Minutes of June 5, 2018

Minutes of June 5, 2018 PDF (109KB)

Attendance:

  • Mr. Justice Denis Gascon (Chairperson),
  • Mr. Chief Justice Paul Crampton,
  • Mr. Justice Robert Barnes,
  • Mr. Jonathan Chaplan,
  • Mr. John Syme,
  • Mr. Majid Charania,
  • Mr. James Musgrove,
  • Mr. Adam Fanaki (via telephone),
  • Ms. Anita Banicevic (via telephone),
  • Ms. Linda Plumpton (via telephone),
  • Mr. Roger Nassrallah and
  • Ms. Sabrina Ottoni.

1. Opening remarks

  • Justice Gascon greets everyone and attendees present themselves
  • The minutes of the December 14, 2017 meeting are adopted with no objections
  • Minutes will be translated and posted on the Tribunal’s website

2. Tribunal update

Personnel

  • Roger Nassrallah is ending his secondment with the Tribunal and will be replaced by Lucia Shatat, who returns from her maternity leave on July 23, 2018

Lay members

  • Currently five vacancies
  • In the process of filling those vacancies
    • Out of the 43 CVs received, 15 met the requirements
    • Next step is the written examination
  • Anticipating appointments in the Fall 2018

Cases

  • Ongoing Cases
    • The Commissioner of Competition v HarperCollins Publishers LLC and HarperCollins Canada Limited
      • Discontinued in January
    • The Commissioner of Competition v Vancouver Airport Authority
      • Hearing to begin in Fall 2018
    • The Commissioner of Competition v Hudson's Bay Company
      • Hearing to begin in Spring 2019
    • The Commissioner of Competition v Live Nation Entertainment, Inc., Live Nation Worldwide, Inc., Ticketmaster Canada Holdings ULC, Ticketmaster Canada LP, Ticketmaster L.L.C., The V.I.P. Tour Company, Ticketsnow.com, Inc., and TNOW Entertainment Group, Inc.
      • Hearing to begin in Fall 2019
  • Tribunal’s 2018 decisions
    • In 2018, the decisions of the Tribunal have mostly been orders and directions. For example:
      • Amended Confidentiality Order in The Commissioner of Competition v Hudson’s Bay Company
        • Introduction of a new confidentiality level (level C) which covers outside counsel and independent experts
      • Scheduling Order in the Commissioner of Competition v Live Nation Entertainment, Inc et al
  • Other important decisions affecting the Tribunal
    • Vancouver Airport Authority v Commissioner of Competition, 2018 FCA 24
    • Rakuten Kobo Inc. v Canada (Commissioner of Competition), 2018 FC 64

Competition Law Moot

  • To be held in Toronto, ON at the Federal Court premises on March 15-16, 2019
  • Partnership between the Competition Bureau, the CBA Competition Law Section and the Tribunal

Other Tribunal priorities

  • Continue to work on various Practice Directions with a “technical component” to make the litigation process easier and more predictable; in the hope of circulating in the near future for review and comments:
    • books of authorities;
    • citation of authorities;
    • issues related to costs;
    • requirements for filing online materials;
    • making the name of judicial and panel members available ahead of time
  • Still working on the transition to the Lexum platform for the Tribunal’s website in order to ameliorate the search engines for better and easier access to decisions

3. Discussion regarding draft Practice Direction on Scheduling

Many comments and proposed changes were made with respect to the draft

  • Examples of proposed changes in wording and contents:
    • Require the consensus of “all parties” as opposed to only “both parties” (in case there is an intervenor)
    • Refer to “pre-hearing steps” as opposed to “pre-hearing disclosure steps”
    • Delete the sentence referring to a recent order from the Tribunal as it is no longer timely
    • If the table on timelines is kept, add a reference to section 75 on refusal to deal
    • Consider whether or not the timeline for Mergers and Abuse of Dominance should be the same
    • A practical solution would be to completely eliminate the table and the different timelines for various types of applications and simply indicate that the timelines will need to fall within 10-16 months (encompassing all types of applications)
    • Insert a statement that the Tribunal will maintain an active role in scheduling (even when it is not a fast track proceeding)
    • Add language to suggest that the Tribunal can push beyond the indicative timelines in appropriate circumstances.
  • Tribunal to release the Practice Direction on Scheduling (normal procedure) at the same time as the Practice Direction on Expedited Proceeding Process (Fast-Track)
  • Suggestion to add language in the Practice Direction to reflect situations where mergers that have not yet closed (Anita Banicevic and Linda Plumpton to draft a sentence on that)
  • Discussion on whether it is possible to file affidavits of documents within 2 months of the closure of pleadings depending on the complexity of the case. A possible solution would be to change the timing to “within three (3) months after closure of pleadings”. Everyone agrees, however, that we need to try to move away from the current 4-6 months from the Notice of Application (which everyone agrees is too long)
  • Take out the requirement to file witness statements and expert reports at the same time as they are served to opposing counsel, since public versions are not always available. Suggestion is made to provide for a short period of time from the time documents need to be served and the time they need to be filed
  • Consider adding a new sentence similar to Rule 52.6 from the Federal Courts Rules to gain significant time saving in the expedition of the proceeding. Tribunal should encourage parties to identify issues where there is no dispute. This could be determined at an early case management conference (even before the expert reports are in - but not include this in the steps)
  • Some said that, before parties file proposed timetables and confidentiality orders, it would be helpful to have a case management conference and guidance from the Tribunal
  • It was also suggested that, in the pre-hearing steps, motions for summary disposition should be put earlier in the timeline, after discovery is completed, to minimize the risk of the hearing date being pushed back

4. Discussion regarding the Tribunal’s proposed Fast-Track Direction

  • Still at an early stage of the draft
  • Tribunal still expecting to hear many comments from the Bureau and the Bar
  • Tribunal is mindful that more time is needed in order to review various issues raised by a fast-track proceeding
  • Bureau says they are overall supportive of the process
  • Discussion on whether the Tribunal can impose a fast-track process without both parties consenting to it:
    • Fear that this option would be imposed on parties and that without consent, the agreement would not work very well
    • Resistance from such an imposition comes from the fact that it creates uncertainty, other risk is that the unwilling party will create pushbacks at each step
  • Chief Justice Crampton draws attention to the fact that this is the experience in other Courts, namely in the US and UK

5. Tour de table

  • Everyone to return with their comments in the next few weeks and to plan an in-person discussion, rather than exchanging various drafts via e-mail

6. Closing remarks and date for next meeting

  • The next bench and bar meeting should take place at a date close to the CBA Competition Law Fall Conference, which takes place in Ottawa on September 27-28, 2018.