A-143-81
Restrictive Trade Practices Commission, Director
of Investigation and Research appointed under the
Combines Investigation Act and Mr. H. H. Griffin
(Appellants) (Respondents)
v.
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 P. 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 (Respond-
ents) (Applicants)
Court of Appeal, Thurlow C.J., Pratte and Urie
JJ.—Toronto, November 19, 20 and December 15,
1981.
Prerogative writs — Certiorari, prohibition and mandamus
— Appeal from Trial Division decision to quash certain
rulings made by officer who presided over inquiry into restric
tive trade practices — Applicants were not permitted to be
present with counsel throughout the whole of the examinations
— Counsel were not permitted to re-examine their own clients
without restriction or to cross-examine witnesses — Drum-
mond McCall Inc. was denied an adjournment to seek counsel
— Cross-appeal from refusal to interfere with hearing offi
cer's decision to question witnesses during the course of their
evidence and his decision that objective cause need not be given
before the commencement of such an inquiry — Whether Trial
Division erred — Appeal allowed and cross-appeal dismissed
— Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 5, 7,
8, 16, 17, 18, 19, 20, 22(2)(a), 27, 32(1), 47(1),(2) — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Appeal from a decision of the Trial Division which ordered
certiorari quashing the decisions of a hearing officer made in
the course of his examination of witnesses pursuant to section
17 of the Combines Investigation Act. The hearing officer
refused to permit persons under investigation and witnesses,
where represented by counsel, to be present throughout the
whole of the examinations. He also refused to permit counsel to
examine and re-examine without restriction their own clients or
to cross-examine other witnesses. Finally, he refused to adjourn
the examination to permit Drummond McCall Inc. to apply to
a Commissioner to allow it to be represented by counsel at the
inquiry. The respondents cross-appeal from the remainder of
the Trial Division order which denied the application to quash
the decision to put questions to the witnesses in the course of
their evidence and the decision that objective cause need not be
given when an inquiry is commenced under paragraph 8(b) of
the Combines Investigation Act. The issue is whether the Trial
Division erred in its decision.
Held, the appeal is allowed. As there is no provision prescrib
ing the procedure for the examination of witnesses under
subsection 17(1), either at the inquiry stage or at any other
stage, it is for a member of the Commission to determine what
procedure should be followed. It is also for the Commissioner,
subject to the provisions for privacy contained in subsection
27(1), to determine what persons will be permitted to attend
the examination of a person under oath under subsection 17(1),
save that he does not have the right to bar counsel representing
the person being examined. Further, the requirement of subsec
tion 20(1) that the Commissioner permit a person who is being
examined under oath to be represented by counsel goes no
further than to require the Commissioner to permit counsel for
the person to be present and to represent his client while the
client is being examined under oath. This imports no more than
to advise the client as to his rights in respect of particular
questions, to object to improper questioning and to ensure that
his client is given an opportunity to tell the whole of his story
and in such a way as not to create false impressions of what he
means by his answers. It does not import a right either to be
present during the examination of other witnesses or to cross-
examine any of them. The rulings made by the hearing officer
have not deprived the respondents of any right to which they
are entitled. As the rulings in question amount to no more than
an indication to persons present of the course the hearing
officer, who was not a member of the Commission, proposed to
follow in the examination of the witnesses to be called, they
should not have been interfered with, both because there is
nothing about them that is erroneous in law and further
because they were not decisions of a kind that would necessarily
be final or not subject to change should a member of the
Commission, in whom whatever discretion there is resides,
direct a different course. The refusal of Mr. Griffin to grant an
adjournment did not deprive him of jurisdiction. The cross-
appeal is dismissed. With respect to Mr. Griffin's decision to
put questions to the witnesses in the course of their evidence, in
the absence of a provision to the contrary in the statute, it is
plainly open to either a member of the Commission or a person
designated by him under subsection 17(1) to put questions
relating to the subject-matter of the inquiry to the persons
being examined before him. It was submitted that it was
incumbent on the Director, before the examination of persons
under subsection 17(1) could proceed, to prove for those
present his basis for initiating the inquiry, that such inquiry
was in progress and that the examination of witnesses was to be
conducted in furtherance of the inquiry. The proceeding is not a
trial and it is not incumbent on the Director to prove anything
before proceeding to examine the witnesses ordered by a Com
missioner to attend and give evidence. The statute authorizes a
member of the Commission either on an ex parte application or
of his own motion to order the examination. The order he
makes is all that is necessary to authorize the Commissioner or
the person designated to proceed immediately to the examina
tion of the witnesses.
