In a recent decision, the Competition Tribunal granted the Commissioner of Competition’s motion requesting that the Toronto Dominion Bank (TD) produce complete versions of a number of documents, including several that had previously been produced in a redacted form. The motion was part of the Commissioner’s proceedings against Visa Canada and Mastercard International under the Competition Act’s civil resale price maintenance (RPM) provision, enacted as part of the substantial amendments to the Competition Act in 2009. TD was granted leave to intervene in that proceeding in respect of a number of issues earlier this year.
The motion stemmed from the redaction by TD of certain documents produced by it in response to the Tribunal’s order granting it leave to intervene, which also ordered it to produce documents relative to the issues within the scope of its intervention. TD submitted that redactions are permitted if information is irrelevant and confidential, or if it is contained in an irrelevant portion of a segmented document. The Tribunal rejected this view, and held that, as a general rule, irrelevant portions of otherwise relevant documents must be disclosed. After reviewing relevant jurisprudence, the Tribunal held that redaction is permissible only in exceptional circumstances, such as where the redacted information is embarrassing or harmful or where there is an “enormous” volume of redacted material.
Having set out the general rule, the Tribunal considered whether any of TD’s redactions could fit within the “exceptional circumstances” exception. The Tribunal concluded that there were no special circumstances to justify the redaction of the names of merchants with whom TD interacted. TD maintained that the names could not be disclosed on the basis of its contractual confidentiality obligations, but the Tribunal found that the relevant contracts permitted disclosure in the context of litigation.
The Tribunal similarly found a lack of supporting evidence to justify the redaction of profit and loss statements and certain government relations documents to exclude information about business lines other than credit cards. Even had it found such an evidentiary foundation, the Tribunal suggested that it might have rejected the redactions nevertheless given that the documents enjoyed the protections of a Tribunal-granted confidentiality order.
The Tribunal also ordered TD to disclose documents showing the content of its pre-contractual negotiations with Visa and Mastercard. The contracts themselves had already been disclosed, and TD argued that pre-contractual documents were not relevant. The Tribunal disagreed, finding that the documents were “clearly relevant” on the basis that TD had been granted leave to intervene on the issue of its “interactions” with the two credit card companies.