COURT FILE NO.: 17-13302
DATE: 20190104
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF the Competition Act, RSC 1985, c C-34;
AND IN THE MATTER OF an inquiry under section 10 of the Competition Act, concerning alleged activities of Canada Bread Company, Limited; ("Canada Bread"); Weston Foods (Canada), Incorporated ("Weston Bakeries"); Loblaw Companies Limited ("LCL"); WalMart Canada Corporation ("Walmart"); Sobeys Incorporated ("Sobeys"); Metro Incorporated ("Metro"); Giant Tiger Stores Limited ("Giant Tiger") and other persons known and unknown, contrary to paragraphs 45(1)(b) and (c) of the Competition Act (as it existed in the period 2001-2010) and paragraph 45(1)(a) of the Competition Act (as amended in 2010);
AND IN THE MATTER OF an ex parte application by the Commissioner of Competition for the issuance of warrants to enter, search and copy or seize for examination or copying certain records or other things pursuant to sections 15 and 16 of the Competition Act;
BETWEEN:
SOBEYS INCORPORATED and METRO INCORPORATED
Applicants
– and –
THE COMMISSIONER OF COMPETITION
Respondent
– and –
THE GLOBE AND MAIL INC., THE CANADIAN BROADCASTING CORPORATION, POSTMEDIA NETWORK INC. and CTV NEWS, A DIVISION OF BELL MEDIA INC.
Interveners
Nicholas McHaffie, for Sobeys Incorporated
Michael Brown, for Metro Incorporated
Marisa Ferraiuolo, for the Commissioner of Competition
(Appearing for the Immunity Applicant Witnesses: Robert S. Russell, Davit Akman)
endorsement
ratushny j.
Background
[1] Sobeys Incorporated (“Sobeys”) and Metro Incorporated (“Metro”) have applied for disclosure of the identities of witnesses (the “Sobeys and Metro Applications”).
[2] Before the Sobeys and Metro Applications could be heard, Immunity Applicant Witnesses 1 and 2 (together, the “Witnesses”) applied, ex parte and in camera, to be declared confidential informants entitled to the protection of informer privilege (the “Witnesses’ Application”).
[3] As a consequence of the Witnesses’ Application and pursuant to my Order dated March 22, 2018, the Sobeys and Metro Applications were adjourned sine die and then an ex parte and in camera hearing of the Witnesses’ Application was conducted in April and May 2018 (the “First Stage Hearing”).
[4] Pursuant to reasons released August 24, 2018 (the “First Stage Hearing Reasons”), the Witnesses’ Application was granted and they were declared to be confidential informants entitled to the protection of informer privilege. The First Stage Hearing Reasons are confidential and under seal.
[5] At a case management conference on September 26, 2018, the other parties were informed of the Witnesses’ Application, the First Stage Hearing and the declaration of confidential informer status as set out in my order of that same date (the “First Stage Hearing Order”).
[6] The First Stage Hearing Reasons and the First Stage Hearing Order did not dismiss the Sobeys and Metro Applications.
[7] After the case management conference of September 26, 2018 and the receipt of further written submissions from some of the parties, by my Order dated October 10, 2018 the parties were able to schedule a further case management conference to make submissions as to the impact of the First Stage Hearing Order on the Sobeys and Metro Applications. The Sobeys and Metro Applications remained adjourned sine die, that is, without a return date having been set.
[8] The First Stage Hearing Reasons were redacted for public release and provided to the parties on October 26, 2018 (The “Redacted First Stage Hearing Reasons”).
[9] After receiving the Redacted First Stage Hearing Reasons and further to my Order dated October 10, 2018, counsel for Sobeys and Metro provided written submissions dated November 19 and December 9, 2018. In those submissions they “declined the opportunity to make submissions either at a case conference or at a hearing, to the extent that those submissions would be unnecessary or futile” in light of the First Stage Hearing Order, and they attached a draft order reflecting an “expedited process for effecting the dismissal” of the Sobeys and Metro Applications.
[10] Counsel for the Commissioner of Competition (the “Commissioner”) and counsel for the Witnesses have objected to the draft order from Sobeys and Metro and instead, have agreed upon and submitted an alternate form of order to effect the dismissal of the Sobeys and Metro Applications.
The Issue
[11] The dispute over the form of the order to dismiss the Sobeys and Metro Applications (the “Dismissal Order”) revolves around the Witnesses’ argument that Sobeys and Metro have declined to make submissions as to the impact of the First Stage Hearing Order on the Sobeys and Metro Applications and instead, have consented to and invited the dismissals and at the same time elected to forego the next step of a Second Stage Hearing, as set out in the jurisprudence regarding informer privilege determinations: Named Person v. Vancouver Sun, 2007 SCC 43; R. v. Basi, 2009 SCC 52.
[12] Sobeys and Metro say they have done none of this and are simply proceeding on “considerations of efficiency and the reasonable recognition of the impact” of the First Stage Hearing Order and the Redacted First Stage Hearing Reasons. They want reasons to be stated for the dismissals, namely, because dismissals are “the inevitable result” of the First Stage Hearing Order and the Redacted First Stage Hearing Reasons. They argue that a Second Stage Hearing situation has not arisen and, therefore, is not being waived.
Conclusions
[13] I agree with Sobeys and Metro that a Second Stage Hearing situation has not arisen in the present circumstances of this matter.
[14] I also agree that Sobeys and Metro have not elected to forego or waive a Second Stage Hearing should circumstances arise requiring one in the future.
[15] As a consequence, I respectfully disagree with the assertions from the Witnesses that the Sobeys and Metro Applications are proceedings involving the holding of a Second Stage Hearing that Sobeys and Metro have elected to forego.
