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Competition - Inquiry (2). Atkinson v. Commissioner of Competition [CA s.11 inquiries]
In Atkinson v. Commissioner of Competition (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against the Federal Court's decision that "the Commissioner’s right to seek a section 11 [SS: 'Order for oral examination, production or written return'] order did not end with an application before the Competition Tribunal":[2] The substantive question centers on the duration of the Commissioner of Competition’s power under paragraph 11(1)(a) of the Competition Act, R.S.C. 1985, c. C-34 [Act], to obtain an ex parte order from a Federal Court judge (a section 11 order), compelling the production of documents and testimony.
[3] To be precise, the question is whether the commencement of proceedings before the Competition Tribunal under Part VII.1 (Deceptive Marketing Practices) or Part VIII (Matters Reviewable by Tribunal) of the Act terminates the Commissioner’s power to obtain a section 11 order. The Federal Court (2025 FC 860, per Gascon J. [Federal Court Decision]) found that the Commissioner’s right to seek a section 11 order did not end with an application before the Competition Tribunal. I agree with that conclusion.
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I. The Context
[5] On April 6, 2023, the Commissioner of Competition initiated an inquiry into allegations that Rogers Communications Inc. and Rogers Communications Canada Inc. had engaged in reviewable conduct under Part VII.1 of the Competition Act. The Commissioner’s inquiry concerned the veracity of Rogers’ representations to the public that Rogers Infinite Plans offer consumers unlimited data on their mobile phones. The inquiry was authorized under subparagraph 10(1)(b)(ii) of the Act:"Inquiry by Commissioner"
"Enquête par le commissaire"
"10 (1) The Commissioner shall"
"10 (1)"" Le commissaire fait étudier, dans l’un ou l’autre des cas suivants, toutes questions qui, d’après lui, nécessitent une enquête en vue de déterminer les faits :"
"(a) on application made under section 9,"
"a)"" sur demande faite en vertu de l’article 9;"
"(b) whenever the Commissioner has reason to believe that"
"b)"" chaque fois qu’il a des raisons de croire :"
"(i) a person has contravened an order made pursuant to section 32, 33 or 34, or Part VII.1 or Part VIII,"
"(i)"" soit qu’une personne a contrevenu à une ordonnance rendue en application des articles 32, 33 ou 34, ou des parties VII.1 ou VIII,"
"(ii) grounds exist for the making of an order under Part VII.1 or Part VIII, or"
"(ii)"" soit qu’il existe des motifs justifiant une ordonnance en vertu des parties VII.1 ou VIII,"
"(iii) an offence under Part VI or VII has been or is about to be committed, or"
"(iii)"" soit qu’une infraction visée à la partie VI ou VII a été perpétrée ou est sur le point de l’être;"
"(c) whenever directed by the Minister to inquire whether any of the circumstances described in sub-paragraphs (b)(i) to (iii) exists,"
"cause an inquiry to be made into all such matters as the Commissioner considers necessary to inquire into with the view of determining the facts."
"c)"" chaque fois que le ministre lui ordonne de déterminer au moyen d’une enquête si l’un des faits visés aux sous-alinéas b)(i) à (iii) existe." ....
[14] The judge then reviewed previous decisions holding that filing a notice of application before the Competition Tribunal did not terminate the underlying inquiry under section 10 and that therefore, the Commissioner’s investigative power in section 11 remained extant (Warner Music Group Inc (Re), 1997 CarswellNat 1786 at paras. 8–9, 13, 1997 CanLII 5559 (FC), 78 C.P.R. (3d) 335 (F.C.) [Warner]; Canadian Pacific Ltd. v. Canada (Director of Investigation and Research), 1997 CanLII 12366 at paras. 7, 10, 74 C.P.R. (3d) 65 (Ont. C.J. (Gen. Div.)) [Canadian Pacific]). The judge considered that a case dealing with the ability to obtain an ex parte order under section 11 following the start of criminal proceedings under the Competition Act was inapplicable, as carriage and conduct of the prosecution was no longer in the hands of the Director, but with the Attorney General of Canada: TNT Canada Inc. v. Canada (Director of Investigation and Research), 1995 CanLII 3585, [1995] 2 F.C. 544 (F.C.) [TNT].
[15] The judge dismissed the argument that requiring the appellants to testify, potentially, in two different fora concurrently (proceedings before the Tribunal and under section 11) was prejudicial, noting that testimony obtained under a section 11 order is only admissible with leave of the Tribunal (Competition Tribunal Rules, S.O.R./2008-141, r. 73). He also noted that the Commissioner had advised the appellants of the intended scope of the examination, and that they, as did Rogers, had counsel during the examination and access to rulings by a special examiner (Federal Court Decision at para. 61). I note, parenthetically, that the Commissioner was not required to give notice of the scope of the examination.
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VI. Duration of a Section 10 Inquiry
[39] The text, context, and purpose of sections 10 and 11 lead to the conclusion that an inquiry is not terminated upon filing an application under either Part VII.1 (Deceptive Practices) or Part VIII (Reviewable Matters) of the Act.
[40] Nothing in section 10 nor section 11 explicitly or implicitly limits the term of an inquiry based on the filing of an application before the Competition Tribunal. The language of section 10 is broad and unconstrained. It authorizes the Commissioner to inquire "“into all such matters as the Commissioner considers necessary to inquire into with a view to determining the facts.”" Had Parliament wanted to set a limit, it could have done so expressly. It did just that in section 22 of the Act, which provides the Commissioner the power to discontinue an inquiry at its discretion. This suggests that Parliament turned its mind to the question of the circumstances that put an end to an inquiry. Section 22 also reinforces the broad discretion accorded investigatory agencies in determining the scope, focus and duration of their inquiries.
[41] Moving from the text of sections 10 and 11, it is difficult to understand how the appellants’ interpretation aligns with the context and purpose of the Act. The Act establishes investigatory powers to support the Commissioner’s statutory mandate. In contrast, the Competition Tribunal Act, R.S.C. 1985, c. 19 (2nd Supp.) establishes an adjudicative scheme, wherein the Competition Tribunal determines whether the Commissioner’s allegations of anticompetitive behaviour are well founded or not. The powers are complementary, not binary. The appellants’ arguments do not reflect that distinction.
[42] Holding that a section 10 inquiry terminates upon the Commissioner filing an application would present the Commissioner with a choice in every inquiry. Either it must terminate the inquiry by filing an application, potentially limiting the evidentiary record before the Tribunal, or, alternatively, refrain from commencing an application to preserve the section 11 power, thereby allowing potential anticompetitive conduct to continue. In either case, this would hinder the Commissioner’s ability to pursue the stated purposes of the Act; it is only once a proceeding has been commenced that the Commissioner has access to interim and interlocutory remedies that can be ordered by the Competition Tribunal.
[43] The argument that there is nothing left to inquire into once the proceeding has been launched is, respectfully, naïve. The business environment in which the alleged anticompetitive conduct is situated may be complex and evolving, and new information, particularly with respect to the effects or consequences of the impugned conduct, may arise after an application has been filed and during the litigation. This concern is reflected by section 10.1, which mandates the Commissioner to inquire into "“the state of competition in a market or industry”".
[44] This consideration is particularly acute in the context of mergers, where the Act imposes tight time frames on the Commissioner to decide whether to grant clearance to the merger. Holding that the section 11 power terminates with the application would frustrate the ability to fully examine the consequences of a merger, for example. This scenario is not hypothetical. In Commissioner of Competition v. Secure Energy Services Inc., 2023 Comp. Trib. 2, 2023 CanLII 27447 (C.T.) the Commissioner filed an application before the Tribunal objecting to a merger but did not have the evidence from third party competitors necessary to establish the price-effects of the merger. That evidence was obtained via section 11 orders and examinations, but only after the application was filed.
[45] Freezing the investigatory power at an early stage could also have consequences for the efficacy of proceedings before the Competition Tribunal. The record may be limited, leading to lengthier discoveries, and the grounds of the application may not be as precise as they would otherwise be, possibly necessitating amendments. This is, in effect, the concern addressed in Canadian Pacific which found that notwithstanding a notice of application having been filed, the inquiry continued, and the Director (now Commissioner) was entitled to determine if there were other grounds available to support a section 92 order by way of a section 11 order (Canadian Pacific at para. 7).
[46] It is important to note that while section 11 is central to the Commissioner’s mandate to investigate potential anti-competitive or reviewable conduct, it also serves as the tool by which the Commissioner can gather information from customers, distributors, suppliers and competitors to, from and with, the target of the inquiry and order. There are obvious sensitivities in voluntarily providing such evidence, hence the compulsory power of section 11 is essential in facilitating the overall objective of the Act.
[47] To conclude, I see no error in the judge’s understanding of the legislation nor in his appreciation of the relevant jurisprudence, both of which support the conclusion that an application to the Tribunal does not terminate either the inquiry under section 10 or recourse to section 11. One case requires comment, however.
[48] The appellants argue that this Court’s decision in Charette means that the inquiry ends upon the commencement of a civil or criminal case.
[49] In Charette, the appellant had been unsuccessful in the Federal Court in obtaining mandamus compelling the Commissioner to initiate a section 10 inquiry. On appeal, the issue was whether the Commissioner was required to initiate an inquiry under section 10 in response to complaints that had been thoroughly investigated by the Commissioner and found not to warrant a formal inquiry. This Court held that the Commissioner, having investigated Mr. Charette’s complaint of anticompetitive conduct, had discharged his legal duty under subsection 10(2) as he had "“fully advised Mr. Charette of the results of his investigation and conclusion that an inquiry was not warranted under paragraph 10(1)(b)”" (Charette at para. 47, per Rothstein J.A.).
