Cinémas Guzzo Inc. v. Canada (Attorney General), 2006 FCA 160

Date: 20060502

Dockets: A-272-05

A-273-05

Citation: 2006 FCA 160

CORAM:       DÉCARY J.A.

                        LÉTOURNEAU J.A.

                        PELLETIER J.A.

BETWEEN:

LES CINÉMAS GUZZO INC.

Appellant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

Hearing held at Montréal, Quebec, on May 2, 2006.

Judgment delivered from the bench at Montréal, Quebec, on May 2, 2006.

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

Date: 20060502

Docket: A-272-05

A-273-05

Citation: 2006 FCA 160

CORAM:       DÉCARY J.A.

                        LÉTOURNEAU J.A.

                        PELLETIER J.A.

BETWEEN:

LES CINÉMAS GUZZO INC.

Appellant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the bench at Montréal, Quebec, on May 2, 2006)

DÉCARY J.A.:

[1]               These are two appeals which were joined for the purposes of the hearing. The following reasons will dispose of both appeals.

[2]               The first appeal (A-272-05) concerns the decision of the motions judge to dismiss the appeal from a decision of Prothonotary Morneau, who had refused to allow the appellant to add a conclusion to its application for judicial review a few days before the hearing. Because this first appeal was unfounded, we dismissed it from the bench without hearing the respondent.

[3]               The second appeal (A-273-05) concerns a decision of the motions judge (2005 FC 691) dismissing the application for judicial review of a decision of the Commissioner of Competition (“Commissioner”) to discontinue the inquiry he had begun into the distribution of motion pictures in Canada.

[4]               The application for judicial review consisted in an order compelling the Commissioner to continue his inquiry. The application essentially relied on the ground that the Commissioner had not acted fairly for numerous reasons, including that the Commissioner allegedly erred in ruling that a decision rendered by the Competition Tribunal in Canada (Director of Investigation and Research) v. Warner Music Canada Ltd. (1997), 78 C.P.R. (3d) 321 applied.

[5]               In our opinion, only this last allegation warranted that we ask counsel for the respondent for her views.

[6]               The situation is unusual, in that the motions judge, while stating that he agreed with the appellant that the Warner decision was not applicable, nevertheless dismissed the application for judicial review. He was therefore necessarily of the opinion that this allegation in itself did not warrant this Court’s intervention in the Commissioner’s exercise of the broad latitude he has in deciding to end an investigation. Moreover, the issue of an order to continue an investigation is discretionary. In the circumstances of this case, which dates back considerably and in which there were multiple, duplicate and discontinued proceedings of all sorts, the appellant made its bed, choosing breach of procedural fairness as its main argument. It is only in this context, in an incidental if not superficial manner, that the application of Warner was argued. Such was also the case in this Court.

[7]               Furthermore, the conclusion of the motions judge on this issue seems to us to be mere obiter, considering it was so obvious on one hand that there was no breach whatsoever of procedural fairness, and on the other hand no serious debate was undertaken concerning the correctness and the application of Warner.

[8]               Accordingly, we are of the opinion that this second appeal must be dismissed.

[9]               Both appeals will be dismissed, with one set of costs.

“Robert Décary”

Certified true translation

Michael Palles

FEDERAL COURT OF APPEAL

SOLICITORS OF RECORD

DOCKETS:                                                                            A-272-05, A-273-05

APPEAL FROM AN ORDER OF MR. JUSTICE PAUL ROULEAU OF THE FEDERAL COURT DATED MAY 13, 2005, DOCKET NO. T-37-03.

STYLE OF CAUSE:                                                              LES CINÉMAS GUZZO INC.

                                                                                                v. THE ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                                        Montréal, Quebec

DATE OF HEARING:                                                          May 2, 2006

REASONS FOR JUDGMENT BY:                                     DÉCARY J.A.

                                                                                                LÉTOURNEAU J.A.

                                                                                                PELLETIER J.A.

DELIVERED AT THE HEARING:                                     DÉCARY J.A.

APPEARANCES:

SOLICITORS OF RECORD: