties]. Both of those references together with other references to Person X being an employee of Canada Bread could lead to identification of Person X. Accordingly, the public version of paragraph 32 is to be the following: “...The publication of allegations that infer or imply that Person X engaged in illegal conduct would have a significant impact on Person X’s professional reputation. The allegations challenge the core of [Redacted].”

[21] I agree with the applicant that all of paragraph 33 at page 103 of the Supplementary Application Record, Affidavit of Person X is to be redacted as it specifies too explicitly the business profile of Person X. Accordingly, I do not agree with the interveners’ request to publicly release information contained in paragraph 33.

[22] I agree in part with the interveners that there should be no redaction of information of possible consequences to Person X if identified in the public version of the Revised ITOs. However, contextual information related to Person X’s projects as well as involvement in any corporation or company is to remain redacted. This applies to the Supplementary Application Record, Affidavit of Person X, page 104, paragraph 35. The public version of paragraph 35 is to be the following: “In the event that Person X was named directly or indirectly in the public version of the ITO, there is a high probability that Person X would have to step away from [Redacted], and potentially from any further involvement [Redacted]. This would have [Redacted] prejudicial economic effects both [Redacted] and for Person X’s own interests, potentially resulting in financial loss.”

[23] I agree with the interveners that references to the possible negative impact on Person X of unproven public allegations that infer or imply Person X engaged in criminal conduct should not be redacted. The applicant has requested full redaction of four paragraphs in this regard, in the Supplemental Application Record, Affidavit of Person X, pages 104-105, paragraphs 37-40. Any information contained in paragraphs 37-40 that refers to the possible negative impact on Person X of unproven public allegations implying that Person X engaged in criminal conduct of a general and nondescript nature is to remain in the public record. The public version of paragraphs 37-40 are to be the following:

37. [Redacted] An unproven public allegation that infers or implies that Person X engaged in criminal conduct would destroy the reputation that Person X have built over many years, and would impact on Person X’s ability to participate in a meaningful way in future, impacting both Person X personally and the [Redacted] that Person X is involved with now or in the future.

38. From a personal reputational perspective, Person X believes that many people in Person X’s social network could reasonably expect to distance themselves from Person X if it is named or indirectly identified in the public version of the ITO in association with unproven allegations that infer or imply that Person X engaged in criminal conduct.

39. Person X is also concerned about the impact on Person X’s children [Redacted].

40. In addition to the impact on Person X’s professional and economic position, it is Person X’s belief that public access to the ITO in a manner that identifies Person X’s name or identity, in association with unproven public allegations that infer or imply that Person X engaged in criminal conduct, could have a substantial negative impact on Person X’s future interests.

[24] I agree in part with the interveners that there should be no redaction, as the applicant has proposed, with respect to Person X anticipating it will become involved in more opportunities in the future. This applies to the Supplementary Application Record, Affidavit of Person X, page 105, paragraph 41. However, there is information in that paragraph that could lead the reader to believe that Person X [Redacted From Original Confidential Second Ruling Released to the Parties]. On that basis, the public version of that paragraph 41 is to be the following: “Over the years, Person X anticipates becoming involved in [Redacted]. Person X’s [Redacted] have created many opportunities.”

[25] I agree with the applicant that the reference to Person X [Redacted From Original Confidential Second Ruling Released to the Parties] should be redacted as it could lead to an inference as to [Redacted From Original Confidential Second Ruling Released to the Parties], and indirectly serve to identify Person X. This applies to the Supplementary Application Record, Affidavit of Person X, page 106, paragraph 43. Paragraph 43 is to be redacted and not be part of the public record as the interveners have proposed.

[26] I agree in part with the interveners that there should be no redaction, as the applicant has proposed, with respect to Person X [Redacted From Original Confidential Second Ruling Released to the Parties]. This applies to the Supplementary Application Record, Affidavit of Person X, pages 106-107, paragraph 45. However, there is information in that paragraph from which [Redacted From Original Confidential Second Ruling Released to the Parties], indirectly serving to identify Person X. Information regarding Person X’s financial status has been redacted elsewhere in the Application Materials. On that basis, the public version of paragraph 45 is to be the following: “Person X expects to donate [Redacted]. These plans will be thwarted and the causes would be affected if Person X suffers losses and/or reputational harm as a result of being named or indirectly identified in the public version of the ITO.”

4. Target Letter and Interview

[27] I agree with the interveners there should be no redaction, as the applicant has proposed, of information related to Person X being the target of an investigation by the Competition Bureau. This applies to the Application Record, Notice of Application, pages 9-10, paragraphs 12-14. It is not information that serves to identify Person X. I agree, as the interveners submit, that information of Person X having been a target of the investigation and asked to be interviewed by the Competition Bureau, but not searched or charged, are important facts for the public to understand the context for the Application. On this basis, any non-identifying information contained in those paragraphs 12-14 is to be part of the public record and not redacted.

5. My Order Dated March 22, 2018

[28] Loblaw has highlighted additional redactions required to maintain compliance with my Order dated March 22, 2018, between the Commissioner of Competition and X (the “Order”) and in particular, paragraph 10 where I directed the Order be kept filed under seal and only be available to the parties who shall not publish or disclose it or its contents.

[29] The Order granted the media their present interveners’ status and set out a timetable for the filing of submissions by the Parties, and the hearing date for the Application. All of this has occurred. There is no longer any need for the Order to be filed under seal. It is to be available to the public. Therefore, I vacate paragraph 10 of the Order.

[30] Loblaw has also suggested that paragraph 7 of my January 26, 2018, Order between the Commissioner of Competition and X be varied. Paragraph 7 ordered the Application be heard in camera. Pursuant to my subsequent ruling, the Application was heard in open court. I agree, therefore, that paragraph 7 is to be varied.

6. Orders To Go

[31] The applicant has proposed the form of a draft order. I generally agree with its substance, except that two paragraphs are to be added regarding the Orders of January 26 and March 22, 2018, so that the Order is to be as indicated below. The reference to Redacted Application Materials includes all redactions as proposed by the applicant, but subject to this Ruling.

[32] It is for the applicant to ensure that the Redacted Application Materials comply with the Decision, the First Ruling and the Second Ruling, and to obtain approval and consent from the interveners and from Loblaw, the participating parties with respect to the Second Ruling, as to its form and content for attachment as Appendix A as indicated below.

THIS COURT ORDERS that:

1. All materials filed on the Innocent Person Application (Court File #17-13302) by all parties (including the Applicant, Respondent, and Interveners) and sealed by Order of this Court dated January 26, 2018, and March 22, 2018, shall remain sealed in the Court File, and there shall be no publication of the materials filed on the Application, nor shall there be any disclosure to the public of the content of any documents filed on the Application, subject to paragraph 2 below.
2. A redacted set of the Application materials (the “Redacted Application Materials”), attached to this Order as Appendix A, shall be placed in the public court file. There shall be no prohibition on publication or public access to the Redacted Application Materials attached as Appendix A.
3. Paragraph 10 of the above-referenced Order dated March 22, 2018 between the Commissioner of Competition and X is vacated.
4. Paragraph 7 of the above-referenced Order dated January 26, 2018 between the Commissioner of Competition and X is varied allowing, as occurred, that application to be heard in open court.

The Honourable Madam Justice Lynn Ratushny

Released: August 29, 2018