Guay v. Lafleur [1965] S.C.R. 12, considered. St. John v.
Fraser [1935] S.C.R. 441, considered. The Corporation of
the Township of Innisfi! v. The Corporation of the Town
ship of Vespra [1981] 2 S.C.R. 145, distinguished. Re The
Ontario Crime Commission, Ex parte Feeley and McDer-
mott [1962] O.R. 872, distinguished.
APPEAL.
COUNSEL:
G. R. Garton for appellants.
J. E. Sexton, Q.C. for respondent Harold
Irvine.
J. S. Leon for respondents Namasco Limited
and Charles Ian McKay.
J. Chipman, Q.C. for respondent Drummond
McCall Inc.
W. J. Miller for respondents Samuel, Son &
Co. Limited and W. Grant Brayley.
R. B. Smith for respondent Westeel-Rosco
Limited.
F. J. C. Newbould, Q.C. for respondents York
Russel Inc., L. F. Newbery, Norman Katz-
man, John M. White, Leon Robidoux and
Timothy H. Coughlin.
R. Mongeon for respondents Newman Steel
Ltd., Benjamin P. R. Newman, Sigmund R.
Taube, Zenon P. Karcz and Peter R.
Sheppard.
J. Weir for respondents Lorne Gilbert Coons,
James Arthur Jobin, Donald Charles Grin-
stead, Hugh Fitzgerald Thomson, William
Alexander Mowat and Bruce Scott Moore.
SOLICITORS:
Deputy Attorney General of Canada for
appellants.
Osler, Hoskin & Harcourt, Toronto, for
respondent Harold Irvine.
Campbell, Godfrey & Lewtas, Toronto, for
respondents Namasco Limited and Charles
Ian McKay.
Ogilvy, Renault, Montreal, for respondent
Drummond McCall Inc.
Smith, Lyons, Torrance, Stevenson & Mayer,
Toronto, for respondents Samuel, Son & Co.
Limited and W. Grant Brayley.
Blake, Cassels & Graydon, Toronto, for
respondent Westeel-Rosco Limited.
Tilley, Carson & Findlay, Toronto, for
respondents York Russel Inc., L. F. Newbery,
Norman Katzman, John M. White, Leon
Robidoux and Timothy H. Coughlin.
Phillips & Vineberg, Montreal, for respond
ents Newman Steel Ltd., Benjamin P. R.
Newman, Sigmund R. Taube, Zenon P.
Karcz and Peter R. Sheppard.
Stikeman, Elliott, Robarts & Bowman,
Toronto, for respondents Lorne Gilbert
Coons, James Arthur Jobin, Donald Charles
Grinstead, Hugh Fitzgerald Thomson, Wil-
liam Alexander Mowat and Bruce Scott
Moore.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This case raises a number of
issues as to the rights of witnesses and others and
of counsel appearing for them at an examination
of persons under oath pursuant to section 17 of the
Combines Investigation Act, R.S.C. 1970, c. C-23.
The proceedings consist of an appeal and a cross-
appeal from a judgment of the Trial Division
[ [ 1982] 1 F.C. 72] which granted in part and
refused in part an application brought by the
respondents under section 18 of the Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10, for
... writs of certiorari and prohibition to restrain and set aside
all proceedings pending before Mr. H.H. Griffin under the
apparent authority of section 17 of the Combines Investigation
Act on the ground that he is without authority to preside over
them.
AND under reserve of the foregoing, for an order to issue
writs of certiorari, prohibition or mandamus to overturn deci
sions, orders or rulings hereinbefore delivered by Mr. H.H.
