Burns Lake Native Development Corporation v. Canada (Commissioner of Competition), 2005 FCA 256

Date: 20050715

Docket: A-189-05

Citation: 2005 FCA 256

Present:           LÉTOURNEAU J.A.

IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34, as amended, and ss. 3 and 49 of the Competition Tribunal Rules, Can. Reg. SOR/94-290;

AND IN THE MATTER OF the acquisition by West Fraser Timber Co. Ltd. of Weldwood of Canada Limited;

AND IN THE MATTER OF an application under Section 106(2) of the Competition Act by Burns Lake Native Development Corporation, Lake Babine Nation, Burns Lake Band, Nee Tahi Buhn Indian Band to rescind or vary the Consent Agreement between the Commissioner of Competition and West Fraser Timber Co. Ltd. and West Fraser Mills Ltd. filed and registered with the Competition Tribunal on December 7, 2004, under s. 105 of the Competition Act.

BETWEEN:

                                 BURNS LAKE NATIVE DEVELOPMENT CORPORATION, COUNCIL OF LAKE

                                 BABINE NATION AND EMMA PALMANTIER, ON HER OWN BEHALF AND ON

                                BEHALF OF ALL MEMBERS OF LAKE BABINE NATION, COUNCIL OF BURNS

                                LAKE BAND AND ROBERT CHARLIE, ON HIS OWN BEHALF AND ON BEHALF

                               OF ALL MEMBERS OF BURNS LAKE BAND and COUNCIL OF NEE TAHI BUHN

                               INDIAN BAND AND RAY MORRIS, ON HIS OWN BEHALF AND ON BEHALF OF

                                                         ALL MEMBERS OF NEE TAHI BUHN INDIAN BAND

                                                                                                                                                                                             Appellants

                                                                                                     and

                                     COMMISSIONER OF COMPETITION, WEST FRASER TIMBER CO. LTD.

                                                                           and WEST FRASER MILLS LTD.

                                                                                                                                                                                          Respondents

                                        Dealt with in writing without appearance of parties.

                                     Order delivered at Ottawa, Ontario, on July 15, 2005.

REASONS FOR ORDER BY:                                                                            LÉTOURNEAU J.A.

Date: 20050715

Docket: A-189-05

Citation: 2005 FCA 256

Present:           LÉTOURNEAU J.A.

IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34, as amended, and ss. 3 and 49 of the Competition Tribunal Rules, Can. Reg. SOR/94-290;

AND IN THE MATTER OF the acquisition by West Fraser Timber Co. Ltd. of Weldwood of Canada Limited;

AND IN THE MATTER OF an application under Section 106(2) of the Competition Act by Burns Lake Native Development Corporation, Lake Babine Nation, Burns Lake Band, Nee Tahi Buhn Indian Band to rescind or vary the Consent Agreement between the Commissioner of Competition and West Fraser Timber Co. Ltd. and West Fraser Mills Ltd. filed and registered with the Competition Tribunal on December 7, 2004, under s. 105 of the Competition Act.

BETWEEN:

                                 BURNS LAKE NATIVE DEVELOPMENT CORPORATION, COUNCIL OF LAKE

                                 BABINE NATION AND EMMA PALMANTIER, ON HER OWN BEHALF AND ON

                                BEHALF OF ALL MEMBERS OF LAKE BABINE NATION, COUNCIL OF BURNS

                                LAKE BAND AND ROBERT CHARLIE, ON HIS OWN BEHALF AND ON BEHALF

                               OF ALL MEMBERS OF BURNS LAKE BAND and COUNCIL OF NEE TAHI BUHN

                               INDIAN BAND AND RAY MORRIS, ON HIS OWN BEHALF AND ON BEHALF OF

                                                         ALL MEMBERS OF NEE TAHI BUHN INDIAN BAND

                                                                                                                                                                                             Appellants

                                                                                                     and

                                     COMMISSIONER OF COMPETITION, WEST FRASER TIMBER CO. LTD.

                                                                           and WEST FRASER MILLS LTD.

                                                                                                                                                                                          Respondents

                                                        REASONS FOR ORDER

LÉTOURNEAU J.A.

[1]                The appellants filed a motion to have the content of the appeal book determined by the Court pursuant to Rule 343(3) of the Federal Courts Rules. The Commissioner of competition opposes the motion. He objects to the appellants' request that the following material be included in the appeal book:

a)         the Direction from Justice Simpson dated February 23, 2005;

b)         the written submissions to the Tribunal in response to the directions; and

c)         the Memorandum of Argument of the Commissioner.

He submits that this material is irrelevant and not required for a determination of the issues in the appeal proceedings. He also objects to the affidavit of Ms. Suzanne Wood in support of the motion and requests that some passages be struck. He also seeks directions from the Court as to a cross-examination of Ms. Wood pursuant to Rule 83. Counsel for the appellants has not responded to the Commissioner's request regarding the affidavit.

