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Civil Litigation - Discovery - General. Canada (Commissioner of Competition) v. Amazon.com.ca, ULC
In Canada (Commissioner of Competition) v. Amazon.com.ca, ULC (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against the denying to the Commissioner of Competition of "an order requiring the respondents to produce transaction data about certain products on their online store" (under s.11 ['Order for oral examination, production or written return'] of the Competition Act).
Here the court contrasts the evidentiary disclosure role of civil discovery rules with those of this Competition Act s.11 investigative-inquiry provision:[42] The Commissioner’s first submission is that the Application Judge inappropriately relied on principles exclusive to discovery in civil proceedings, conflating investigation with litigation. The Commissioner relies on this Court’s decision in Canada (National Revenue) v. Cameco Corporation, 2019 FCA 67 as authority for the proposition that proportionality principles relevant to civil discovery do not apply to investigations.
[43] The Commissioner is correct that concepts arising from discovery in civil litigation cannot be imported without qualification or modification into the investigative process under section 11 of the Competition Act. These are fundamentally different processes which have different purposes, governing rules and outcomes. Discovery in civil litigation allows for the production of information and documents relevant to the matters at issue, defined by reference to the pleadings: see Mancuso v. Canada (National Health and Welfare), 2015 FCA 227 at para. 17; AstraZeneca Canada Inc. v. Apotex Inc., 2008 FC 1301 at para. 6 [AstraZeneca]. Material is relevant if it facilitates proof of the case of the party seeking discovery or will assist in undermining that of the adversary; again, determined by reference to the pleadings: Madison Pacific Properties Inc. v. Canada, 2019 FCA 19 at paras. 22-23, citing Canada v. Lehigh Cement Limited, 2011 FCA 120 at paras. 24-25, 34-36; AstraZeneca at para. 12, citing Eli Lilly Canada Inc. v. Novopharm Ltd., 2008 FCA 287 at paras. 56, 63-64.
[44] Section 11 orders become available to the Commissioner at the investigatory stage, and are often issued before the Commissioner has applied for an order under one of the substantive provisions of Part VII.1 or VIII of the Competition Act: Pearson at para. 47. A section 11 application requires only that an inquiry is underway and that the target likely has relevant information. The reason to cause an inquiry under subsection 10(1) is with "“a view of determining the facts”". Applying discovery principles to limit what goes into a production order would undermine one of the fundamental purposes of section 11, which is to allow the Commissioner to collect relevant information as part of their enforcement powers.
[45] That being said, the Federal Court did not apply civil litigation concepts, including proportionality, to the investigative process under section 11. The reasons in Pearson and the transcript of the hearing in this matter, viewed in their entirety, make clear that the Application Judge directed himself to the investigative stage of the proceedings and appropriate principles under section 8 of the Charter.
[46] In civil litigation, proportionality means that the processes employed, including discovery, must be proportionate to the claim, determined with reference to "“the nature of the issues engaged; the amount of money involved; the time reasonably necessary to resolve the issue; the complexity of the issues and the overall cost of the litigation”": Szeto v. Dwyer, 2010 NLCA 36 at paras. 53-54, cited in Hryniak v. Mauldin, 2014 SCC 7 at para. 31 [Hryniak]; see also Federal Courts Rules, s. 3(b) and Viiv Healthcare Company v. Gilead Sciences Canada, Inc., 2021 FCA 122 at para. 18.
[47] The Application Judge did indeed express concerns with the Data Request not being "“proportionate”", quoting paragraph 32 of Hryniak, which called for a culture shift in civil litigation requiring judges to "“actively manage the legal process in line with the principle of proportionality”": Decision, Hearing Transcript, p. 7. Hryniak concerned efficiency and access to justice in civil litigation, not investigative orders or regulatory law.
[48] However, in both this proceeding and Pearson, the Application Judge also referred to this Court’s decision in RBC, a case discussing investigative powers under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.): Decision, Hearing Transcript, p. 8; Pearson at para. 42. In the cited paragraphs of RBC, this Court noted that the statutory provisions at issue served the dual purpose of empowering the Minister to verify taxpayers’ compliance and ensuring "“the fair and proper treatment of persons subjected to the Minister’s investigative powers”", consistent with those persons’ rights under section 8: RBC at para. 22, citing M.N.R. v. Sand Exploration Limited, 1995 CanLII 3599 (FC), [1995] 3 F.C. 44 at p. 53 (F.C.) and Derakhshani at para. 19.
