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A-195-81
Central Cartage Company (Appellant) v.
Attorney General of Canada on behalf of the Minister of Industry, Trade and Commerce, and Attorney General of Canada (Respondents)
Court of Appeal, Urie and Ryan JJ. and Kerr D.J.—Ottawa, May 22 and 25, 1981.
Foreign investment review — Appeal from decision of Trial Division dismissing appellant's application for an order to amend and clarify injunction order made previously by adding paragraph specified in notice of motion — Trial Judge declined to grant order because it involved interpretation of agreements which had not been executed and for adjudication of legal consequences of future events — Notwithstanding that evidence discloses that agreements had been executed, matter falls within jurisdiction of Trial Division by virtue of Foreign Investment Review Act — Appeal allowed as appellant is entitled to a decision — Foreign Investment Review Act, S.C.
1973-74, c. 46, s. 19.
APPEAL. COUNSEL:
G. Henderson, Q.C. and E. Binavince for appellant.
J. Scollin, Q.C. and D. Friesen for respond ents.
SOLICITORS:
Gowling & Henderson, Ottawa, for appellant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for order of the Court rendered in English by
URIE J.: This is an appeal from a judgment of the Trial Division [supra page 140] dismissing the application of the appellant for an order amending and clarifying the injunction order made by Mr. Justice Gibson, as amended by order of Mr. Jus tice Mahoney, by adding thereto a paragraph specified in the notice of motion. The learned motions Judge declined to grant the order sought by the appellant on the ground that he lacked jurisdiction to make the amendment sought because it called "for interpretation of agreements
which have not been executed and for adjudication of the legal consequences of events that lie in the future."
Counsel for each of the parties agreed that the learned motions Judge erred in concluding that he lacked jurisdiction to make the order sought. With great respect, we agree. Not only does the evidence disclose that the agreements referred to had been executed but even if that had not been so the matter in issue falls within the jurisdiction of the Trial Division by virtue of section 19 of the For eign Investment Review Act, S.C. 1973-74, c. 46. The propriety of one Judge of the Trial Division varying the terms of injunctive relief granted by another Judge of that Division was not argued by counsel so that we expressly refrain from making any comment with respect thereto.
However, we must say that the appellant by virtue of the apparent refusal of the Foreign Investment Review Agency to examine the series of transactions which the appellant sought in its notice of motion to have excluded from the pur view of the injunction order as amended, and to otherwise carry out its statutory duties with regard thereto, leaves the appellant in an impossible situa tion in the circumstances. If it proceeds to imple ment the series of transactions contemplated by the agreements it not only runs the risk of being cited in the Trial Division for ignoring the terms of the injunction presently outstanding but also may well find that the Foreign Investment Review Agency will take the courses available to it under the Foreign Investment Review Act where appro val of the transactions has not been granted. In effect, in our view, the Agency by its apparent refusal to consider whether it should allow or disallow the transactions referred to in the notice of motion, is forcing this Court to make such a determination for it. This is not our function. Since the appellant is entitled to some decision on the matter we propose to make the order which, in the circumstances, in our view, the Trial Division should have made and to grant the application, although in terms somewhat different from those sought, but which will have the effect of breaking up the present "log-jam" without in any way impeding an examination of the transactions pur-
suant to the Foreign Investment Review Act if deemed necessary or advisable.
The appeal will, therefore, be allowed with costs both here and below and the transactions in issue will be excluded from the purview of Gibson J.'s injunction.
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