A-558-78
Petrofina Canada Ltd. (Applicant)
v.
Chairman, Restrictive Trade Practices Commis
sion, Director of Investigation and Research,
Attorney General of Canada, L. A. Couture, A. R.
Norfolk, H. Leduc, C. Gundy, P. G. Comision, J.
H. Rocking, K. Saldanha and G. G. Smith
(Respondents)
Court of Appeal, Pratte and Ryan JJ. and Lalande
D.J.—Montreal, November 22 and 23, 1979.
Judicial review — Application to review decisions of Mem
bers of Restrictive Trade Practices Commission on grounds
that they lacked jurisdiction or failed to act judicially or gave
authorization to search and remove evidence in terms wider
than what is permitted by statute — Combines Investigation
Act, R.S.C. 1970, c. C-23, ss. 7, 8, 9, 10 — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to review and set aside
decisions of Members of the Restrictive Trade Practices Com
mission pursuant to sections 9(2) and 10(3) of the Combines
Investigation Act. The applicant submitted that the Members
lacked jurisdiction on the grounds that two of the orders under
attack are invalid because they were made in relation to an
inquiry that had already been terminated and the other orders
were made in relation to an inquiry which had been illegally
commenced. The applicant also submitted that the Members
who gave their authorization under sections 9(2) and 10(3)
failed to act judicially in that they exercised their discretion
under the statute without showing sufficient information en
abling them to make decisions. Lastly, the applicant submitted
that the Members failed in their authorizations to specify the
offences in relation to which they were given.
Held, the application is dismissed. Regarding the allegation
that the orders were made in relation to an inquiry already
terminated, it is based on an interpretation of the material on
record and of sections 14 and 15 of the Act that appears to be
unwarranted. The allegation that the other orders were made in
relation to an inquiry illegally commenced, was based on the
fact it was discovered that one of the six persons who signed the
application under section 7 was not, at that time, a Canadian
citizen. This was a mere irregularity which did not affect the
validity of the subsequent decision of the Director to hold an
inquiry. Regarding the allegation that the Members failed to
act judicially, under sections 9(2) and 10(3) of the Act, the
Members are neither required nor authorized to determine the
legality of the Director's decision to hold an inquiry; they are
merely required to ascertain that there is, de facto, an inquiry
in progress under the Act. The Members are not required or
authorized to pass judgment on the reasonableness of the
motives prompting the Director to exercise his powers under
sections 9 and 10. As the Members did not have to make
decisions on these two points, they cannot be blamed for not
having required information. Lastly regarding the failure to
specify the offences, the statute does not specify the contents or
form of the order authorizing the exercise of the Director's
powers under sections 9 and 10 nor does the statute require that
it contains reference to offences; the power of the Director to
make inquiries is very wide and it is not the function of the
Members to determine the validity of an inquiry or to set limits.
APPLICATION for judicial review.
COUNSEL:
J. Chipman, Q.C. and C. Carron for
applicant.
P. A. Martineau, Q.C. for respondent Chair
man, Restrictive Trade Practices Commis
sion.
J. Ouellet, Q.C. for respondents Director 'of
Investigation and Research, Attorney General
of Canada, L. A. Couture, A. R. Norfolk, H.
Leduc, C. Gundy, P. G. Comision, J. H.
Bocking, K. Saldanha and G. G. Smith.
SOLICITORS:
Ogilvy, Renault, Montreal, for applicant.
Martineau & Associates, Hull, for respondent
Chairman, Restrictive Trade Practices Com
mission.
Deputy Attorney General of Canada for
respondents Director of Investigation and
Research, Attorney General of Canada, L. A.
Couture, A. R. Norfolk, H. Leduc, C. Gundy,
P. G. Comision, J. H. Bocking, K. Saldanha
and G. G. Smith.
The following are the reasons for judgment
delivered orally in English by
PRATTE J.: This is a section 28 application to
review and set aside a decision of a Member of the
Restrictive Trade Practices Commission pursuant
to section 10(3) of the Combines Investigation
Act, R.S.C. 1970, c. C-23.' It was heard at the
same time as three other applications made by the
same applicant 2 against other decisions of the
same nature and another section 28 application 3
made by the applicant against a decision of a
Member of the Commission pursuant to section
9(2) of the same Act. 4 As all those applications
raise substantially the same problems, these rea
sons will apply to them all.
' Subsections (1) and (3) of section 10 read as follows:
10. (I) Subject to subsection (3), in any inquiry under this
Act the Director or any representative authorized by him
may enter any premises on which the Director believes there
may be evidence relevant to the matters being inquired into
and may examine any thing on the premises and may copy or
take away for further examination or copying any book,
paper, record or other document that in the opinion of the
Director or his authorized representative, as the case may be,
may afford such evidence.
(3) Before exercising the power conferred by subsection
(1), the Director or his representative shall produce a certifi
cate from a member of the Commission, which may be
granted on the ex parte application of the Director, authoriz
ing the exercise of such power.
2 In files A-559-78, A-560-78 and A-561-78.
3 File No. A-562-78.
° Section 9 reads as follows:
9. (I) Subject to subsection (2), the Director may at any
time in the course of an inquiry, by notice in writing, require
any person, and in the case of a corporation any officer of the
corporation, to make and deliver to the Director, within a
time stated in such notice, or from time to time, a written
return under oath or affirmation showing in detail such
information with respect to the business of the person named
in the notice as is by the notice required, and such person or
officer shall make and deliver to the Director, precisely as
required a written return under oath or affirmation showing
in detail the information required; and, without restricting
the generality of the foregoing, the Director may require a
full disclosure and production of all contracts or agreements
which the person named in the notice may have at any time
entered into with any other person, touching or concerning
the business of the person named in the notice.
