T-1230-81
Harold Irvine, Namasco Limited, Charles Ian
McKay, Drummond McCall Inc., Samuel, Son &
Co. Limited, W. Grant Brayley, Westeel-Rosco
Limited, York Russel Inc., L. F. Newbery,
Norman Katzman, John M. White, Leon Robi-
doux, Timothy H. Coughlin, Newman Steel Ltd.,
Benjamin P. R. Newman, Sigmund R. Taube,
Zenon R. Karcz, Peter R. Sheppard, Lorne Gilbert
Coons, James Arthur Jobin, Donald Charles Grin-
stead, Hugh Fitzgerald Thomson, William Alex-
ander Mowat, and Bruce Scott Moore (Appli-
cants)
v.
Restrictive Trade Practices Commission, Director
of Investigation and Research appointed under the
Combines Investigation Act and Mr. H. H. Griffin
(Respondents)
Trial Division, Collier J.—Toronto, March 9, 12
and 24, 1981.
Prerogative writs — Certiorari, prohibition and mandamus
— Applicants attack rulings made by officer who presided
over inquiry into restrictive trade practices — Officer was not
a Commission member — Counsel were not permitted to
cross-examine witnesses — Applicants were not permitted to
be present with counsel during the whole of the examinations
— A corporate applicant was denied adjournment to seek
counsel — Whether officer had the right to permit witnesses to
be represented by counsel — Whether rulings were correct —
Rulings quashed — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 18 — Combines Investigation Act, R.S.C.
1970, c. C-23, ss. 8(a)(iii), 17(1),(2), 20(1),(2).
The applicants seek writs of certiorari, prohibition and man-
damus. The hearing officer, who was not a member of the
Restrictive Trade Practices Commission commenced an inquiry
into restrictive trade practices. He proceeded on the basis that
he had the right to permit a witness to be represented by
counsel. He refused to permit counsel to cross-examine other
witnesses. He also refused to permit witnesses to be present
during the whole of the examinations. He denied a corporate
witness' application for an adjournment so that it could apply
to a Commission member to be represented by counsel. The
question is whether or not these rulings were correct.
Held, the application is allowed. In the first place, only a
Commissioner may allow a person whose conduct is being
inquired into to be represented by counsel. Therefore, the
hearing officer ought to have allowed an adjournment so that
an application could be made to a Commission member to
allow the corporate applicant to be represented by counsel. The
statute is not silent as to the right to be represented by counsel.
The Commission has been given by the statute wide and
effective investigatory powers. Parliament intended certain
safeguards. One safeguard is the right of persons whose con
duct is being investigated, and witnesses who are being exam
ined on oath, to be represented by counsel. That right is to
examine and cross-examine on behalf of their client, in the
normal way one associates the role of counsel representing a
client in similar proceedings, such as inquiries under the In
quiries Act of Canada and of the provinces. The right of
cross-examination or examination can only go to those areas
where counsel's clients are or may be affected by the testimony
being elicited. The rulings of the hearing officer in respect of
examination and cross-examination are quashed. With respect
to the other attacked rulings, counsel for the various clients
have the right to be present during all of the examinations. The
right to be represented by counsel cannot be effectively exer
cised if the client is not also present with his counsel to provide
instructions and information.
Stevens v. Restrictive Trade Practices Commission [1979]
2 F.C. 159, referred to.
APPLICATION.
COUNSEL:
F. J. C. Newbould for York Russel Inc., L. F.
Newbery, Norman Katzman, John M. White,
Leon Robidoux, and Timothy H. Coughlin.
J. Chipman, Q.C. for Drummond McCall Inc.
E. Sexton, Q.C. for Harold Irvine.
J. Sopinka, Q.C. and J. D. Weir for Lorne
Gilbert Coons.
William Miller for Samuel, Son & Co. Lim
ited and W. Grant Brayley.
J. S. Leon for Namasco Limited and Charles
Ian McKay.
