[1] This is an appeal from two decisions of the Competition Tribunal (Tribunal). The Commissioner of Competition (Commissioner) sought an order from the Tribunal pursuant to section 92 of the Competition Act, R.S.C. 1985, c. C-34 requiring the appellant, Canadian Waste Services (CWS), to divest the Ridge Landfill facility acquired by CWS as a part of a purchase of shares and assets in the waste disposal business from Browning-Ferring Industries Ltd. in March 2000.

[2] The Tribunal concluded that the merger would substantially prevent or lessen competition in the Greater Toronto Area and the Chatham-Kent area. In a second decision, the Tribunal concluded that the appropriate remedy was the divestiture of the Ridge landfill.

[3] CWS appeals both decisions to this Court. The Ridge is now being held separately from CWS in accordance with a Consent Order.

[4] The central issue in this case is whether there would be an excess of capacity of disposal sites for waste in Southern Ontario in the future. The Tribunal concluded that there would be excess capacity for disposal of waste following the merger based on its analysis of changes in capacity and demand.

Standard of Review

[5] CWS does not allege that the Tribunal made any pure errors of law but rather that it made errors of fact and errors of mixed fact and law. In essence, CWS has asked this Court to retry the case that was heard and decided by the Tribunal. However, the findings which CWS attacks fall squarely within the Tribunal's specialized expertise and should therefore be given deference.

[6] The appropriate standard of review for this Tribunal's findings on questions of mixed fact and law has already been decided by the Supreme Court of Canada in Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748, to be reasonableness simpliciter.

[7] The appropriate standard of review for findings of fact of the Tribunal is patent unreasonableness.

Conclusion

[8] The appellants have not established that the Tribunal made any reviewable error in reaching its conclusion that the merger would likely result in a substantial lessening or prevention of competition in the GTA or in the Chatham-Kent area.

[9] Further, the Tribunal did not commit any reviewable error in holding that the divestiture of the Ridge landfill was the effective remedy in the circumstances.

[10] Accordingly, both appeals will be dismissed with one set of costs to the respondent.

"J. Richard"

Chief Justice

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-644-01 and A-45-02

STYLE OF CAUSE: CANADIAN WASTE SERVICES HOLDINGS INC. ET AL. v. COMMISSIONER OF COMPETITION ET AL.

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: March 11 and 12, 2003

REASONS FOR JUDGMENT OF THE COURT (Richard, C.J., Noël, Sexton JJ.A.)

RENDERED FROM THE BENCH BY: Richard, C.J.

APPEARANCES:

Mr. David W. Scott, Q.C. for Appellants

Mr. Shawn C. D. Neylan for the Appellants

Mr. Nicholas P. McHaffie

Mr. Donald B. Houston for the Respondent

Mr. W. Michael G. Osborne

Ms. Josée S. Gravelle

Mr. André Brantz for the Respondent

Mr. Anthony E. Fleming for the Intervener

SOLICITORS OF RECORD:

Borden Ladner Gervais LLP for the Appellants

Ottawa, Ontario

Stikeman Elliott for the Appellants

Toronto and Ottawa, Ontario

Kelly Affleck Greene for the Respondent

Toronto, Ontario

Mr. Morris Rosenberg for the Respondent

Deputy Attorney General of Canada

Ottawa, Ontario

Wilms & Shier for the Intervener

Toronto, Ontario

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Canada Waste Services Holdings Inc. v. Canada (Commissioner of Competition), 2003 FCA 131

Citations2003 FCA 131

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2003 FCA 131