Timelines and Scheduling for Proceedings before the Tribunal

January 2019

PRACTICE DIRECTION REGARDING TIMELINES AND SCHEDULING FOR PROCEEDINGS BEFORE THE TRIBUNAL

The purpose of this Practice Direction is to advise parties and counsel appearing before the Competition Tribunal about the timelines that will ordinarily be expected to be followed in proceedings before the Tribunal. In addition, this Practice Direction provides guidance to parties and counsel in the establishment of time frames for the principal discovery and pre-hearing steps leading to a hearing. Furthermore, pursuant to consultations with the Commissioner of Competition (“Commissioner”) and the Canadian Bar Association through the Tribunal/Bar Liaison Committee, the Tribunal will be taking a more active role in the case management of its proceedings. This specifically includes the review of proposed scheduling orders, including those submitted with the consent of all parties.

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.

Timelines

The Tribunal considers that a period of 10 to 16 months between the filing of a Notice of Application and the commencement of the hearing on the merits will typically be a reasonable timeline for its proceedings, 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 will generally establish a schedule falling within this time frame. Such a schedule should contemplate completing the various discovery and pre-hearing steps of the proceeding within this period of time. Where a party seeks to depart from this timeline, it shall, as soon as possible, provide an explanation to the Tribunal.

For greater certainty, the Tribunal emphasizes that the overall timeline of 10 to 16 months should not be considered as fixed. Some flexibility is contemplated and the timeline may be varied and extended, depending on the particular context, urgency or circumstances of each case. In addition, the Tribunal’s own scheduling requirements could lead to an extension of the timeline.

The Tribunal notes that factors that have led to an extension of the timelines in the past have included motions for leave to intervene, motions for summary dismissal or summary disposition, motions challenging the Tribunal’s subject-matter or personal jurisdiction, motions opposing claims of privilege and motions seeking a stay of Tribunal proceedings pending appeal on a preliminary motion or on a related matter. The Tribunal will also generally assess whether the proposed timetables are realistic and achievable for the parties involved. The Tribunal emphasizes, however, that the presence of any one or more of these circumstances does not necessarily mean that an extension will be granted. This will be assessed on a case-by-case basis.

The Tribunal may issue directions and orders that will not always reflect what the parties have proposed in terms of scheduling. This could even occur in respect of a proposal made on consent, if it falls outside the overall timeline of 10 to 16 months and if the Tribunal is of the view that the proposal is not in line with its 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).

Discovery and Pre-hearing Steps

When preparing their proposed timetables for the disposition of an application, the parties and counsel should keep in mind the following elements in determining how the time should be best allocated between the various discovery and pre-hearing steps, within the above timeline:

1. Documentary discovery
   1. service of affidavits of documents;
   2. motions arising from the affidavits of documents and productions;
   3. motions arising from claims of privilege and/or confidentiality designations.
2. Oral discovery
   1. examinations for discovery;
   2. motions arising from the examinations for discovery, answers to undertakings or refusals.
3. Pre-hearing processes
   1. service and/or filing of documents relied upon, witness statements and expert reports;
   2. motions for summary disposition;
   3. motions arising from the waiver of privilege;
   4. requests for admissions;
   5. motions related to the evidence (documents relied upon, witness statements and expert reports).

The parties are also encouraged to exchange discovery plans which should generally: 1) identify and prioritize key subjects, custodians, record types, relevant time frames and other parameters within which the production will be conducted for relevant records; 2) 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; 3) 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; and 4) prioritize steps to be taken and consider whether a phased approach would be appropriate.

The above discovery and pre-hearing steps will normally be included in the scheduling orders to be issued by the Tribunal. A more complete list of the usual discovery and pre-hearing steps is detailed in Appendix A. In addition to the case management conferences already mentioned in Appendix A, the judicial member responsible for the case management of a given matter will be available for additional case management conferences should the parties or the circumstances require it.

Approach to Case Management

Throughout the discovery and pre-hearing steps, the Tribunal will take an active role in the scheduling and case management of its proceedings.

Based on its experience in recent proceedings, the Tribunal notes the following. With respect to the documentary discovery process, the time allotted to serve the affidavits of documents has typically been four (4) to six (6) months after the filing of the Notice of Application. The Tribunal considers that, in many instances, affidavits of documents could and should be served earlier and closer to the close of pleadings. In the Tribunal’s view, a period of three (3) months after close of pleadings should normally be sufficient for the service of affidavits of documents. In this regard, the principle of proportionality shall apply in determining the scope of documentary discovery. A reduced period for the service of affidavits of documents would leave more time to deal with motions arising from the affidavits of documents and productions, as well as motions arising from claims of privilege and/or confidentiality designations. While the situation may vary with each individual matter, the Tribunal observes that, in the Commissioner’s case, he/she will have had extensive familiarity with the evidence. The Tribunal would thus expect him/her to generally be in a position to deliver the affidavit of documents within the period mentioned above. The same would apply to the responding party in cases where there have been pre-application dealings with the Commissioner.

Regarding oral discovery, in order to facilitate the process and to reduce the adverse consequences of 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 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 above, 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.

As far as pre-hearing processes are concerned, the Tribunal notes that the timelines set forth in the Competition Tribunal Rules, SOR/2008-141 (“Rules”) for the service of the witness statements, list of documents on which a party intends to rely and expert reports (i.e., applicant’s case 60 days before the hearing, respondent’s case 30 days before the hearing, and applicant’s reply 15 days before the hearing) have sometimes proved to be too tight when motions are filed in connection with the waiver of privilege or in relation to the evidence. The Tribunal considers that it will generally be advisable for parties and counsel to provide for more time than is currently contemplated in the Rules for the exchange of the parties’ cases.

The Tribunal would also like to remind parties and counsel that Rule 40(1) requires parties to provide their proposed timetable within 14 days after the expiry of the period for filing a response. As this requirement seems to have sometimes not been followed in practice, the Tribunal wishes to reinforce the importance of this Rule in order to prevent any delay in establishing the timeline for the disposition of an application and in issuing a scheduling order.

Finally, the Tribunal would like to advise parties and counsel that, in its scheduling orders, the Tribunal now typically requires the parties to (i) file their expert reports with the Tribunal at the same time as they serve them to opposing counsel, and (ii) provide their witness statements to the Tribunal ahead of the hearing. This will provide the Tribunal with additional time to review the materials before the hearing, thus allowing the Tribunal to be better prepared and to potentially resolve certain issues earlier. It is expected that this will also generally assist to expedite the proceedings. In this regard, the Tribunal is mindful of Rules 74(3) and 78(2) which provide that the Tribunal may read the witness statements or expert reports, respectively, “unless a party makes a valid objection”. Nothing in this Practice Direction shall be read or interpreted as precluding a party from raising such an objection.

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

Justice Denis Gascon
Chairperson

Appendix A – List of Potential Discovery and Pre-hearing Steps