[16] This is an important issue, as it may be that a Second Stage Hearing will have to be held in the future, as set out in Named Person at paras. 50-61, to determine how to carry on the remainder of the criminal proceedings without violating informer privilege and disclosing information that might tend to reveal the confidential informer’s identity.
[17] In the present case, however, no criminal charges have been laid and the First Stage Hearing occurred in response to the Witnesses’ Application (Redacted First Stage Hearing Reasons at paragraphs 1, 2 and 5). Sobeys and Metro, necessarily, were not parties able to be present at the First Stage Hearing and no determination was made with respect to the Sobeys and Metro Applications in either the First Stage Hearing Order or the Redacted First Stage Hearing Reasons.
[18] In the circumstances existing at the present time, therefore, while a finding of informer privilege has been made, there are no criminal proceedings before the Court and, correspondingly, no issues giving rise to the holding of a Second Stage Hearing at this time that would have as its focus the determination of how to conduct the criminal proceedings without violating informer privilege.
[19] The only focus at this time is the impact of the First Stage Hearing Order and its declaration of confidential informer status for the Witnesses on the Sobeys and Metro Applications that request disclosure of the identities of the Witnesses. That impact, Sobeys and Metro assert, is obvious.
[20] It can be said that Sobeys and Metro have invited a dismissal of the Sobeys and Metro Applications, as the Commissioner has submitted, as a consequence of the fact of the confidential informer status as reflected in the First Stage Hearing Order. That is the reason for their dismissal proposal.
[21] Other than this fact of confidential informer status, Sobeys and Metro raise no other issues arising out of the First Stage Hearing Order or the Redacted First Stage Hearing Reasons that impact the Sobeys and Metro Applications.
[22] On this basis and without other issues being identified, I agree, therefore, with their assertions that in light of that confidential informer status, the practical impact of the First Stage Hearing Order is that it has not only determined the Witnesses’ Application but also the Sobeys and Metro Applications. On that basis too, I agree their request for dismissals is in the interests of efficiency and an expedited process as being the inevitable result of the First Stage Hearing Order.
[23] It is for these reasons I have signed the Dismissal Order in the form attached as Appendix A.
[24] I thank the parties for their submissions and assistance on this file.
The Honourable Madam Justice Ratushny
Released: January 4, 2019
APPENDIX A
ONTARIO SUPERIOR COURT OF JUSTICE (EAST REGION)
IN THE MATTER OF the Competition Act, RSC 1985, c C-34;
AND IN THE MATTER OF an inquiry under section 10 of the Competition Act, concerning alleged activities of Canada Bread Company, Limited; ("Canada Bread"); Weston Foods (Canada), Incorporated ("Weston Bakeries"); Loblaw Companies Limited ("LCL"); WalMart Canada Corporation ("Walmart"); Sobeys Incorporated ("Sobeys"); Metro Incorporated ("Metro"); Giant Tiger Stores Limited ("Giant Tiger") and other persons known and unknown, contrary to paragraphs 45(1)(b) and (c) of the Competition Act (as it existed in the period 2001-2010) and paragraph 45(1)(a) of the Competition Act (as amended in 2010);
AND IN THE MATTER OF an ex parte application by the Commissioner of Competition for the issuance of warrants to enter, search and copy or seize for examination or copying certain records or other things pursuant to sections 15 and 16 of the Competition Act;
BETWEEN:
SOBEYS INCORPORATED and METRO INCORPORATED
Applicants
-and-
THE COMMISSIONER OF COMPETITION
Respondent
-and-
THE GLOBE AND MAIL INC., THE CANADIAN BROADCASTING CORPORATION, POSTMEDIA NETWORK INC. and CTV NEWS, A DIVISION OF BELL MEDIA INC.
Interveners
ORDER
(Dismissal of Applications for Disclosure of the Identity of Witnesses)
UPON Applications by Sobeys Incorporated and Metro Incorporated for disclosure of the identities of Immunity Applicant Witnesses (the “Sobeys and Metro Applications”);
AND ON the issuance of this Court’s Order (Application by Immunity Applicant Witnesses at First Stage Hearing) dated September 26, 2018, declaring that Immunity Applicant Witnesses 1 and 2 are confidential informers entitled to the protection of informer privilege (the “First Stage Hearing Order”), and the issuance of reasons for the First Stage Hearing Order, Re Application by Immunity Applicant Witnesses at First Stage Hearing, 2018 ONSC 6301, dated August 24, 2018 and issued to the parties in redacted form on October 26, 2018 (the “Redacted First Stage Hearing Reasons”);
AND ON the issuance of this Court’s Order dated September 26, 2018 arising from the case management conference of that date, indicating that the parties may schedule a case management conference, as necessary, to make submissions as to the impact on the Sobeys and Metro Applications of the First Stage Hearing Order;
AND ON considering that the determinations and declarations set out in the First Stage Hearing Order of confidential informer status for the Immunity Applicant Witnesses effectively determine the Sobeys and Metro Applications.
IT IS ORDERED THAT:
- The Sobeys and Metro Applications are dismissed.
DATED at the City of Ottawa in the Province of Ontario this 4th day of January, 2019.
Ratushny J.
COURT FILE NO.: 17-13302
DATE: 20190104
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SOBEYS INCORPORATED and METRO INCORPORATED
Applicants
– and –
THE COMMISSIONER OF COMPETITION
Respondent
– and –
THE GLOBE AND MAIL INC., THE CANADIAN BROADCASTING CORPORATION, POSTMEDIA NETWORK INC. and CTV NEWS, A DIVISION OF BELL MEDIA INC.
Interveners
endorsement
Ratushny J.
Released: January 4, 2019