Class Dismissed: Competition Bureau's Privilege Claims Denied By FCA

Last April, the Competition Tribunal (Tribunal) rejected arguments that the Tribunal's longstanding approach to public interest privilege should re-evaluated and found that class privilege protected documents from disclosure that the Competition Bureau (Bureau) had collected from third parties during its investigation. In a decision released on January 24, 2018, the Federal Court of Appeal quashed the Tribunal's decision, signalling a major change to the treatment of public interest privilege in Canadian competition law.

Public interest privilege

Since its establishment, the Tribunal has allowed the Commissioner of Competition (Commissioner) to resist disclosure of information collected from third parties during an investigation on the basis of public interest privilege. In the 1994 decision of Director of Investigation and Research v AC Nielsen Co of Canada (Nielsen), the Tribunal recognized for the first time that the Commissioner's public interest privilege was