Date: 20041101
Docket: A-115-04
Citation: 2004 FCA 368
Present: ROTHSTEIN J.A.
BETWEEN:
LA-Z-BOY CANADA LTD.
Appellant
(Respondent)
and
ALLAN MORGAN AND SONS LTD.
Respondent
(Applicant)
Heard at Ottawa, Ontario, on October 28, 2004.
Order delivered at Ottawa, Ontario, on October 28, 2004.
REASONS FOR ORDER BY: ROTHSTEIN J.A.
Date: 20041101
Docket: A-115-04
Citation: 2004 FCA 368
Present: ROTHSTEIN J.A.
BETWEEN:
LA-Z-BOY CANADA LTD.
Appellant
(Respondent)
and
ALLAN MORGAN AND SONS LTD.
Respondent
(Applicant)
REASONS FOR ORDER
ROTHSTEIN J.A.
[1] This is a cross-motion by the appellant La-Z-Boy Canada Ltd. ("La-Z-Boy") to extend time to file a Notice of Appeal. It is a cross-motion because the respondent Allan Morgan and Sons Ltd. ("Morgan") had originally brought a motion to amend its Memorandum of Fact and Law to include the argument that La-Z-Boy had filed its Notice of Appeal out of time. It was agreed that a decision on La-Z-Boy's cross-motion to extend time would render Morgan's motion to amend its Memorandum moot.
[2] The appeal is from an Order of the Competition Tribunal granting leave to Morgan to bring a private application to the Tribunal against La-Z-Boy based on section 75 of the Competition Act, which establishes the restrictive trade practice of refusal to deal. Under section 75, the Tribunal may order a supplier to accept an applicant as a customer.
[3] La-Z-Boy's Notice of Appeal was filed twenty-seven days after pronouncement of the Competition Tribunal Order. The issue on this application is whether La-Z-Boy had to file its Notice of Appeal within ten days after pronouncement of the Competition Tribunal's Order pursuant to paragraph 27(2)(a) of the Federal Courts Act and, if so, whether this Court should exercise its discretion to grant the requested extension of time.
[4] The first question is whether the ten day time limit in paragraph 27(2)(a) applies to orders of the Competition Tribunal. Subsection 13(1) of the Competition Tribunal Act provides:
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13. (1) Subject to subsection (2), an appeal lies to the Federal Court of Appeal from any decision or order, whether final, interlocutory or interim, of the Tribunal as if it were a judgment of the Federal Court.
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13. (1) Sous réserve du paragraphe (2), les décisions ou ordonnances du Tribunal, que celles-ci soient définitives, interlocutoires ou provisoires, sont susceptibles d'appel devant la Cour d'appel fédérale tout comme s'il s'agissait de jugements de la Cour fédérale.
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[5] Because the Order of the Competition Tribunal is to be treated as if it were a judgment of the Federal Court, subsection 27(1) of the Federal Courts Act is made applicable. Subsection 27(1) provides:
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27. (1) An appeal lies to the Federal Court of Appeal from any of the following decisions of the Federal Court:
(a) a final judgment;
(b) a judgment on a question of law determined before trial;
(c) an interlocutory judgment; or
(d) a determination on a reference made by a federal board, commission or other tribunal or the Attorney General of Canada.
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27. (1) Il peut être interjeté appel, devant la Cour d'appel fédérale, des décisions suivantes de la Cour fédérale_:
a) jugement définitif;
b) jugement sur une question de droit rendu avant l'instruction;
c) jugement interlocutoire;
d) jugement sur un renvoi d'un office fédéral ou du procureur général du Canada.
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[6] Pursuant to paragraph 27(2)(a), the time for filing an appeal is within ten days after the pronouncement of the decision if it is interlocutory. In any other case, the time for filing is thirty days after pronouncement pursuant to paragraph 27(2)(b). Paragraph 27(2) provides:
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27(2) An appeal under this section shall be brought by filing a notice of appeal in the Registry of the Federal Court of Appeal
(a) in the case of an interlocutory judgment, within 10 days after the pronouncement of the judgment or within any further time that a judge of the Federal Court of Appeal may fix or allow before or after the end of those 10 days; and
(b) in any other case, within 30 days, not including any days in July and August, after the pronouncement of the judgment or determination appealed from or within any further time that a judge of the Federal Court of Appeal may fix or allow before or after the end of those 30 days.
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27(2) L'appel interjeté dans le cadre du présent article est formé par le dépôt d'un avis au greffe de la Cour d'appel fédérale, dans le délai imparti à compter du prononcé du jugement en cause ou dans le délai supplémentaire qu'un juge de la Cour d'appel fédérale peut, soit avant soit après l'expiration de celui-ci, accorder. Le délai imparti est de_:
a) dix jours, dans le cas d'un jugement interlocutoire;
b) trente jours, compte non tenu de juillet et août, dans le cas des autres jugements.
