Section 36 Requests for Access to Information and the Competition Bureau: Hast Thou Forsaken Me?

Abstract

The Competition Bureau has adopted an approach consisting of general opposition to requests for access to information for the purpose of private lawsuits under section 36. The Bureau has in the past resisted information requests on account of a class privilege over all information in its possession amongst other reasons. This article argues that the Bureau's general position is contrary to the governing legislation. The Bureau's reasons for its general position are not compelling because the Bureau fails to factor into the analysis the role of private enforcement within the Canadian competition regulatory scheme. The legislative history of the private right of action, Parliament's intention in creating an integrated regulatory scheme, and the realities of competition enforcement do not support the Bureau's blanket refusal to disclose. Similarly, the text of the legislation, the caselaw, and the state of the law in foreign jurisdictions do not lend credence to the Bureau's approach to private enforcement. This article proposes that cooperation with private enforcers, rather than opposition to them, is the correct approach. In the exceptional cases where the Bureau properly needs to oppose disclosure, a case-by-case study and justification of the denial of access requests for section 36 enforcement would comply with the law and would better protect the many interests involved.