Competition Tribunal Rules (SOR/2008-141)

Admissions

Marginal note:Requests for admissions

56 A party may, after pleadings have been closed but not later than 25 days before the commencement of the hearing, request that another party admit a fact or the authenticity of a document by serving a request to admit, in form 255 of the Federal Courts Rules, on that party, with any modifications that the circumstances require.

Marginal note:Deemed admissions

• 57 (1) A party who is served with a request to admit is deemed to admit the truth of a fact or the authenticity of a document set out in the request to admit unless that party serves a response to the request in form 256 of the Federal Courts Rules within 20 days after service of the request and denies the admission, setting out the grounds for the denial, with any modifications that the circumstances require.

• Marginal note:Admissions for purposes of the proceedings

  (2) A party is deemed, for the purposes of the proceeding only, to admit the truth of the facts or the authenticity of the documents mentioned in the request, unless the party’s response

  • (a) specifically denies the truth of a fact or the authenticity of a document mentioned in the request; or

  • (b) refuses to admit the truth of a fact or the authenticity of a document and sets out the reason for the refusal.

Marginal note:Costs

58 If a party denies or refuses to admit the truth of a fact or the authenticity of a document after receiving a request to admit, and the fact or authenticity of the document is subsequently proved at the hearing, the Tribunal may take the denial or refusal into account in exercising its discretion respecting costs.

Marginal note:Withdrawal of admission

59 An admission made in response to a request to admit, a deemed admission under rule 57 or an admission in a pleading may be withdrawn on consent of the other party or with leave of the Tribunal.

Discovery

Marginal note:Affidavit of documents

• 60 (1) The applicant and each respondent who has filed a response shall, within the time prescribed at a case management conference, serve an affidavit of documents on each other party.

• Marginal note:Content

  (2) An affidavit of documents shall include

  • (a) a list identifying the documents that are relevant to any matter in issue and that are or were in the possession, power or control of the party;

  • (b) any claim that a document is confidential or contains confidential information;

  • (c) any claim that a document is privileged; and

  • (d) a statement of the grounds for each claim of privilege.

Marginal note:Power of the Tribunal

61 Upon the motion of a party who has served an affidavit of documents and who opposes a claim for privilege of another party, the Tribunal may inspect the document and determine the validity of the claim.

Marginal note:Application of deemed undertaking

• 62 (1) This rule applies to evidence obtained during documentary, written and oral discovery and information obtained from that evidence.

• Marginal note:Deemed undertaking

  (2) All parties and their counsel are deemed to undertake not to use evidence or information to which this rule applies for any purposes other than those of the proceeding in which the evidence was obtained.

• Marginal note:Exceptions

  (3) Subrule (2) does not prohibit

  • (a) a use to which the person who disclosed the evidence consents;

  • (b) the use, for any purpose, of

    • (i) evidence that is filed with the Tribunal,

    • (ii) evidence that is given or referred to during a hearing; or

    • (iii) information obtained from evidence referred to in subparagraph (i) or (ii),

  • (c) the use of evidence obtained in one proceeding, or information obtained from such evidence, to impeach the testimony of a witness in another proceeding, or

  • (d) the use of evidence or information in a subsequent Tribunal proceeding.

• Marginal note:Non-application

  (4) If satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed evidence, the Tribunal may, on motion, order that the deemed undertaking referred to in subrule (2) does not apply to the evidence or to information obtained from it, and may impose any terms and give any directions that are just.

Marginal note:Supplementary affidavit

63 A party who has served an affidavit of documents and who comes into possession or control of or obtains power over a relevant document, or who becomes aware that the affidavit of documents is inaccurate or deficient, shall as soon as possible serve a supplementary affidavit of documents listing the document or correcting the inaccuracy or deficiency.

Marginal note:Examination for discovery

• 64 (1) Examination for discovery shall occur as of right.

• Marginal note:Power of the Tribunal

  (2) The Tribunal may, in case management, make rulings to deal with the timing, duration, scope and form of the discovery as well as the appropriate person to be discovered.

Access to Documents

Marginal note:Access to documents

65 Subject to any confidentiality order under rule 66, a party who has served an affidavit of documents on another party shall allow the other party to inspect and make copies of the documents listed in the affidavit, unless those documents are subject to a claim for privilege or are not within the party’s possession, power or control.

Marginal note:Confidentiality order

• 66 (1) The Tribunal may order that a document or information in a document be treated as confidential and make any order that it deems appropriate,

  • (a) upon the motion of a party who has served an affidavit of documents; or

  • (b) upon the motion of a party or intervenor who has filed or will file the document.

