Date: 20030909
Citation: 2003 FC 1051
BETWEEN:
KIRK CHARETTE
Plaintiff
and
HONEYWELL LIMITED
Defendant
REASONS FOR ORDER
(As Delivered from the Bench after editing)
[1] This is my decision with respect to both motions, the motion by the Plaintiff for summary judgment, and the Defendant's cross-motion for summary judgment.
[2] The first question is whether there is a genuine issue for trial such that summary judgment is not appropriate. I am satisfied that the materials before the Court are sufficient for the Court to grant summary judgment. I am satisfied from the representations by both parties and from the material on file that there is no important question of fact in dispute. Accordingly there is no genuine issue with respect to a material fact that would best be left for the trial judge. As this is one of the preconditions for the Court to entertain a motion for summary judgment, I am prepared to consider this case appropriate for summary judgment.
[3] The first issue is whether the Defendant Honeywell's requirement that the Plaintiff, Mr. Charette, apply through the Honeywell Authorized Controls Integrator contractor program is a reasonable precondition for Mr. Charette to be provided with Honeywell spare parts and to be certified as a Honeywell service provider or is it a breach of section 45 of the Competition Act, or does it more properly fall under section 75 of the Competition Act with respect to "refusal to deal?"
[4] And the second issue is whether the representations by the Defendant Honeywell on its website constitute a breach of section 52 of the Competition Act.
[5] I do not need to refer the parties to the facts, as I am rendering this decision from the bench after having heard the parties on a regular Monday mornings motions day. I proceed to my analysis.
[6] With respect to section 45 of the Competition Act, which deals with conspiracy, it is my view that section 45, which is one of the most important criminal sections in the Competition Act, is not intended to cover the type of precondition which Honeywell maintains for someone to be qualified as an authorized Honeywell service person, or service provider. There is no conspiracy or arrangement by Honeywell: Honeywell makes clear to everyone that it will only provide its parts and will only authorize persons to service its equipment if that service provider has been accredited by Honeywell. In my opinion this is not the subject matter of a section 45 "arrangement".
[7] The Court recognizes that there is no common-law obligation for one party to contract with another, and this was set out in the Manos Foods International Inc. v. Coca-Cola Ltd. et al. by the Ontario Court of Appeal, reported at (1999) 2 C.P.R. (4th) 283. In that case the Ontario Court of Appeal at paragraph 8 said, on facts which are analogous to facts in the case at bar, that the appellants do not have a corresponding common-law obligation to sell goods to the respondent:
"There is no common-law obligation to contract with another party; parties are free to contract as they see fit. The freedom to contract includes both the ability to enter into contracts and to refrain from entering into contracts."
[8] However, under the Competition Act, there are remedies which will require a supplier of a product to sell that product to persons whose business would be substantially affected if the supplier did not do so. That is the situation at the case at bar. Mr. Charette alleges that the Defendant Honeywell, by not providing him with Honeywell spare parts and not allowing him or recognizing him, to be an authorized service provider, is substantially affecting his business.
[9] The Ontario Court of Appeal said in paragraph 10 of the Manos Foods case that these remedies are available under the Competitions Act, specifically section 75, "refusal to deal". The Court of Appeal said:
"These remedies are within the exclusive jurisdiction of the Competition Tribunal. The respondent has not pursued the relief available under the Competition Act."
[10] The Court finds that the requirement by Honeywell to require potential service providers to participate in an application and an accreditation process is not something that can be seen as a conspiracy to lessen competition under section 45. And for that reason the claim under section 45 for a declaration will be dismissed.
[11] With respect to the refusal to deal issue (section 75 of the Competition Act), the Court concludes that Mr. Charette's complaint is properly characterized as refusal to deal and this subject matter is within the expertise and the exclusive jurisdiction of the Competition Bureau and the Competition Tribunal. Accordingly, this Court does not have jurisdiction to grant an order requiring Honeywell to deal with the Plaintiff, or provide the Plaintiff with its products or its literature.
[12] With respect to the second issue of misrepresentation, Mr. Charette did not actively pursue it, but it was the subject of the Defendant's cross-motion for summary judgment. I have reviewed the website and I am satisfied that the representation makes clear that some of the Honeywell products may only be available through an authorizes service provider or dealer.
[13] Accordingly, the representation has not been shown to be false or misleading in a material respect and this part of the action must also be dismissed.
[14] In this case, the reasonableness of the Defendant Honeywell's preconditions for Mr. Charette to be qualified as a dealer are properly the subject of an investigation by the Competition Bureau and not by this Court. By way of obiter, I wish to add to my reasons from the bench that the proposed agreement between Honeywell and a service provider may very well unreasonably limit or lessen the after market competition for parts and for service. The Competition Bureau and the Competition Tribunal have the expertise to assess this. So for these reasons, the Plaintiff's motion for summary judgment must be dismissed, the Defendant's motion for summary judgment will be allowed.
[15] As a result the action is dismissed.
"Michael A. Kelen"
J.F.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-1480-02
STYLE OF CAUSE: KIRK CHARETTE
Plaintiff
and
HONEYWELL LIMITED
Defendant
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 8, 2003
REASONS FOR ORDER BY: KELEN J.
DATED: SEPTEMBER 9, 2003
APPEARANCES BY: Mr. Kirk Charette (self represented)
For the Plaintiff
Mr. Mahmud Jamal
Mr. Vaso Maric
For the Defendant
SOLICITORS OF RECORD: Kirk Charette
Toronto, Ontario
For the Plaintiff
Osler, Hoskin & Harcourt LLP Toronto, Ontario
For the Defendant
FEDERAL COURT OF CANADA
Date: 20030909
Docket: T-1480-02
BETWEEN:
KIRK CHARETTE
Plaintiff
and
HONEYWELL LIMITED
Defendant
REASONS FOR ORDER