A-561-78
Petrofina Canada Ltd. (Applicant)
v.
The Chairman, Restrictive Trade Practices Com
mission, Director of Investigation and Research
and the Attorney General of Canada (Respond-
ents)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Montreal, April 2, 17 and 19, 1979.
Judicial review — Practice — Application to vary contents
of case upon which a number of s. 28 applications to be
decided — Preliminary question regarding jurisdiction to
review impugned decisions made by Restrictive Trade Prac
tices Commission, pursuant to Combines Investigation Act —
Respondents argue that decisions not required to be made on
judicial or quasi-judicial basis — Decisions, against which
s. 28 applications directed, are reviewable as being of a quasi-
judicial nature — Combines Investigation Act, R.S.C. 1970,
c. C-23, ss. 9, 10 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
Julian Chipman, Q.C. and C. Carron for
applicant.
Paul A. Martineau, Q.C. for respondent Re
strictive Trade Practices Commission.
Jacques Ouellet, Q.C. for respondent Attor
ney General of Canada.
SOLICITORS:
Ogilvy, Montgomery, Renault, Clarke, Kirk-
patrick, Hannon & Howard, Montreal, for
applicant.
Martineau, Leclerc, St -Amand & Gravel,
Hull, for respondent Restrictive Trade Prac
tices Commission.
Deputy Attorney General of Canada for
respondent Attorney General of Canada.
The following are the reasons for judgment of
the Court delivered orally in English by
PRATTE J.: This is one of several applications
under Rule 1402(2) for orders varying the con
tents of the cases upon which a number of section
28 applications shall be decided. These reasons will
apply to all those applications, namely, to those
made in files A-558-78, A-559-78, A-560-78,
A-562-78.
Before considering the applications to vary, a
preliminary question must first be answered. That
question, on which the applicant and the respond
ents submitted written as well as oral arguments,
relates to the jurisdiction of the Court to review
the decisions against which the section 28 applica
tions are directed: are those decisions unreviewable
under section 28 as being "of an administrative
nature not required by law to be made on a
judicial or quasi-judicial basis"?
The impugned decisions were made by members
of the Restrictive Trade Practices Commission
pursuant to subsections 9(2) and 10(3) of the
Combines Investigation Act, R.S.C. 1970, c. C-23.
Section 9 and subsections 10(1) and (3) must
now be quoted:
9. (1) Subject to subsection (2), the Director may at any
time in the course of an inquiry, by notice in writing, require
any person, and in the case of a corporation any officer of the
corporation, to make and deliver to the Director, within a time
stated in such notice, or from time to time, a written return
under oath or affirmation showing in detail such information
with respect to the business of the person named in the notice
as is by the notice required, and such person or officer shall
make and deliver to the Director, precisely as required a
written return under oath or affirmation showing in detail the
information required; and, without restricting the generality of
the foregoing, the Director may require a full disclosure and
production of all contracts or agreements which the person
named in the notice may have at any time entered into with any
other person, touching or concerning the business of the person
named in the notice.
(2) The Director shall not issue a notice under subsection
(1) unless, on the ex parte application of the Director, a
member of the Commission certifies, as such member may, that
such notice may be issued to the person or officer of a corpora
tion disclosed in the application.
10. (1) Subject to subsection (3), in any inquiry under this
Act the Director or any representative authorized by him may
enter any premises on which the Director believes there may be
evidence relevant to the matters being inquired into and may
examine any thing on the premises and may 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
authorized representative, as the case may be, may afford such
evidence.
(3) Before exercising the power conferred by subsection (1),
the Director or his representative shall produce a certificate
from a member of the Commission, which may be granted on
the ex parte application of the Director, authorizing the exer
cise of such power.