J. A. Hodgson for Westeel-Rosco Limited.
G. Garton for respondents.
SOLICITORS:
Tilley, Carson & Findlay, Toronto, for York
Russel Inc., L. F. Newbery, Norman Katz-
man, John M. White, Leon Robidoux, and
Timothy H. Coughlin.
Ogilvy, Renault, Montreal, for Drummond
McCall Inc.
Osler, Hoskin & Harcourt, Toronto, for
Harold Irvine.
Stikeman, Elliott, Robarts & Bowman,
Toronto, for Lorne Gilbert Coons.
Smith, Lyons, Torrance, Stevenson & Mayer,
Toronto, for Samuel, Son & Co. Limited and
W. Grant Brayley.
Campbell, Godfrey & Lewtas, Toronto, for
Namasco Limited and Charles Ian McKay.
Blake, Cassels & Graydon, Toronto, for Wes-
teel-Rosco Limited.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
delivered orally in English by
COLLIER J.: The applicants seek, pursuant to
section 18 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, writs of certiorari, prohibition
and mandamus.
The attacks are launched against certain aspects
of an inquiry being carried out under the appli
cable provisions of the Combines Investigation
Act, R.S.C. 1970, c. C-23 as amended.
The Director of Investigation and Research
under the statute caused the inquiry to be made
pursuant to subparagraph 8(a)(iii). I shall set out
the whole of section 8:
8. The Director shall
(a) on application made under section 7,
(b) whenever he has reason to believe that
(i) a person has contravened or failed to comply with an
order made pursuant to section 29, 29.1 or 30,
(ii) grounds exist for the making of an order by the
Commission under Part IV.1, or
(iii) an offence under Part V or section 46.1 has been or is
about to be committed, or
(c) whenever he is directed by the Minister to inquire
whether any of the circumstances described in subparagraphs
(b)(i) to (iii) exists,
cause an inquiry to be made into all such matters as he
considers necessary to inquire into with the view of determining
the facts.
The grounds which presumably gave the Direc
tor reason to believe that an offence under section
32 of Part V of the statute had been, or was about
to be, committed were not part of the material
before me. I shall come back to that point a little
later.
A deputy Director applied to a member of the
Commission for an order pursuant to section 17 of
the statute. Subsections (1) and (2) of that section
are as follows:
17. (1) On ex parte application of the Director, 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 books, papers, records or other
documents to such member or before or to any other person
named for the purpose by the order of such member and may
make such orders as seem to him to be proper for securing the
attendance of such witness and his examination, and the pro
duction by him of books, papers, records or other documents
and may otherwise exercise, for the enforcement of such orders
or punishment for disobedience thereof, all powers that are
exercised by any superior court in Canada for the enforcement
of subpoenas to witnesses or punishment of disobedience
thereof.
(2) Any person summoned under subsection (1) is competent
and may be compelled to give evidence as a witness.
On January 27, 1981 an order was made by the
Chairman of the respondent Commission. The
actual order was not before me. But a later order,
by the Chairman and dated February 3, 1981, was
put in evidence. I assume the first order was the
same as the second, except that the first order did
not contain the second last paragraph found in the
order of February 3. The first order directed
twenty-nine named persons to appear before Mr.
Stoner, the Commission Chairman, or "any other
person named for the purpose by me to give evi
dence upon oath in connection with the inquiry."
That inquiry was described as:
... an inquiry relating to the production, manufacture, pur
chase, sale and supply of flat rolled steel, plate steel, bar and
structural steel and related products.
Before February 3, 1981, so-called "subpoenas"
were issued to the named persons. A sample was
the one directed to Mr. N. Katzman by the Chair
man. It directed Katzman to appear at a specified
time and place to give evidence on oath before Mr.
Stoner or "before any other person named for the
purpose" by him.
On February 3, the second order I have referred
to was made. The second last paragraph named
and designated a Mr. H. H. Griffin to be the
person before whom the named persons shall "be
examined upon oath." I note that subsection 17(1)
refers to the person being examined as a "witness".
I shall use that term.
Mr. Griffin is not a member of the Restrictive
Trade Practices Commission.