[50] It was in this context that the Court stated that the purpose of section 10 is "“for the Commissioner to gather information to determine whether there are grounds to either bring a civil case before the Competition Tribunal or present evidence to the Attorney General of Canada that a criminal case should be prosecuted”" (Charette at para. 50). Ultimately, this Court concluded that that purpose would not be advanced by obligating the Commissioner to initiate an inquiry where he had already found, after extensive investigation, there was no reason to believe the Act was contravened. Therefore, the case speaks to the extent of the Commissioner’s public legal duty to commence an inquiry and does not address the question of whether section 11 is spent on the commencement of a proceeding before the Competition Tribunal. . Atkinson v. Commissioner of Competition
In Atkinson v. Commissioner of Competition (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against the Federal Court's decision that "the Commissioner’s right to seek a section 11 [SS: 'Order for oral examination, production or written return'] order did not end with an application before the Competition Tribunal".
Here the court contrasts the Competition Act s.11 provisions with the third party discovery provisions of FCR s.240:[55] The purpose of section 11 is distinct from the purpose of the Federal Court’s third-party discovery rules. The former is investigative; the latter is in support of an adjudicative proceeding. Section 11 enables the Commissioner to investigate and collect facts "“on any matter that is relevant to the inquiry”". In contrast, the Competition Tribunal Rules and third-party discovery are confined to matters relevant to or raised in the pleadings (Federal Courts Rules, r. 240(a)). Discovery is designed to allow a party to know the case they may have to meet at trial and to gain admissions; section 11 is designed to assist the Commissioner to determine if there is a case to bring forward, and if so, scope out its contours.
[56] The appellant’s argument reflects, again, a linear understanding of the relationship between the investigative powers in the Commissioner and the adjudicative powers of the Tribunal. Sections 10 and 11 are continuing investigative powers, not limited by the existence of an adjudicative proceeding. There is nothing in the Act that states or implies that right to discovery precludes resort to an order under section 11. To the contrary, the Tribunal Rules themselves contemplate the integration of section 11 evidence into the adjudicative process. As noted, rule 73 of the Competition Tribunal Rules requires leave of the Tribunal before section 11 evidence is admitted, which serves as a safeguard against the potential misuse of section 11 evidence (Commissioner of Competition v. Canada Pipe, 2003 CanLII 90068 (C.T.)).
[57] The argument that recourse to section 11 is constrained by the existence of the right to discovery has been considered, and rejected (see, e.g., Canada (Commissioner of Competition) v. Indigo Books & Music Inc., 2015 FC 256 at para. 40 [Indigo Books & Music]; Director of Investigation and Research v. Canadian Pacific Ltd., 74 C.P.R. (3d) 55, 1997 CanLII 2729 (C.T.) [Canadian Pacific 2]). Previous cases have concluded that section 11 is an available tool for the Commissioner to use to gather information parallel to an application and "“[a]ny advantage which the [Commissioner] obtains through use of section 11 examinations is an advantage accorded to him under the Act”" (Indigo Books & Music at para. 42, citing Canadian Pacific 2).
[58] It is not inappropriate for the Commissioner to rely on its section 11 investigative power to obtain information, even when the Commissioner may have other means of obtaining that information. Rather, the presumption is that the Commissioner’s actions are bona fide and in the public interest: Canada (Commissioner of Competition) v. Pearson Canada Inc., 2014 FC 376 at para. 43 [Pearson]. The appellants have the onus of displacing that presumption, and they have failed to do so.
[59] But there is a third, and in my view, more compelling reason why I would reject this argument.
[60] Section 11 proceedings are ex parte for a reason. Section 11 orders are not only used against the target of the inquiry. Orders are sought against customers, suppliers, distributors and competitors of the target, many of which may be in a commercially sensitive or vulnerable relationship with the target. Commercially sensitive information lies at the core of any section 11 examination, canvassing, for example, the existence of preferred supplier arrangements or discounts, pricing, operating margins, geographic and product marketing information and the downstream price effects of a restricted practice or merger, to name but a few.
[61] Requiring the Commissioner to gather this evidence in a discovery would bring those parties, and their evidence, into direct contact with the respondent to the application. This would defeat one important purpose of section 11, which is to bolster the Commissioner’s ability to investigate and enforce competition law by incentivizing third parties who, for commercial reasons, might be otherwise reluctant to testify. Under the compulsion of a court order, they can do so without risk of compromising their business relationships or competitive position. Neither the target nor the third party has any right to participate in the application for a section 11 order, file evidence or cross-examine on the Commissioner’s affidavit; rather, their concerns are brought forward to the Court through the Commissioners duty of full disclosure. Importantly, the target is not entitled to attend the examination if it is prejudicial to the effective conduct of the examination, or if it would result in the disclosure of confidential commercial information relating to the business of the person being examined or its employer (Act, s. 12(4)). Considering the purpose of section 11 and the express statutory recognition of the sensitivities involved, attendance by the target should not be expected and requests to attend should not be routinely granted (Pearson at para. 92).
[62] To conclude, the distinctions in purpose and procedure between a section 11 examination and discovery are many and stark; discovery is not a surrogate for an investigatory power, a point made clear by the fact that failure to comply with a section 11 order can result in imprisonment up to two years or significant fines in the discretion of the court.
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