[2016] 1 F.C.R. D-3
Competition
Reasons addressing five issues raised in consolidated ex parte applications for delivery of written returns by respondents pursuant to Competition Act, R.S.C., 1985, c C-34, s. 11(1)(c) — Reasons addressing, inter alia, (i) period of time over which written returns sought by applicant (relevant period); (ii) alleged inability of certain respondents to respond to specifications in Schedule 1 to draft orders; (iii) period of time within which applicant sought to compel respondents to respond to draft order; (iv) what constitutes excessive, disproportionate or unnecessary burden on respondents to orders issued pursuant to Act, s. 11 — Applicant commencing inquiry in March 2014 under Act, s. 10(1)(b)(ii) in respect of certain conduct by Apple Inc., Apple Canada Inc. reviewable under Act, Part VIII — Inquiry focusing on inclusion, use of certain contractual obligations in contracts between Apple Canada Inc, respondents — Applicant’s affidavit noting contracts imposing obligations on respondents regarding sale, marketing of iPhones lessening or preventing competition — Applicant seeking information regarding markets, pricing, effect on competition — Not excessive, disproportionate or unnecessarily burdensome for applicant to want relevant information concerning conduct subject of inquiry, for full period that conduct believed to have occurred — Ninety-day period within which to respond to orders appropriate, reasonable in this case — Appropriate focus in assessing whether information sought likely to be excessive, disproportionate or unnecessarily burdensome is to balance (i) what applicant reasonably requires to conduct inquiry in question, (ii) burden draft order would likely impose upon respondents — May not be necessary for applicant to have evidence with respect to every single promotion, discount or original equipment manufacturer funded sales, marketing allowance paid to particular respondent — Same is true where full amount of information sought not reasonably available to respondent, requiring substantial burden to assemble — Reliable, representative amount of information sufficient to enable applicant to demonstrate that conduct has had, or is likely to have, anticompetitive effect — Enabling appropriate balance between applicant’s responsibility to investigate, pursue enforcement proceedings, use of intrusive powers to obtain information.
Canada (Commissioner of Competition) v. Bell Mobility Inc. (T-929-15; T-931-15; T-933-15; T-934-15; T-935-15; T-936-15; T-937-15; T-938-15, 2015 FC 990, Crampton C.J., reasons for order dated August 20, 2015, 22 pp.)