On January 22, 2016, Justice Myers of the Supreme Court of BC issued a decision denying the plaintiffs’ request for disclosure of documents collected by the Competition Bureau in Pro-Sys Consultants Ltd. v Microsoft Corporation 2016 BC 97.

Pro-Sys v. Microsoft is an indirect purchaser class action for damages based on allegations of anti-competitive conduct.  Originally, the plaintiffs sought disclosure of all documents in the possession of the Bureau pertaining to Microsoft.  The plaintiffs subsequently narrowed their request to four types of documents obtained or prepared by the Bureau in two investigations involving Microsoft:

  • correspondence between the Bureau and third parties;
  • notes and research by the Bureau;
  • correspondence between the Bureau and Microsoft; and,
  • business and source documents submitted to the Bureau by Microsoft.

Microsoft and the Bureau opposed disclosure based on privilege and other grounds.

Justice Myer held that he should follow prior jurisprudence in proceedings brought by the Commissioner of Competition under the Competition Act recognizing a “class-based public interest privilege”.  Under this approach, public interest privilege applies to third party documents collected by the Bureau absent important public policy reasons in favour of disclosure.  This protection from disclosure is motivated by the Bureau’s requirement for industry cooperation in gathering the information necessary to perform its duties under the Competition Act.

Justice Myer rejected the proposition that he should distinguish between the application of public interest privilege in proceedings brought by the Commissioner and private actions for damages under the Competition Act.   He concluded therefore that all documents and information collected by the Bureau from third parties, and any Bureau notes relating to that information, were non-disclosable.  Documents submitted by Microsoft to the Bureau did not fall within this class-based public interest privilege and were assessed separately.  Justice Myer noted that business or source documents submitted by Microsoft to the Bureau that are relevant to the application would be caught by production in the case.  He left the door open for Microsoft to claim settlement or other legal privilege in respect these documents, as applicable.

This decision comes on the heels of a Quebec Court of Appeal decision last December, upholding a decision granting class action plaintiffs oral discovery of a Bureau official. Daniel Thouin et Association pour la Protection Automobile v. Ultramar et al., 200-09,009011-153, seeks damages based on alleged price fixing of gas prices in Quebec by the defendants.  The Bureau had investigated gas price fixing in Quebec by a number of persons, including the defendants.  The plaintiffs sought oral discovery of the chief investigator at the Bureau in respect of these investigations.  The motions judge granted the request, but limited the oral examination to questions relating to investigation of the defendants’ conduct.  A key issue on appeal was whether the waiver of Crown immunity from discovery under the Crown Liability and Proceedings Act applies when the Crown is not a party to the proceeding.   The QCA concluded the waiver applied and held that the discovery order should stand.