A-135-90
Chrysler Canada Ltd. (Appellant)
v.
Competition Tribunal and the Director of Investi
gation and Research (Respondents)
INDEXED AS: CHRYSLER CANADA LTD. V. CANADA (COMPETI-
TION TRIBUNAL) (CA.)
Court of Appeal, Iacobucci C.J., Pratte and Des-
jardins JJ.A.—Ottawa, March 28, 29 and July 10,
1990.
Combines — Whether Competition Tribunal having juris
diction to punish for contempt ex facie curiae — Competition
Tribunal Act, s. 8 not overcoming common law rule limiting
power of inferior court to punishment of contempt in facie
curiae — Contempt proceedings for failure to obey order to
deal made under s. 75 neither "application under Part VIII"
nor "matter related thereto" (s. 8(1)) — Enforcement of order
not related to application or order culminating therefrom
Although s. 8(2) giving Tribunal all powers of superior court
of record with respect to enforcement of orders "necessary or
proper for due exercise of jurisdiction", enforcement of final
order under Part VIII not necessary for exercise of jurisdiction
— By prohibiting punishment for contempt unless judicial
member of opinion appropriate, s. 8(3) indicating draftsman
addressed contempt powers — Failure to expressly confer
power to punish for contempt ex facie curiae not oversight.
Practice — Contempt of court — Ex facie curiae — Com
petition Tribunal Act, s. 8 not overcoming common law rule
limiting power of inferior court to punishing contempt in
presence of court — Failure to expressly confer power to
punish for contempt ex facie curiae not oversight on part of
legislative draftsman or Parliament.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Competition Act, R.S.C., 1985, c. C-34 (as am. by
R.S.C., 1985 (2nd Supp.), c. 19, s. 18), Part VIII, ss.
75 (as am. idem, s. 45), 76 (as am. idem), 77 (as am.
idem), 78 (as enacted idem), 80 (as enacted idem), 85
(as enacted idem), 92 (as enacted idem).
Competition Tribunal Act, R.S.C., 1985 (2nd Supp.),
c. 19, ss. 8, 9, 13.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canadian Broadcasting Corporation et al. v. Quebec
Police Commission, [1979] 2 S.C.R. 618; (1979), 101
D.L.R. (3d) 24; 48 C.C.C. (2d) 289; 14 C.P.C. 60; 28
N.R. 541.
REFERRED TO:
Re Diamond and The Ontario Municipal Board, [1962]
O.R. 328 (C.A.); National Energy Board Act (Can.)(Re),
[ 1986] 3 F.C. 275 (C.A.).
COUNSEL:
Thomas A. McDougall, Q.C. and Richard A.
Wagner for appellant.
C. C. Johnston, Q.C. and Jane Graham for
Competition Tribunal.
Rory Edge and William Miller for Director
of Investigation and Research.
SOLICITORS:
Perley-Robertson, Panet, Hill & McDougall,
Ottawa, for appellant.
Johnston & Buchan, Ottawa, for Competition
Tribunal.
Deputy Attorney General of Canada for
Director of Investigation and Research.
The following are the reasons for judgment
rendered in English by
IAcoeucci C.J.: This is an appeal from an
order of Madame Justice Reed, Chairman of the
Competition Tribunal ("Tribunal"), whereby, as a
single judicial member thereof, she held that the
Tribunal has the jurisdiction to punish contempt
ex facie curiae—out of the presence of the Tribu-
nal—for failure to comply with an order made by
it under Part VIII of the Competition Act» The
appeal is brought pursuant to section 13 of the
Competition Tribunal Act. 2
1 R.S.C., 1985, c. C-34.
2 R.S.C., 1985 (2nd Supp.), c. 19. Section 13 reads as
follows:
13. (1) Subject to subsection (2), an appeal lies to the
Federal Court of Appeal from any decision or order, whether
final, interlocutory or interim, of the Tribunal as if it were a
jud$tnent of the Federal Court—Trial Division.
(2) An appeal on a question of fact lies under subsection
(1) only with the leave of the Federal Court of Appeal.