• Marginal note:Clarification

  (2) For greater certainty, the Tribunal may issue a single confidentiality order to cover the documents or information under paragraphs (1)(a) and (b).

Marginal note:Content of motion

67 The party or intervenor making a motion referred to in rule 66 shall

• (a) include in the grounds for the motion details of the specific, direct harm that would allegedly result from unrestricted disclosure of the document or information; and

• (b) include in the motion a draft confidentiality order including the following elements, namely,

  • (i) a description of the document or information or the category of documents or information for which the person seeks the confidentiality order,

  • (ii) the identification of the person or category of persons who are entitled to have access to the confidential document or information,

  • (iii) any document or information or category of documents or information to be made available to the person or category of persons referred to in subparagraph (ii),

  • (iv) any written confidentiality agreement to be signed by the person or persons referred to in subparagraph (ii) and the provisions of that agreement,

  • (v) the number of copies of any confidential document to be provided to the person or persons referred to in subparagraph (ii) and any limitation on subsequent reproduction of that document by that person or those persons, and

  • (vi) the disposal of the confidential document following the final disposition of the proceeding.

Pre-hearing Disclosure

Marginal note:List of documents and witness statements

• 68 (1) The applicant shall, at least 60 days before the commencement of the hearing, serve on every other party and on all intervenors

  • (a) a list of documents on which the applicant intends to rely at the hearing, noting any waivers of privilege claimed in regard to those documents; and

  • (b) witness statements setting out the lay witnesses’ evidence in chief in full.

• Marginal note:Content of witness statements

  (2) Unless the parties otherwise agree, the witness statements shall include only fact evidence that could be given orally by the witness together with admissible documents as attachments or references to those documents.

Marginal note:Response

• 69 (1) Each respondent shall, at least 30 days before the commencement of the hearing, serve in response on every other party and on all intervenors

  • (a) a list of documents on which the respondent intends to rely at the hearing, noting any waivers of privilege claimed in regard to those documents; and

  • (b) witness statements setting out the lay witnesses’ evidence in chief in full.

• Marginal note:Content of witness statements

  (2) Unless the parties otherwise agree, the witness statements shall include only fact evidence that could be given orally by the witness together with admissible documents as attachments or references to those documents.

Marginal note:Reply

70 The applicant may, at least 15 days before the commencement of the hearing, serve in reply on every other party and on all intervenors

• (a) any additional reply documents on which the applicant intends to rely at the hearing as a result of the respondent’s disclosure, and any waiver of privilege; and

• (b) any new reply witness statements or additions to existing witness statements to deal with any issues raised in the reply.

Evidence at the Hearing

Marginal note:Sanctions

71 If a document has not been disclosed in the affidavit of documents and in the pre-hearing disclosure, or if privilege has not been waived for such a document, it shall not be received in evidence at the hearing unless the Tribunal orders otherwise.

Marginal note:Records to be admitted in evidence

72 The Commissioner shall provide a list of the documents to be admitted in evidence without further proof in accordance with section 69 of the Act at least 45 days before the commencement of the hearing.

Marginal note:Information under par. 11(1)(a) of the Act

73 The Commissioner may move for authorization from the Tribunal to read into evidence information obtained under paragraph 11(1)(a) of the Act.

Marginal note:Evidence in chief

• 74 (1) The evidence in chief of each lay witness shall be tendered by way of the statement referred to in rules 68 to 70 and consist of their full statement of evidence and relevant documents or references to those documents.

• Marginal note:Witness statements

  (2) Witness statements of lay witnesses shall be provided to the registry with proof of service at least 10 days before the commencement of the hearing.

• Marginal note:Tribunal may read

  (3) The Tribunal may read the material provided, unless a party makes a valid objection.

• Marginal note:Witness must attend

  (4) A witness statement may be received in evidence at the hearing only if the witness is in attendance and available for cross-examination or questioning by the Tribunal.

• Marginal note:Evidence in chief

  (5) The lay witness may be examined in chief for the purpose of summarizing or highlighting the evidence contained in the statement.

Witness Panels

Marginal note:Witness panels

75 The Tribunal may require that some or all of the witnesses testify as a panel at any time that the Tribunal may determine.

Marginal note:Manner of testimony

• 76 (1) The Tribunal shall direct the manner in which the panel shall testify.

• Marginal note:Cross-examination and re-examination

  (2) Counsel may cross-examine or re-examine witnesses.