Expedited Proceeding Process before the Tribunal

January 2019

PRACTICE DIRECTION REGARDING AN EXPEDITED PROCEEDING PROCESS BEFORE THE TRIBUNAL

The purpose of this Practice Direction is to introduce an indicative timeline for an expedited proceeding process (“Expedited Process”) that parties may contemplate and propose depending on the specific circumstances of a particular matter, subject to overall approval by the Competition Tribunal. This Practice Direction reflects what the Tribunal considers to be a reasonable time frame for an Expedited Process. For greater certainty, the timeline set forth below should be viewed as a guideline. It may be varied by the judicial member responsible for the case management of a given matter, depending on the circumstances of each case.

This Practice Direction is being issued in furtherance of the Tribunal’s general objective of continuing to improve the efficiency and effectiveness of its proceedings. It is also consistent with the Tribunal’s statutory mandate to deal with matters as “informally and expeditiously as the circumstances and considerations of fairness permit”, pursuant to subsection 9(2) of the Competition Tribunal Act, RSC 1985, c 19 (2nd Supp). This Expedited Process was developed pursuant to consultations with the Commissioner of Competition (“Commissioner”) and the Canadian Bar Association (“CBA”) through the Tribunal/Bar Liaison Committee.

Availability

The Tribunal will likely adopt the Expedited Process if all parties consent to it in a particular proceeding. The Tribunal may also adopt the Expedited Process even if only one of the parties requests it. In such a case, the requesting party would need to satisfy the Tribunal that the Expedited Process is reasonable and advisable in light of the circumstances of the particular matter and considerations of fairness. When considering the circumstances and the considerations of fairness in a given case, the Tribunal may take into account various factors, including the following:

• Whether there is any informational advantage or disadvantage that exists between the parties;
• The complexity of the proceedings (including the number of issues that may be in dispute between the parties);
• Any relevant commercial imperatives for the use of the Expedited Process, such as material timing considerations;
• Any other relevant imperatives, such as the amount of time the alleged anti-competitive practice or arrangement has been in place and the extent of the alleged harm to competition in the relevant market;
• In matters involving deceptive marketing practices under Part VII.1 of the Competition Act, RSC 1985, c C-34 (“Act”), the frequency and duration of the alleged conduct, the vulnerability of the class of persons likely to be adversely affected by the alleged conduct and the effect of the alleged conduct on competition in the relevant market;
• The availability and use of any interim or injunctive measures in respect of the conduct at issue, as well as the nature of the remedy that is being sought; and
• Whether the party requesting the Expedited Process is willing to reduce or eliminate certain procedural steps (such as elements of the discovery process) to facilitate expedition.

For greater certainty, the foregoing factors will not fetter the Tribunal’s discretion or override a legislative direction, and will be developed more precisely over time through the jurisprudence.

Although it has been suggested that the Expedited Process may be better suited for applications in relation to mergers (where time is often of the essence), the Tribunal considers that the Expedited Process is an option available for all types of applications filed before it, and may also be well-suited for cases under the other reviewable practices provisions in Part VIII of the Act as well as under Part VII.1.

Timeline

The Tribunal considers that a period of five (5) to six (6) months between the filing of a Notice of Application (“NOA”) and the commencement of the hearing on the merits will typically be a reasonable timeline for the Expedited Process, subject in each case to the nature of the particular application. The Tribunal expects that the timetables proposed by the parties for the disposition of an application under this process will generally fall within this time frame. The Tribunal will aim to issue scheduling orders that contemplate completing the various discovery and pre-hearing steps under the Expedited Process within this overall timeline. In this regard, the detailed steps to be followed by the parties and the Tribunal are described in the indicative timeline for the Expedited Process set out in Appendix A. For greater certainty, the Tribunal recognizes that there may be circumstances where the parties may consider a five (5) to six (6) months period to be too long or too short. In such circumstances, they shall remain free to propose and agree to an alternative timetable.

The indicative timeline for the Expedited Process complements the timeline set out in the Tribunal’s Practice Direction regarding Timelines and Scheduling for Proceedings Before the Tribunal (“Practice Direction regarding Scheduling”) for the regular proceeding processes before the Tribunal, and offers an additional avenue along the spectrum of options for proceedings before the Tribunal.