A point was taken on behalf of the applicants
that Mr. Griffin's appointment was invalid
because he was not named in the first order issued
on January 27, 1981. On a strict construction of
subsection 17(1), the order directing the examina
tion of the witnesses and the naming of a person
other than the Commission member making the
order must, it was said, be done in that very same
order. Even if that statutory construction is cor
rect, I would apply section 3 of the Combines
Investigation Act, which provides that no proceed
ings shall be invalidated by reason of any defect of
form or any technical irregularity.
A further submission was made in respect of
Mr. Griffin's appointment. It was argued that a
Commissioner, making an order under subsection
17(1), could only direct the examination of wit
nesses before himself or some other Commissioner
named by him. Certain difficulties and anomalies
were pointed out when the examinations are con
ducted by a person other than a Commissioner. It
was said some of those matters lead to absurd
results; the legislation should then be interpreted
accordingly in order to avoid those results.
I agree there are some procedural difficulties
when the person presiding over the witnesses'
examinations is not a Commissioner, but merely a
sort of hearing officer—the expression, used in
argument, which I shall adopt. But I do not agree
the subsection should be interpreted in the way
suggested. In my view, the process envisaged in the
statute by section 17 and other related sections can
be carried out by a hearing officer, rather than a
Commissioner. That objection therefore fails.
Mr. Griffin commenced the proceedings to
examine the witnesses under oath. Various persons
appeared. Some were witnesses to whom the "sub-
poenas" had been given. Some of those witnesses
appeared in person. Others appeared with counsel.
Other persons, including corporations, appeared,
whose status seemed to be persons "whose conduct
is being inquired into". See subsection 20(1) of the
statute. Some of the corporations in that category
appeared through an officer or executive. Others
appeared through counsel, some with an instruct
ing officer or executive, as well.
It was common ground before me that the Com
mission and its members at no time specifically
gave notice to anyone that a certain person's con
duct was being inquired into. Notices that the
examination of witnesses was being held were sent
to persons, including corporations, not named as
persons to be examined. As I understand it, no
notice was given to a witness that he might be, as
well, a person whose conduct was being inquired
into. I mention these points at this stage because
the failure of the Commission to specify clearly the
category or categories in which various persons
may fall, puts, to my mind, an unnecessary burden
on taxpayers and citizens to try and guess at what
is in the collective mind of the Commission. Surely
a citizen is entitled to know if his conduct is being
inquired into. He can then apply to be represented
by counsel, and not merely at examinations of
witnesses. He should not have to assume or specu
late as to his status on the basis of some notice
advising of a date and place where witnesses are to
be examined.
I return to the proceedings before Mr. Griffin.
Many of those present assumed, understandably,
he was a member of the Commission. A good deal
of discussion and argument took place as to the
right to counsel, the right to be present throughout
of counsel, witnesses or persons whose conduct was
being inquired into. The role of counsel in the
examination of the witnesses was discussed. A
number of rulings were made by the hearing offi
cer. Many of them were attacked in these
proceedings.
The question of the Director's grounds for insti
gating the inquiry was raised, at some stage,
before the hearing officer. It was contended that
some evidence of some kind should be put before
the hearing officer that there were some objective
grounds on which the Director had instigated the
inquiry proceedings. Mr. Griffin ruled that the
Director or his representatives did not have to
present that evidence.
That ruling, and the failure of the respondents
to put forward any objective evidence in these
proceedings, invalidates, it is said, the whole inqui
ry procedure and of course the examination of the
witnesses before Mr. Griffin.
I do not agree.
The authorization, or whatever it was, by the
Director which set the whole inquiry proceedings
in motion is not before me in these section 18
proceedings. Nor is it really attacked in these
proceedings. If an attack is permissible, it should,
to my mind, be the subject of appropriate proceed
ings (section 18 or 28 of the Federal Court Act)
against the authorization of the Director, not in a
proceeding against rulings by a hearing officer. I
find a reasonable analogy in the decision of Addy
J. in Stevens v. Restrictive Trade Practices Com
mission [1979] 2 F.C. 159, particularly at page
160.