[2]                I shall begin with the issues on appeal.

The issues on appeal

[3]                The appeal is against an Order of the Competition Tribunal wherein the Chairperson of the Tribunal determined that the Reference procedure in subsection 124.2(2) of the Competition Act, R.S.C. 1985, c. C-34 (Act) is an appropriate procedure for determining preliminary issues. In a Notice of Reference, the Commissioner sought to have the Tribunal determine three questions of law. One of these questions was whether the appellants were "directly affected persons" under subsection 106(2) of the Act, in other words, whether they had standing to seek a variation or a rescission of a Consent Agreement registered with the Competition Tribunal regarding the acquisition of certain assets.

[4]                The issue of the appellants' standing is still pending before the Tribunal. It is therefore not the subject of the present appeal. The appeal only relates to the Tribunal's decision that the Reference procedure was an appropriate procedure to consider the appellants' standing to bring an application to challenge the Consent Agreement. It relates to the availability of the Reference procedure.

The Direction from Justice Simpson dated February 23, 2005

[5]                On February 23, 2005, the Chairperson of the Tribunal issued a Direction to the parties seeking their views as to the appropriateness of using the Reference procedure with an agreed Statement of Facts to have the preliminary question of the appellants' standing determined.

[6]                This Direction predates the debate before the Tribunal and the ensuing Order that is challenged. Frankly, I can see nothing in it that could assist this Court in deciding the issues raised on appeal. It merely establishes the uncontested fact that the Chairperson of the Tribunal sought the views of the parties on a procedural aspect. I do not see the need to include that Direction in the appeal book.

The written submissions made to the Chairperson of the Tribunal in response to the Direction

[7]                As requested, the parties submitted their views as to the appropriateness for having the standing of the appellants determined as a preliminary issue before engaging into a lengthy and costly hearing. The appellants disagreed with this process because they felt that the question of their standing could not be assessed without first resolving certain contested material facts not yet pleaded. They were of the opinion that the issue could not be dissociated from the merit of the case, that there would be redundancy in terms of hearings, and that, in the end, the proceedings would be delayed rather than expedited.

[8]                These submissions made to the Chairperson of the Tribunal are submissions that can be made on the present appeal if they are still relevant and appropriate in view of the decision rendered by the Tribunal. What is before this Court is the decision of the Tribunal with its reasons in support. This is what the parties have to address. They may borrow from their previous arguments if they want to and include them in their Memoranda of Facts and Law. There is no need, however, to duplicate them before this Court by including them in the appeal book or to include, in the appeal book, previous submissions that may have become irrelevant or that may have been abandoned in part.

[9]                I do not see the usefulness of including, in the appeal book, these submissions to the Tribunal. The appellants cite in support of their position the case of Deigan v. Canada (Treasury Board), [2000] F.C.J. No. 134 (F.C.A.). This case is one in which the appellant was a self-represented litigant and there was some confusion as to the appellant's material. The Court believed it would assist if the appellant's material filed on the judicial review proceeding should be made part of the record. I agree with the thrust of Sharlow J.A.'s decision in Montana Band v. Canada, [2001] F.C.J. No. 881 that inclusion in the appeal book of the submissions made in the court below is the exception rather than the rule.

The Memorandum of Argument of the Commissioner on the Reference

[10]            The Commissioner's Memorandum of Argument before the Tribunal addresses both the issue of the appropriateness of using the Reference procedure and that of the merit of the appellants' status or capacity to bring the application. As previously mentioned, this last issue is not before us. There is no point in bringing before this Court material relating to an issue still to come or that may never come.

[11]            I would also deny this part of the motion relating to the inclusion of the Commissioner's Memorandum of Argument.

The Commissioner's request that irrelevant and improper passages in the affidavit of Ms. Wood be struck

[12]            In answering the appellants' motion, the Commissioner requested that the last sentence of paragraph 4, the reference to "as persons directly affected" in paragraph 5 and paragraph 30 of Ms. Wood's affidavit be struck.

[13]            It is unusual for a party answering a motion to determine the content of the appeal book to seek, in that answer, the striking out of parts of the affidavit given in support of the motion. The normal procedure for striking out an affidavit or parts of it is to bring a motion to that effect. Thus, the party who produced the affidavit can adequately respond by serving and filing a respondent record. It would not be fair to the appellants to rule on the Commissioner's request that part of the affidavit in support of their motion be struck. I am, therefore, denying the Commissioner's request to strike parts of Ms. Wood's affidavit.

[14]            I should add that the Commissioner's criticism of paragraph 30 of the impugned affidavit is not founded. I do not find, in paragraph 30 of the affidavit that was filed with us in support of the motion, any mention by the affiant that "she believes that additional materials should be included in the appeal book".

[15]            As for the last sentence of paragraph 4, the affiant, after having explained an actual requirement of the terms of the Consent Agreement under attack, concluded that this requirement "will have devastating effects on the appellants". It is, at this stage, no more than an unproven general assertion as to prejudice. I do not believe that this general assertion in itself can carry the appellants very far. On the other hand, it helps the reader to understand why the appellants are challenging this requirement contained in the Consent Agreement.

