T-3101-80
Canadian Javelin Limited (Applicant)
v.
Restrictive Trade Practices Commission
(Respondent)
Trial Division, Mahoney J.—Ottawa, October 14
and 20, 1980.
Prerogative writs — Applications for writs of prohibition
and certiorari to quash orders denying right to question wit
nesses in the course of an investigation pursuant to s. 114 of
the Canada Corporations Act — Application for writ of man-
damus ordering re-attendance of witnesses — Whether reme
dies are available — Applications dismissed — Canada Cor
porations Act, R.S.C. 1970, c. C-32, as amended by R.S.C.
1970 (1st Supp.), c. 10, s. 114(10),(13).
APPLICATIONS.
COUNSEL:
M. L. Phelan and P. S. Bonner for applicant.
D. Scott, Q.C., and J. B. Carr-Harris for
respondent.
SOLICITORS:
Herridge, Tolmie, Ottawa, for applicant.
Scott & Aylen, Ottawa, for respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The affairs and management of
the applicant, hereinafter "Canadian Javelin", are
presently subject of an investigation under section
114 of the Canada Corporations Act.' Canadian
Javelin has been allowed to be present at hearings
but its counsel has been denied the right to ques
tion witnesses. It now seeks writs of certiorari and
prohibition to quash the orders or decisions deny
ing the right to question the witnesses and a writ of
mandamus requiring the respondent, hereinafter
"the Commission", to order re-attendance of those
witnesses to permit their questioning.
R.S.C. 1970, c. C-32, as amended by R.S.C. 1970 (1st
Supp.), c. 10.
The evidence of the witnesses was taken pursu
ant to orders made under subsection 114(10) of
the Act.
114. ...
(10) On ex parte application of the inspector or on his own
motion a member of the Commission may order that any
person resident or present in Canada be examined upon oath
before, or make production of any books or papers or other
documents or records to the member or before or to any other
person named for the purpose by the order of the member ....
Canadian Javelin was allowed to be present when
the evidence was taken by virtue of a determina
tion made under subsection 114(13).
114. ...
(13) A member of the Commission or any person named by a
member of the Commission to examine a witness under oath
may allow any person whose conduct is being investigated to be
present at a hearing held pursuant to this section and if he is
present at any hearing he is entitled to counsel.
Once allowed to be present, it was entitled to
counsel.
Section 114 provides a number of means where
by the inspector may carry out the investigation.
Subsection (10) is one of them. The Commission is
merely providing the facilities by which the inspec
tor, appointed by it under subsection (2), may
carry out his investigative function. The only dif
ferent result that flows from the taking of evidence
under subsection (10) is that, by subsection (18),
the inspector cannot now discontinue the investiga
tion without the concurrence of the Commission.
That difference does not alter the investigative
character of the interrogation of witnesses under
subsection (10).
Likewise, that investigative character is not
altered by the fact that subsection (13) calls the
interrogation a "hearing" and provides that, if
present, a person whose conduct is being investi
gated is entitled to counsel. There is nothing in the
use of the word "hearing" that imports a right to
question witnesses that does not exist independent
of the use of the word; it is the character of the
"hearing" that determines the extent and nature of
the participation to which an interested person is
entitled. Furthermore, I am not persuaded that
Parliament's intention, in entitling such a person
to counsel at the hearing, is frustrated by the
Commission's refusal to permit the counsel to
question witnesses. Parliament's intention is more
plausibly explained than in terms of a mandate to
render the inspector's use of the investigative
means afforded by subsection (10) a rehearsal of
what may ensue if the inspector acts under either
subsection (22) or (23). If an allegation is made
against Canadian Javelin in the inspector's state
ment of the evidence or if the Commission pro
poses to make a report against Canadian Javelin,
subsections (24) and (29) assure its right to the
sort of hearing it now seeks to have at the inves
tigative stage. If the Attorney General of Canada
elects to take action against Canadian Javelin by
reason of evidence submitted by the inspector, the
protection afforded every person accused in a
criminal prosecution will be available to it.
The refusal to permit Canadian Javelin to ques
tion witnesses at the investigative stage of the
process under section 114 is not unfair. No statu
tory right to question them arises under subsection
(13). Finally, the fact that Canadian Javelin's
counsel did question one witness before the ruling
in issue was first sought and made is immaterial; it
neither vested Canadian Javelin with a right to
question all subsequent witnesses nor precluded
the Commission from denying it.
JUDGMENT
The application is dismissed with costs.
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