That submission, therefore, fails. That effective
ly disposes of the supplementary notice of motion,
dated March 5, 1981 and paragraph (a) there set
out.
I return once more to the proceedings before the
hearing officer. It is first necessary to set out
section 20 of the Combines Investigation Act.
20. (1) A member of the Commission may allow any person
whose conduct is being inquired into and shall permit any
person who is being himself examined under oath to be repre
sented by counsel.
(2) No person shall be excused from attending and giving
evidence and producing books, papers, records or other docu
ments, in obedience to the order of a member of the Commis
sion, on the ground that the oral evidence or documents
required of him may tend to criminate him or subject him to
any proceeding or penalty, but no oral evidence so required
shall be used or receivable against such person in any criminal
proceedings thereafter instituted against him, other than a
prosecution for perjury in giving such evidence or a prosecution
under section 122 or 124 of the Criminal Code in respect of
such evidence.
I have earlier described the persons and counsel
who appeared before Mr. Griffin. At the outset of
the examinations, and I am being a bit repetitive,
all, or at least many of those present, including
counsel, assumed Mr. Griffin to be a member of
the Commission. He was not. But he proceeded on
the basis he had the right to permit a witness or a
person whose conduct was being inquired into to
be represented by counsel. He was wrong. Counsel
for the respondents, including the respondent Grif
fin, concedes he was wrong. Only a Commissioner
may allow a person whose conduct is being
inquired into to be represented by counsel. I note
here that that particular representation is not con
fined to the proceedings where witnesses are being
examined. Again, only a Commissioner can give
the mandatory permission for a witness to be
represented by counsel.
Mr. Griffin made a number of rulings restrict
ing the role of counsel representing witnesses or
persons in the other category. He refused to permit
counsel, other than the Director's counsel, to
examine or cross-examine any of the witnesses.
The only type of examination he would permit was
by counsel who was appearing for a particular
witness, or who was appearing for a company who
employed a particular witness. The "re-examina
tion" as the hearing officer put it, would be:
the procedure which I have outlined is a desire to be fair to the
witness in clearing up anything which may be obscure or
unclear
and then:
... re-examining to assist the witness
and further:
THE CHAIRMAN: No, I realize that, and I'm not asking you to
accept that; but, in allowing counsel for Company A to re
examine a witness, being a member of that company, and who
is not represented by counsel, it is merely to clear up—for the
witness—what may be otherwise unclear.
Am I being—in other words, I don't want you to think that
my reference, which was obiter this morning, was that Mr.
Hamilton might re-examine on behalf of other counsel. That
was not my intent. It was to re-examine in order to clear up
evidence given by a witness who was not represented by
counsel.
MR. SEXTON: Well, whatever that does, it certainly clarifies, for
me, the need for a ruling which we seek in the Federal Court.
THE CHAIRMAN: Well, it may be. I want to be fair to you in
making reference to that, so that in taking the matter further
you will not be under any misapprehension.
Apart from that kind of re-examination, counsel
for a witness or person in the other category I have
referred to, could not, by virtue of the ruling,
cross-examine any other witnesses, even if serious
allegations were made against their clients by
those other witnesses.
Counsel for the respondents took the view that
the restrictions imposed by the hearing officer
were correct; the rulings ought not to be quashed
by certiorari or relief of that nature. He said the
examination of the witnesses was merely the
obtaining of evidence or facts under oath; the
hearing officer came to no decision on those facts;
he made no report to the Director; he merely
turned over the evidence to the Director; what
might happen, after that is set out in sections 14,
15, 18 and 19 of the statute. At those later stages,
the argument continued, persons affected by the
inquiry proceedings then have full opportunity to
be heard in person or by counsel. As to that last
argument, I say this: Those later proceedings do
not contemplate the recalling of witnesses on
whose evidence, not tested by cross-examination,
the Director may have relied in preparing his
statement of evidence, obtained in the whole inqui
ry procedure, to the Commission (section 18).
Those un -cross-examined witnesses may then be
dead or unavailable. Nor do I see any right in any
person "against whom an allegation is made" to
require the recall of those witnesses for cross-
examination.
