The Commissioner of competition v. Pearson Canada Inc.

The Commissioner of competition v. Pearson Canada Inc.
Court (s) Database
Federal Court Decisions
Date
2014-04-23
Neutral citation
2014 FC 376
File numbers
T-411-14
Notes
Reported Decision
Decision Content
Date: 20140423
Docket:
T-411-14
Citation: 2014 FC 376
IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34, as amended;
AND IN THE MATTER OF an inquiry under section 10 of the Competition Act relating to certain alleged anti-competitive conduct in the markets for e-books in Canada;
AND IN THE MATTER OF an ex parte application by the Commissioner of Competition for an Order requiring Pearson Canada Inc. and Penguin Canada Books Inc. to produce records pursuant to paragraph 11(1)(b) of the Competition Act and to make and deliver written returns of information pursuant to paragraph 11(1)(c) of the Competition Act.
BETWEEN:
THE COMMISSIONER OF COMPETITION
Applicant
and
PEARSON CANADA INC. AND
PENGUIN CANADA BOOKS INC.
Respondents
REASONS FOR ORDER
CRAMPTON C.J.
[1] These are the reasons for the Order that I issued in this proceeding on March 3, 2014. In that Order, I granted the ex parte application by the Commissioner of Competition for the production of records and the delivery of written returns by the Respondents pursuant to paragraphs 11(1)(b) and 11(1)(c) of the Competition Act, RSC, 1985, c C-34 [the “Act”], respectively.
[2] The purpose of these reasons is to clarify (i) the Court’s role on applications under subsection 11(1), particularly with respect to the exercise of its discretion and what is expected from the Commissioner [Commissioner], (ii) the scope of information sought by the Commissioner, and (iii) the relevance of arguments going to the substantive merits of the Commissioner’s inquiry.
[3] In addition, these reasons will also clarify the role of respondents in such applications.
[4] For the reasons set out below, the focus of the Court’s attention in applications made under section 11 is not on whether the Commissioner has disclosed sufficient information to satisfy the Court that the Commissioner’s inquiry is a bona fide one and that there is reason to believe that grounds exist for the making of an order under a specific section in Part VIII of the Act, or under Part VIII generally. Instead, in the typical proceedings initiated under section 11, the Court’s focus will be on satisfying itself that (i) an inquiry is in fact being made, (ii) the Commissioner has provided full and frank disclosure, (iii) the information or records described in the Order being sought are relevant to the inquiry in question, and (iv) the scope of such information or records is not excessive, disproportionate or unnecessarily burdensome.
[5] That being said, as a practical matter, it may be difficult for the Court to satisfy itself that a respondent has or is likely to have information that is relevant to the Commissioner’s inquiry, as required by subsection 11(1), without some contextual evidence of this nature. In the present application, the Commissioner amply satisfied the Court in this regard.
[6] Insofar as the substantive merits of the Commissioner’s inquiry are concerned, hearings on ex parte applications under section 11 are not the appropriate forum in which definitive determinations should be made with respect to such issues.
[7] As to the role of respondents, it should not be expected that requests for leave to make written or oral submissions will be routinely granted by the Court. Generally speaking, the more appropriate manner in which a respondent’s concerns regarding the scope or duplicative nature of the draft order should be brought to the Court’s attention is through the Commissioner, pursuant to the Commissioner’s duty of full and frank disclosure. It would then remain open to the respondent to bring a motion to deal with issues that subsequently arise, in the usual manner.
I. Background [8] According to the evidence filed by the Commissioner, the Respondents Pearson Canada Inc. [Pearson Canada] and Penguin Canada Books Inc. [Penguin Canada] appear to be related to each other and to Penguin Group (USA), Inc. Pearson plc [Pearson] appears to be the parent company of each of those entities.
[9] Pearson Canada and Penguin Canada are publishers and distributors of books, in print and electronic form.
