Date: 20010111
Docket: A-539-00
CORAM: STONE J.A.
LÉTOURNEAU J.A.
EVANS J.A.
BETWEEN:
THE COMMISSIONER OF COMPETITION
Appellant
- and -
SUPERIOR PROPANE INC.
and ICG PROPANE INC.
Respondents
Heard at Ottawa, Ontario, on Thursday, January 11, 2001.
Judgment rendered from the Bench on Thursday, January 11, 2001.
REASONS FOR JUDGMENT OF THE COURT BY: STONE J.A.
Date: 20010111
Docket: A-539-00
CORAM: STONE J.A.
LÉTOURNEAU J.A.
EVANS J.A.
BETWEEN:
THE COMMISSIONER OF COMPETITION
Appellant
- and -
SUPERIOR PROPANE INC.
and ICG PROPANE INC.
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario,
on Thursday, January 11, 2001)
STONE J.A.
[1] This is an appeal from an order of the Competition Tribunal dated September 8, 2000, made by the judicial member, Nadon J., acting in that capacity pursuant to subsection 11(1) of the Competition Tribunal Act, R.S.C. 1985, c. C-19 (2nd Supp.).
[2] The Tribunal allowed a motion of the respondents for an order requesting confirmation that the Tribunal's Consent Interim Order dated December 11, 1998 (the "Hold Separate Order") was terminated as at August 30, 2000 on the Tribunal's dismissal of the appellant's application under section 92 of the Competition Act, R.S.C. 1985, c. C-34 (the "Act").
[3] The Hold Separate Order was made pursuant to section 104 of the Act, which reads:
| 104. (1) Where an application has been made for an order under this Part, other than an interim order under section 100, the Tribunal, on application by the Commissioner, may issue such interim order as it considers appropriate, having regard to the principles ordinarily considered by superior courts when granting interlocutory or injunctive relief. (2) An interim order issued under subsection (1) shall be on such terms, and shall have effect for such period of time, as the Tribunal considers necessary and sufficient to meet the circumstances of the case. (3) Where an interim order issued under subsection (1) is in effect, the Commissioner shall proceed as expeditiously as possible to complete proceedings under this Part arising out of the conduct in respect of which the order was issued. |
104. (1) Lorsqu'une demande d'ordon-nance a été faite en application de la présente partie, sauf en ce qui concerne les ordonnances provisoires en vertu de l'article 100, le Tribunal peut, à la demande du commissaire, rendre toute ordonnance provisoire qu'il considère justifiée conformément aux principes normalement pris en considération par les cours supérieures en matières interlocutoires et d'injonction. (2) Une ordonnance provisoire rendue aux termes du paragraphe (1) contient les conditions et a effet pour la durée que le Tribunal estime nécessaires et suffisantes pour parer aux circonstances de l'affaire. (3) Lorsqu'une ordonnance provisoire a force d'application aux termes du paragraphe (1), le commissaire doit avec toute la diligence possible, mener à terme les procédures prévues par la présente partie à l'égard des agissements concernant lesquels l'ordonnance a été rendue. |
[4] The purpose of the section 104 application, as recited in the Hold Separate Order, was "to preserve the ICG Enterprise...as an independent, viable, ongoing and competitive business" for an "interim period". The "interim period" was defined in the order to mean "the period of time commencing on the date of this interim order and ending on such date as agreed upon between the Director and Superior Propane Inc. or as ordered by the Tribunal". Paragraph 31 of the order provided that it was to become effective on the date it was made "and ceases to have effect on the date ordered by the Tribunal".
[5] Nadon J. gave brief reasons for concluding that the Hold Separate Order had lapsed on August 30, 2000. The core of his reasoning appears in paragraphs 4 and 5 of his reasons, where he stated:
| [4] As subsection 104(1) of the Act clearly provides, an interim order may be issued by the Tribunal when an application under Part VIII of the Act has been made. The Commissioner's application for an order under section 92 of the Act is an application under Part VIII. When the hold-separate order of December 11, 1998 was issued, there was before the Tribunal an application by the Commissioner, under Part VIII, which the Tribunal dismissed by its order of August 30, 2000. |
| [5] In my view, by reason of the August 30, 2000 order, the Tribunal no longer has jurisdiction to make interim orders under section 104 of the Act. No application under Part VIII is pending before the Tribunal. The Commissioner's appeal to the Federal Court of Appeal stems from section 13 of the Competition Tribunal Act. |
Nor was Nadon J. assisted by the provisions of paragraph 31 of the Hold Separate Order. As he put it in paragraph 10 of his reasons:
| [10] Since the Tribunal has not yet made an order terminating the hold-separate order, the Commissioner argues that the interim order is still in force. I agree with the respondents that the parties, through their consent, could not confer jurisdiction on the Tribunal, allowing it to make interim orders after the rendering of the August 30, 2000 decision. It goes without saying that the Tribunal itself could not extend its jurisdiction by reason of paragraph [31] of the hold-separate order, nor could the Tribunal extend its jurisdiction by reason of the order made on May 31, 2000. |
[6] Nadon J. found support for his analysis in the reasons given by Teitlebaum J. of September 22, 1992 in Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1992] C.C.T.D. No 11 (Q.L.). He also relied on the preamble to the Hold Separate Order itself where it was recited that the appellant's section 104 application was "to preserve competition in the market and the Competition Tribunal's ability to order appropriate relief pending final disposition by the Competition Tribunal...of the application pursuant to section 92 of the Act".
