“No!” – Competition Bureau will not voluntarily provide information to private litigants

Following the recent decision of the Supreme Court of Canada holding that Competition Bureau officers are immune from being forced to testify on discovery in private actions under the Competition Act (see article), the Bureau has issued a statement of its position on “Requests for information from private parties in proceedings under section 36 of the Competition Act”.

Bureau won’t disclose information from whistleblowers to private litigants

In a word, the Bureau’s response to such requests is: “no”. It will not voluntarily provide information to private litigants. The Bureau will oppose subpoenas for production of information if disclosure might interfere with an ongoing investigation.

The Bureau offers several reasons for this policy:

• The Competition Act requires it to maintain the confidentiality of the information it receives
• The Bureau relies heavily on information that is voluntarily provided; its ability to provide an assurance of confidentiality encourages people to cooperate with its investigations
• Information the Bureau receives is often confidential, proprietary, or commercially sensitive

This does not mean that it is impossible for plaintiffs to get information from the Bureau to assist in private actions under the Competition Act. However, the scope of what plaintiffs can get is limited:

• Plaintiffs can obtain Bureau information that has been disclosed to an accused in the Crown brief, including wiretap evidence (see article)
• Plaintiffs cannot obtain Bureau information that has not been disclosed (see article)
• Plaintiffs cannot obtain oral discovery of Bureau officers (see article)