T-3100-80
Canadian Javelin Limited (Applicant)
v.
R. S. MacLellan, Q.C., and the Restrictive Trade
Practices Commission (Respondents)
Trial Division, Mahoney J.—Ottawa, October 14
and 20, 1980.
Prerogative writs — Applications for writs of prohibition
and certiorari to quash orders signed by respondent member of
the Commission and designating another member and a non
member to act in lieu and place of the undersigned — Also,
application for a writ of mandamus ordering re-attendance of
witnesses — Submission by applicant that respondent
MacLellan, who was properly designated, illegally transferred
his powers — Whether remedies are available — Application
dismissed — Canada Corporations Act, R.S.C. 1970, c. C-32,
as amended by R.S.C. 1970 (1st Supp.), c. 10, s. 114(10).
The respondent, R. S. MacLellan, was designated by the
respondent Commission's Vice-Chairman, L.-A. Couture, as
the person before whom the applicant's President was ordered
to appear pursuant to subsection 114(10) of the Canada Cor
porations Act. The respondent subsequently signed an order
designating Couture to act in lieu and place of him and a
further order designating a non-member of the Commission, H.
H. Griffin, as the person before whom applicant's President
was to appear. The applicant submits that MacLellan, who was
properly designated, illegally transferred his powers to Couture
and Griffin. It seeks writs of prohibition and certiorari to quash
those two orders and the evidence taken before them and a writ
of mandamus ordering the re-attendance of the witnesses who
appeared before Couture and Griffin while so designated.
Held, the application is dismissed. Applicant is seeking a
remedy that is, in substance, unknown to Canadian law and is,
in any case, without status to seek it. The right to challenge the
transfer orders is a right of those required to attend and give
evidence, i.e. the witnesses, not the applicant. As to the remedy,
assuming, without deciding, the evidence to have been illegally
obtained, there is no basis in Canadian law for a court to make
an order, in the course of an investigation, suppressing such
evidence.
APPLICATIONS.
COUNSEL:
M. L. Phelan and P. S. Bonner for applicant.
D. Scott, Q.C. and J. B. Carr-Harris for
respondents.
SOLICITORS:
Herridge, Tolmie, Ottawa, for applicant.
Scott & Aylen, Ottawa, for respondents.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The affairs and management of
the applicant, hereinafter "Canadian Javelin", are
the subject of an investigation under section 114 of
the Canada Corporations Act.' Over the course of
several weeks, the evidence of a number of wit
nesses has been taken under subsection 114(10).
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, and
the member or the other person named by him may make such
orders as seem to him to be proper for securing the attendance
of such witness and his examination and the production by him
of any books or papers or other documents or records, and may
otherwise exercise, for the enforcement of such orders or pun
ishment for disobedience thereof, all powers that are exercised
by any superior court in Canada for the enforcement of sub
poenas to witnesses or punishment of disobedience thereof.
Canadian Javelin complains of two situations
respecting the evidence of most of those witnesses.
Examples of both are said to arise vis-Ã -vis Ray-
mond Balestreri, President of Canadian Javelin.
On March 21, 1980, orders, signed by L.-A.
Couture, Vice-Chairman of the respondent Com
mission, hereinafter "the Commission", ordered
Balestreri and others to appear before the respond
ent, R. S. MacLellan, a member of the Commis
sion, at a specified time and place, and "so forth
from day to day thereafter as may be required".
On April 9, MacLellan signed an order directed to
Couture which, after reciting the March 21 orders,
went on:
I now name and designate you, pursuant to section 114(10)
of the said Act, to be the person before whom the following
persons will attend: Messrs. ... Balestreri ... pursuant to the
orders dated March 21, 1980, but in lieu and place of the
undersigned.
' R.S.C. 1970, c. C-32, as amended by R.S.C. 1970 (1st
Supp.), c. 10.
On April 18, MacLellan signed a further order,
directed to H. H. Griffin, who is not a member of
the Commission, designating him, in the same
terms, the person before whom Balestreri was to
appear pursuant to the March 21 order. The first
situation is, then, that MacLellan was clearly
properly designated as the person before whom
Balestreri was to appear but, in Canadian Javelin's
submission, he illegally transferred his powers to
Couture, a member of the Commission, and to
Griffin, a non-member.
I am unable to distinguish the second situation
proved by Canadian Javelin from that involving
the delegation by MacLellan to Couture described
above and suspect that it did not notice that the
delegation by Couture to Griffin, dated May 20,
1980, refers to a new order of May 15, requiring
Balestreri to attend before Couture and not to the
original order of March 21 requiring him to
appear before MacLellan. On the evidence, I
cannot find that the alleged second situation, that
of one member of the Commission purporting to
delegate the powers of another member, in fact
occurred.
Canadian Javelin seeks writs of prohibition and
certiorari quashing the orders designating Couture
and Griffin to act in lieu and place of MacLellan
and Couture; quashing the evidence taken before
Couture and Griffin, and a writ of mandamus
requiring the Commission to order re-attendance
of those witnesses who attended before Couture
and Griffin while so designated.
I do not find it necessary to decide whether or
not the so-called transfer orders are valid or not.
The Commission may get an answer to that if it
ever has occasion to seek to enforce an order to
appear against a witness who challenges one.
Canadian Javelin's application must fail because it
is seeking a remedy that is, in substance, unknown
to Canadian law and is, in any case, without status
to seek it.
As to status, the right to challenge the transfer
orders is a right of those required to attend and
give evidence: the witnesses, not Canadian Javelin.
As to the remedy, assuming, without deciding, the
evidence to have been illegally obtained, there is
no basis in Canadian law for a court to make an
order, in the course of an investigation, suppress
ing such evidence.
JUDGMENT
The application is dismissed with costs.
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