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[7] Whether an order is considered interlocutory or final will depend on its character and its effect. If the order determines substantive rights of the parties, it will be considered final. In the present case, the appeal is from an Order granting leave to bring a private application under subsection 103.1(7) of the Competition Act. An order granting leave is interlocutory in its character because it does not determine the substantive rights of the parties. Those substantive rights will only be determined after the Tribunal conducts its proceedings and determines the merits of the private application. Had the leave application been denied, it would have been a final order because the substantive rights claimed by Morgan would have been determined. See Kealey v. Canada (F.C.A.) (1992), 139 N.R. 189 at 191.
[8] As a result, La-Z-Boy's Notice of Appeal was filed out of time and if the appeal is to proceed, an order extending time is necessary.
[9] In Sim v. Canada (1996), 67 C.P.R. (3d) 334, Hargrave P. succinctly summarized the considerations on an application to extend time:
1. Whether the appeal itself has merit; there must be arguable issues to put before the Court of Appeal;
2. The special circumstances showing or explaining why the appeal was not brought within the required time;
3. The intention of the plaintiff to appeal existed before the time for appeal ran out;
4. Whether the delay has been excessive;
5. Whether the Crown will be prejudiced by an extension of time within which to appeal; and
6. Whether it is in the interests of justice to grant the time extension.
See also Karon Resources Inc. v. Minister of National Revenue (1994), 71 F.T.R. 232 per Simpson J.
[10] The evidence satisfies me that there was a continuing intention by La-Z-Boy to pursue the appeal commencing before the ten day time limit ran out, that there are special circumstances that explain the delay, and that the delay has not been excessive. Morgan, however, submits that there is no merit to the appeal and that it will suffer prejudice if an extension of time is granted.
[11] As to the merits, the legal point raised by La-Z-Boy is that the Competition Tribunal member who granted leave erred by not taking into account whether the reviewable restrictive trade practice alleged by Morgan could be the subject of a tribunal order under section 75 of the Competition Act. The same issue was dealt with by this Court in Symbol Technologies Canada ULC v. Barcode Systems Inc., 2004 FCA 339. In that case, this Court found that the Competition Tribunal member who granted leave had erred in law in not considering whether the practice alleged could be the subject of a tribunal order under section 75. As this appeal involves the same issue, it would seem that there is merit to the appeal in the sense that there is an arguable issue to be put before the Court.
[12] However, Morgan says that even if the same error of law as found in Symbol v. Barcode, could be demonstrated in this appeal, that, as in Symbol v. Barcode, there is sufficient evidence in the record for this Court to exercise its own discretion. Having regard to the low standard of proof on a leave application, Morgan submitted that this Court could be expected to determine the matter and allow the Competition Tribunal Order granting leave to stand. There are three difficulties with this argument.
[13] The first is that the material before me on this motion does not include the evidence that was before the Competition Tribunal member. At this stage, I have no basis upon which to determine how this Court might exercise its discretion.
[14] The second is that La-Z-Boy only need show that there is an arguable issue to put before the Court of Appeal. It need not demonstrate that it will definitely be successful in the appeal.
[15] The third is that as a single judge on a motion to extend time, I am not in a position to determine how the panel hearing the appeal might exercise its discretion.
[16] For these reasons, I am satisfied that La-Z-Boy has satisfied the requirements that it demonstrate that its appeal has merit.
[17] Finally, Morgan argues that it will be prejudiced because if it is successful in this appeal, it will have incurred unrecoverable costs. It says that its solicitor and client fees and disbursements for preparation and attendance at the appeal will approximate $5,000.
[18] I do not think that unrecoverable costs of an appeal are the prejudice that needs to be shown when resisting an application to extend time. The relevant prejudice must result from the granting of the extension. Morgan has not shown any prejudice that it will suffer if the extension is granted and the appeal is allowed to proceed. In any event, counsel for La-Z-Boy has indicated that if the Court were to make an award to Morgan of $5,000 for fees and disbursements if it is successful on the appeal, that such an award would not be unreasonable.
[19] Where the application for an extension of time satisfies all the other criteria for the granting of an extension of time, and in particular, that there is merit to the appeal, it is in the interests of justice that the extension be granted.
[20] La-Z-Boy's cross-motion for an extension of time necessary to file its Notice of Appeal in this matter will be granted. Morgan's motion to amend its Memorandum of Fact and Law will be dismissed as moot.
"Marshall Rothstein"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-115-04
Cross-motion on behalf of the appellant for an extension of time to file a Notice of Appeal
STYLE OF CAUSE: LA-Z-BOY CANADA LTD.
v.
ALLAN MORGAN AND SONS LTD.
PLACE OF HEARING: Ottawa
DATE OF HEARING: October 28, 2004
REASONS FOR ORDER: Rothstein J.A.
DATED: November 1, 2004
APPEARANCES:
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Ms. Kristina Savi-Mascaro
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FOR THE APPELLANT
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Ms. Deborah Hutchings
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Wilson Walker LLP
Windsor, Ontario
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FOR THE APPELLANT
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McInnes Cooper
St. John's, Newfoundland
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FOR THE RESPONDENT
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