[10] In April 2012, the United States of America [USA], acting under the direction of the Attorney General of the United States, initiated a civil action [the “Complaint”] against Apple Inc. [Apple] and five of the six largest publishers of general interest fiction and non-fiction books in the United States. Those publishers [Publisher Defendants] included Penguin (USA), Inc., The Penguin Group, a division of Pearson [collectively, Penguin US], Hachette Book Group, Inc. [Hachette], HarperCollins Publishers L.L.C. [HarperCollins], Verlagsgruppe Georg von Holtzbrinck GmbH and Holtzbrinck Publishers, LLC [collectively, Holtzbrinck], doing business as Macmillan [collectively, Macmillan], and Simon & Schuster, Inc. [Simon & Schuster].
[11] According to the Complaint filed by the USA, beginning no later than 2009, the Publisher Defendants, together with Apple, conspired to limit competition in the sale of general interest fiction and non-fiction electronic books [e-books], in particular with respect to the wholesale prices of such e-books, contrary to section 1 of the Sherman Act, 15 USC § 1. A central aspect of that alleged conspiracy involved replacing the wholesale model of retail distribution with an agency model that gave the Publisher Defendants the power to raise retail e-book prices themselves. At the distribution level, this shift to an agency model began with Apple, with whom the Publisher Defendants each signed e-book distribution agreements over a period of three days, in January 2010. Over the following four months, it was alleged that each Publisher Defendant transformed its business relationships with all of the major e-book retailers in the United States by replacing their prior wholesale model with an agency model and imposing flat prohibitions against discounting and other forms of price competition on all Apple e-book retailers.
[12] Among other things, the Complaint also described the alleged roles of the Chief Executive Officers [CEOs] of the Defendant Publishers in the alleged conspiracy, including the roles of Mr. John Makinson, CEO of the Penguin Group, who was repeatedly referenced in the Complaint, and Mr. David Shanks, CEO of Penguin (USA), Inc.
[13] In due course, that Complaint led to the issuance of a final judgment [Final Judgment] in May 2013 against Penguin US. The terms of that judgment include various provisions directed towards restrictive agreements entered into between Penguin US and retailers, prohibitions on entering into similar agreements for a fixed period of time, a prohibition on retaliatory conduct against other e-book publishers or e-book retailers (as defined in the judgment), and prohibitions on certain types of horizontal conduct with other e-book publishers (including other Publisher Defendants, all as defined in the judgment). The restrictive distribution agreements in question included agreements limiting e-book retailers’ ability to set, alter or reduce the retail price of any e-book, or to offer price discounts or any other form of promotion to consumers, and agreements that contained certain types of Most Favoured Nation [MFN] clauses.
[14] In April 2013, the European Commission [Commission] issued a communication [Market Test Notice] in which it described its preliminary assessment of allegations of similar conduct against certain subsidiaries of Pearson and other publishers in relation to the sale of e-books in the European Economic Area [EEA]. The Market Test Notice also described various commitments that had been offered by those subsidiaries of Pearson to address the concerns identified by the Commission. Notwithstanding those commitments, those subsidiaries specifically did not agree with the Commission’s assessment.
[15] On July 1, 2013, Bertelsmann SE & Co., KGaA and Pearson combined parts of their respective publishing businesses in a joint venture known as Penguin Random House.
[16] Among other things, the Commission’s investigation led to the issuance of a Commission Decision on July 25, 2013 against Penguin Random House Limited and certain of its affiliates. That decision included a description of the alleged participation by those entities, their principal rivals and Apple in the implementation of a common global plan within the EEA. In addition, it described the Commission’s preliminary view that those entities had participated in a concerted practice that was likely to have an appreciable effect on trade between EEA Member States, within the meaning of Article 101(1) of the Treaty on the Functioning of the European Union, OJ C 326/47 and Article 53(1) of the Agreement on the European Economic Area, OJ L 1/94.
[17] After reiterating that the Penguin entities in question did not agree with its preliminary assessment, the Commission accepted various commitments that had been offered by those entities to address its concerns. Those commitments included the termination of restrictive distribution agreements (referred to as “agency agreements”) with retailers in the EEA, particularly agreements that (a) restrict, limit or impede an e-book retailer’s ability to set, alter or reduce retail prices of e-books, or to offer any other form of promotion, or (b) contain certain types of MFN clauses. They also included undertakings to refrain from restricting an e-book retailer’s pricing discretion, as described above, for a period of two years, and to refrain from entering into agreements with e-book retailers containing certain types of MFN clauses, for a period of five years.
[18] In July 2012, the Commissioner commenced an inquiry under subparagraph 10(1)(b)(ii) of the Act on the basis that he had reason to believe that grounds exist for the making of an order under Part VIII of the Act with respect to certain alleged anti-competitive conduct to restrict e-book retail price competition in the markets for e-books in Canada. According to the initial affidavit filed by the Commissioner in these proceedings, that inquiry has been directed from the outset towards conduct described in sections 76 (price maintenance), 79 (abuse of dominant position) and 90.1 (restrictive agreements among competitors).
[19] On February 7, 2014, a consent agreement [Consent Agreement] between the Commissioner and Hachette, certain of its affiliates, Macmillan, HarperCollins Canada Limited and Simon & Schuster Canada, a division of CBS Canada Holdings Co. [collectively, the “Settling Publishers”], was filed with the Competition Tribunal [Tribunal].
[20] Neither the Respondents nor any of their affiliates were a party to the Consent Agreement. They take the position that they did not participate in the alleged horizontal agreement among e-book publishers into which the Commissioner is inquiring under section 90.1 of the Act.
[21] A press release issued by the Competition Bureau [Bureau] on the day the Consent Agreement was filed states, among other things, that the Bureau’s investigation into the e-book industry in Canada continues.
II. Relevant legislation [22] What follows is a brief summary of the legislation that is relevant to this application. The full text of the provisions referred to below is set forth in Appendix 1 to these reasons.
[23] Pursuant to subparagraph 10(1)(b)(ii) of the Act, the Commissioner may 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, whenever the Commissioner has reason to believe that grounds exist for the making of an order under Part VII.1 or Part VIII of the Act. Part VII.1 deals with deceptive marketing practices and is not relevant to this application. Part VIII deals with civilly reviewable trade practices, such as refusals to supply, price maintenance, exclusive dealing, tied selling, market restriction, abuse of dominant position and mergers.
[24] Once on inquiry, the formal investigative powers set forth in the Act may be exercised by the Commissioner, subject to judicial oversight. Those powers include the power to obtain, pursuant to paragraph 11(1)(b), an order for the production of “a record, a copy of a record certified by affidavit to be a true copy, or any other thing, specified in the order.” They also include the power to obtain, pursuant to paragraph 11(1)(c), an order for the making and delivery of “a written return under oath or solemn affirmation showing in detail such information as is by the order required.” The Court may issue such orders upon being satisfied by information on oath or solemn affirmation that (i) an inquiry is being made, and (ii) that the respondent has or is likely to have information that is relevant to the inquiry.
[25] Pursuant to subsection 76(1) of the Act, the Tribunal may issue certain types of remedial orders where it finds that certain types of persons, including a person who is engaged in the business of producing or supplying a product, have directly or indirectly engaged in one of two types of price maintenance. The first of those is agreeing, threatening, promising or likewise influencing upward, or discouraging the reduction of, the price at which the person’s customer offers to supply or advertises a product within Canada. The second is refusing to supply a product or otherwise discriminating against any person or class of persons engaged in business in Canada because of the low pricing policy of that other person or class of persons. However, subsection 76(4) provides that no order may be made if the person and the customer in question are among other things, “principal and agent or mandator and mandatary.”
[26] Pursuant to section 79 of the Act, the Tribunal may prohibit a person or persons from engaging in a practice of anti-competitive acts where it finds that (a) the person or persons in question substantially or completely control, throughout Canada or any area thereof, a class or species of business, (b) that person or those persons have engaged in or are engaging in the anti-competitive practice in question, and (c) the practice has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market.
[27] Pursuant to subsection 90.1(1) of the Act, the Tribunal may issue certain types of remedial orders where it finds that “an agreement or arrangement – whether existing or proposed – between persons two or more of whom are competitors prevents or lessens, or is likely to prevent or lessen, competition substantially in a market….”
