Policy on Openness and Privacy

Introduction

The Competition Tribunal is an independent quasi-judicial tribunal that operates very much like a court when it conducts proceedings under the Competition Act and the Competition Tribunal Act. The mandate of the Tribunal is such that its decisions can have an impact on all Canadians. This document outlines the Tribunal’s policy on the openness of its processes and describes how it handles issues relating to privacy.

The Open Court Principle

The open court principle is significant in our legal system. In accordance with this principle, the Tribunal conducts its oral hearings in public, save for exceptional circumstances. Because of its mandate and the nature of its proceedings, the Tribunal maintains an open justice policy to foster transparency in its processes, accountability and fairness in its proceedings.

On its website and through the Competition Tribunal Rules, SOR/2008-141, the Tribunal advises parties and the public at large that its hearings are open to the public. Parties that are involved in proceedings before the Tribunal should be aware that they are embarking on a process that presumes a public airing of the dispute between them, including the public availability of decisions. Tribunal decisions identify parties and their witnesses by name and may set out information about them that is relevant and necessary for the determination of matters to be decided.

At the same time, the Tribunal acknowledges that, in some instances, mentioning an individual’s personal information in a written decision may affect that person’s life. Privacy concerns arise most frequently when some identifying aspects of a person’s life become public. These include information about an individual’s home address, personal email address, personal phone number, date of birth, or financial details. The Tribunal endeavours to include such information only to the extent that is relevant and necessary for the determination of matters under its jurisdiction.

With advances in technology and the potential for the rapid and widespread distribution of information – including Tribunal decisions –, the Tribunal recognizes that, in some instances, it may be appropriate to limit the concept of openness as it relates to the circumstances of individuals who are parties or witnesses in proceedings before it.

The Tribunal’s policy is consistent with the principles found in the Protocol for the Use of Personal Information in Judgments approved by the Canadian Judicial Council.

In Camera Hearings

In some instances, the Tribunal can depart from the open court principle during a hearing. For example, portions of a hearing may be held in camera (thus limiting access to the public and media) under Rule 30 of the Competition Tribunal Rules if the parties refer to information that has been designated as confidential under a Tribunal order of confidentiality, such as commercially sensitive information.

Orders of Confidentiality

All documents filed with the Tribunal that are part of the record, such as pleadings, motions and supporting affidavits, are a matter of public record unless a legislative provision or Tribunal order prohibits public access.

Upon request of a party by way of a motion, the Tribunal may order that certain materials, such as an exhibit, be sealed in order to protect the confidentiality of personal or sensitive commercial information.

In accordance with Rules 23, 66 and 67 of the Competition Tribunal Rules, a motion may be made for an order of confidentiality regarding information in a document to be filed with the Tribunal. Such a motion must be made in writing and identify the information at issue as well the details of the specific, direct harm that would allegedly result from unrestricted disclosure of the information.

If the Tribunal orders that information contained in the document is to be kept confidential, the party must provide the registrar with a public version of the document that does not include the confidential information, as well as a version of the document that is marked “confidential” and that includes and identifies the confidential information that has been deleted from the public version. More information about the Tribunal’s practice with respect to confidential documents can be found in the 2008 Practice Direction regarding the Filing of Confidential Documents and the 2018 Practice Direction regarding the Filing of Confidential and Public Documents with the Tribunal.

Access to Case Files by the Public

The Access to Information Act and the Privacy Act do not apply to the Tribunal’s case files. However, the Tribunal provides public access to case files in accordance with the open court principle. Subject to any confidentiality order, the public is entitled to access the documents filed or received in evidence on the public record. Moreover, public versions of documents filed by parties, such as pleadings, motion materials and expert reports, are made available on the Tribunal’s website. However, information protected by solicitor-client privilege is not available for consultation.

Access to Decisions by the Public

The Tribunal provides public access to its decisions and directions on its website in accordance with the open court principle. Summaries of significant Tribunal decisions are also posted on the Tribunal’s website.

In an effort to establish a balance between public access to its decisions and privacy concerns, the Tribunal has taken measures to prevent Internet searches of full-text versions of decisions posted on its website. This was accomplished by using the “web robot exclusion protocol”, which is recognized by Internet search engines. As a result, an Internet search of a person’s name will not yield any information from the full-text versions of decisions posted on the Tribunal’s website.

July 2019