Commissioner of Competition v. Labatt Brewing Company Limited

Commissioner of Competition v. Labatt Brewing Company Limited

The Court found the Commissioner’s ex parte disclosure was misleading, inaccurate and incomplete in material respects (notably failure to disclose prior representations that prior extensive productions likely sufficed, substantial overlap/duplication with earlier s.11 and SMBA orders and statutory filings, and failure to note Labatt’s prior objections to burden and privilege concerns). Those non-disclosures were objectively material and would have led the Court to decline the order or require notice or narrowing. Accordingly the November 8, 2007 s.11 order against Labatt and Lakeport was set aside without prejudice to the Commissioner bringing a fresh application on notice.

Citation
2008 FC 59
Parties
Applicant (responding Party): The Commissioner of Competition; Respondent (moving Party): Labatt Brewing Company Limited; Respondent (moving Party): Lakeport Brewing Income Fund; Respondent (moving Party): Lakeport Brewing Limited Partnership
Court
Federal Court
Jurisdiction
Canada
Judgment Date
28 January 2008
Procedural Posture
Competition Act S.11 Ex Parte Production Order; Inquiry Under S.10 / Decision on Motion to Set Aside Ex Parte S.11 Order (rule 399 Motion)
Outcome
November 8, 2007 s.11 order against Labatt Brewing Company Limited and Lakeport (Income Fund and LP) set aside without prejudice to the Commissioner's right to reapply on notice; costs awarded to Labatt and Lakeport
Legal Topics
Section 11 Orders, Ex Parte Relief, Duty of Full and Frank Disclosure, Document Production, Duplication and Relevance, Costs
Source Language
English
Competition Law Civil Procedure Administrative Law Evidence Section 11 Orders Ex Parte Relief Duty of Full and Frank Disclosure Document Production +2 more

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Parties

The Commissioner of Competition

Applicant (responding Party)

Labatt Brewing Company Limited

Respondent (moving Party)

Lakeport Brewing Income Fund

Respondent (moving Party)

Lakeport Brewing Limited Partnership

Respondent (moving Party)

Procedural Posture

Competition Act S.11 Ex Parte Production Order; Inquiry Under S.10 / Decision on Motion to Set Aside Ex Parte S.11 Order (rule 399 Motion)

Legal Issues

  1. 1 Whether the Commissioner's disclosure in the ex parte application was misleading, inaccurate or incomplete and material
  2. 2 Whether the November 8, 2007 s.11 production order should be set aside or varied under Rule 399
  3. 3 Whether the information sought was duplicative of prior productions and therefore material to the exercise of judicial discretion

Ratio Decidendi

The Court found the Commissioner’s ex parte disclosure was misleading, inaccurate and incomplete in material respects (notably failure to disclose prior representations that prior extensive productions likely sufficed, substantial overlap/duplication with earlier s.11 and SMBA orders and statutory filings, and failure to note Labatt’s prior objections to burden and privilege concerns). Those non-disclosures were objectively material and would have led the Court to decline the order or require notice or narrowing. Accordingly the November 8, 2007 s.11 order against Labatt and Lakeport was set aside without prejudice to the Commissioner bringing a fresh application on notice.

Court Disposition

November 8, 2007 s.11 order against Labatt Brewing Company Limited and Lakeport (Income Fund and LP) set aside without prejudice to the Commissioner's right to reapply on notice; costs awarded to Labatt and Lakeport

Orders

  • The November 8, 2007 order against Labatt and Lakeport is set aside without prejudice to the right of the Commissioner to bring a fresh application for a section 11 order on notice to both Labatt and Lakeport.
  • Labatt and Lakeport are awarded one set of costs for this motion, including costs of second counsel, at the upper end of Column 5.