Griffin, including the following:
(a) a refusal to permit persons whose conduct is being
inquired into and persons who are being examined to be
present throughout the whole of the Inquiry;
(b) a refusal to permit counsel for the Applicants to examine
or cross-examine witnesses in the said Inquiry;
(c) a refusal to permit counsel for the witness to ask ques
tions of the witness except to clarify or explain evidence
already given by the witness;
(d) a refusal to require or permit Mr. James T. Kirch to give
evidence and to permit counsel for the Applicants to ask
questions of Mr. Kirch, the witness having been sworn as a
witness in the said Inquiry, and having commenced to give
evidence;
(e) a refusal of an application on behalf of Drummond
McCall Inc. for an adjournment to permit an application to
be made to a member of the Restrictive Trade Practices
Commission pursuant to section 20 of the Combines Investi
gation Act to be represented by counsel; and
(f) his decision to put questions to the witnesses in the course
of their evidence.
AND to compel Mr. H.H. Griffin or such other person as may
properly so do to order the re-attendance of the witness James
T. Kirch in order that counsel for the Applicants may ask
questions of him.
AND to restrain Mr. H.H. Griffin from continuing to receive
evidence until such time as this Honourable Court makes a
final determination of the matters placed in issue by this
application.
and refused a supplementary application for
... writs of certiorari and prohibition to restrain and set aside
all proceedings pending before Mr. H.H. Griffin under the
apparent authority of section 17 of the Combines Investigation
Act on the ground that he is without authority to preside over
them.
AND under reserve of the foregoing, for an order to issue
writs of certiorari, prohibition or mandamus to overturn deci
sions, orders or rulings hereinbefore delivered by Mr. H.H.
Griffin, including the following:
(a) his decision that objective cause need not be given by
Commission Counsel to the parties whose conduct is being
inquired into when an inquiry is commenced under S.8(b) of
the Combines Investigation Act R.S.C. 1970 c. C-23 as
amended;
In the part of the first application granted by the
Trial Division, the Court ordered and directed
relief in the nature of certiorari:
... quashing the decisions of H.H. Griffin, made in the course
of his examination of witnesses pursuant to s. 17 of the
Combines Investigation Act, as follows:
(a) The refusal to permit persons whose conduct is being
inquired into and witnesses, where represented by counsel, to
be present throughout the whole of the examinations
(b) and (c) The refusal to permit counsel representing per
sons whose conduct is being inquired into and counsel repre
senting witnesses to examine or re-examine (as the case may
be) without restriction, their own clients, or to cross examine
other witnesses
(d) The refusal of the request by the applicant Drummond
McCall Inc. for an adjournment of the examination, to
permit the applicant to apply to a Commissioner to allow the
applicant to be represented by counsel at the inquiry.
It is from this portion of the order that the appel
lants appeal.
The order went on to deny the relief requested
in the other portions of the application and in the
supplementary application. The cross-appeal is
against these portions of the order.
The applications to the Trial Division were sup
ported by affidavits exhibiting copies of:
(1) a document signed by the Chairman of the
Restrictive Trade Practices Commission naming
and designating H. H. Griffin as the person
before whom the evidence of some 29 persons,
who had been ordered to attend for examination
under oath, should be taken;
(2) a document varying the date for the attend
ance for examination of one of the persons
ordered to attend;
(3) a copy of the order for the attendance of one
of the 29 persons; and
(4) transcripts of the proceedings before H. H.
Griffin held on February 25 and March 2, 3 and
4, 1981.
Each of the documents, including the transcripts,
is entitled:
In the Matter of the Combines Investigation Act and Section
32 thereof
and
In the Matter of an Inquiry relating to the production, manu
facture, purchase, sale and supply of flat rolled steel, plate
steel, bar and structural steel and related products.