On October 13, 1989, the Tribunal issued, with
respect to a "refusal to deal" complaint made
pursuant to section 75 [as am. by R.S.C., 1985
(2nd Supp.), c. 19, s. 45] of the Competition Act
by a Mr. Richard Brunet, the following order
requiring the appellant Chrysler Canada Ltd. to:
... accept Richard Brunet as a customer for the supply of
Chrysler parts on trade terms usual and customary to its
relationship with Brunet as the said terms existed prior to
August l986.;
As this order had allegedly not been complied
with, the respondent Director of Investigation and
Research on February 19, 1990 filed with the
Tribunal a notice of motion for an order directing
the appellant to appear and show cause why it
should not be held in contempt of the Tribunal's
order of October 13, 1989. That motion was to be
presented ex parte on February 20, 1990. How
ever, on that date, counsel for the appellant, who
had been made aware of the motion, appeared
before the Chairman with counsel for the Director
and raised a preliminary objection to the issuance
of a show cause order against his client. That
objection was based on the contention that the
Tribunal has no jurisdiction to punish for con
tempt committed ex facie curiae. The Chairman
reserved her decision on the objection and, later on
the same day, made an order dismissing it and
adjourning to a later date the hearing of the
Director's motion. That is the order from which
this appeal is brought.
The Decision Appealed From
The Chairman based her conclusion that the
Tribunal had jurisdiction to entertain ex facie
curiae contempt proceedings for the enforcement
of an order under Part VIII of the Competition
Act on sections 8 and 9 of the Competition Tri
bunal Act. These sections read as follows:
Jurisdiction and Powers of the Tribunal
8. (1) The Tribunal has jurisdiction to hear and determine
all applications made under Part VIII of the Competition Act
and any matters related thereto.
3 Appeal Book, at p. 64.
(2) The Tribunal has, with respect to the attendance, swear
ing and examination of witnesses, the production and inspection
of documents, the enforcement of its orders and other matters
necessary or proper for the due exercise of its jurisdiction, all
such powers, rights and privileges as are vested in a superior
court of record.
(3) No person shall be punished for contempt of the Tri
bunal unless a judicial member is of the opinion that the
finding of contempt and the punishment are appropriate in the
circumstances.
9. (1) The Tribunal is a court of record and shall have an
official seal which shall be judicially noticed.
(2) All proceedings before the Tribunal shall be dealt with
as informally and expeditiously as the circumstances and con
siderations of fairness permit.
(3) Any person may, with leave of the Tribunal, intervene in
any proceedings before the Tribunal to make representations
relevant to those proceedings in respect of any matter that
affects that person.
After acknowledging that, in the absence of
express statutory provisions, inferior courts or tri
bunals do not have the power to punish for con
tempt ex facie curiae, the Chairman reasoned as
follows:
In my view, it is clear that those provisions contemplate that
the Tribunal has the authority to entertain the contempt pro
ceeding in dispute in this case. In my view, those provisions
accord the Tribunal authority to punish contempt which occurs
ex facie curiae. Specifically, subsection 8(1) accords the Tri
bunal authority to determine all Part VIII applications "and
any matters related thereto". Subsection 8(2) accords the
Tribunal "all such powers, rights and privileges as are vested in
a superior court of record" and these are expressly stated as
being granted to allow the Tribunal to require "enforcement of
its orders" and to accomplish "other matters necessary for the
due exercise of its jurisdiction". Subsection 8(3) expressly
refers to the Tribunal's contempt powers and the fact that a
judicial member must make a finding that any contempt
alleged and the punishment imposed are appropriate in the
circumstances.
This statutory scheme, in my view, indicates that the Tri
bunal was intended to have power to punish for contempt ex
facie curiae as well as in facie curiae. This follows not only
from the text of the statutory provisions themselves but also
from the nature of the decisions and orders which the Tribunal
was established to render. The Tribunal's powers and functions
are not limited to evidence gathering. The Tribunal is not in
"pith and substance" an administrative body as was said of the
Ontario Municipal Board in the Diamond case (supra) at p.