Initial Notice to the Tribunal

If all parties agree to proceed under the Expedited Process, the applicant shall notify the Tribunal accordingly at the same time as a NOA is filed. Upon receipt of such notice of consent to the Expedited Process, the Tribunal will convene a case management conference (“CMC”) on an urgent basis to approve the use of the Expedited Process in the circumstances of that particular matter.

A notice of consent to the Expedited Process does not necessarily mean that the parties will be obliged to adopt all aspects of the indicative timeline described in Appendix A. However, the parties will generally be expected to respect the expedited deadlines associated with the filing of the pleadings (i.e., Response and Reply). The actual expedited scheduling order, including all other discovery and pre-hearing steps, will be finalized as part of the opening case management conference (“Opening CMC”) to be convened shortly after the pleadings have closed.

Where all parties do not agree that an Expedited Process should be followed, the party proposing its adoption shall notify the Tribunal that it intends to seek an expedited scheduling order within five (5) days after the filing of the NOA. In those circumstances, the Tribunal will convene a CMC on an urgent basis to assess whether the Expedited Process is a reasonable and advisable option given the circumstances of that particular matter and having regard to considerations of procedural fairness and other related factors described above.

Opening CMC

As indicated in the Tribunal’s Practice Direction regarding Scheduling, the Tribunal will take an active role in the case management of its proceedings. This will be particularly so in the context of the Expedited Process. Accordingly, when an application proceeds under the Expedited Process, the Tribunal will convene an in-person Opening CMC within 14 days after the close of pleadings.

From a procedural perspective, the main purpose of the Opening CMC will be to finalize the draft scheduling and confidentiality orders which will have been previously submitted by the parties (i.e., within seven (7) days after the close of pleadings). It is anticipated that an early finalization of the confidentiality order will also limit issues concerning privilege and confidentiality classification.

The timetable to be proposed by the parties shall incorporate deadlines for serving the parties’ affidavits of documents (“AODs”), completing examinations for discovery, serving their witness statements and expert reports, exchanging requests for admissions, and other steps set out in Appendix A. If counsel cannot agree on a timetable, separate submissions shall be made in advance of the Opening CMC.

In addition to finalizing the scheduling and confidentiality orders, the Tribunal will also address, at the Opening CMC, the discovery plans of the parties. Such discovery plans should generally have been exchanged between the parties within seven (7) days after the close of pleadings. It is expected that potential disputes with respect to documentary disclosure and examinations for discovery will be reduced through the use of discovery plans. The discovery plans should generally:

• Identify and prioritize key topics, custodians, record types, relevant time frames and other parameters within which the production will be conducted for relevant records;
• Consider anticipated volume of records, cost and resources required to search for and review records for relevance, and the importance and complexity of the issues;
• Identify persons intended to be produced for oral examination for discovery in the relevant proceeding and include information respecting the timing and length of the examinations;
• Prioritize steps to be taken and consider whether a phased approach would be appropriate; and
• Consider whether to reduce or eliminate certain procedural steps (such as elements of the discovery process) to facilitate expedition.

Any disagreements arising from the exchange of the discovery plans shall be dealt with by the Tribunal at the Opening CMC.

The Tribunal will also use the Opening CMC to raise any other procedural and/or substantive issues that may “aid in the disposition of the application” (Rule 137 of the Competition Tribunal Rules, SOR/2008-141 (“Rules”)), and it will expect all parties to do the same. Other areas that may be explored at the Opening CMC to achieve efficiency may include:

• Document management;
• The use of an agreed statement of facts;
• The use of references to dispose of discrete issues; and
• The use of agreed books of documents and joint briefs of authorities.

The Tribunal will also take the opportunity afforded by the Opening CMC to actively identify certain issues or sub-issues that, if adjudicated and/or otherwise resolved early on, would lead to a more efficient and effective proceeding. As such, in addition to proactively examining the pleadings for such issues, the Tribunal expects the parties will do the same.

Approach to Case Management

Throughout the discovery and pre-hearing steps leading to the hearing on the merits, the Tribunal will take an active role in the scheduling and case management of the Expedited Process. The following guidance explains how the Expedited Process will be managed in the absence of exceptional reasons for departing from this general approach.

