Judgments

Decision Information

Decision Content

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.