[7] The appellants submits that Nadon J. erred in several ways in deciding as he did. The first alleged error is the finding that he lacked jurisdiction to make or to continue the Hold Separate Order because the section 92 decision was a "final decision". Second, that he failed to give any or proper consideration to the provisions of subsection 104(2) of the Act to the effect that the order made under subsection 104(1) "shall have effect for such period of time, as the Tribunal considers necessary and sufficient to meet the circumstances of the case". Third, that he ignored the overall scheme of the Act. Fourth, that he adopted an interpretation of section 104 that will create a serious gap in the administration of the Act, which is not mandated by the legislation.
[8] An issue in limine is the standard by which the Court is to review Nadon J.'s decision and order. The appellant submits that the proper standard is that of correctness because the subject matter of the appeal involves a pure question of law. The respondents contend, however, that this Court should apply a standard of reasonableness. We are satisfied that the appropriate standard of review is that of correctness for the reason that whether the Hold Separate Order lapsed on August 30, 2000 or continued or could be continued by the Tribunal after that date depended upon the interpretation of section 104: Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, per Iacobucci J., at paragraphs 35 and 36. Further, it may be noted that as provided in paragraph 12(1)(a) of the Competition Tribunal Act, in any proceedings before the Tribunal "questions of law shall be determined only by the judicial members sitting in those proceedings".
[9] As subsection 104(1) indicates, the jurisdiction to make an order under the section exists "[w]here an application has been made for an order under this Part...". A section 92 application clearly falls within the scope of that language. It is also to be noted that by subsection 104(3) of the Act, where an interim order is issued by the Tribunal, the Commissioner is required to "proceed as expeditiously as possible to complete the proceedings under this Part..." [Emphasis added]. If the right of appeal from the section 92 decision were to be found in Part VIII, where section 104 also appears, it might have lent some weight to an argument that the Hold Separate Order was to continue in effect pending the disposition of the appeal to this Court. In fact, as Nadon J. pointed out, the right of appeal is conferred under a separate statute, by subsection 13(1) of the Competition Tribunal Act. It seems to us that section 104 was not intended to allow for an extension of the Hold Separate Order beyond the date of the section 92 order of August 30, 2000. Further, although section 104 authorizes the Tribunal to make such interim order as it considers appropriate "having regard to the principles ordinarily considered by superior courts when granting interlocutory or injunctive relief", we are not satisfied that these words encompass an intention that the Tribunal be able to continue the Hold Separate Order in effect at the time the section 92 order was rendered until an appeal from that order to this Court is finally disposed of.
[10] This is not to suggest that the appellant would have no legitimate interest in having an order similar to the Hold Separate Order in effect while the appeal process in the courts is running its course. As the appellant properly argued, if the Hold Separate Order does not continue in place while the appeal remains to be disposed of, the respondents are free to proceed with the merger such that it would be at least very difficult to "unscramble the egg" in the event the appellant should succeed in his appeal. Indeed, this concern is apparent from the fact that in September 2000, the appellant moved this Court for an order to stay the operation of the August 30, 2000 order pending the disposition of the appeal to this Court. That the Court had jurisdiction to grant such a stay in the circumstances is apparent from the provisions of Rule 3981 of the Federal Court Rules, 1998 and this Court's jurisprudence: Telecommunications Workers' Union v. Canadian Radio-Television and Telecommunications Commission and CNCP Telecommunications (1988), 86 N.R. 324. The appellants failed to persuade the Court that a stay should be granted and so the motion was dismissed by Linden J.A. on September 19, 2000.
[11] The appeal will be dismissed with costs.
"A.J. Stone"
J.A.
__________________
1 Rule 398 reads:
398. (1) On the motion of a person against whom an order has been made,(a) where the order has not been appealed, the division of the Court that made the order may order that it be stayed; or(b) where a notice of appeal of the order has been issued, a judge of the division of the Court that is to hear the appeal may order that it be stayed. (2) As a condition to granting a stay under subsection (1), a judge may require that the appellant(a) provide security for costs; and(b) do anything required to ensure that the order will be complied with when the stay is lifted. (3) A judge of the division of the Court that is to hear an appeal of an order that has been stayed pending appeal may set aside the stay if the judge is satisfied that the party who sought the stay is not expeditiously proceeding with the appeal or that for any other reason the order should no longer be stayed. |
398. (1) Sur requête d'une personne contre laquelle une ordonnance a été rendue:a) dans le cas où l'ordonnance n'a pas été portée en appel, la section de la Cour qui a rendu l'ordonnance peut surseoir à l'ordonnance;b) dans le cas où un avis d'appel a été délivré, seul un juge de la section de la Cour saisie de l'appel peut surseoir à l'ordonnance. (2) Le juge qui sursoit à l'exécution d'une ordonnance aux termes du paragraphe (1) peut exiger que l'appelant:a) fournisse un cautionnement pour les dépens;b) accomplisse tout acte exigé pour garantir, en cas de confirmation de tout ou partie de l'ordonnance, le respect de l'ordonnance. (3) Un juge de la section de la Cour saisie de l'appel d'une ordonnance qui fait l'objet d'un sursis peut annuler le sursis, s'il est convaincu qu'il n'y a pas lieu de le maintenir, notamment en raison de la lenteur à agir de la partie qui a demandé le sursis. |