The parties will be expected to reasonably cooperate and agree on expediting discovery and pre-hearing steps, as well as the hearing itself, including with respect to documentary discovery, examinations for discovery, and the presentation of evidence in a manner that could streamline the hearing.

Counsel should ensure that they will be reasonably available for CMCs, to complete discoveries on a timely basis, and for an expedited hearing.

While the Tribunal will endeavour to make a judicial member available to preside over CMCs or to deal with motions, counsel will be expected to have conferred among themselves before requesting any CMC or bringing any motion. The judicial member responsible for the case management of a given matter may require that a CMC be held before any motion is brought. The Tribunal specifies that the judicial member to be made available may not be the judicial member responsible for the case management of the matter.

Applications for Leave to Intervene

Under the Expedited Process, the Tribunal will deal with intervenor applications in accordance with the following expedited schedule and process:

• Motion for leave to intervene would be served and filed within seven (7) days after the end of the period for filing the Response;
• Motion Response would be served and filed within four (4) days after the service of the Motion;
• Motion Reply would be served and filed within two (2) days after the service of the Motion Response; and
• Intervention will be disposed of by the Tribunal without a hearing unless the Tribunal directs otherwise.

As soon as the Tribunal determines that an application will be dealt with under the Expedited Process, a notification to that effect will be immediately posted on the Tribunal’s website. Such notification will indicate that the application will proceed under the Expedited Process and will set out the date by which motions for leave to intervene are to be filed. Rule 25 provides that, in case of a NOA under Part VIII of the Act, the Registrar is to publish a notice in the Canada Gazette and, over a period of two weeks, in two daily newspapers. Such notice must set out, among other things, the date by which a motion for leave to intervene is to be filed. In the context of the Expedited Process, the Tribunal will likely dispense with the application of this provision, and use the above notification on the Tribunal’s website as an alternative notification process.

Mediation

As indicated in the Tribunal’s Practice Direction regarding Mediation, “[p]arties should expect that, in all proceedings, the Tribunal will also be proactive in exploring the prospects for mediation during the early and later stages of the case management process”.

In light of this guidance, and as proposed by both the Commissioner and the CBA, the Tribunal has allotted two optional steps for mediation in its indicative timeline for the Expedited Process: 1) after the close of pleadings but prior to commencing the discovery process; and 2) after discovery and disclosure (e.g., service of witness statements), but before the hearing on the merits commences.

Given its success thus far, the Tribunal will continue to encourage the parties to engage in mediation. To that end, the Tribunal is willing to facilitate the process of mediation in accordance with its mediation protocol.

Discovery Process

In addition to the implementation of a rigorous Opening CMC, the Tribunal is of the view that the best way to expedite its proceedings is to apply certain parameters and limitations to the discovery process.

As indicated above, the first of these measures is requiring the parties to exchange discovery plans which should preclude, or at least reduce the number of, motions associated with documentary and oral discovery following production of documents.

The second measure is the expectation that the parties will generally exchange the AODs within a period of 60 to 70 days after the filing of the NOA. The parties are encouraged to examine ways to limit the scope of documentary discovery in order to facilitate expedition. Updated AODs will also have to be provided by the parties in accordance with their obligation to make continuous disclosure. If needed, directions to that effect will be set by the judicial member responsible for the case management of the matter.

Furthermore, with the consent of the affected parties (not to be unreasonably withheld), the Commissioner will not be required to produce in his/her AOD those documents that have been received from a respondent, including documents submitted to the Commissioner by the parties in response to a request for information, section 11 order(s), supplementary information requests or provided voluntarily. Conversely, with the consent of the Commissioner (not to be unreasonably withheld), a respondent will not be required to produce in its AOD those documents that have already been provided to the Competition Bureau.

As a third measure, the Tribunal also adopts certain parameters and limits associated with examinations for discovery set out in the Federal Court’s Notice to the Parties and the Profession regarding Case Management: Increased Proportionality in Complex Litigation before the Federal Court. These parameters and limits will apply to all examinations for discovery:

• No refusals motion will be permitted until oral discoveries are completed, although as discussed below, a judicial member of the Tribunal may adjudicate on “spot objections” in appropriate circumstances;
• Refusals motions will be limited to one (1) hour per day of discovery of each party’s representative;
• Potentially significant cost sanctions may be imposed against unsuccessful or unreasonable parties; and
• Questions should be answered unless clearly improper, or where the disclosure of privileged communication could result. In all other situations, questions considered by a party to be objectionable will be required to be answered under objection, with reasons to be stated on the record.

