Court File and Parties

COURT FILE NO.: CV-16-554572 DATE: 2018/10/22 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 1884901 ALBERTA LTD. c.o.b.a PARK’N FLY, Plaintiff AND: OTTAWA MACDONALD-CARTIER INTERNATIONAL AIRPORT AUTHORITY, Defendant

BEFORE: MASTER RONNA M. BROTT

COUNSEL: Daniel Cappe for the Plaintiff Fax: 416-979-1234 Matthew Halpin, for the Defendant Fax: 1-613-230-5459

HEARD: August 21, 2018

Endorsement

Summary of Facts

[1] The plaintiff 1884901 Alberta Ltd. c.o.b.a. Park’N Fly (“Park’N Fly”) commenced operations in 1998 and paid a licensing fee to the defendant Ottawa MacDonald-Cartier International Airport Authority (“Ottawa Airport”). On December 16, 2015 Ottawa Airport imposed a new fee structure which amounted to an increase in fees by 500%.

[2] In February/March 2016, Park’N Fly retained Goodmans as its litigation lawyers and Bennett Jones as its competition lawyers. In March 2016 Bennett Jones made a complaint against the Ottawa Airport to the Competition Bureau and on May 26, 2016 the Competition Bureau advised Bennett Jones that a “robust investigation” of the fee structure is ongoing.

[3] Goodmans issued the Statement of Claim in this action on June 10, 2016 seeking declaratory and monetary relief as a result of the fee increase. Ottawa Airport defended this action on July 8, 2016 and Park’N Fly delivered a Reply on July 15, 2016.

[4] On July 27, 2016 the Competition Bureau advised Bennett Jones that its preliminary investigation was complete and an “Alternative Case Resolution” would be pursued. As well, the Competition Bureau advised that it was open to Park’N Fly to pursue further enforcement measures if further information was provided in respect of Ottawa Airport’s alleged anti-competitive intent.

[5] On September 23, 2016 there was documentary exchange in this action. On December 19, 2016 the parties entered into a mutual confidentiality and non-disclosure agreement and on January 13, 2017 there was an exchange of supplementary documentary productions. Examinations for discovery were conducted on March 27 and 28, 2017 and undertakings were answered by June 16, 2017. Ottawa Airport delivered additional answers on September 22, 2017.

[6] On February 6, 2018 Goodmans asked Norton Rose, counsel for Ottawa Airport in both this action and the Competition Bureau proceedings, if Ottawa Airport would consent to disclose certain discovery evidence to Bennett Jones for the purpose of obtaining legal advice in this action. On February 8, 2018 Norton Rose refused Goodmans’ request.

The Motion

[7] Park’N Fly seeks an Order that it “may provide the documents, transcripts and tables of discovery answers (or excerpts thereof) listed in Schedule “A” to the Notice of Motion, for the limited purpose of obtaining legal advice from Bennett Jones LLP in relation to a potential further motion to seek leave of the Court to provide some or all of the Schedule “A” material to the Competition Bureau”.

[8] Ottawa Airport opposes the motion asserting that the motion is an attempt to use confidential documents, obtained from Ottawa Airport in the civil action, which are subject to both the deemed undertaking rule and a confidentiality agreement between the parties.

[9] It is the evidence of Mr. Faver, the COO of Park’N Fly, that the discovery evidence appears to be relevant to the Competition Bureau complaint. However, before proceeding with a motion to obtain leave to provide some or all of that evidence to the Competition Bureau, it requires a legal opinion from Bennett Jones, its Competition Bureau counsel. Bennett Jones has undertaken to use the discovery evidence for the limited purpose of providing a legal opinion in these proceedings on the issue of whether a motion should be brought seeking leave for relief from the deemed undertaking rule.

[10] The deemed undertaking rule provides that all parties and their lawyers are deemed to undertake not to use certain evidence or information obtained in a proceeding, including evidence obtained on discovery, for purposes other than those of the proceeding in which the evidence or information was obtained. The crux of the deemed undertaking rule is that discovery evidence may not be used by parties or their lawyers for a purpose that is collateral or ulterior to the proceeding in question. The Court can grant relief from the deemed undertaking rule if it is satisfied that the interests of justice outweighs any prejudice that would result from disclosure. It is only in exceptional circumstances that a party may be relieved from the deemed undertaking rule.

[11] Ottawa Airport alleges that Park’N Fly does not seek to use the discovery evidence in this proceeding but rather, it seeks to give it to outside counsel who have already been retained solely for the purposes of advancing a parallel complaint to the Competition Bureau. The defendant submits that the plaintiff is prohibited from using the information for this purpose as it is collateral to this civil proceeding. The plaintiff on the other hand, submits that it seeks the legal advice solely to determine if it should pursue a further motion in this proceeding. That legal advice would be to determine if they should proceed to bring a motion to obtain leave for relief from the deemed undertaking rule only.

[12] I find that Park’N Fly seeks to obtain legal advice regarding whether or not to bring a further motion for relief in this action from the deemed undertaking rule. Accordingly, the deemed undertaking rule is not engaged. There is no collateral or ulterior purpose.

[13] However, if the deemed undertaking rule does apply, in conducting a balancing exercise, we must balance Park’N Fly’s ability to obtain a legal opinion against the defendant’s right to ‘protect’ the evidence from disclosure. Because Bennett Jones has undertaken to use the documents for the limited purpose of assessing whether a further motion in this proceeding is warranted, and the defendant has lead no evidence on the issue of prejudice, the balance favours Park’N Fly. The denial to the plaintiff of its right to counsel of choice is a fundamental right which far outweighs any conceivable harm to the defendant. Therefore, even if it can be found that the deemed undertaking rule is engaged, relief shall be granted.

[14] The defendant further submits that the plaintiff’s request is a breach of the Confidentiality Agreement between the parties. Some, but not all of the discovery evidence has been designated as “confidential information”, and much of what has been so designated is actually the plaintiff’s own confidential information. Thus far, there has been no breach. If the documents are turned over to Bennett Jones, Park’N Fly could waive the confidentiality of their documents. I find that there would be no breach of the Confidentiality Agreement if the documents were provided to Bennett Jones.

[15] For all of these reasons, Park’N Fly may provide the documents, transcripts and tables of discovery answers listed in Schedule “A” to the Notice of Motion for the limited purpose of obtaining legal advice from Bennett Jones LLP in relation to a possible further motion to seek leave of the Court to provide some or all of the information to the Competition Bureau.

[16] The parties shall attempt to agree on the issue of costs. If unable to do so, the parties shall serve and file their costs outlines and brief written submissions (1 -2 pages) within forty five days. No reply costs submissions may be served without leave.

MASTER RONNA M. BROTT Date Released: October 23, 2018