The order for the examination of witnesses
under oath under subsection 17(1) is not in the
record. Nor is there in the record any document of
the Director or of the Commission indicating what
or whose conduct was the subject of the inquiry. It
appears however from the transcript of the pro
ceeding for March 4, 1981, that at least one of the
respondents, Drummond McCall Inc. had received
from the Director a letter addressed to the Compa-
ny's Secretary setting out the caption of the inqui
ry and reading:
Dear sir,
There will be a private hearing for the taking of evidence in
this matter, before a member of the Restrictive Trade Practices
Commission, or before a person named for the purpose by a
member of the Restrictive Trade Practices Commission, at the
Caledon Room, Second Floor, the Skyline Hotel, 655 Dixon
Road, in the City of Rexdale, commencing at 10:00 in the
morning, March 2, 1981.
I am enclosing an office consolidation of the Combines
Investigation Act. Please note that Section 20, sub-section (1)
of the Act reads as follows:
"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."
The Company and its counsel assumed from this
that the Company was a person whose conduct
was being investigated within the meaning of sub
section 20(1).
The transcripts also show that legal counsel
representing a number of other companies and
persons summoned for examination attended and
that directors or officers of some companies
attended to represent their companies. Such com
panies as well had received notices from the Direc
tor and assumed that their conduct was under
inquiry. It was in the course of the proceedings
that followed that the rulings attacked on the
applications to the Court were sought by counsel
and given by Mr. Griffin.
The Combines Investigation Act is a statute
passed by Parliament in the exercise, at least for
the most part, of its power to legislate in respect of
the criminal law and procedure. It is divided into a
number of parts dealing with such subjects as
Investigation and Research, Consideration and
Report, Special Remedies, Offences in Relation to
Competition, Other Offences, and Investigation of
Monopolistic Situations. By subsection 32(1),
which occurs in Part V, dealing with offences in
relation to competition, it is provided that:
32. (1) Every one who conspires, combines, agrees or
arranges with another person
(a) to limit unduly the facilities for transporting, producing,
manufacturing, supplying, storing or dealing in any product,
(b) to prevent, limit or lessen, unduly, the manufacture or
production of a product, or to enhance unreasonably the
price thereof,
(c) to prevent, or lessen, unduly, competition in the produc
tion, manufacture, purchase, barter, sale, storage, rental,
transportation or supply of a product, or in the price of
insurance upon persons or property, or
(d) to otherwise restrain or injure competition unduly,
is guilty of an indictable offence and is liable to imprisonment
for five years or a fine of one million dollars or to both.
By section 47 it is provided that:
47. (1) The Director
(a) upon his own initiative may, and upon direction from the
Minister or at the instance of the Commission shall, carry
out an inquiry concerning the existence and effect of condi
tions or practices relating to any product that may be the
subject of trade or commerce and which conditions or prac
tices are related to monopolistic situations or restraint of
trade, and
(b) upon direction from the Minister shall carry out a
general inquiry into any matter that the Minister certifies in
the direction to be related to the policy and objectives of this
Act,
and for the purposes of this Act, any such inquiry shall be
deemed to be an inquiry under section 8.
(2) It is the duty of the Commission to consider any evidence
or material brought before it under subsection (1) together with
such further evidence or material as the Commission considers
advisable and to report thereon in writing to the Minister, and
for the purposes of this Act any such report shall be deemed to
be a report under section 19.
The Director so referred to is the Director of
Investigation and Research appointed by the Gov
ernor in Council under section 5 of the Act. The
Commission referred to in subsection 47(2) is the
Restrictive Trade Practices Commission appointed
by the Governor in Council under section 16. The
two have separate and very different functions
under the statute, those of the Director under Part
I being primarily concerned with inquiries and the
assembly of evidence, those of the Commission
under Part II primarily with the consideration of
information reported to it by the Director and the
reviewing and reporting of it to the Minister of
Consumer and Corporate Affairs along with its
appraisal of the effect on the public interest of
arrangements and practices disclosed in the evi
dence and its recommendations as to the applica
tion of remedies provided in the Act or other
remedies. Subject to advice by the Commission to
the contrary and the exercise by the Minister of a
discretion not to do so, such a report from the
Commission is required by subsection 19(5) to be
made public within thirty days.
Under section 7 any six persons who are of the
opinion that certain matters in contravention of
the Act have occurred may apply to the Director
for an inquiry into them. Section 8 then provides:
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.