III. The Draft Order and its Schedules [28] The draft Order submitted by the Commissioner on this application was virtually identical in all material respects to the orders recently issued by this Court pursuant to section 11 of the Act. That form of order has evolved into essentially a template and reflects comments provided by the Court to the Commissioner in prior hearings under section 11. The Court recognizes that this form of order may well continue to evolve and may not be appropriate in every case. The Respondents did not raise any concerns with respect to the text in the main body of the draft Order.
[29] Schedules I and II to the draft Order described the records to be produced pursuant to subparagraph 11(1)(b) of the Act and the written returns of information to be produced pursuant to subparagraph 11(1)(c), respectively. By comparison with other such schedules that this Court has seen, those schedules each had a relatively modest number of specifications and, at least to some extent, reflected input previously provided by the Respondents to the Commissioner.
[30] Broadly speaking, the records and written returns of information sought by the Commissioner concerned the following:
i. Communications among e-book publishers relating to the sale, pricing or supply of e-books in Canada;
ii. negotiations of agreements between e-book publishers and e-book retailers relating to the sale, pricing or supply of e-books in Canada;
iii. the business and strategic considerations or justifications for agreements that limit an e-book retailer’s ability to set, alter or reduce the retail price of e-books sold to consumers in Canada;
iv. the procedures, policies, strategies or analyses relating to the pricing of e-books in Canada;
v. the relationship between e-books and print books in Canada; and
vi. the Respondents’ revenues from the sale or supply of e-books in Canada.
[31] The principal concerns raised by the Respondents with respect to Schedules I and II are discussed in Part IV.b of these reasons below.
IV. Analysis A. The Court’s role and what is expected from the Commissioner [32] The initial affidavit filed by the Commissioner in support of this application stated the following with respect to the inquiry that is being conducted in this matter:
i. It was commenced under subparagraph 10(1)(b)(ii) of the Act based on the Commissioner’s reason to believe that grounds exist for the making of an Order under Part VIII of the Act with respect to certain alleged anti-competitive conduct to restrict e-book retail price competition in the markets for e-books in Canada.
ii. It concerns, but is not limited to, the Settling Publishers and the Respondents.
iii. Based on the Commissioner’s preliminary investigation and information the Bureau has gathered to date, the Commissioner has and continues to have reason to believe that, among other things,
a. The Respondents entered into an agreement or arrangement with certain of their competitors to restrict e-book retail price competition.
b. Further to this agreement or arrangement, the Respondents have engaged in conduct to restrict e-book retail price competition in Canada by, among other things, limiting or impeding the ability of e-book retailers to set, alter or reduce the retail price of e-books sold to consumers.
c. The Respondents have engaged in this conduct since approximately 2011, and continue to do so.
d. By engaging in the above-mentioned conduct, the Respondents have prevented or lessened, and are preventing or lessening, competition substantially in the markets for e-books in Canada.
[33] That affidavit also stated that Commissioner is investigating the alleged anti-competitive conduct under sections 76 and 79 of the Act.
[34] During the hearing of this application the Respondents submitted that the Commissioner is required to disclose, in the affidavit filed in support of an application under section 11, his reasons to believe that grounds exist for the making of an order, in respect of each of the elements of each section of the Act that are within the purview of the inquiry in question. While appearing to acknowledge that the Commissioner had broadly disclosed his reasons to believe with respect to section 90.1, they maintained that he had an obligation to provide at least some evidence with respect to each of the elements of section 90.1, yet failed to do so. In this regard, they relied on Symbol Technologies Canada ULC v Barcode Systems Inc, 2004 FCA 339 [Symbol Technologies]. With respect to sections 76 and 79, they went further and alleged that the Commissioner failed to disclose any reason to believe that grounds exist for the making of an order. Instead, they asserted that the Commissioner simply made a bare statement that he “is also investigating the alleged anti-competitive conduct under sections 76 and 79 of the Act.” Relying on this Court’s decisions in Canada (Commissioner of Competition) v Air Canada, [2001] 1 FC 219 (TD) [Air Canada], they maintained that this was insufficient. They added that, prior to seeing this reference in the Commissioner’s initial affidavit, they had been unaware that the Commissioner’s inquiry extended to those sections of the Act.
[35] I disagree with the substance of the Respondents’ submissions regarding the Commissioner’s disclosure requirements.
[36] To begin, in my view, Symbol Technologies is distinguishable. That case involved an appeal by a private party (Symbol Technologies Canada ULC [Symbol]) from a decision of the Tribunal granting leave to another private party (Barcode Systems Inc.) to make an application to the Tribunal against Symbol under the refusal to supply provisions of the Act. The applicable test for leave, as set forth in subsection 103.1(7) of the Act, is whether the Tribunal has reason to believe that the applicant is directly and substantially affected in its business by the practice of refusal to supply, as defined in subsection 75(1) of that Act. The Federal Court of Appeal ruled that “unless the Tribunal considers all the elements of the practice set out in subsection 75(1) on the leave application, it could not conclude, as required by paragraph 103.1(7), that there was reason to believe that an alleged practice could be subject to an order under subsection 75(1)” (Symbol Technologies, above, at para 18).
[37] The present application concerns something very different, namely, an application under paragraphs 11(1)(b) and (c) of the Act for the production of written returns and documents. The test for the Court on such an application simply requires the Court to be satisfied of two things, namely, that an inquiry is being made under section 10 and that a person is likely to have information that is relevant to the inquiry. In contrast to the situation in Symbol Technologies, there is no requirement in section 11 for the Court to consider whether there is reason to believe, or reasonable grounds to believe, that grounds exist for the making of an order under part VII.1 or Part VIII of the Act (Air Canada, above, at para 20; Canadian Pacific Limited v Director of Investigation and Research [1995] OJ No 709, 61 CPR (3d) 137, at para 8 (Gen Div)). That function was given by Parliament to the Commissioner, pursuant to subparagraph 10(1)(b)(ii) of the Act. This is an important difference from the test that must be satisfied to obtain a search warrant under subparagraph 15(1)(a)(ii) of the Act. Under that provision, it is the Court which must be satisfied by information on oath or solemn affirmation that there are reasonable grounds to believe that grounds exist for the making of an order under Part VII.1 or Part VIII of the Act.
[38] In further support of their position that the Commissioner is required to provide, in the affidavit filed in support of a request for an order under section 11, some explanation of why there is reason to believe that the grounds referred to in subparagraph 10(1)(b)(ii) exist, the Respondents relied upon the following statement of Justice Reed, in Air Canada, above, at paragraph 31:
31 Section 11 provides that a judge may, not shall, issue an order. Residual discretion exists. Also, I cannot conclude that section 11 authorizes the issuing of an order to produce information if the Commissioner were acting on a “whim”. I cannot envisage a court granting a section 11 order on the basis of a bald assertion by the Commissioner that an inquiry has been commenced. It seems to me that any judge would require more than that. He or she is likely to require some description of the nature of the alleged conduct that is the subject of the inquiry, the basis of the Commissioner's decision to commence an inquiry and his reason for believing that conduct to which the inquiry is addressed has occurred. Also, the judge must be satisfied that the person against whom the order is sought is likely to have relevant information. This does not mean that the Court second guesses the Commissioner's decision that he has reasons to believe that the conduct that is the subject of the inquiry in question occurred, but it does allow the Court to refuse to grant an order when there is insufficient evidence to support a conclusion that a bona fide inquiry has been commenced. [Emphasis in original]
[39] I agree with Justice Reed’s statement that the presence of the word “may” in section 11 reflects Parliament’s intention that the Court should, and does, retain the residual discretion to refuse to grant an order requested under that section of the Act, even where the two conditions set forth in section 11 have been met. To reiterate, these two conditions are that the Commissioner has been satisfied by information on oath or solemn affirmation that an inquiry is being made under section 10 and that a respondent is likely to have information that is relevant to the inquiry. As noted by Justice Mactavish in Canada (Commissioner of Competition) v Labatt Brewing Company Limited, 2008 FC 59, at paragraph 50 [Labatt], section 11 does not mandate that the Court act as a mere “rubber stamp” once those two conditions have been satisfied (see also Canada (Minister of National Revenue) v RBC Life Insurance Company, 2013 FCA 50, at paras 19-38 [RBC].)
[40] I also share Justice Reed’s view that it would be difficult to envisage a court granting an order under section 11 on the basis of bald assertions with respect to the two conditions set forth in that provision, or if it appeared that the Commissioner were acting on a “whim.” As Justice Mactavish elaborated, to properly exercise its discretion and its independent judicial oversight role with respect to the extensive investigative powers granted to the Commissioner under section 11, the Court must be fully apprised of the relevant circumstances surrounding the Commissioner’s application (Labatt, above, at paras 50-51).
[41] However, I do not share Justice Reed’s view that the Commissioner is required to provide sufficient evidence that a bona fide inquiry has been commenced. Stated alternatively, I do not accept the Respondents’ position that the Commissioner is required to provide some evidence to explain why there is reason to believe that the grounds set forth in subparagraph 10(1)(b)(ii) exist. I am not aware of any other authority that would support this view. That being said, as a practical matter, it may be difficult for the Court to satisfy itself that a respondent has or is likely to have information that is relevant to the Commissioner’s inquiry, as required by subsection 11(1), without some contextual evidence of this nature. In the present application, the Commissioner amply satisfied the Court in this regard.
[42] In my view, the Commissioner’s evidentiary obligations on an application under section 11 are not rooted in his reasons to believe that those grounds exist, but rather in (i) the duty of full and frank disclosure that exists on an ex parte application, and (ii) the Court’s duty to satisfy itself that the information being sought by the Commissioner is relevant to the inquiry in question, and is not excessive, disproportionate or unnecessarily burdensome (Hryniak v Mauldin, 2014 SCC 7, at para 32; RBC, above, at paras 21-23).
[43] It is now well established that, as a statutory authority responsible for the administration and enforcement of the Act, the Commissioner benefits from a presumption that actions taken pursuant to the Act are bona fide and in the public interest (Canada (Competition Act, Director of Investigation and Research) v Bank of Montreal, [1996] CCTD No 12, at para 32); Canada (Director of Investigation and Research) v Superior Propane Inc, [1998] CCTD No 20, at para 19; Rona Inc v Commissioner of Competition, 2005 CACT 26, at para 17; see also Milk Producers Assn v British Columbia (Milk Board), [1989] 1 FC 463, at para 28 (TD); North of Smokey Fishermen’s Assn v Canada (Attorney General), [2003] FCJ No 40, at para 24 (TD); Entreprises Sibeca Inc c Frelighsburg (Municipalité), [2002] JQ No 5093, at paras 59-61 (CA)). Accordingly, in the absence of evidence of bad faith or other evidence that the Commissioner’s inquiry is not a bona fide inquiry, it will be presumed to be so.
[44] However, given that section 11 applications proceed on an ex parte basis, there is a “heavy burden on the Commissioner to make full and frank disclosure” of all of the relevant circumstances surrounding the application (Labatt, above, at para 22; RBC, above, at paras 26-36). This burden, which can also be expressed as an “utmost duty of good faith,” is not focused on circumstances supporting the Commissioner’s application, but rather on two other things. The first is ensuring that the Court is informed of “any points of fact or law known to it which favour the other side” (United States of America v Friedland, [1996] OJ No 4399, at para 27 (Ct J (Gen Div)); Labatt, above, at paras 25-26; Ruby v Canada (Solicitor General), 2002 SCC 75, [2002] 4 SCR 3, at para 27). The second is ensuring that the Court is able to detect and redress abuses of its own processes (RBC, above, at paras 31-36).
[45] For example, the Commissioner cannot, through non-disclosure or misinformation, mislead the Court as to the potential relevance of the information for the inquiry in question. Likewise, the Commissioner is obliged to disclose the general nature and extent of any information already obtained from the respondent in the course of the inquiry and in the investigation leading up to the inquiry. If the respondent has provided significant information to the Commissioner in other contexts, such as a recent merger review, the Commissioner should also provide a general description of that information, together with an explanation of how that information differs from the information being sought in the section 11 application.
[46] These examples also describe information that should be disclosed by the Commissioner to satisfy the Court that the information being sought in the application is relevant to the inquiry in question, and is not excessive, disproportionate or unduly burdensome.
[47] Notwithstanding the foregoing, the Court recognizes that section 11 applications are made at the investigatory stage, before an application for an order under one of the substantive provisions of Part VII.1 or Part VIII has been made. The reason to “cause an inquiry to be made” under subsection 10(1) is with a “view of determining the facts.” For this reason, the Commissioner ordinarily will be given a certain degree of latitude with respect to minor or non-material misstatements, other errors or omissions, particularly if the application has been made on an emergency basis, or otherwise with little time for preparation (Labatt, above, at para 28; Friedland, above, at para 31).
[48] A certain degree of latitude will also ordinarily be warranted in recognition of the fact that the Commissioner may well need additional information to better understand the nature of the conduct that is the subject of the inquiry, whether it raises issues under additional sections of the Act, and the market(s) in which there is reason to believe the conduct is or may be taking place. Stated differently: “Courts must, in the exercise of [their] discretion, remain alert to the danger of unduly burdening and complicating the law enforcement investigative process. Where that process is in embryonic form engaged in the gathering of the raw material for further consideration, the inclination of the Courts is away from intervention” (SGL Canada Inc v Canada (Director of Investigation and Research), [1998] FCJ No 1951, at para 11 (TD)).
[49] In recognition of this, and the fact that subparagraph 10(1)(b)(ii) refers to the existence of grounds for making an order under parts VII.1 or VIII of the Act, it is not strictly necessary that the Commissioner identify any specific section of the Act in his affidavit (Thomson Newspapers Ltd v Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] SCJ No 23, at para 159 [Thomson]. In any event, the Commissioner will not be prevented from seeking information in respect of sections of the Act that are not identified in that affidavit. However, the Court will be vigilant to ensure that the Commissioner is not embarking on a “fishing expedition” (Thomson, above, at para 329).
[50] In my view, the foregoing principles simply clarify and apply to section 11 applications the existing jurisprudence, including Labatt, above, as it has developed subsequent to Air Canada. These principles apply to the typical case, and leave ample room for the Court to deal with exceptional circumstances and the particular facts of each case.
(1) The Commissioner’s Application in these Proceedings [51] In the present proceedings, the Respondents did not raise a question as to the bona fides of the Commissioner’s inquiry, other than with respect to the substantive issues discussed in Part IV.C of these reasons below. Accordingly, the presumption that the inquiry described in the Commissioner’s affidavit is a bona fide one was not displaced.
[52] In issuing my Order dated March 3, 2014, I was, and remain, persuaded that the other information provided in the Commissioner’s initial affidavit, which is described at paragraphs 32 and 33 above, provided sufficient disclosure of the relevant circumstances surrounding the application to enable me to satisfy myself (i) that the Respondents have or are likely to have the information identified in that Order, and (ii) that it was appropriate for me to exercise my discretion to issue the Order.
[53] Given the concerns that were identified by the Respondents with respect to the sufficiency of the disclosure provided in the Commissioner’s initial affidavit, and given my observation during the proceedings that those concerns could have easily been addressed by providing additional information in an amended affidavit, the Commissioner submitted a revised affidavit shortly after the hearing on this application.
[54] In that revised affidavit, additional information was added, to reflect the following:
i. The Commissioner has reason to believe that the Respondents continue to engage in conduct to restrict e-book retail price competition, in particular by entering into and continuing to have distribution agreements with e-book retailers that, among other things, limit or impede the ability of e-book retailers to set, alter or reduce the retail price of e-books sold to consumers.
ii. In certain circumstances, these distribution agreements also contain clauses whereby the retail price at which one e-book retailer sells an e-book to consumers depends on the retail price at which another e-book retailer sells the same e-book to consumers.
iii. The Consent Agreement does not resolve the Commissioner’s concerns regarding the Respondents’ alleged conduct and the effects of the conduct in the markets for e-books in Canada, because the Commissioner has reason to believe that the Respondents continue to have the above-described types of agreements with e-book retailers in Canada that will not be affected by the Consent Agreement, and that will therefore continue to restrict e-book retail price competition in the markets for e-books in Canada.
