Canada's Competition Tribunal hears and disposes of all matters under the "deceptive marketing practices" and "reviewable matters" provisions of Canada's Competition Act, most notably applications by the Commissioner of Competition to challenge mergers, abuse of dominance, anti-competitive distribution practices and misleading advertising, and private applications related to refusal to deal and anti-competitive distribution or pricing practices.
On May 26, 2007, revised rules of practice for Canada's Competition Tribunal were published for a sixty-day consultation period. The stated objectives of the (extensive) revisions to the rules were to integrate existing Tribunal practice directions, establish a comprehensive case management procedure, adopt a single procedure for all applications to the Tribunal, reinstate the relevance standard for documentary discovery, establish procedures to make the hearings more efficient, and provide a more logical structure for the rules. The Tribunal's revision to its rules was undertaken in cooperation with a committee comprised of Tribunal members and staff, representatives of the Competition Bureau, Justice Canada and the National Competition Law Section of the Canadian Bar Association. Extensive consultations within and among each of these groups of Committee members were undertaken over several drafts of the revised rules. The final draft of the revised rules were presented to, and revised by, the judicial members of the Tribunal.
Generally, the revised rules accomplish the Tribunal's stated objectives. Notably, the revised rules settle a long-standing bone of contention for the practising bar by requiring the Commissioner (or other party) to disclose (subject to privilege claims and confidentiality protections) all documents in the possession, power or control of the Bureau (or other party) that are relevant to the application before the Tribunal. This amends the prior rule that only required parties to disclose documents to be relied upon. This permitted the Commissioner, opponents argued, to ignore possibly exculpatory information in her possession. A return to the "relevance" standard for disclosure, coupled with an express obligation to disclose all relevant documents until the hearing and the requirement, shortly before a hearing, to precisely identify all documents (from those disclosed) upon which each party intends to rely is designed to improve the fairness and efficiency of the Tribunal process, albeit at the cost of increased disclosure for both sides.
Of further note, the revised rules provide for expedited processes and timelines (such as informal motion procedures), for access to and presentation of confidential information in the hearing, for the filing of detailed witness statements and documents to be relied upon for such statements, and, perhaps most importantly, for mandatory case management by a judicial member of the Tribunal.
Among the more novel amendments are the Tribunal's proposals to expressly provide for Tribunal-appointed experts (payment of whom will be determined by the Tribunal) as well as to empower the Tribunal to order witnesses (most likely experts) to testify as panels. While not unheard of, it is rare for federal administrative tribunals to appoint their own experts, and uncommon for such tribunals to direct witnesses to appear as a panel.
On balance, these are seen to be welcome developments that will serve the parties', and the public's, interest in efficient and equitable Tribunal proceedings. More details of the revisions can be found at the Tribunal's web-site at www.ct-tc.gc.ca.