330. The Tribunal is not an investigative agency. The Director
conducts the investigation. The Tribunal adjudicates. Orders
which the Tribunal renders under Part VIII are made, upon
application by the Director, after adjudication. The adjudica-
tive procedure followed and the type of orders issued are
comparable to those followed in and issued by courts.
Reading the relevant statutory provisions (i.e., section 8 of
the Competition Tribunal Act) in the context of the Competi
tion Act, R.S.C., 1985, c. C-34, and the Competition Tribunal
Act leads to the conclusion that the Tribunal possesses author
ity to punish contempt ex facie curiae. This accords with the
function the Tribunal was designed to perform and the purpose
of the legislation.'
Discussion
The appellant's main argument in support of the
appeal was that the Chairman based her conclu
sion on a wrong interpretation of section 8 of the
Competition Tribunal Act.
It is common ground that the Tribunal is an
inferior court and that, at common law, the con
tempt powers of an inferior court are limited to
contempt committed in the presence of the court—
in facie curiae.' In order for the Tribunal to have
the power to punish for contempt committed ex
facie, it is therefore necessary that there be a
statutory provision giving it that power.
The principles of statutory interpretation to be
applied in such a matter were clearly stated by
Dickson J. (as he then was) in Canadian Broad
casting Corporation et al. v. Quebec Police
Commission 6 when, in expressing his agreement
with the conclusion of Beetz J., he said at pages
647-648:
I am content to agree that the appeal should be allowed for
the reasons given by Mr. Justice Beetz. I do not think it
necessary to the decision in this appeal to consider the constitu
tional implications of the power of an inferior tribunal to
punish for contempt committed ex facie. It is sufficient to the
decision in this case to state that the powers conferred upon the
Police Commission, given the general limitation at common law
upon the contempt powers of an inferior tribunal, must be
strictly interpreted, and a strict interpretation in this case leads
inevitably to the conclusion that such power was not invested in
the Commission. There can be no doubt that the common law
draws a sharp line between the power to punish for contempt
committed outside the presence of the court, and the power to
punish where the contempt is committed in the face of the
court. ... In the absence of clear statutory language expressing
an intention to confer broader contempt powers upon the
Commission, it must be presumed that the Legislature granted
to the Commission only those contempt powers ordinarily
exercised by an inferior tribunal.
' Appeal Book, at pp. 104-105.
5 Canadian Broadcasting Corporation et al. v. Quebec Police
Commission, [1979] 2 S.C.R. 618. See therein the thorough
review of the issue by Beetz J. who discussed the rationale for
inferior courts being limited in their contempt power. See also
Re Diamond and The Ontario Municipal Board, [1962] O.R.
328 (C.A.).
6 Supra, note 5.
Were this Court to be faced with a clear and unambiguous
statutory provision investing ex facie contempt powers in an
inferior tribunal, then the question addressed by Mr. Justice
Beetz in his third proposition might arise. [Emphasis added.]'
It follows that a statute creating an inferior
tribunal must, in the absence of clear language
expressing the intention to give broader powers, be
interpreted as conferring only those contempt
powers ordinarily exercised by inferior courts,
namely, the power to punish for contempt commit
ted in facie curiae.
The only statutory provisions that might con
ceivably be interpreted as granting to the Tribunal
the power to punish ex facie contempt are con
tained in the three subsections of section 8 of the
Competition Tribunal Act quoted above.
To repeat, pursuant to subsection 8(1):
8. (1) The Tribunal has jurisdiction to hear and determine
all applications made under Part VIII of the Competition Act
and any matters related thereto.
Proceedings instituted to punish a party for its
failure to obey an order previously made by the
Tribunal under Part VIII of the Competition Act
are clearly not applications under Part VIII of the
Competition Act.' Nor are they, in my view, "mat-
ters related" to such applications or the hearing
7 Id. at pp. 647-648. Martland J. concurred with Dickson J.
See also Beetz J. who stated that the legislator in enacting
legislation creating inferior courts or tribunals must be taken to
have recognized the common law distinction relating to con
tempt powers of inferior and superior courts. Id. at
pp. 627-628, 644-645.
