Date: 20020620
Docket: T-1703-01
Neutral citation: 2002 FCT 698
Ottawa, Ontario, June 20, 2002
Present: The Honourable Madam Justice Danièle Tremblay-Lamer
BETWEEN:
KIRK CHARETTE
Applicant
- and -
THE COMMISSIONER OF COMPETITION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant seeks a mandamus order requiring the Respondent to provide information pursuant to subsection 10(2) of the Competition Act, R.S.C. 1985, c. C-34 (the Act) concerning the Applicant's application for inquiry under section 9 of the Act.
[2] An inquiry under the Act may be commenced in three different circumstances:
(i) under paragraph 10(1)(a), when an application is made under section 9;
(ii) under paragraph 10(1)(b), when the Commissioner has reason to believe that a contravention or breach of the Act has been committed; and
(iii) under paragraph 10(1)(c), when the Minister of Industry so directs.
[3] The relevant provisions read as follows:
| Application for inquiry
9. (1) Any six persons resident in Canada who are not less than eighteen years of age and who are of the opinion that
(a) a person has contravened an order made pursuant to section 32, 33 or 34, or Part VII.1 or VIII,
(b) grounds exist for the making of an order under Part VII.1 or VIII, or
(c) an offence under Part VI or VII has been or is about to be committed, may apply to the Commissioner for an inquiry into the matter.
Material to be submitted
(2) An application made under subsection (1) 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;
(b) the nature of
(i) the alleged contravention,
(ii) the grounds alleged to exist for the making of an order, or
(iii) 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.
Inquiry by Commissioner
10. (1) The Commissioner shall
(a) on application made under section 9,
(b) whenever the Commissioner has reason to believe that
(i) a person has contravened an order made pursuant to section 32, 33 or 34, or Part VII.1 or Part VIII,
(ii) grounds exist for the making of an order under Part VII.1 or Part VIII, or
(iii) an offence under Part VI or VII has been or is about to be committed, or
(c) whenever directed by the Minister to inquire whether any of the circumstances described in subparagraphs (b)(i) to (iii) exists,
cause an inquiry to be made into all such matters as the Commissioner considers necessary to inquire into with the view of determining the facts.
Information on inquiry
(2) The Commissioner shall, on the written request of any person whose conduct is being inquired into under this Act or any person who applies for an inquiry under section 9, inform that person or cause that person to be informed as to the progress of the inquiry.
Inquiries to be in private
(3) All inquiries under this section shall be conducted in private.
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Demande d'enquête
9. (1) Six personnes résidant au Canada et âgées de dix-huit ans au moins peuvent demander au commissaire de procéder à une enquête dans les cas où elles sont d'avis, selon le cas_:
a) qu'une personne a contrevenu à une ordonnance rendue en application des articles 32, 33 ou 34, ou des parties VII.1 ou VIII;
b) qu'il existe des motifs justifiant une ordonnance en vertu des parties VII.1 ou VIII;
c) qu'une infraction visée à la partie VI ou VII a été perpétrée ou est sur le point de l'être.
Détails àfournir
(2) La demande est accompagnée d'un exposé, sous forme de déclaration solennelle, indiquant_:
a) les noms et adresses des requérants et, à leur choix, les noms et adresses de l'un d'entre eux ou d'un procureur, avocat ou conseil qu'ils peuvent, pour recevoir toutes communications prévues par la présente loi, avoir autorisé à les représenter;
b) la nature_:
(i) soit de la prétendue contravention,
(ii) soit des motifs permettant de rendre une ordonnance,
(iii) soit de la prétendue infraction,
et les noms des personnes qu'on croit y être intéressées et complices;
c) un résumé des éléments de preuve à l'appui de leur opinion.
Enquête par le commissaire
10. (1) Le commissaire fait étudier, dans l'un ou l'autre des cas suivants, toutes questions qui, d'après lui, nécessitent une enquête en vue de déterminer les faits_:
a) sur demande faite en vertu de l'article 9;
b) chaque fois qu'il a des raisons de croire_:
(i) soit qu'une personne a contrevenu à une ordonnance rendue en application des articles 32, 33 ou 34, ou des parties VII.1 ou VIII,
(ii) soit qu'il existe des motifs justifiant une ordonnance en vertu des parties VII.1 ou VIII,
(iii) soit qu'une infraction visée à la partie VI ou VII a été perpétrée ou est sur le point de l'être;
c) chaque fois que le ministre lui ordonne de déterminer au moyen d'une enquête si l'un des faits visés aux sous-alinéas b)(i) à (iii) existe.
Renseignements concernant les enquêtes
(2) À la demande écrite d'une personne dont les activités font l'objet d'une enquête en application de la présente loi ou d'une personne qui a demandé une enquête conformément à l'article 9, le commissaire instruit ou fait instruire cette personne de l'état du déroulement de l'enquête.
Enquêtes en privé
(3) Les enquêtes visées au présent article sont conduites en privé.
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[4] Between the months of May 1999 and March 2001, the Applicant submitted numerous complaints to the Competition Bureau, alleging conduct in contravention of the Act by Delta Controls Systems Inc., a manufacturer of energy management systems, and its authorized distributor, Durell Control Systems Inc.
[5] All of the Applicant's complaints were investigated by the Competition Bureau. With respect to each of them, the Bureau provided the Applicant with detailed information as to why it had determined there was no basis to believe that any further inquiry into a possible breach of the Act was warranted or appropriate.
[6] In August 2000, Mr. Gaston Jorré, then Acting Commissioner of Competition, wrote to the Applicant to advise that no further investigation would be undertaken into his complaints without new evidence.
[7] During that same summer, the Applicant brought complaints against virtually every member of the Competition Bureau staff who had investigated his allegations, charging that they, and the Bureau, were obstructing justice by impending an inquiry.
[8] These complaints were also investigated and found to be unsubstantiated.
[9] Six days after having exhausted his obstruction of justice complaints, the Applicant and five other Canadian residents filed an application under section 9 of the Act demanding that the Commissioner reinvestigate three of his complaints. It is this section 9 application with respect to which the Applicant seeks herein to compel a status report under subsection 10(2) of the Act.
[10] The Applicant's first complaint is as follows:
1) The product pricing arrangement of Delta Controls, for Durell Controls Systems, does not provide discounts to the competitors of Durell Controls. This constitutes an ‘illegal trade practice' covered under section 50(1)(a) of the Competition Act. The primary evidence is contained in the Delta-Durell agreement referenced by the Bureau.
Besruky Affidavit, Respondent's Application Record, Tab 1KK, p. 573
[11] I have reviewed this information and I am satisfied that the complaint was investigated and reported to Mr. Charette as shown by correspondence dated November 2, 1999, January 28, 2000, March 9 and 31, 2000, April 19, 2000 and August 2000. The Competition Bureau informed Mr. Charette that its investigation had indicated that neither Delta nor Durell had violated the price discrimination provisions of the Act by entering into and implementing the distributorship agreement referred to in Mr. Charette's complaint.
[12] The Applicant's second complaint is as follows:
2) The misleading representation by Delta Controls and Durell Controls which led clients to believe that Basis was not an acceptable service provider, in order to promote services by Durell. The primary evidence is contained in the letters of November 8, 1999 by Delta and Durell, in the possession of the Bureau. The circulation of the letters by a competitor is in contravention of section 52 (False or misleading representations).
Besruky Affidavit, Respondent's Application Record, Tab1KK, p.573
[13] I have reviewed this information and again I am satisfied that it has been investigated and fully reported to Mr. Charette. For example, Mr. Jorré wrote to Mr. Charette on August 28, 2000, as follows:
[...] In addition, we have also reviewed your complaint under the misleading representations and deceptive marketing practices provisions of the Act regarding Durell's claims that it is the only authorized distributor of the equipment in question in the region. Based on our review, we have concluded that such claims do not raise an issue under any of the above-referenced sections.
[...]
The Bureau has carried out a careful and extensive examination of all of your complaints over the past year and a half. This examination has concluded that the Commissioner does not have reason to believe to commence an inquiry into this matter. Accordingly, I would encourage you to seek other avenues which may be better suited to addressing your concerns.
Besruky Affidavit, Exhibits "N", "P" and "DD", Respondent's Application Record, Tab 1 "N", "P" and "DD", pp. 185, 195 and 478.
[14] The Applicant's third complaint is as follows:
3) The attempt to prevent an inquiry, by Bureau's investigating commerce officer Eugene Besruky, was in contravention of section 64 (obstruction). The primary evidence is contained in his email of January 28, 2000 which showed the officer attempted to ‘close the case' even after the officer withdrew his reason as to why he thought the section 50 (illegal trade practice) provision did not apply. No opportunity to prepare the ‘case material fact' documents was provided. No reference to a section 9 (application for an inquiry) was made in the email.
Besruky Affidavit, Respondent's Application Record, Tab1KK, p. 573
[15] I have reviewed this information and again I am satisfied that the matter has been thoroughly investigated and reported to in detail to Mr. Charette by letters dated August 28, 2000, February 14, 2001, and March 20, 2001.
[16] Thus, in my opinion, the Respondent has already fully performed the legal duty that it owed to the Applicant. It has investigated his complaints, determined that an inquiry was not warranted, and has advised him of the result.