I return to the earlier contentions on behalf of
the respondents. I agree that the taking of the
evidence of witnesses is just one of many steps in
the whole inquiry procedure; that it is an adminis
trative procedure, not a so-called quasi-judicial
procedure.
If subsection 20(1) did not appear in this legisla
tion, the respondents' argument that there was no
right in anyone to be present at the examinations,
no right to examine or cross-examine the witnesses
summoned, or others, would, to my mind, be a
strong one. Counsel relied on the well-known cases
dealing with the rules of natural justice where
quasi-judicial decisions are involved, and rules of
fairness where only administrative decisions are
involved.
I interpolate here that I am not convinced there
is any such hard and fast distinction, or any such
dichotomy. Depending upon the particular statu
tory scheme, and the particular circumstances, the
rules of natural justice, as well as the fairness
rules, may equally apply to bodies making purely
administrative decisions.
The well-known cases cited by respondents'
counsel, with very few exceptions, all dealt with
situations where the statute was silent as to the
right to a hearing, the right to know the case to be
met, the right to be represented by counsel, the
right to cross-examine, et cetera.
This statute is not silent as to the right to be
represented by counsel. The legislators obviously
felt the procedures under this legislation required
that right to be spelled out in plain words. What
did they mean by "represented by counsel"?
The respondents say they meant that right to be
confined to the right of counsel to be present when
their client was being examined as a witness, to
advise him as to his compellability to answer and
perhaps his right to object to answering on grounds
of incrimination, but not to elicit evidence from
him, except to clarify some point in his testimony.
In the case of the person whose conduct is being
inquired into, the only right, it is said, is to repre
sent him as an alter ego; to sit and listen.
I cannot believe the legislators intended any
such restricted role for counsel.
The Commission has been given by the statute
wide and effective investigatory powers. One of the
ultimate objects is, where proper, to provide the
foundation for laying criminal charges. Very few
other law enforcement bodies or persons have simi
lar investigatory powers. Police officers and Crown
attorneys, for example, do not have, except in
certain cases with court approval, the rights given
to the Director by sections 9, 10 and 12. Nor do
they have the power to compel citizens to testify
under oath while investigating possible crimes. All
these powers under the Combines Investigation
Act are beyond the usual. Parliament, to my mind,
intended certain safeguards. One safeguard is the
right of persons whose conduct is being investigat
ed, and witnesses who are being examined on oath,
to be represented by counsel. That right is to
examine and cross-examine on behalf of their
client, in the normal way one associates the role of
counsel representing a client in similar proceed
ings, such as inquiries under the Inquiries Act of
Canada and of the provinces.
In my view, where the Commissioners allow
persons to have counsel, and in the case of wit
nesses to whom they must, on request, permit
counsel, these consequences flow. Their counsel
have the right to question their own so-called
clients or witnesses, and other witnesses who are
being examined. Obviously the right of cross-
examination or examination cannot be without
limit. It can only go to those areas where their own
clients are or may be affected by the testimony
being elicited by the hearing officer.
The rulings of the hearing officer in respect of
examination and cross-examination are quashed.
Relief in the nature of certiorari is therefore
granted.
Attacks were made on three other rulings made
by the hearing officer. They are set out in para
graphs (a), (d) and (e) of the notice of motion,
dated March 4, 1981.
Paragraph (a): Mr. Griffin refused to permit
persons whose conduct is being inquired into, and
the witnesses, to be present during the whole of the
examinations. In my opinion, counsel for the vari
ous clients have the right to be present during all
of the examinations. The right to be represented
by counsel cannot, as I see it, be effectively exer
cised if the client is not also present with his
counsel to provide instructions and information.
That decision of the hearing officer must be
quashed by way of certiorari.
Paragraph (d): A Mr. James T. Kirch was
ordered to be examined before the hearing officer.
