Can the Competition Bureau compel a customer or supplier who isn't part of a deal to produce records?

The order can name a total outsider to the deal

Section 11(1) reads: “If, on the ex parte application of the Commissioner …, a judge of a superior or county court is satisfied by information on oath or solemn affirmation that an inquiry is being made under section 10 or 10.1 and that a person has or is likely to have information that is relevant to the inquiry, the judge may order the person to (a) attend … and be examined on oath …; (b) produce … a record … or any other thing …; or (c) make and deliver … a written return under oath … showing in detail such information as is by the order required.” The only qualifying fact is that the person “has or is likely to have information that is relevant” — being a customer, not a party to the transaction, is not a shield.

It runs off an inquiry, not off the merger notification

Section 10(1)(b) empowers the Commissioner to open an inquiry “whenever the Commissioner has reason to believe” certain circumstances exist, and s.10(3) requires that “all inquiries under this section shall be conducted in private.” A s.11 order can therefore issue on the strength of an inquiry that has nothing to do with whether a merger notification was ever filed. The confidentiality duty in s.29(1) binds “No person who performs or has performed duties or functions in the administration or enforcement of this Act” from disclosing what they learn — it binds the Bureau, not the customer served with the order, which is exactly why there is ordinarily no breach, and no remedy, on the customer's side for having complied.

Where this plays out in the Case Files

• • Three customers, none of them parties to the deal, served with s.11 production orders that damaged the business the buyer was paying for

Sources

• • Competition Act, R.S.C. 1985, c. C-34, s.11 — the ex parte production, examination and written-return order. Fetched and confirmed against the marginal note “Order for oral examination, production or written return.”
• • Competition Act s.10 — s.10(1)(b) the inquiry that must be under way before a s.11 order can issue, s.10(3) the requirement that inquiries be conducted in private.
• • Competition Act s.29(1) — the confidentiality prohibition, which binds persons administering or enforcing the Act and no one else.
• • No Treadstone Law page addresses a Competition Act s.11 production order served on a non-party. Treadstone Law's published coverage is general Ontario business and corporate law and does not reach this federal mechanism, so none of its pages is cited here rather than force an adjacent link that does not genuinely cover the topic.