I pause to note that there is nothing in the
record but a statement in the reasons of the
learned Trial Judge to indicate under which para
graph or subparagraph of this section the inquiry
which led to these proceedings was instituted or
whether it was initiated under section 47. The
learned Trial Judge says the inquiry was caused to
be made under subparagraph 8(b)(iii). Perhaps so,
but there is no initiating document to that effect in
the record and the titles used in such documents as
are in the record leave the matter in uncertainty,
an uncertainty which may well be one of the root
causes of some of the problems raised in these
proceedings.
In aid of the inquiry that the Director is author
ized to make, the Director is empowered:
(1) by section 9 to require persons and officers
of corporations to make and deliver returns
under oath or affirmation showing in detail such
information with respect to the business of the
persons named in a notice as is by the notice
required,
(2) by section 10 to enter premises on which the
Director believes there may be evidence relevant
to the matters being inquired into, to examine
any thing on the premises and copy or take away
for further examination or copying any book,
paper, record or other document that in the
opinion of the Director or his representative may
afford such evidence,
(3) by section 12 to require by notice in writing,
evidence upon affidavit or affirmation, in every
case in which it seems to him proper to do so.
These are extensive powers but in each case the
power may be exercised by the Director only when,
on an ex parte application, he has obtained a
certificate of the Commission approving of the
action the Director proposes to take. However,
once the certificate of the Commission has been
obtained it is the Director who exercises the power
and carries out the proposed action.
If at any stage the Director is of the opinion that
further inquiry is not justified he may discontinue
it, subject to the concurrence of the Commission in
a case where evidence has been brought before it,
and so report to the applicants, if there were
applicants, and to the Minister who, at the request
of the applicants or of his own motion, may
instruct the Director to make further inquiry. The
Director may also, at any stage, and in addition to
or in lieu of continuing the inquiry remit the
evidence he has obtained to the Attorney General
of Canada for consideration and such action as he
may decide to take. These provisions are all set out
in Part I of the Act, entitled Investigation and
Research, which deals generally with the office of
the Director and what he is empowered and
required to do. There is also provision in subsec
tion 18(1) which occurs in Part II under which the
Director may prepare a statement of the evidence
to be submitted to the Commission and to every
person against whom an allegation is made in it.
Part II, entitled Consideration and Report,
establishes the Commission and its general powers
and functions. A Commissioner has authority
under section 17 and the Commission as a body
has authority under paragraph 22(2)(a) to require
persons to be examined on oath and to produce
documents. The Commission is required by subsec
tion 18(3) to consider any statement of the evi
dence submitted by the Director, after hearing
argument and giving to every person against whom
allegations have been made a full opportunity to
be heard, and thereupon to make a report and
transmit it to the Minister. This may result in
publication of the report or in prosecutions being
undertaken or both or in some situations in the
removal of protective customs tariffs.
Whatever may have been the origin of the
Director's inquiry in the present instance, it is at a
stage where the exercise of the power of a Com
missioner to require persons to be examined on
oath and to produce documents had been invoked
at the instance of the Director that the present
proceedings arose. The record shows that some two
years earlier there had been seizures of documents
by the Director from some of the companies
involved. But nothing in the record indicates that
any statement of evidence as contemplated by
subsection 18(1) had been prepared or submitted
to the Commission or to any person or that that
stage had been reached in the Director's inquiry.
The provisions of sections 17 to 21 that appear
to have some relevance in the present situation
follow:
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.
(3) A member of the Commission shall not exercise power to
penalize any person pursuant to this Act, whether for contempt
or otherwise, unless, on the application of the member, a judge
of the Federal Court of Canada or of a superior or county court
has certified, as such judge may, that the power may be
exercised in the matter disclosed in the application, and the
member has given to such person twenty-four hours notice of
the hearing of the application or such shorter notice as the
judge deems reasonable.
(7) The Minister may issue commissions to take evidence in
another country, and may make all proper orders for the
purpose and for the return and use of evidence so obtained.
(8) Orders to witnesses issued pursuant to this section shall
be signed by a member of the Commission.