The Tribunal further expects that, in examinations for discovery, counsel will take questions “under advisement” on an exceptional basis and that the number of such questions will therefore be limited.

Unless the parties agree otherwise or the Tribunal allows additional days in light of the particular circumstances of a given matter, oral discovery shall normally be limited to two (2) days for each of the applicant(s) and the respondent(s). In addition, in order to facilitate the oral discovery process and to reduce potential lengthy delays associated with discovery motions, the Tribunal will make a judicial member available, either in person or via teleconference, to adjudicate “spot objections” raised during examinations for discovery.

The purpose of these guidelines is to ensure a focused, effective approach to oral discovery by the parties, an efficient use of the Tribunal’s resources and appropriate proportionality in proceedings before the Tribunal.

For greater certainty, the principle of proportionality applies to all stages of an application, including oral discoveries. However, departures from the Rules or from the terms of this Practice Direction on the basis of proportionality shall require the prior approval of the Tribunal.

Pre-hearing Process

The indicative timeline provides that all parties are to serve their respective witness statements, expert reports and documents relied upon at the same time, for both the initial filings and the reply filings. Simultaneously with the service of expert reports, the parties shall specify the subject areas in which they propose to qualify their respective expert witnesses. The Tribunal notes that, in merger cases where an efficiencies defense is raised, the foregoing sequence for the exchange of expert reports may require adjustments.

Any objections regarding a proposed expert, including regarding his/her qualifications; the area(s) in respect of which he/she is proposed to be qualified; and his/her expert report more generally should be raised as soon as possible with the judicial member responsible for the case management of the matter, and in any event, within 15 days of service and filing of the expert reports. The Tribunal expects that, in most cases, there will be no objections and the parties will agree to the scope of expertise of each expert witness. Where agreement is reached, short written statements of the proposed area of expertise for each expert witness shall be exchanged and provided to the Tribunal. Where disagreement remains, the issues will be expected to be raised and resolved under case management, save and except for those instances where the presence of the expert before the Tribunal is required in order for an issue to be resolved. In such a case, the issue will be addressed at a time and in a manner directed by the judicial member responsible for the case management of the matter.

The parties are also expected to prepare a joint statement of issues, to be delivered two (2) weeks prior to the hearing on the merits. For those issues upon which agreement cannot be reached, the parties shall each deliver their own statement to the Tribunal.

A proposed schedule for hearing proceedings, including the order and estimated duration of the testimony of witnesses and opening statements, shall be submitted to the Tribunal at least one (1) week prior to the hearing. Any disagreement with respect to the schedule will be decided by the presiding judicial member after hearing from the parties.

Read-ins from discovery will be taken as read in and marked as exhibits at the hearing, subject to objections in writing by the opposing party and/or qualifications to the read-ins prior to the end of the hearing. Parties are encouraged to share lists of anticipated read-ins at least one (1) week before the hearing. Read-ins should be grouped by subject matter.

Final written arguments and compendia of key documents in both electronic and paper format shall be provided to the Tribunal, and shall include only the relevant excerpts of evidence to be relied upon by each party. Best efforts should be made to provide a joint compendium. Otherwise, separate compendia shall be provided to the Tribunal. The length of final written arguments and compendia shall be determined by the Tribunal after hearing from the parties.

Hearing Process

The hearing will adopt the “chess clock” process set out in the Tribunal’s Notice on ‘Chess Clock’ Proceedings, and will generally conform to the following guidelines:

• The evidentiary portion of the hearing will generally be limited to 5-7 days, with limited oral examinations in-chief;
• Oral argument will generally be limited to 1-2 days.

Decision

Although nothing in this Practice Direction shall bind the Tribunal, the Tribunal will aim to issue its decision within one (1) month after oral argument.

For any additional information or assistance, please contact the Deputy Registrar at (613) 954-0857.

Justice Denis Gascon
Chairperson

Appendix A – Indicative Timeline for the Expedited Process

¹Completion means filed, argued, decided and complied with.