8 Part VIII of the Competition Act deals with a complex
range of anti-competitive business practices and confers on the
Tribunal powers to issue orders with regard to an extensive
number of restrictive trade practices such as refusal to deal
(section 75 (as am. by R.S.C., 1985 (2nd Supp.), c. 19, s. 45)),
consignment selling (section 76 (as am. idem)), exclusive deal
ing, tied selling and market restriction (section 77 (as am.
idem)), abuse of dominant position (section 78 (as enacted
idem)), delivered pricing (section 80 (as enacted idem)), spe
cialization agreements (section 85 (as enacted idem)) and
mergers that reduce competition (section 92 (as enacted
idem)). The Tribunal has an array of powers to deal with the
anti-competitive behaviour (see e.g. sections 77, 92).
and determination of such applications. 9 The
enforcement of an order is certainly a matter
related to that order; it is not, however, related to
the application or its hearing and determination
that culminated in the making of that order. Sub
section 8(1) therefore does not define the jurisdic
tion of the Tribunal as including the power to
punish for failure to comply with the orders made
under Part VIII of the Competition Act.
Subsection 8(2), at first sight, seems to give that
power to the Tribunal since it grants it all the
powers that are vested in a superior court of record
with respect to, inter alia, "the enforcement of its
orders". However, these words must be read in
their context. The phrase "the enforcement of its
orders" in the subsection is part of an enumeration
of matters that are said to be "necessary or proper
for the due exercise of [the Tribunal's] jurisdic
tion". The enforcement of a final order made
under Part VIII of the Competition Act cannot
possibly be considered as necessary or proper for
the exercise of the Tribunal's jurisdiction as
described in subsection 8(1). - The expression
"enforcement of its orders" in subsection 8(2),
therefore, refers only to the enforcement of the
many orders that the Tribunal may make in order
to ensure that the applications made under Part
VIII of the Competition Act are disposed of in a
fair and rational manner. 1 ' The enforcement of
these orders is certainly necessary or proper for the
due exercise of the Tribunal's jurisdiction.
9 Grammatically, it would appear that the phrase "any mat
ters related thereto" modifies "applications". However, counsel
for the appellant argued the phrase described the "hearing and
determination of applications". In either case, the result is the
same because hearing and determining applications involve the
elements of leading and weighing of evidence and deciding
thereon, and in my view the enforcement of orders is unrelated
to those elements.
10 See National Energy Board Act (Can.) (Re), [ 1986] 3 F.C.
275 (C.A.) where Heald J. characterized a provision of the
National Energy Board Act [R.S.C. 1970, c. N-6], which
contained practically the same wording as subsection 8(2) of
the Competition Tribunal Act, as "evidence gathering powers".
/d., at p. 282.
Finally, subsection 8(3) also does not help the
respondent. Although it refers expressly to the
powers of the Tribunal to entertain contempt pro
ceedings, there is nothing in the subsection indicat
ing that the extent of the contempt power is not
restricted to contempt in facie curiae. The subsec
tion shows, however, that the power to punish for
contempt was clearly in the mind of the draftsman
of section 8 so that the failure to confer expressly
the power to punish for contempt ex facie cannot
be attributed to an oversight.
Therefore, I cannot find in section 8 a clear
expression of an intention to confer on the Tri
bunal the power to punish for contempt those who
fail to comply with the Tribunal's orders made
under Part VIII of the Competition Act. Granted
it might be desirable that the Tribunal possess
such a power, but it seems that Parliament
thought otherwise.
Disposition
I would allow the appeal, set aside the order of
Madame Justice Reed dismissing the appellant's
objection to jurisdiction, and refer the matter back
to the Competition Tribunal for disposition on a
basis consistent with these reasons.
PRATTE J.A.: I agree.
DESJARDINS J.A.: I concur.
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.