After being sworn, he requested his testimony be
heard in private, without the other witnesses, per
sons whose conduct was being inquired into, or
their counsel present. This request was supported
by the Director's counsel. The hearing officer
declined the request. The Director's counsel then
refused to "pose" any questions to the witness. The
hearing officer did not then examine the witness
himself. He would not permit counsel for the
various applicants to examine or cross-examine.
I chide the Director for the position taken. He
put the hearing officer in an embarrassing posi
tion. There was a duty on the part of the hearing
officer to examine Kirch. He was required to do so
by the Commission Chairman's order. For conve
nience, counsel are often employed to conduct the
examination for the hearing officer. When counsel
in this case declined, there was, as I said, a duty on
the hearing officer. But that duty was owed to the
Commission, not to persons whose conduct was
being inquired into, or to the other witnesses.
Mandamus cannot issue in favour of them.
Paragraph (e): Mr. Chipman, counsel for the
applicant, Drummond McCall Inc., was present at
the hearing. That applicant was apparently a
person whose conduct was being inquired into.
When it became known Mr. Griffin was not a
member of the Commission, Mr. Chipman raised
the point that he wanted an adjournment in order
that an application could be made to a Commis
sion member to allow his client to be represented
by counsel. Mr. Griffin refused the adjournment.
He obviously felt he, himself, had the power to
allow counsel to represent that applicant and be
present. But he was mistaken. If he had accepted
the position that only a Commissioner could allow
representation by counsel, then it is my view, he
ought, in fairness, to have allowed a relatively
short adjournment for the application to be made.
I see nothing preventing an application being made
in writing or by telephone.
That ruling refusing the adjournment, is, in the
circumstances, quashed.
I now summarize specifically the result in these
proceedings, with particular reference to the para
graphs of the notice of motion, dated March 4,
1981:
(a) the hearing officer's refusal to permit repre
sented clients to remain throughout is quashed;
(b) the refusal to permit counsel to examine or
cross-examine witnesses is quashed;
(c) the ruling as to the limited right of re-exami
nation is quashed;
(d) there shall be no relief in respect of the
refusal to examine the witness Kirch;
(e) the ruling refusing an adjournment on the
request of Drummond McCall Inc. is quashed.
I should not leave these reasons without saying
something for Mr. Griffin. While I have quashed
some of his decisions, my reasons are in no way to
be considered critical of him. He was in a difficult
position. He had an array of counsel taking a large
number of objections. Those objections had to be
dealt with quickly. I would not have liked his task.
The transcript indicates Mr. Griffin gave a patient
and courteous hearing. He made his rulings as he
saw the law and procedure to be.
Are there any submissions as to cost?
MR. GARTON: I think as my friend, Mr. Sexton, indicated
yesterday, these are requests on which there are no readily
available authority in those circumstances. So I submit there
should be no costs.
MR. SEXTON: My Lord, I submit that there should be costs
as to the aspects where the applicants are successful. The
respondents took the position in front of Mr. Griffin that it
created the need for this application. It is not though the
respondents did not create this trouble. They did. They could
have acquiesced the request made by the applicants in front of
them and Mr. Griffin and in those results, I think that costs
should follow.
HIS LORDSHIP: Any other submissions? I see no reason to go
from the normal rule. I suspect Mr. Griffin is acting on the,
what the Commission concedes is good practice. I don't know
whether the costs can be awarded against the Commission in
the sense that it has any funds which can be recovered, but I
will make an order that the applicants recover their costs,
taxable costs of these proceedings from the Restrictive Trade
Practices Commission and from Mr. Griffin. I don't think I can
make any order against the Director as to costs.
MR. GARTON: My Lord, I wonder if I might ask for special
directions on the costs under Rule 334, I believe it is. There
were really only four counts before you where the applicants,
rather than pay twenty-four sets of costs, I would submit that
the respondent should just pay a single set of costs.
HIS LORDSHIP: Well, there will be one set of costs and there
will be counsel fee. No, I think I assume that other counsel
helped with the argument. There will be four counsel fees.
MR. GARTON: Thank you, My Lord.
HIS LORDSHIP: Thank you, very much, gentlemen. Those
reasons will be typed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.