T-490-79
Homer Stevens, J. H. (Jack) Nichol and George
Hewison (Applicants)
v.
Restrictive Trade Practices Commission
(Respondent)
Trial Division, Addy J.—Vancouver, February 5
and 6, 1979.
Prerogative writs — Prohibition — Restrictive Trade Prac
tices Commission conducting inquiry into B.C. fish industry
pursuant to Combines Investigation Act — Application to
prohibit Commission's proceeding with inquiry — Application,
more particularly, to prohibit compelling applicants to give
evidence pursuant to respondent's order — Combines Investi
gation Act, R.S.C. 1970, c. C-23, ss. 4(1), 6, 17(2), 18(2), 20(2).
APPLICATION.
COUNSEL:
Ian Donald for applicants.
W. B. Scarth for respondent.
SOLICITORS:
Rankin, Robertson, Giusti, Chamberlain &
Donald, Vancouver, for applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
ADDY J.: Motions for a writ of prohibition, to
prohibit the Restrictive Trade Practices Commis
sion from proceeding to consider, investigate,
determine, give directions, issue orders, or deal in
any way whatsoever with a matter under the Com
bines Investigation Act, R.S.C. 1970, c. C-23 and
amendments thereto, formerly entitled "An Inqui
ry Relating to the Production, Purchase, Sale,
Storage, Transportation and Supply of Fish and
Related Products in the Province of British
Columbia" in so far as that inquiry relates to the
applicants; and in particular prohibiting the Re
strictive Trade Practices Commission or any
member thereof from compelling Homer Stevens,
J. H. (Jack) Nichol or George Hewison, the appli
cants herein, to give evidence upon oath in connec-
tion with the aforesaid matter pursuant to an order
made by the respondent on January 5, 1979.
REASONS
The evidence submitted to the Director of Inves
tigation and Research, pursuant to section 7 of the
Combines Investigation Act, by the persons who
have alleged that the Act has been contravened by
the applicants and which evidence apparently
induced the Director to cause an inquiry to be held
by the Commission, is evidence in the hands of the
Director and not evidence in the inquiry itself.
Although the Commission would have the right to
consider and to order the production of that evi
dence in its inquiry there is no obligation on the
Commission to do so nor is there any jurisdiction
in this Court to order that it be considered. Unless
and until it is considered by the Commission in its
inquiry it remains essentially and solely evidence
which is required by statute to found an adminis
trative decision by the Director to set in motion the
necessary machinery for an inquiry. It follows that
failure of the Commission to order that that par
ticular evidence be produced cannot be considered
as a valid ground for applying for the relief
claimed, at this stage, in any event. It is possible,
that, should a situation arise such as that contem
plated by section 18(2), the person or persons
affected might be entitled to require the produc
tion of the evidence before the Commission termi
nates its inquiry. However, I specifically refrain
from deciding this point as the situation has not
arisen.
On the question of whether the well established
common law principle of nemo tenetur se ipsum
accusare would be available to the applicants, in
order to exempt them from being compellable
witnesses at the inquiry, it is clear that this princi
ple applies only to proceedings where the person
invoking it is in fact and in law an accused person.
The applicants do not presently stand accused of
any criminal offence. There exists only allegations
by certain persons that in their belief, the appli
cants committed offences and that the evidence
which they presented to the Director justifies that
belief. The very purpose of the inquiry which
resulted is to have the Commission examine what
ever evidence which might be available, in order to
inquire into what breaches of the Act might
appear to have occurred, the nature of those
breaches and what persons might be suspected of
having committed them and finally to report its
findings to the Minister. Should the Minister then
decide that charges should be laid it is only at that
moment that the applicants might become accused
persons and no longer be compellable to testify in
the resulting proceedings.
Furthermore, even where a person stands for
mally accused of a crime, that person is still a
compellable witness in all proceedings both civil
and criminal other than those leading to the deter
mination of his guilt or innocence even if those
other proceedings arise out of the same occur
rences.
Briefly, the applicants in testifying at the inqui
ry, because the inquiry is not part of a criminal
proceeding or process against them, cannot claim
to be exempted from appearing and testifying. For
that reason as well as others the case of Batary v.
Attorney General for Saskatchewan [1965] S.C.R.
465 is not applicable.
For the same reasons section 2(d) of the
Canadian Bill of Rights, relied on by counsel for
the applicants, is of no avail to them. They have
not been denied counsel and, in addition to the
Canada Evidence Act, R.S.C. 1970, c. E-10, the
specific provisions of section 20(2) afford protec
tion against self crimination. The relevant part of
section 20(2) reads as follows: "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." This is the protection
which the law affords the applicants in the circum
stances and which is guaranteed by section 1(b) of
the Canadian Bill of Rights.
As to section 2(e) of the Canadian Bill of
Rights, there is no evidence whatsoever that the
applicants have at any time been deprived of a fair
hearing.
Counsel for the applicants also relied on section
4(1)(b) of the Combines Investigation Act. It
states that the Act does not apply in respect of
"contracts, agreements or arrangements between
or among fishermen or associations of fisher
men...." [Emphasis is mine.] No person is
exempted from testifying at an inquiry pursuant to
that provision: the Commission, on the other hand,
is prevented from inquiring into those particular
areas of activity, regardless of who might be testi
fying, but is not prevented from examining, as to
any other matter, any person including one who
might also be involved with those protected mat
ters. Similarly section 4(1)(a) exempts "combina-
tions or activities of workmen or employees for
their own reasonable protection as such workmen
or employees." [Emphasis is mine.] There is no
evidence that this would apply to the applicants:
they are not workmen or employees and even if
they were, they would still be compellable in rela
tion to matters not covered by this paragraph or by
paragraph (b). They could not however be exam
ined as to the combinations or activities of work
men or employees falling within paragraph
4(1)(a), any more than those matters falling under
4(1)(b).
Finally, section 17(2) renders any person sum
moned, both competent and compellable as a wit
ness at any inquiry under the Act, and the first
part of subsection 20(2) specifically bars any
person from claiming exemption on the grounds
that his testifying might "tend to criminate him or
subject him to any proceedings or penalty".
It follows that the applicants could not succeed
on the merits. There remains in addition the more
technical but equally important question of
jurisdiction.
Although the applicants might ultimately be
obliged to defend themselves in criminal proceed
ings, and from that broad standpoint, it might be
considered that somehow their rights might be
affected by the inquiry it cannot be stated that
their rights would in any way be determined by
any finding or report of the Commission following
its inquiry. The Commission, as counsel for the
applicants quite candidly admitted, in conducting
its inquiry is performing a purely administrative
function. The inquiry results in a report to the
Minister, who in turn may or may not lay charges.
The Commission's function or power therefore
cannot be characterized as either "judicial" or
"quasi-judicial". The added statutory protection
afforded by section 18 to any person against whom
an allegation may be made in the course of the
inquiry and giving such a person a right to be
represented by counsel and to adduce evidence,
does not change the fundamental nature of the
inquiry.
An order for prohibition or writ of prohibition
does not lie against any tribunal unless it is exer
cising a judicial or a quasi-judicial function. Other
remedies such as mandamus, injunction or
declaratory judgments would be available but not
prohibition.
The applicants could have sued for an injunction,
and at the same time requested an interim injunc
tion by way of motion. (Refer "B" v. Commission
of Inquiry pertaining to the Department of Man
power and Immigration [1975] F.C. 602.)
In conclusion, I find that the application fails
both as to its merits and by reason of the nature of
the remedy requested.
ORDER
The application is dismissed with costs.
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.