T-1835-80
T-1838-80
Raymond Balestreri and Yves Vincent (Appli-
cants)
v.
Luc-A. Couture, in his quality as member and
Vice-Chairman of the Restrictive Trade Practices
Commission, F. H. Sparling, in his quality as
Inspector appointed pursuant to an Application to
the Restrictive Trade Practices Commission
under s. 114(1) of the Canada Corporations Act
for an order directing an investigation of Canadi-
an Javelin Limited, and R. S. MacLellan, in his
quality as member of the Restrictive Trade Prac
tices Commission (Respondents)
Trial Division, Jerome A.C.J.—Ottawa, April 17
and 18, 1980.
Prerogative writs — Prohibition and certiorari — Applica
tion for writs of prohibition and certiorari ordering respond
ents to discontinue proceedings in connection with an investi
gation initiated under the Canada Corporations Act of a
corporation incorporated under that Act, but continued under
the Canada Business Corporations Act — Whether the proce
dural requirements of the former or the latter statute apply —
Application dismissed — Canada Business Corporations Act,
S.C. 1974-75-76, c. 33, ss. 2, 3(1),(3), 181(6)(c),(d) — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18(a) — Federal
Court Rule 319.
APPLICATION.
COUNSEL:
J. Nuss, Q.C. and J. Silcoff for applicants.
Andre Wery for respondents.
SOLICITORS:
Ahern, Nuss & Drymer, Montreal, for appli
cants.
Desjardins, Ducharme, Montreal, for re
spondents.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: This application T-1835-80 is
pursuant to section 18(a) of the Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10 and Rule 319
of the Federal Court Rules, for a writ of prohibi-
tion ordering the respondents to discontinue all
proceedings in connection with and to cease acting
upon orders issued by respondent Couture requir
ing the attendance of the applicants before
respondent MacLellan on April 15, 1980, at 10:00
o'clock in the forenoon, by reason of the lack or
excess of jurisdiction of the respondent Couture to
issue the said orders in connection with an investi
gation initiated under the Canada Corporations
Act, R.S.C. 1970, c. C-32, of Canadian Javelin
Limited, a corporation incorporated under the
Canada Corporations Act, and which had been
continued under the Canada Business Corpora
tions Act, S.C. 1974-75-76, c. 33 prior to the
issuance of the said orders. These reasons shall
equally apply to application T-1838-80 involving
the same parties and the same circumstances in an
application for a writ of certiorari.
The facts are not in dispute and the submissions
centre around a very narrow ground. In May of
1977, an investigation was initiated under the
Canada Corporations Act and there is no dispute
that the investigation and the statute continue in
force to this day. In 1974, Parliament enacted the
Canada Business Corporations Act and counsel
for the applicant calls attention to the following
sections:
2. (1) ...
"corporation" means a body corporate incorporated or con
tinued under this Act and not discontinued under this Act;
also
3. (I) This Act applies to every corporation incorporated and
every body corporate continued as a corporation under this Act
that has not been discontinued under this Act.
and
3....
(3) No provision of the Canada Corporations Act or the
Winding-Up Act applies to a corporation.
The Corporation under investigation was con
tinued under the provisions of the Canada Busi
ness Corporations Act on March 11, 1980 and it is
the applicants' submission that the effect of these
sections is to now require the Investigator to follow
the procedural requirements of the latter rather
than the former statute in carrying forward the
balance of the investigation. In particular, the
application attacks the Investigator's subpoena of
March 21, 1980 and contends that any order for
the attendance of witnesses must now be made in
accordance with Part XVIII of the Canada Busi
ness Corporations Act rather than of the earlier
statute.
The Canada Business Corporations Act does
not repeal or amend the Canada Corporations Act
and both statutes continue in force. This investiga
tion which was authorized under the prior statute
has been conducted to this point in accordance
with the procedures outlined in that statute and in
the absence of specific provisions in the more
recent Act, in my opinion, the Investigator can
continue to do so. Were I left in any uncertainty,
which I am not, recourse to the provisions of
section 181(6)(c) and (d) of the Canada Business
Corporations Act would resolve the matter:
1s1... .
(6) When a body corporate is continued as a corporation
under this Act,
(e) an existing cause of action, claim or liability to prosecu
tion is unaffected;
(d) a civil, criminal or administrative action or proceeding
pending by or against the body corporate may be continued
to be prosecuted by or against the corporation; ...
Thus, Parliament has not only refrained from
enacting specific provisions which interfere with
the authority of the Investigator under the prior
statute, but has, in my opinion, in section
181(6)(c) and (d) expressed quite the contrary
intention, i.e. that the proceeding may be con
tinued unaffected.
ORDER
The application is therefore dismissed with
costs.
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.