COMPETITION |
Charette v. Canada (Commissioner of Competition)
A-517-02
2003 FCA 426, Sexton J.A.
14/11/03
29 pp.
Since May of 1999, appellant has submitted numerous and repeated complaints to Commissioner of Competition (Commissioner) and asked inquiry to be held into these complaints under Competition Act (Act), s. 10(1)(b)-- Commissioner investigated complaints and decided formal inquiry under s. 10(1)(b) unnecessary because no grounds to believe Act violated--Herein, Motions Judge found Commissioner had already fully performed legal duty owed to appellant under Act--Having concluded inquiry not warranted under s. 10(1)(b), Commissioner did not have duty to initiate formal inquiry under s. 10(1)(a)--S. 10 should be interpreted in way avoiding possibility of identical complaints submitted one after another without new facts raised--Furthermore, Commissioner had already performed legal duty owed to Mr. Charrette under s. 10(2) because Commissioner fully advised Mr. Charette of results of investigation and conclusion-- Second, in alternative Minister did have duty to initiate inquiry under s. 10(1)(a), Motions Judge concluded would exercise discretion not to grant mandamus because Mr. Charette's actions amounted to abuse of process--Mr. Charette should be prevented from monopolizing Competition Bureau (Bureau) resources to detriment of public interest in effective operation of Act--Whether Motions Judge erred in concluding Commissioner not required to initiate formal inquiry under s. 10(1)(a)--Complaints appellant made under s. 9 for which requesting inquiry under s. 10(1)(a) precisely same complaints Commissioner has already investigated for numerous hours and found completely unsubstantiated-- Importantly, appellant raised no new evidence to substantiate complaints--Purpose of Act will not be furthered by finding Commissioner must initiate formal inquiry when Commissioner already determined this is unnecessary-- Interpreting s. 10 so as not to require Commissioner hold formal inquiry in circumstances of this case supported by s. 22(1), which indicates Commissioner given large discretion to discontinue inquiry at any time if Commissioner's opinion further inquiry not necessary--Finally, interpreting s. 10(1)(a) as mandating inquiry be held in circumstances of present case would lead to absurd results--Such interpretation would allow people to abuse process under s. 10 by bringing exact same complaints without new evidence under both s. 10(1)(a) and s. 10(1)(b) when there has already been thorough investigation, requiring Commissioner to devote Bureau resources to repeated investigations of these claims--Motions Judge did not err in finding Commissioner had fulfilled s. 10(2) requirement to inform Mr. Charette as to progress of inquiry--If Commissioner required to initiate inquiry under s. 10(1)(a) or did not fulfill duty under s. 10(2), Motions Judge did not err in exercising discretion to deny mandamus--Fact Court's power to issue mandamus order discretionary evident both from case law and from Federal Court Act, s. 18.1(3)-- See Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.)--Very little practical value to granting order of mandamus in case at bar--See also Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2--Second, while order of mandamus in this case of virtually no practical value to appellant, refusing to grant such order in particular circumstances of this case would be of great practical value to public interest with respect to use of Commissioner's resources--In addition, appellant's conduct in first requesting and then, by his actions, encouraging Commissioner to thoroughly investigate complaints under s. 10(1)(b) and then bringing exact same complaints under s. 10(1)(a) constitutes abuse of process of Act, suggesting mandamus should not be granted in this case--In conclusion, s. 10 should not be interpreted to require Commissioner to initiate formal inquiry into appellant's complaints under s. 10(1)(a) in absence of new evidence when already investigated these complaints--As well, Commissioner already fulfilled duties to appellant under s. 10(2)--In any event, balance of convenience suggests order of mandamus should not be granted in this case--Appeal dismissed--Competition Act, R.S.C., 1985, c. C-34, ss. 9 (as am. by S.C. 1999, c. 2, ss. 6, 37(b)), 10 (as am. by R.S.C., 1985 (2nd Supp.), c. 19, s. 23; S.C. 1999, c. 31, s. 45), 22(1) (as am. by R.S.C., 1985 (2nd Supp.), c. 19, s. 24; S.C. 1999, c. 2, s. 37(n))--Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(3) (as am. by S.C. 2002, c. 8, s. 27).