[17] The only difference between the Applicant's current application and his previous complaints is the way in which the inquiry was initiated. The right to have a complaint investigated in the case at bar (section 9 application) can be pursued by either bringing a complaint to the Commissioner under paragraph 10(1)(b) of the Act or by initiating a formal complaint under Section 9 triggering an inquiry under paragraph 10(1)(a) of the Act.
[18] As pointed out by the Respondent, it is significant that the same criteria with respect to which the Commissioner must be satisfied before being authorized to commence an inquiry under section10(1)(b) of the Act appear verbatim in section 9 of the Act.
[19] I believe that once a complainant has exhausted one of the above-mentioned routes his rights must be spent subject to presenting material new evidence.
[20] To find otherwise would lead to absurd results:
· First, a complainant would be able to force the Commissioner into an inquiry by bringing his complaint under section 9 in circumstances where the Commissioner would have been forbidden to do so because he would have already determined under paragraph 10(1)b) that no grounds exist to warrant an inquiry.
· Secondly, identical complaints could be submitted one after another without new facts being raised and without any possibility for the Commissioner to put an end to it, thus paralysing the Commissioner in the performance of his statutory duty.
[21] I find support for this view in Binnie J.'s comments (dealing with issue estoppel) in Danyluk v. Ainsworth Technologies Inc., [2001] 2 S.C.R. 460 at paras. 20-21 where he explained that the law has developed a number of techniques to prevent abuse of the decision-making process:
The law has developed a number of techniques to prevent abuse of the decision-making process. One of the oldest is the doctrine estoppel per rem judicatem with its roots in Roman law, the idea that a dispute once judged with finality is not subject to relitigation: Farwell v. The Queen (1894), 22 S.C.R. 553, at p. 558; [1975] 2 S.C.R. 248">Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248, at pp. 267-68. The bar extends both to the cause of action thus adjudicated (variously referred to as claim or cause of action or action estoppel), as well as precluding relitigation of the constituent issues or material facts necessarily embraced therein (usually called issue estoppel): G. S. Holmested and G. D. Watson, Ontario Civil Procedure (loose-leaf), vol. 3 Supp., at 21 § 17 et seq. Another aspect of the judicial policy favouring finality is the rule against collateral attack, i.e., that a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law for the express purpose of attacking it: [1983] 2 S.C.R. 594=">Wilson v. The Queen, [1983] 2 S.C.R. 594; R. v. Litchfield, [1993] 4 S.C.R. 333; R. v. Sarson, [1996] 2 S.C.R. 223. [Emphasis mine].
These rules were initially developed in the context of prior court proceedings. They have since been extended, with some necessary modifications, to decisions classified as being of a judicial or quasi-judicial nature pronounced by administrative officers and tribunals. In that context the more specific objective is to balance fairness to the parties with the protection of the administrative decision-making process, whose integrity would be undermined by too readily permitting collateral attack or relitigation of issues once decided. [Emphasis mine].
[22] Section 10 of the Act should be interpreted in light of these principles. Surely, the Applicant does not have a legal right to have the same complaint investigated by the Commissioner repeatedly without any new evidence being presented.
[23] In the event that the Applicant would have been entitled to an order in the nature of a mandamus, I would not have used my discretion to grant the relief sought. The granting of a mandamus order is purely discretionary. In the case at bar, it is apparent that the Applicant's actions amount to an abuse of process. As mentioned above he is trying to have essentially the same complaints reexamined by the Respondent.
[24] Furthermore, the balance of convenience does not favour the issuing of a mandamus order as the administrative cost that would follow is obvious and unacceptable (Apotex Inc. v. Canada, [1994] 1 F.C. 742 (C.A.) at p. 791; See also Re Central Canada Potash Co. Ltd. et al. and Minister of Mineral Resources for Saskatchewan (1972), 30 D.L.R. (3d) 480 (Sask. Q.B.); aff'd (1973), 32 D.L.R. (3d) 107 at 115 (Sask. C.A.)). It would set a dangerous precedent, to wit, that complainants may submit the same complaint again without adducing any new evidence. This would monopolize Bureau resources to the detriment of the public interest in the effective operation of the Act.
[25] For these reasons, the Applicant's application for an order in the nature of a mandamus is denied, with costs.
ORDER
THIS COURT ORDERS THAT:
The application for an order of mandamus is denied, with costs.
"Danièle Tremblay-Lamer"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1703-01
STYLE OF CAUSE: KIRK CHARETTE v. THE COMMISSIONER OF COMPETITION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 12, 2002
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATED: June 20, 2002
APPEARANCES:
Mr. Kirk Charette APPEARING ON HIS OWN BEHALF
Ms. Melanie Aitken FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Kirk Charette APPEARING ON HIS OWN BEHALF
London, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General
of Canada
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