Reliance Comfort Limited Partnership v. Commissioner of Competition, 2013 FCA 129

Date: 20130514

Docket: A-113-13

Citation: 2013 FCA 129

CORAM:       NOËL J.A.

                        GAUTHIER J.A.

                        NEAR J.A.

BETWEEN:

RELIANCE COMFOFT LIMITED PARTNERSHIP

Appellant

and

THE COMMISSIONER OF COMPETITION

Respondent

Heard at Ottawa, Ontario, on May 14, 2013.

Judgment delivered from the Bench at Ottawa, Ontario, on May 14, 2013.

REASONS FOR JUDGMENT OF THE COURT BY:                                                  NOËL J.A.

Date: 20130514

Docket: A-113-13

Citation: 2013 FCA 129

CORAM:       NOËL J.A.

                        GAUTHIER J.A.

                        NEAR J.A.

BETWEEN:

RELIANCE COMFOFT LIMITED PARTNERSHIP

Appellant

and

THE COMMISSIONER OF COMPETITION

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Ottawa, Ontario, on May 14, 2013.)

NOËL J.A.

[1]               Reliance Comfort Limited Partnership (the appellant) appeals from interlocutory orders issued by Rennie J. sitting as a member of the Competition Tribunal (the Tribunal) denying its motion to strike the Notice of Application filed by the Commissioner of Competition (the respondent) pursuant to Rule 221 of the Federal Courts Rules, SOR/98-106 and allowing, in part only, its alternative request to obtain better particulars pursuant to Rule 181(2). The application sought to be struck was filed pursuant to subsection 79(1) of the Competition Act, R.S.C. 1985, c.
C-34.

[2]               The appellant has framed its argument on appeal on the basis that no deference is owed to the Tribunal (appellant’s memorandum, para. 13). Specifically, it contends that whether a pleading discloses a cause of action is a question of law. Relying on the decision of the Supreme Court in Housen v. Nikolaisen, 2002 SCC 33 (Housen) and on a recent decision of this Court in Tervita Corporation v. Commissioner of Competition, 2013 FCA 28 (Tervita), the appellant submits that the standard applicable to the review of the Tribunal’s decision is that of correctness.

[3]               However as pointed out by the respondent in his memorandum, neither Housen nor Tervita relate to a motion to strike. Granting or refusing a motion to strike is a discretionary decision which can only be overturned if the motions judge proceeded on a wrong principle, gave insufficient weight to relevant factors, misapprehended the facts or where an obvious injustice would result (Apotex Inc. v. Canada (Governor in Council), 2007 FCA 374, para. 15).

[4]               A similar level of deference applies to orders made pursuant to Rule 181(2) to obtain further and better particulars given the use of the word “may”.

[5]               In support of its appeal, the appellant essentially reiterates the arguments advanced before Rennie J. and asks this Court to come to a different conclusion. These arguments have been extensively addressed by Rennie J. and keeping in mind the discretionary nature of the orders under appeal we are unable to identify any error of the type which would allow for our intervention.

[6]               The only issue which was not fully addressed relates to the non-exhaustive enumerations, examples of which can be found in paragraphs 17, 22, 29 and 40 of the application which use words such as “includes”, “including” and “among other things”. The appellant relies on the decision of the Supreme Court in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at paragraph 22 to assert that such pleadings when made in the hope that new facts may establish the existence of a cause of action are improper and that they ought to be struck together with the application as a whole.

[7]               Rennie J. declined to do so. It is clear from his reasons that he was satisfied that the application discloses a cause of action with or without the open-ended pleadings (reasons, paras. 17 to 39). We can detect no error in this regard. This is not a case where the existence of the cause of action can be said to be dependent on facts which may turn up during discovery.

[8]               Rennie J. also held that these open-ended pleadings did not entitle the appellant to further and better particulars. He did so because he was satisfied that whether additional items should be included as a result of these open-ended pleadings is a matter within the knowledge of the appellant. Thus, the open-ended terminology does not prevent the appellant from knowing the case it has to meet (reasons, para. 46).

[9]               Given the limited evidence filed by the appellant in support of its motion for particulars, we can detect no error in this reasoning. The issue on a motion for particulars is whether the particulars are necessary for the purpose of allowing the other party to respond, and it was open to the Federal Court judge to hold that the appellant knows the case to which it must respond.

[10]           The appeal will accordingly be dismissed with costs.

“Marc Noël”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                             A-113-13

APPEAL FROM A DECISION OF THE COMPETITION TRIBUNAL RENDERED BY THE HONOURABLE MR. JUSTICE RENNIE DATED MARCH 12, 2013, FILE NO. CT-2012-002.

STYLE OF CAUSE:                                                            RELIANCE COMFORT LIMITED PARTNERSHIP and THE COMMISSIONER OF COMPETITION

PLACE OF HEARING:                                                      Ottawa, Ontario

DATE OF HEARING:                                                        May 14, 2013

REASONS FOR JUDGMENT OF THE COURT BY:   Noël, Gauthier, Near JJ.A.

DELIVERED FROM THE BENCH BY:                         Noël J.A.

APPEARANCES:

SOLICITORS OF RECORD: