Date: 20110113
Docket: A-407-10
Citation: 2011 FCA 13
Present: SHARLOW
J.A.
BETWEEN:
GROUPE WESTCO INC.
Appellant
and
NADEAU FERME AVICOLE LIMITÉE /
NADEAU POULTRY FARM LIMITED
Respondent
REASONS FOR ORDER
SHARLOW J.A.
[1]
The
appellant Groupe Westco Inc. (“Westco”) has moved pursuant to Rules 3 and 8 of
the Federal Courts Rules, SOR/98-106, for an order holding this appeal
in abeyance until 30 days after the disposition of two related appeals, A-70-10
and A-133-10. Westco seeks in the alternative an order extending the deadline
for filing the agreement as to the contents of the appeal books. The respondent
Nadeau Ferme Avicole Limitée / Nadeau Poultry Farm Limited (“Nadeau”) opposes
the motion.
[2]
Rules 3
and 8 reads as follows:
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3. These Rules shall be
interpreted and applied so as to secure the just, most expeditious and least
expensive determination of every proceeding on its merits.
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3. Les présentes règles sont
interprétées et appliquées de façon à permettre d’apporter une solution au
litige qui soit juste et la plus expéditive et économique possible.
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8. (1) On motion, the Court may extend or
abridge a period provided by these Rules or fixed by an order.
(2) A motion for an extension of time
may be brought before or after the end of the period sought to be extended.
(3)
Unless the Court directs otherwise, a motion to the Federal Court of Appeal
for an extension of time shall be brought in accordance with rule 369.
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8. (1) La Cour peut, sur requête, proroger
ou abréger tout délai prévu par les présentes règles ou fixé par ordonnance.
(2) La requête visant la prorogation
d’un délai peut être présentée avant ou après l’expiration du délai.
(3) Sauf directives contraires de la
Cour, la requête visant la prorogation d’un délai qui est présentée à la Cour
d’appel fédérale doit l’être selon la règle 369.
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[3]
This
appeal was filed on October 25, 2010. Westco has not taken the first step for
its perfection, namely the filing of an agreement as to the contents of the
appeal book. According to Rule 343(1), that step should have been taken within
30 days after the filing of the notice of appeal. However, the fact that Westco
has not complied with Rule 343(1) does not preclude the Court from entertaining
this motion.
[4]
The appeal
arises out of a proceeding before the Competition Tribunal. In early 2008, Nadeau
was advised by Westco that it would cease to supply Nadeau with live chickens.
In May of 2008, Nadeau applied to the Competition Tribunal for an order under
section 75 of the Competition Act, R.S.C. 1985, c. 34, directing Westco
to accept Nadeau as a customer and continue supplying it with live chickens.
Nadeau also applied for interim relief. On June 26, 2008, the Competition
Tribunal made an order granting Nadeau interim relief. That order required
Westco to supply a certain number of live chickens to Nadeau for a specified
period of time on the usual trade terms.
[5]
Nadeau
subsequently took the position that Westco was operating in contempt of the
interim order and took further proceedings before the Competition Tribunal.
Those proceedings resulted in an order of the Competition Tribunal dated
January 22, 2010 declaring Westco to be in contempt of the interim order.
Westco appealed that declaration (A-70-10). Westco then moved for an order or
direction regarding the interpretation of the interim order. That motion was
dismissed by order dated March 18, 2010. Westco appealed the order dismissing
its interpretation motion (A-133-10). At the moment, Westco’s appeals in
A-70-10 and A-133-10 are scheduled to be heard on March 15, 2011.
[6]
The matter
of the sentencing of Westco for contempt of the interim order was the subject
of further hearings before the Competition Tribunal in July of 2010. The
sentence is set out in an order of the Competition Tribunal dated September 24,
2010. It imposes on Westco a fine of $75,000 payable within 60 days of the order,
and an obligation to pay Nadeau $250,000 in costs. Westco has appealed the
sentencing order, seeking to set it aside. That is the present appeal.
[7]
Nadeau has
cross-appealed the sentencing order, seeking an order requiring Westco to pay costs
on a solicitor and own client basis, which Nadeau has claimed would entitle it
to a further $237,850.48. The Competition Tribunal had rejected Nadeau’s
request for costs on a solicitor and own client basis because it concluded that
the amount claimed was not reasonable and would result in undue punishment for
Westco.
[8]
Westco
wishes to postpone all of the steps required to perfect the sentence appeal and
cross-appeal until 30 days after the disposition of its appeals in A-70-10 and
A-133-10. Westco submits that the requested order is warranted on the grounds
of efficiency. Westco says that if its two appeals are not successful it will
not pursue its sentence appeal, but if either appeal is successful, Westco will
seek an order allowing the sentencing appeal and cross-appeal to proceed in a
manner consistent with that success. Nadeau opposes the motion on the basis
that the requested order is not authorized by Rule 8 or does not meet the test
in Rule 8, or alternatively because it would result in prejudice to Nadeau.
[9]
In my
view, it is appropriate for Westco to cite Rule 8 in support of its motion,
although it could also have cited paragraph 50(1)(b) of the Federal
Courts Act. An order holding an appeal in abeyance pending the occurrence
of a specified event is simply an order that relieves the parties of any
obligation to take the steps required to perfect the appeal after that event has
occurred. Such an order may be viewed as an order extending the time for taking
a step required by the Federal Courts Rules, although the length of the
extension of time is not described by reference to a specific date or number of
days, but by reference to the date on which the anticipated future event
occurs. It may also be viewed as an order for a stay of the appeal proceedings
pursuant to paragraph 50(1)(b) of the Federal Courts Act, R.S.C.
1985, c. F-7, which may be granted if the Court in its discretion concludes
that for any reason it is in the interest of justice that the proceedings be
stayed.
[10]
Nadeau
correctly points out that, according to the jurisprudence relating to Rule 8, the
Court generally is required to consider whether there is a justification for
the delay, an intention of pursuing the matter sought to be delayed, an
arguable case on the merits, and an absence of prejudice to any party opposing
the delay. However, these factors as evolved from the case law do not fetter
the Court’s discretion to grant an extension of time in any case where the
interests of justice require it. This is well explained in one of the leading cases
on point, Grewal v. Canada (Minister of Employment and
Immigration),
[1985] 2 F.C. 263 (C.A.), at pages 277-278) (per Thurlow C.J., Mahoney J.A. concurring
– Marceau J.A. agreed in the result but for different reasons):
But, in the end, whether or not the explanation justifies
the necessary extension must depend on the facts of the particular case and it
would, in my opinion, be wrong to attempt to lay down rules which would fetter
a discretionary power which Parliament has not fettered.
[11]
In my
view, in light of Rule 3 and the fact that Westco could have relied on
paragraph 50(1)(b) of the Federal Courts Act instead of Rule 8,
this seems to me an appropriate case to assess the merits of Nadeau’s motion on
the basis of the Court’s discretion to grant an extension of time where the
interests of justice require it.
[12]
In that
regard, it is my view that there is considerable merit in Westco’s submission
that the motion should be granted in the interest of efficiency. If the
parties are required to prepare for the sentencing appeal and cross-appeal
before the other two appeals are completed, they necessarily will be required
to address a number of possible outcomes of the other two appeals, some of
which will not materialize. On the other hand, if Westco’s motion is granted,
the parties will be able to focus on their position in the sentencing appeal on
the basis of the disposition of the other two appeals, which will make the
appeal procedure more efficient for them and for the Court.
[13]
Nadeau
submits that it will suffer prejudice if Westco’s motion is granted because it
will cause Nadeau to be unduly delayed in pursuing its cross-appeal, and thus
its claim for an increased costs award, in the event Westco’s two appeals do
not succeed. I am not persuaded that a delay in the opportunity to argue for an
increased costs award can fairly be described as a prejudice, at least in the
absence of some basis for concluding that the argument is likely to succeed. I
assume that Nadeau’s claim for an increased costs award can succeed only if the
Court is persuaded that the costs award made by the Competition Tribunal is
based on an error of law or is unreasonable based on the facts. I am in no
position to assess the merits of Nadeau’s position on these points. I conclude
that any prejudice Nadeau might suffer if Westco’s motion is granted is not
sufficient to justify denying the motion.
[14]
For these
reasons, an order will be made granting Westco’s motion for an order holding
this appeal in abeyance for 30 days after the disposition of A-70-10 and A-133-10.
As Westco has not sought costs on this motion, none will be awarded.
“K.
Sharlow”
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