Sears - Reasons and Order regarding the Commissioner's motion making certain documents public

Sears - Reasons and Order regarding the Commissioner's motion making certain documents public

Given the Rules' requirement that the proponent of confidentiality show specific, direct harm and applying the Sierra Club balancing test, Sears failed to demonstrate such harm for documents 15 and 71 and the affidavit evidence for document 19 was insufficient; therefore documents 15 and 19 are designated public and document 71 is partially expunged as specified with the remainder public.

Citation
2003 Comp Trib 27
Parties
Applicant: Commissioner of Competition; Respondent: Sears Canada Inc.
Court
Competition Tribunal
Jurisdiction
Canada
Judgment Date
29 October 2003
Procedural Posture
Deceptive Marketing Practices / Motion to Designate Documents Public; Reasons and Order Following Hearing
Outcome
Motion granted in part
Legal Topics
Confidentiality of Documents, Disclosure Obligations, Deceptive Marketing Practices, Competition Act S.74.01
Source Language
English
Competition Law Administrative Law Evidence Confidentiality of Documents Disclosure Obligations Deceptive Marketing Practices Competition Act S.74.01

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Parties

Commissioner of Competition

Applicant

Sears Canada Inc.

Respondent

Procedural Posture

Deceptive Marketing Practices / Motion to Designate Documents Public; Reasons and Order Following Hearing

Legal Issues

  1. 1 Whether documents disclosed in Sears' disclosure statement should be designated public or confidential
  2. 2 What evidentiary threshold and test applies to restrict access to documents in Tribunal proceedings
  3. 3 Whether documents 15 and 19 warrant confidentiality on the basis of specific, direct harm

Ratio Decidendi

Given the Rules' requirement that the proponent of confidentiality show specific, direct harm and applying the Sierra Club balancing test, Sears failed to demonstrate such harm for documents 15 and 71 and the affidavit evidence for document 19 was insufficient; therefore documents 15 and 19 are designated public and document 71 is partially expunged as specified with the remainder public.

Court Disposition

Motion granted in part

Orders

  • Documents 15 and 19 as disclosed in Sears' disclosure statement (exhibits V and Q to Weber affidavit) are designated public documents.
  • Document 71 as disclosed in Sears' disclosure statement (exhibit T to Weber affidavit) is expunged as follows: on page NADM 8649, in numbered paragraph 1 the first two sentences are expunged and all of numbered paragraph 6 is expunged except for the paragraph number which shall remain; on pages NADM 8650, 8651 and...