18. (1) At any stage of an inquiry,
(a) the Director may, if he is of the opinion that the evidence
obtained discloses a situation contrary to any provision in
Part V, and
(b) the Director shall, if the inquiry relates to an alleged or
suspected offence under any provision of Part V and he is so
required by the Minister,
prepare a statement of the evidence obtained in the inquiry
which shall be submitted to the Commission and to each person
against whom an allegation is made therein.
(2) Upon receipt of the statement referred to in subsection
(I), the Commission shall fix a place, time and date at which
argument in support of such statement may be submitted by or
on behalf of the Director, and at which such persons against
whom an allegation has been made in such statement shall be
allowed full opportunity to be heard in person or by counsel.
(3) The Commission shall, in accordance with this Act,
consider the statement submitted by the Director under subsec
tion (1) together with such further or other evidence or ma
terial as the Commission considers advisable.
(4) No report shall be made by the Commission under
section 19 or 22 against any person unless such person has been
allowed full opportunity to be heard as provided in subsection
( 2 ).
19. (I) The Commission shall, as soon as possible after the
conclusion of proceedings taken under section 18, make a
report in writing and without delay transmit it to the Minister.
(2) The report under subsection (1) shall review the evidence
and material, appraise the effect on the public interest of
arrangements and practices disclosed in the evidence and con
tain recommendations as to the application of remedies pro
vided in this Act or other remedies.
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.
21. The Commission or any member thereof has all the
powers of a commissioner appointed under Part 1 of the In
quiries Act.
Subsection 27 (1) which occurs in Part III, en
titled General, further provides:
27. (1) All inquiries under this Act shall be conducted in
private, except that the Chairman of the Commission may
order that all or any portion of such an inquiry that is held
before the Commission or any member thereof be conducted in
public.
It will be observed that in the procedure pre
scribed by section 18 the statement of evidence
prepared by the Director is to be submitted to the
Commission and to each person against whom an
allegation is made and the Commission is required
before considering and reporting on it to hear
argument in support of it and to give to each such
person full opportunity to be heard in person or by
counsel. The Commission is also authorized by
subsection 18(3) to consider further or other
evidence.
By contrast subsection 17(1) is silent as to the
rights of anyone whose conduct is under inquiry to
be present or to participate in the examination of
persons summoned for examination. The only sec
tion dealing with this subject, and it deals with it
only obliquely, is section 20. This authorizes the
Commission to allow a person whose conduct is
under investigation to be represented by counsel
and requires the Commission to permit a person
who is being examined under oath to be represent
ed by counsel. The section goes on to provide for
the rights of such a person with respect to ques-
tions tending to criminate him. Section 20 appears
to me to apply whenever witnesses are to be exam
ined, whether under subsection 17(1) or for the
purposes of subsection 18(3) or under paragraph
22(2)(a). But, as I read it, subsection 20(1) deals
only with representation by counsel and does not
confer on the counsel rights that the client himself
does not have either to be present or to question
witnesses. Such rights, as it seems to me, depend
on the nature of the particular proceeding or stage
in which witnesses are being examined on oath.
As there is no provision prescribing the proce
dure for the examination of witnesses under sub
section 17(1), either at the inquiry stage or at any
other stage, in my opinion, it is for a member of
the Commission to determine what procedure
should be followed. What the Commissioner pre
scribes will, no doubt, depend on the particular
proceeding. Procedure that might be appropriate
for a short inquiry that is narrow in its scope may
be quite inappropriate and inconvenient for a
wide-ranging inquiry involving a large number of
witnesses and a large number of persons whose
conduct is the subject of the inquiry. Except for
the simplest instances it would seem practical, in
respect of examinations in the course of an inquiry,
to settle in advance what the procedure is to be,
particularly if, on the basis of what is already
known or what the inquiry has so far discovered, it
is apparent that allegations of misconduct against
particular persons are likely to be involved in any
statement of evidence the Director may make to
the Commissioner at the conclusion of his inquiry.