(2) The Director shall not issue a notice under subsection
(I) unless, on the ex parte application of the Director, a
member of the Commission certifies, as such member may,
that such notice may be issued to the person or officer of a
corporation disclosed in the application.
As I understand them, the various attacks made
by the applicant against those decisions are, in
effect, that the Members who made those decisions
(a) either lacked jurisdiction, or
(b) failed to act judicially, or
(c) gave their authorization in terms wider than
what is permitted by the statute.
I—Lack of Jurisdiction
Sections 9 and 10 make clear that applications
for authorization under sections 9(2) and 10(3)
may only be made in the course of an inquiry
under the Act. It is the applicant's contention that
two of the orders under attack are invalid because
they were made in relation to an inquiry that had
already been terminated and that the other orders
were made in relation to an inquiry which had
been illegally commenced.
Of the applicant's argument concerning the
alleged termination of the inquiry, I do not wish to
say more than that it is based on an interpretation
of the material on record and of sections 14 and 15
of the Act that appears to me to be completely
unwarranted.
In order to understand the applicant's conten
tion with respect to the inquiry that had allegedly
been irregularly commenced, it is necessary to
explain that some of the orders under attack were
pronounced in relation to an inquiry that had been
commenced by the Director in 1973 on the
application of six persons pursuant to sections 7
and 8 of the Act. 5 In August 1979, more than six
5 At the relevant time, those two sections read as follows:
7. (I) Any six persons, Canadian citizens, resident in
Canada, of the full age of twenty-one years, who are of the
opinion that an offence under Part V has been or is about to
be committed may apply to the Director for an inquiry into
such matter.
(2) The application shall be accompanied by a statement
in the form of a solemn or statutory declaration showing
(a) the names and addresses of the applicants, and at their
election the name and address of any one of their number,
or of any attorney, solicitor or counsel, whom they may,
for the purpose of receiving any communication to be
made pursuant to this Act, have authorized to represent
them;
(Continued on next page)
years after the commencement of the inquiry and
more than a year after the making of the most
recent of the orders under attack, it was discovered
that one of the six persons who had signed the
application under section 7 was not, at that time, a
Canadian citizen. The applicant contends that it
follows from that irregularity that the inquiry was
invalidly commenced by the Director and that,
when the orders under attack were made, there
was, in law, no inquiry. I do not agree. In my view,
the fact that one of the six applicants was not a
Canadian citizen was a mere irregularity which
did not affect the validity of the subsequent deci
sion of the Director to hold an inquiry. In spite of
that irregularity, an inquiry was, in fact, being
made under the Act and, therefore, Members of
the Commission had jurisdiction, under sections
9(2) and 10(3), to make orders relating to that
inquiry.
II—The Failure to Act Judicially
According to the applicant, the Members who
gave their authorization under sections 9(2) and
10(3) failed to act judicially in that they exercised
their discretion under the statute without showing
sufficient information enabling them to make
enlightened decisions. The applicant says that the
Members who made those decisions should have
had before them sufficient information to enable
them to determine the legality of the inquiry then
in progress and the reasonableness of the belief of
the Director that circumstances warranted the
exercise of his powers under sections 9 and 10.
(Continued from previous page)
(b) the nature of the alleged offence and the names of the
persons believed to be concerned therein and privy thereto;
and
(c) a concise statement of the evidence supporting their
opinion that the offence has been or is about to be
committed.
8. The Director shall
(a) on application made under section 7,
(b) whenever he has reason to believe that any provision in
Part V has been or is about to be violated, or
(c) whenever he is directed by the Minister to inquire
whether any provision in Part V has been or is about to be
violated,
cause an inquiry to be made into all such matters as he
considers necessary to inquire into with the view of determin
ing the facts.
This argument, in my view, must also be reject
ed. In making the decisions that sections 9 and 10
require them to make, the Members must act
judicially. The Court so held on April 19, 1979,
when it decided that the decisions here in question
were reviewable under section 28 of the Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10. How
ever, that duty to act judicially applies only to the
decisions that the Members are required to make
under sections 9(2) and 10(3). Under those provi
sions, the Members are neither required nor
authorized to determine the legality of the Direc
tor's decision to hold an inquiry; they are merely
required to ascertain that there is, de facto, an
inquiry in progress under the Act. The Members
are not required or authorized, either, to pass
judgment on the reasonableness of the motives
prompting the Director to exercise his powers
under sections 9 and 10. As the Members did not
have to make decisions on those two points, they
cannot, in my opinion, be blamed for not having
required information on those points.
I now turn to the last contention put forward by
the applicant, namely, that the terms of the
authorization given by the Members were too
broad because they did not specify the offence in
respect of which they were given.
III—The Failure of the Decisions under Attack to
Mention an Offence under the Act
According to the applicant, the Director is
empowered, under the Act, to make an inquiry in
relation to violations or suspected or apprehended
violations of the Act. As an authorization given
under sections 9(2) and 10(3) must relate to an
inquiry, it must, following the applicant's argu
ment, relate to offences under the Act. The appli
cant concludes that the failure of the authoriza
tions here in question to specify the offences in
relation to which they were given, is fatal.
The answer to that argument is, in my view, that
(a) the statute does not specify the contents or
the form of the order authorizing the exercise of
the Director's powers under sections 9 and 10
and does not require that it contains any refer
ence to one or more offences under the Act;
(b) the power of the Director to make inquiries
is very wide and is not limited to the circum
stances mentioned in section 8 (see section 47);
and,
(c) as I have already stated, it is not the func
tion of a Member under sections 9(2) and 10(3)
to determine the validity of an inquiry in
progress; it is not his duty, either, to set limits to
an inquiry that the Director has commenced.
For all these reasons, I would dismiss the
application.
* * *
RYAN J. concurred.
* * *
LALANDE D.J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.