The respondents say that the decisions of a
member of the Commission under subsections 9(2)
and 10(3) are purely administrative and not
required by law to be made on a judicial or
quasi-judicial basis. This is denied by the appli
cant. Both sides rely on the recent judgment of the
Supreme Court of Canada in M.N.R. v. Coopers
and Lybrand [1979] 1 S.C.R. 495. In the respond
ents' submission, the decisions here in question are
analogous to the decision made by the Minister of
National Revenue under subsection 231(4)' of the
Income Tax Act, S.C. 1970-71-72, c. 63, as
amended which the Supreme Court held, in Coop
ers and Lybrand to be purely administrative and
not required to be made on a judicial basis; the
applicant, on the other side, argues that the
impugned decisions are analogous to the decision
made by a judge under the same subsection
231(4), which decision the Supreme Court clearly
assumed to be of judicial or quasi-judicial nature.
' That provision reads as follows:
231... .
(4) Where the Minister has reasonable and probable
grounds to believe that a violation of this Act or a regulation
has been committed or is likely to be committed, he may,
with the approval of a judge of a superior or county court,
which approval the judge is hereby empowered to give on ex
parte application, authorize in writing any officer of the
Department of National Revenue, together with such mem
bers of the Royal Canadian Mounted Police or other peace
officers as he calls on to assist him and such other persons as
may be named therein, to enter and search, if necessary by
force, any building, receptacle or place for documents, books,
records, papers or things that may afford evidence as to the
violation of any provision of this Act or a regulation and to
seize and take away any such documents, books, records,
papers or things and retain them until they are produced in
any court proceedings.
It is common ground that there exist, quite
apart from Coopers and Lybrand, many judg
ments establishing the quasi-judicial nature of the
decision of a judge authorizing the issue of a
search warrant. The respondents, however, distin
guish these cases on the following grounds:
(a) Under subsections 9(2) and 10(3) of the
Combines Investigation Act, the decisions are to
be made not by a judge but by a member of the
Restrictive Trade Practices Commission, which
Commission exercises, in respect of investiga
tions, purely administrative powers;
(b) while it cannot be denied that decisions
under subsections 9(2) and 10(3) affect private
rights, they do not affect those rights in the
same degree and with the same force as the
decisions of a judge under subsection 231(4) of
the Income Tax Act or section 469 of the
Criminal Code;
(c) the judge, under subsection 231(4) of the
Income Tax Act as well as under section 469 of
the Criminal Code, must determine whether
there exist reasonable and probable grounds to
believe that a violation of the law has been
committed. The role of the member, under sub
sections 9(2) and 10(3), is different and much
more limited.
These distinctions are not sufficient, in my view,
to deny the quasi-judicial character of the deci
sions here in question:
(a) The problem here is not to determine the
general character of the various functions of the
Restrictive Trade Practices Commission, but to
characterize the functions conferred on the
members of the Commission by subsections 9(2)
and 10(3);
(b) it cannot be denied that decisions under
subsections 9(2) and 10(3) do not affect private
rights as severely as the decision, say, of a judge
authorizing the issue of a search warrant under
the Criminal Code. However, I fail to see how
one could infer from this difference in degree
between the consequences of the decisions that
the decisions themselves are of a different
nature;
(c) under the Criminal Code or the Income Tax
Act, the judge, before issuing a search warrant,
must satisfy himself that there exist reasonable
grounds for believing that there has been a
violation of the law. It certainly can be argued
that the role of a member of the Commission
under subsections 9(2) and 10(3) is different,
but, whatever be that role, it can safely be said
that the member must at least satisfy himself
that the application made to him is made "in the
course of an inquiry under the Act." This deter
mination, which is admittedly to be made by an
impartial arbiter, cannot be characterized, in
my view, as being a purely administrative act. I
do not see, therefore, any substantial difference
between the decision of a member of the Com
mission pursuant to subsections 9(2) and 10(3)
and that of a judge authorizing the issue of a
search warrant. For that reason, I cannot escape
the conclusion that the decisions here in ques
tion are reviewable under section 28 of the
Federal Court Act.
This jurisdictional point being disposed of, it is
not necessary to deal in these reasons with the
merit of the applications to vary the contents of
the cases. We have indicated, at the hearing, the
reasons why, in our opinion, those applications
may be granted only in part.
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.