[16]            Finally, in paragraph 5, the affiant merely states a fact: the appellants brought an application, on December 7, 2004, "as persons directly affected", seeking to rescind or vary the Consent Agreement. I do not read this paragraph as conclusive evidence, or a statement that is intended to be conclusive evidence, that the appellants are persons directly affected. This is the issue for the Tribunal to decide. The affiant merely reproduces the legal criterion established by subsection 106(2) of the Act to bring this kind of application. Perhaps it would have been better and more accurate if the affiant had asserted that the appellants brought the application as "persons alleging to be directly affected" (emphasis added). However, I do not think that much turns on this slight nuance since the remedy offered by subsection 106(2) is to "a person directly affected by a consent agreement".

The cross-examination of the affiant

[17]            Should the Commissioner decide to cross-examine the affiant on her affidavit, the cross-examination shall be conducted orally, with due diligence and in any event within 30 days of the present Order, and shall be limited to issues raised in the affidavit.

The content of the appeal book

[18]            The appeal book shall contain the material agreed upon by the parties, but shall not include the material to which the present Order relates.

[19]            For these reasons, the appellants' motion to include in the appeal book:

a)         the direction from the Chairperson of the Competition Tribunal dated February 23, 2005;

b)         the written submissions in response to that direction; and

c)         the Memorandum of Argument of the Commissioner on the Reference.

will be dismissed with costs in the cause.

[20]            The Commissioner's request to strike part of Ms. Wood's affidavit will be denied.

[21]            The cross-examination of Ms. Wood, if necessary, shall be conducted orally, with due diligence and, in any event within 30 days of the present Order. It shall be limited to issues raised in the affidavit.

                                                                                                                               "Gilles Létourneau"                

                                                                                                                                                      J.A.

                                                  FEDERAL COURT OF APPEAL

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          A-189-05

STYLE OF CAUSE:                          BURNS LAKE NATIVE DEVELOPMENT CORPORATION et al. v. COMMISSIONER OF COMPETITION et al.

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES

REASONS FOR ORDER BY:         LÉTOURNEAU J.A.

DATED:                                             July 15, 2005

WRITTEN REPRESENTATIONS BY:

SOLICITORS OF RECORD:

Date: 20050715

Docket: A-189-05

Ottawa, Ontario, July 15, 2005

Present:                                              LÉTOURNEAU J.A.

IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34, as amended, and ss. 3 and 49 of the Competition Tribunal Rules, Can. Reg. SOR/94-290;

AND IN THE MATTER OF the acquisition by West Fraser Timber Co. Ltd. of Weldwood of Canada Limited;

AND IN THE MATTER OF an application under Section 106(2) of the Competition Act by Burns Lake Native Development Corporation, Lake Babine Nation, Burns Lake Band, Nee Tahi Buhn Indian Band to rescind or vary the Consent Agreement between the Commissioner of Competition and West Fraser Timber Co. Ltd. and West Fraser Mills Ltd. filed and registered with the Competition Tribunal on December 7, 2004, under s. 105 of the Competition Act.

BETWEEN:

                                 BURNS LAKE NATIVE DEVELOPMENT CORPORATION, COUNCIL OF LAKE

                                 BABINE NATION AND EMMA PALMANTIER, ON HER OWN BEHALF AND ON

                                BEHALF OF ALL MEMBERS OF LAKE BABINE NATION, COUNCIL OF BURNS

                                LAKE BAND AND ROBERT CHARLIE, ON HIS OWN BEHALF AND ON BEHALF

                               OF ALL MEMBERS OF BURNS LAKE BAND and COUNCIL OF NEE TAHI BUHN

                               INDIAN BAND AND RAY MORRIS, ON HIS OWN BEHALF AND ON BEHALF OF

                                                         ALL MEMBERS OF NEE TAHI BUHN INDIAN BAND

                                                                                                                                                                                             Appellants

                                                                                                     and

                                     COMMISSIONER OF COMPETITION, WEST FRASER TIMBER CO. LTD.

                                                                           and WEST FRASER MILLS LTD.

                                                                                                                                                                                          Respondents

                                                                       ORDER

The appellants' motion to include in the appeal book:

a)                                                        the direction from the Chairperson of the Competition Tribunal dated February 23, 2005;

b)                                                       the written submissions in response to that direction; and

c)                                                        the Memorandum of Argument of the Commissioner on the Reference.

is dismissed with costs in the cause.

The Commissioner's request to strike part of Ms. Wood's affidavit is denied.

The cross-examination of Ms. Wood, if necessary, shall be conducted orally, with due diligence and, in any event within 30 days of the present Order. It shall be limited to issues raised in the affidavit.

                                                                                                                               "Gilles Létourneau"               

                                                                                                                                                      J.A.