[49] Moreover, the Federal Court in Pearson was fully alive to the considerations specific to judicial oversight of law enforcement investigations, properly observing that a certain degree of latitude was warranted on a section 11 application to avoid unduly constraining the Commissioner (at para. 48). The Court also noted that the judiciary must "“remain alert to the danger of unduly burdening and complicating the law enforcement investigative process”", particularly where that process is "“in embryonic form engaged in the gathering of the raw material for further consideration”": Pearson at para. 48, quoting SGL Canada Inc. v. Canada (Director of Investigation and Research), 1999 CanLII 7595 at para. 11 (F.C.), quoting Irvine v. Canada (Restrictive Trade Practices Commission), 1987 CanLII 81 (SCC), [1987] 1 S.C.R. 181 at p. 235 (S.C.C.).From this, it is apparent that the Application Judge’s use of the term “disproportionate” did not mean that he was applying the rulebook applicable to discovery in civil litigation. Indeed, the “excessive, disproportionate or unnecessarily burdensome” test in Pearson and Bell Mobility must be understood in light of the context of those decisions, which were also section 11 applications within ongoing investigations. Further, the term “proportionality” is not alien to the section 8 context and has been applied, for example, in assessing the reasonableness of police physical searches: see e.g. R. v. Golden, 2001 SCC 83 at para. 116; R. v. Fearon, 2014 SCC 77 at para. 152 (per Karakatsanis J., dissenting); R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51 at para. 14 (S.C.C.), citing Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158 at p. 186 (S.C.C.). [50] As discussed above, section 8 requires the application judge, in the exercise of the highly flexible discretion conferred by section 11, to balance the state interest in the search or seizure against the privacy interests of the target: Hunter at pp. 157-60; Dyment at p. 428; CBC at p. 476; Baron at pp. 435-37. When issuing a section 11 order, the court should assess whether the information requested by the Commissioner exceeds what is reasonably required for purposes of the inquiry and is overbroad given the nature of the inquiry or unjustifiably intrudes on the privacy interests of the target.
[51] In my view, this approach corresponds with the "“excessive”" and "“disproportionate”" components of the test set out in Pearson and Bell Mobility. Assessing what is reasonably required by the Commissioner and considering whether the request is excessive or disproportionate to the inquiry in light of the privacy interests of the target—even though these interests are minimal for business records—is part of the section 8 balancing exercise.
[52] Next, contrary to the appellant’s allegation, the Federal Court did not require the Commissioner to establish relevance of the documents and information in the Data Request by reference to the case to be presented at trial, as in civil litigation, where documentary production must be relevant to the pleaded case. Section 11 requires that the material or information sought be relevant to the inquiry and the Pearson/Bell Mobility test asks the court to consider "“what the Commissioner reasonably requires to conduct the inquiry in question”": see Bell Mobility at para. 50. At the hearing, the Application Judge specifically and repeatedly emphasized uncertainty about the scope of the order and whether the documents requested exceeded what was needed for the Commissioner’s inquiry: Decision, Hearing Transcript, pp. 9, 31, 35, 41-43, 62, 64, 73-74. . Budds' BMW v Joffe
In Budds' BMW v Joffe (Div Court, 2023) the Divisional Court considers a point about discovery and privilege:[7] The learned motions judge erred when she concluded that privilege had been waived over the statement because the statement had been discussed at the Examination for Discovery, the Defendants had provided particulars of it, and had agreed to provide more particulars.
[8] In doing so, Her Honour failed to apply well established authority that holds that where a party on Discovery is asked for facts contained in his or her file relating either to his own case or to that of his opponent, he or she must disclose the relevant facts contained in any statement notwithstanding that the source of information is a privileged report or document (see: Pearson v. Inco Limited, 2008 CanLII 46701 (ON SC) at para 15, Warman v. National Post Company, 2015 ONSC 267 at para 56, Sangaralingam v. Sinnathurai, 2011 ONSC 1618 (Div. Ct.), at para 1-2 and 20). . Grogan v Ontario College of Teachers
In Grogan v Ontario College of Teachers (Div Court, 2023) the Divisional Court faced a R59.06 set aside motion with respect to a several years old Divisional Court appeal (a dismissal) of a revocation of a teacher's certificate under the Education Act. The case was unique as the applicant sought to introduce fresh evidence from one of the-then adjudicators of the Discipline Committee of the Ontario College of Teachers who ordered the revocation, such adjudicator resigning in the course of that adjudication. This present R30.06 motion ["Where Affidavit Incomplete or Privilege Improperly Claimed"] was in aid of this set aside motion, and sought to determine "whether this court should order the College to produce notes created by Ms. Ferenczy while she was a member of the Discipline Committee adjudicating the case".
