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Bureau to use compulsory evidence gathering powers first, Pecman says

Canada's Commissioner of Competition, John Pecman (Photo: Jeremy Calhoun for Couvrette/Ottawa)

Canada’s Commissioner of Competition, John Pecman (Photo: Jeremy Calhoun for Couvrette/Ottawa)

The Competition Bureau’s first course of action will be to seek legally binding section 11 orders for production of documents from targets of civil inquiries (other than mergers), instead of relying on voluntary production, interim Competition Commissioner John Pecman announced in a recent speech.

Section 11 of the Competition Act allows the Bureau to seek a court order requiring parties to produce records, be examined under oath, or to answer questions in writing. The threshold for obtaining a section 11 order is low: the Bureau must show that (1) it has commenced a formal inquiry; and (2) that the respondent has or is likely to have information that is relevant to the inquiry. Cases decided under section 11 have also required the Bureau to provide the basis for commencing the inquiry and, because the order is obtained ex parte, to make full and frank disclosure of all relevant information.

The Bureau’s former practice of relying on voluntary information requests was not working, since parties do not always comply with them or supply all of the information requested, resulting in delays to the Bureau’s investigations, Mr. Pecman said. He recounted a story of a target of an abuse of dominance inquiry that initially agreed to produce the information sought, but then reneged and even demanded that the Bureau shut down its inquiry. In another case, he noted, a party refused to certify that it had provided all records relevant to the request.

Mr. Pecman did not address the Bureau’s policies for obtaining information from people who are not targets of an inquiry, but who have information relevant to an inquiry. Section 11 order are available against anyone who has information relevant to an inquiry, not just targets.

Read Mr. Pecman’s speech

Masiel A. Matus
Affleck Greene McMurtry LLP

Masiel A. Matus

Masiel has a broad commercial litigation practice and represents both national and international clients in a variety of complex matters. Masiel has experience litigating cases involving professional negligence, commercial leasing and real property disputes, insurance, contract disputes, shareholder disputes, fraud, breach of fiduciary duty, breach of trust, employment matters and defamation claims.

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