The credibility of such a statement of evidence will
necessarily be dependent on the credibility of the
evidence upon which it is founded. That in turn
will be affected by the procedure that has been
followed to obtain the evidence and the care that
has been taken to obtain and test it. In testing it,
cross-examination by parties whose conduct is
under investigation or by their counsel might well
be useful. But whether or not cross-examination by
persons whose conduct is under investigation or by
their counsel is to be permitted in the examination
in the course of an inquiry of persons under oath
under subsection 17(1) is, in my opinion, a matter
for the decision of a member of the Commission. It
is also for the Commissioner, subject to the provi
sions for privacy contained in subsection 27(1) to
determine what persons will be permitted to attend
the examination of a person under oath under
subsection 17(1) save that he does not have the
right to bar counsel representing the person being
examined. Further, in my opinion, the requirement
of subsection 20(1) that the Commissioner permit
a person who is being examined under oath to be
represented by counsel goes no further than to
require the Commissioner to permit counsel for the
person to be present and to represent his client
while the client is being examined under oath. In
my view, this imports no more than to advise the
client as to his rights in respect of particular
questions, to object to improper questioning and to
ensure that his client is given an opportunity to tell
the whole of his story and in such a way as not to
create false impressions of what he means by his
answers. It does not, in my view, import a right
either to be present during the examination of
other witnesses or to cross-examine any of them.
In the course of argument many cases were
referred to and discussed including in particular
The Corporation of the Township of Innisfil v.
The Corporation of the Township of Vespra', Re
The Ontario Crime Commission, Ex parte Feeley
and McDermott 2 , Guay v. Lafleur 3 , The Queen v.
Randolph 4 and St. John v. Fraser 5 .
In my view the judgment of the Supreme Court
in the Innisfil case [supra] and that of the majori
ty of the Ontario Court of Appeal in the Ontario
Crime Commission case [supra] turn on, the
application and effect of particular statutory provi
sions governing or relating to the proceeding in
which the question as to the rights of persons
affected by the proceedings to participate in the
examination and cross-examination of witnesses at
the proceeding arose. They do not in my opinion
afford assistance in resolving the present case.
1 [1981] 2 S.C.R. 145.
2 [1962] O.R. 872.
3 [1965] S.C.R. 12.
4 [1966] S.C.R. 260.
5 [1935] S.C.R. 441.
Here what is provided for by the statute at the
stage reached is simply the taking of evidence
under oath in private as a step or portion of an
inquiry that may result in the evidence being
remitted to the Attorney General of Canada under
subsection 15(1), or in a statement under subsec
tion 18 (1) for consideration by the Commissioner
in a proceeding at which persons whose conduct is
impugned by the statement are to be given full
opportunity to be heard before a report is made to
the Minister. There is no specific provision confer
ring a right on anyone to be present or to cross-
examine any witness.
The situation is not substantially different from
that considered by the Supreme Court in St. John
v. Fraser [supra] and not much different in princi
ple from that in Guay v. Lafleur [supra] in both of
which it was held that persons whose conduct or
activities were under investigation were not en
titled either to be present or to cross-examine
witnesses called to give evidence in an investiga
tion held to assemble evidence for presentation to
another authority where, before action finally
determining the rights of persons affected, such
persons would have an opportunity to be heard, in
the one case when on trial in a criminal court, in
the other on appeal from an assessment based on
the information so obtained. Both were cases of
inquiries held in private and in that respect were
not comparable with the inquiry under consider
ation in the Ontario Crime Commission case
[supra] .
I turn now to the particular orders involved in
the appeal and cross-appeal.
Having regard to the views I have expressed, I
think it follows that the rulings made by Mr.
Griffin referred to in paragraphs (a), (b) and (c)
of the originating notice have not deprived the
respondents of any right to which they are entitled
since neither persons whose conduct is being
inquired into nor witnesses nor their counsel are
entitled as of right to cross-examine witnesses at
the inquiry, nor are counsel for witnesses entitled
as of right to ask questions though if not permitted
to do so they might well ask the presiding officer
to put questions to ensure that their clients' evi
dence was complete and clear. The only rights
counsel for others have to be present and to ask
questions in my view are simply those which the
Commissioner, within the limits as to privacy
imposed by subsection 27(1), may allow. As the
rulings in question amount in my view to no more
than an indication to persons present of the course
Mr. Griffin, who was not a member of the Com
mission, proposed to follow in the examination of
the witnesses to be called, in my opinion, they
should not have been interfered with both because
there is nothing about them that is erroneous in
law and further because they were not decisions of
a kind that would necessarily be final or not
subject to change should a member of the Com
mission, in whom whatever discretion there is
resides, direct a different course. I do not think the
situation as disclosed is one in which the Court
should interfere, whether by certiorari or other
wise, to impose its views on matters that are at
least in the first instance for the Commissioner to
decide. In my view therefore paragraphs (a), (b)
and (c) of the order of the Trial Division should
not be allowed to stand.