In this quote the court considers that the underlying R59.06 set aside motion is grounded in fresh evidence ["Rule 59.06(2)(a) “on the ground of fraud or of facts arising or discovered after it was made[.]”"], and holds that the applicant's reliance on evidence to be produced in the discovery process was improper. Essentially the court is saying that the applicant should have such evidence before they make the R30.06 motion:[13] In addition, I note that Ms. Grogan seeks the production of documents in the context of her motion to set aside the Decision under Rule 59.06(2)(a) “on the ground of fraud or of facts arising or discovered after it was made[.]” The very basis for the Applicant’s motion to set aside is facts that arose or were discovered after the decision was made. A motion under Rule 59.06(2)(a) must thus be grounded in facts, which the moving party bears the burden of proving. In bringing a motion to set aside, the moving party is representing that they have sufficient evidence to support that the outcome would have been different had that evidence been available. A motion to set aside under Rule 59.06(2)(a) is not an opportunity to seek discovery of facts that would enable a party to set aside an order. Such an application of the rule would significantly undermine the principle of the finality of decisions, as further discussed below. . Grogan v Ontario College of Teachers
In Grogan v Ontario College of Teachers (Div Court, 2023) the Divisional Court faced a R59.06 set aside motion with respect to a several years old Divisional Court appeal (a dismissal) of a revocation of a teacher's certificate under the Education Act. The case was remarkable as the applicant sought to introduce fresh evidence from one of the-then adjudicators of the Discipline Committee of the Ontario College of Teachers who ordered the revocation, such adjudicator resigning in the course of that adjudication. This present R30.06 motion ["Where Affidavit Incomplete or Privilege Improperly Claimed"] was in aid of this set aside motion, and sought to determine "whether this court should order the College to produce notes created by Ms. Ferenczy while she was a member of the Discipline Committee adjudicating the case".
In this quote the court considers the nature of a R30.06 motion:[9] The Applicant brings a motion for production under Rule 30.06, which states as follows:
Where Affidavit Incomplete or Privilege Improperly Claimed
30.06 Where the court is satisfied by any evidence that a relevant document in a party’s possession, control or power may have been omitted from the party’s affidavit of documents, or that a claim of privilege may have been improperly made, the court may, (a) order cross-examination on the affidavit of documents; (b) order service of a further and better affidavit of documents; (c) order the disclosure or production for inspection of the document, or a part of the document, if it is not privileged; and (d) inspect the document for the purpose of determining its relevance or the validity of a claim of privilege.
[10] Rule 30.06 applies to affidavits of documents. Under Rule 30.03(1) of the Rules, a “party to an action” is required to serve an affidavit of documents. Here, the underlying proceeding is a statutory appeal to this court under s. 35 of the College of Teachers Act, 1996, S.O. 1996, c.12. There is no requirement that a party to a statutory appeal serve an affidavit of documents. The Applicant was unable to provide any authority to support that Rule 30.06 is applicable in a statutory appeal before the Divisional Court, where no affidavit of documents is required. As a result, I am not satisfied that Rule 30.06 provides a basis on which the production of documents can be ordered in the circumstances of this proceeding. . Polera v. Wade
In Polera v. Wade (Ont CA, 2015) the Court of Appeal affirmed the point that once a party introduces at trial evidence drawn from discovery that the entire discovery content becomes available to all parties for similar use in evidence:[30] First, the motions judge was entitled to consider Ms. Polera’s impugned discovery evidence. Once the appellant relied on her discovery evidence, he opened up its use to both parties. As a result, the motions judge was entitled to consider it for all issues.
[31] On this point, we agree with the analysis of D.M. Brown J. (as he then was) in Lawless v. Anderson, 2010 ONSC 2723 (CanLII), 188 A.C.W.S. (3d) 1006, at para. 12, aff’d on other grounds, 2011 ONCA 102 (CanLII), 276 O.A.C. 75:As a general rule when a party places into evidence answers given by an opposite party on her examination for discovery, such evidence is available to either party in the same manner as any other evidence. . Canada v. Thompson
In Canada v. Thompson (Fed CA, 2022) the Federal Court of Appeal considered when a question is relevant for the purposes of discovery:[30] In Canada v. Lehigh Cement Limited, 2011 FCA 120, this Court determined that a question is relevant for discovery purposes if the answer might assist the asking party in advancing its case or damage the case of the other party:34 The jurisprudence establishes that a question is relevant when there is a reasonable likelihood that it might elicit information which may directly or indirectly enable the party seeking the answer to advance its case or to damage the case of its adversary, or which fairly might lead to a train of inquiry that may either advance the questioning party's case or damage the case of its adversary. Whether this test is met will depend on the allegations the questioning party seeks to establish or refute…. [31] This principle was reiterated in Madison Pacific Properties Inc. v. Canada, 2019 FCA 19, at paragraph 23. . Canada v. CHR Investment Corporation
In Canada v. CHR Investment Corporation (Fed CA, 2021) the Federal Court of Appeal considered principles of discovery under the Federal Rules, here in a tax context [paras 14-42].
. Imperial Oil v Jacques
In the Quebec case, Imperial Oil v Jacques (SCC, 2014), the Supreme Court of Canada held that investigative evidence obtained by the Crown (here the Competition Bureau) for use in criminal proceedings was not by it's nature immune from third party civil discovery procedures, though adequate protections had to be ordered to ensure that it remained confidential amongst the counsel of the civil parties. While the court speaks broadly of the public interest principles underpinning it's decision, and accepts that the Criminal Code allows such disclosure, the case must still be reviewed carefully for it's application under other provincial civil disclosure regimes.
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