[55] In addition, the Commissioner added new material to specifically address each of the elements of sections 76 and 79 of the Act.
[56] For the reasons that I have given above with the benefit of an opportunity to reflect more fully on the matter, it was unnecessary for the Commissioner to provide this additional information in an amended affidavit.
[57] For greater certainty, at the time I issued my Order dated March 3, 2014, I was, and remain, persuaded that the information in the initial affidavit, described at paragraphs 32 and 33 above, was sufficient to satisfy me that it was appropriate to exercise my discretion to issue that Order. That Order had been amended over a number of drafts to address certain other issues that are addressed in part IV.B. of these reasons below. This information was reinforced by additional information provided in the initial affidavit, and in the appendices thereto, with respect to the foreign investigations into similar conduct in the United States and Europe. It was not necessary for the Commissioner to address each of the elements of sections 90.1, 76 or 79, or to further explain the precise manner in which the Respondents were believed to have limited the ability of e-book retailers to set, alter or reduce the retail price of e-books sold to consumers in Canada since 2011. It was also not necessary for the Commissioner to further explain why the conduct being inquired into will not be affected by the Consent Agreement that was entered into with the Settling Publishers.
[58] I would simply add in passing that, based on the factual information provided in the initial affidavit, it should have been readily apparent to the Respondents that the conduct therein might well raise legitimate issues under sections 76 and 79 of the Act. During the hearing of this application, counsel to the Commissioner represented that this factual information regarding the basis for the Commissioner’s inquiry had previously been communicated to the Respondents. This was not disputed by the Respondents. In any event, the Respondents do not appear to have been prejudiced by the lack of more explicit disclosure with respect to the basis for the Commissioner’s inquiry under sections 76 and 79.
[59] Therefore, there does not appear to be a sound basis for me to exercise my discretion to depart from the general rule, discussed at paragraphs 47-49 above, that the Commissioner should be given the latitude to conduct his inquiry under Part VIII of the Act, whether it be with respect to the section of the Act that has been the focus of the inquiry, other sections that have been identified, or even sections that have not been identified. Of course, this is all subject to various parameters that have been discussed above, namely, that he provide full and frank disclosure to the Court, that the Court be satisfied that the information described in the order being sought is relevant to the Commissioner’s inquiry, and that the Court be satisfied that such information is not excessive, disproportionate or unnecessarily burdensome.
B. The scope of information sought by the Commissioner [60] Prior to the hearing on this application, the Commissioner and counsel to the Respondents had several written exchanges. Among other things, the Respondents expressed concerns regarding the burdensome and potentially duplicative nature of the draft Order that the Commissioner had shared with them. To a large degree, those concerns related to the extensive information already provided to the Commissioner over the course of 2012 and 2013 in connection with both the Penguin Random House joint venture and the U.S. investigation mentioned in Part I of these reasons above. In communicating their concerns, the Respondents noted this Court’s prior admonition that the Commissioner should disclose such concerns to the Court and provide a summary of potentially overlapping information previously obtained from them (Labatt, above, at paras 77-78, 88-91, 95-97).
[61] At the Respondents’ request, and perhaps having regard to that admonition, the Commissioner disclosed both the correspondence that predated the filing of this application and the subsequent correspondence that was filed prior to the hearing.
[62] In their correspondence, the Respondents stated, among other things, that they had already provided the Bureau with the following:
i. Copies of their existing agency agreements for the sale of e-books;
ii. Information about their largest e-book customers in Canada (filed as part of the notification to the Commissioner that was filed under Part IX of the Act, in respect of the Penguin Random House joint venture);
iii. Extensive information in response to an informal request for information made in connection with that joint venture;
iv. Copies of more than 20,000 documents produced in response to a formal Supplementary Request for Information