With respect to paragraph (d) of the order of
the Trial Division, I am at a loss to understand
how the refusal of Mr. Griffin to grant an adjourn
ment deprived him of jurisdiction or what basis
exists for quashing such a refusal.
I would therefore allow the appeal and set aside
paragraphs (a), (b), (c) and (d) of the order.
Turning to the cross-appeal, for the same
reason, that is to say, that counsel for persons
whose conduct is under investigation have no right
to cross-examine witnesses save to such extent as
may, within the limits as to privacy imposed by
subsection 27(1), be allowed by a member of the
Commission, the relief sought with respect to the
matters referred to in paragraph (d) of the notice
of motion in the Trial Division was, in my view,
properly refused. I do not recall argument having
been advanced in respect of the subject-matter of
paragraph (f), Mr. Griffin's decision to put ques
tions to the witnesses in the course of their evi
dence, but in any case in the absence of a provision
to the contrary in the statute I think it is plainly
open to either a member of the Commission or a
person designated by him under subsection 17(1)
to put questions relating to the subject-matter of
the inquiry to the persons being examined before
him.
This brings me to the subject raised in para
graph (a) of the supplementary notice of motion
that is to say:
... his decision that objective cause need not be given by
Commission Counsel to the parties whose conduct is being
inquired into when an inquiry is commenced under S.8(b) of
the Combines Investigation Act R.S.C. 1970 c. C-23 as
amended;
The learned Trial Judge dealt with the matter in
the following passage [at pages 77-78] of his
reasons:
The question of the Director's grounds for instigating 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 repre
sentatives 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 inquiry procedure and of course the examina
tion 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 proceedings (section 18 or 28 of
the Federal Court Act) against the authorization of the Direc
tor, 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 Commission [1979] 2 F.C. 159,
particularly at page 160.
That submission, therefore, fails. That effectively disposes of
the supplementary notice of motion, dated March 5, 1981 and
paragraph (a) there set out.
The submission put forward, as I understand it,
was that it was incumbent on the Director, before
the examination of persons under subsection 17(1)
could proceed, to prove for those present his basis
for initiating the inquiry, that such inquiry was in
progress and that the examination of witnesses was
to be conducted in furtherance of the inquiry.
I do not disagree with the learned Trial Judge's
disposition of the application. It seems to me, that
in putting forward such a proposition counsel is
seeking to treat the examination under subsection
17(1) as if it were the trial of a statutory charge
following a not guilty plea in which it is incumbent
on a prosecutor to show that the subject-matter
falls within the jurisdiction of the presiding magis
trate. In my view this is fallacious. The proceeding
is not a trial and it is not incumbent on the
Director to prove anything before proceeding to
examine the witnesses ordered by a Commissioner
to attend and give evidence. The statute authorizes
a member of the Commission either on an ex parte
application or of his own motion to order the
examination. The order he makes and the designa
tion, if he makes any, of a person to take the
examination is, in my opinion, all that is necessary
to authorize the Commissioner or the person desig
nated to proceed immediately to the examination
of the witnesses.
The cross-appeal accordingly fails.
In the result in my opinion the appeal should be
allowed with costs, the order of the Trial Division
should be set aside and in its place, there should be
an order dismissing the application and the supple
mentary application, both with costs. The cross-
appeal should also be dismissed with costs.
URIE J.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
PRATTE J.: I concur in the opinion of the Chief
Justice. For the reasons he gives, I would dispose
of the appeal and cross-appeal as he suggests.
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.