Filing of Confidential and Public Documents with the Tribunal

March 2018

PRACTICE DIRECTION REGARDING THE FILING OF CONFIDENTIAL AND PUBLIC DOCUMENTS WITH THE TRIBUNAL

The purpose of this Practice Direction is to provide guidance on the filing of public and confidential documents (e.g., pleadings, affidavits of documents, submissions, witness statements, affidavits, expert reports, etc.) with the Competition Tribunal. Its particular focus is on how the highlighting and redaction of confidential information is to be done. It expands on the August 2008 Practice Direction on the filing of confidential documents.

Proceedings before the Tribunal typically contain three categories of documents. They are:

  1. “Public” documents containing information that is public and that can be disclosed to any person;
  2. “Confidential Level A” documents containing information that a party claims is confidential and that may only be disclosed to (a) external counsel for the parties and their staff and (b) experts retained by a party who have executed a confidentiality undertaking; and,
  3. “Confidential Level B” documents containing information that a party claims is confidential and that may be disclosed to (a) the individuals having access to Confidential Level A documents and (b) a limited number of designated representatives of a party who have executed a confidentiality undertaking.

The definitions of what constitutes confidential information, what confidential information is considered “Level A” or “Level B” and who qualifies as a designated representative, as well as the requirements of any confidentiality undertaking, will vary from case to case and will typically be contained in a confidentiality order issued by the Tribunal.

All parties appearing before the Tribunal are required to adhere to the following instructions when filing any documents that contain confidential information, introducing them into evidence or otherwise placing them on the record. This Practice Direction applies to both electronic and paper documents filed with the Tribunal.

Confidential Level A Version

The Confidential Level A version of a document shall highlight the Confidential Level A information in red and the Confidential Level B information in yellow. Each page of the Confidential Level A version of a document shall indicate in the top right-hand side: “CONFIDENTIAL LEVEL A”.

Confidential Level B Version

The Confidential Level B version of a document shall highlight the Confidential Level B information in yellow and shall redact/black out the Confidential Level A information. The redacted/blacked out portions shall be permanent and show the extent to the actual text that is being redacted. Each page of the Confidential Level B version of a document shall indicate in the top right-hand side: “CONFIDENTIAL LEVEL B”.

In the event that the parties file only a single confidential version of a document, it will be assumed to be the Confidential Level A version of the document.

Public Version

The Public version of a document shall redact/black out all Confidential Level A and Confidential Level B information. The redacted/blacked out portions shall be permanent and show the extent to the actual text that is being redacted. Each page of the Public version of a document shall indicate in the top right-hand side: “PUBLIC”.

There shall always be a public version of any document.

Filing of All Versions at the Same Time

The Confidential Level A, Confidential Level B and Public versions of documents are to be filed with the Tribunal at the same time.

In those rare circumstances where time constraints would preclude the parties from filing a public version of a document at the same time as the confidential version(s), the Tribunal directs counsel to obtain approval from the presiding judicial member or the case management judge prior to filing any confidential version of the document with the Tribunal or as soon as possible after filing. If no presiding judicial member or case management judge has yet been assigned, approval shall be obtained from the Chairperson of the Tribunal. In such cases, the public version of the confidential document shall nonetheless be filed with the Tribunal within five (5) business days.

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

Justice Denis Gascon
Chairperson