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T-8162-82
Director of Investigation and Research, Combines Investigation Act (Applicant)
v.
Restrictive Trade Practices Commission and O. Gerald Stoner (Respondents)
Trial Division, Cattanach J.—Ottawa, October 21 and 22, 1982.
Judicial review — Prerogative writs — Mandamus — Com bines investigation — Application by Director of Investigation and Research, Combines Investigation Act, for order of man- damus to compel Restrictive Trade Practices Commission to issue subpoenae to Presidents of named companies — Trial Division, having considered scheme of Act, ruling that Director responsible for conduct of inquiry including hearing before Commission and production of evidence — Duty of Commis sion to hear and consider evidence which Director believes material and essential to inquiry — Refusal by Commission to issue subpoenas to obtain evidence Director wishes it to con sider tantamount to declining jurisdiction — Issuance of sub poena analogous to practice of regular courts and an adminis trative act — Mandamus granted to compel performance of duty — Application allowed — Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 8, 14, 18, 21, 27.1, 47, 48 — Inquiries Act, R.S.C. 1970, c. I-13, ss. 4, 5.
COUNSEL:
G. Henderson, Q.C. and G. Kaiser for applicant.
B. C. McDonald and J. M. Belanger for respondents.
C. L. Campbell, Q.C. and M. E. Barrack for Gulf Canada and J. L. Stoik.
J. L. McDougall, Q.C. for B.P. Canada Inc. and R. W. D. Hanbidge.
A. M. Austin for Shell Canada and C. W. Daniel.
SOLICITORS:
Cowling & Henderson, Ottawa, for applicant.
Lang, Michener, Cranston, Farquharson & Wright, Toronto, for respondents.
McCarthy & McCarthy, Toronto, for Gulf Canada and J. L. Stoik.
Fraser & Beatty, Toronto, for B.P. Canada Inc. and R. W. D. Hanbidge.
Weir & Foulds, Toronto, for Shell Canada and C. W. Daniel.
The following are the reasons for order ren dered in English by
CATTANACH J.: The Director of Investigation and Research, Combines Investigation Act, R.S.C. 1970, c. C-23, (hereinafter referred to as the "Director") had applied to this Court for an order of mandamus directing the Restrictive Trade Practices Commission and its Chairman to issue subpoenae to the Presidents of those petroleum companies named in the notice of motion.
Mandamus is that high prerogative writ avail able for relief against a public body which fails to perform a statutory or other duty imposed on that body for the benefit of the applicant for the writ.
In order for mandamus to issue there must be a duty imposed upon the body the performance or non-performance of which is not a matter of discretion.
Further the applicant must show that there resides in him the legal right to the performance of the duty by the party against whom mandamus is sought.
The contention on behalf of the applicant, simply put, is that predicated upon section 47 of the Combines Investigation Act, the Director is responsible for the conduct of an inquiry as to the existence of conditions or practices in this particu lar trade which may amount to a monopolistic situation or combination in restraint of trade and the inquiry so conducted is deemed to be an inqui ry under the Inquiries Act, R.S.C. 1970, c. I-13.
The contention to the contrary is that when the Director has completed his inquiry under subsec tion (1) of section 47 and has placed that evidence so collected and embodied in the "Green Book" before the Commission the Director's function is ended and the inquiry from that point forward
becomes that of the Commission as to whether it will consider further evidence or material. This contention is predicated upon the language of sub section (2) of section 47.
What is intended in the language of section 47 cannot, in my view, be discovered by considering those words in the abstract but that reference must be had to the scheme and object for which the statute was made. To do so, reference may be had to the statute as a whole.
Under section 8 it is the Director who causes an inquiry to be made to determine relevant facts.
Under section 14 the Director may terminate the inquiry if he is satisfied the evidence is insuffi cient but with the concurrence of the Commission when evidence is adduced before it.
Under section 15 the Director may terminate the inquiry at any stage and embark upon a prosecution.
By section 27.1 the Director is charged with the responsibility of making representations to federal boards to maintain freedom of competition.
He is thus the watchdog of free enterprise and competition.
Clearly, therefore, the scheme of the Act is that the responsibility for the conduct of an inquiry is vested in the Director and that responsibility con tinues to lay upon him throughout the hearing before the Commission under section 47. It does not terminate at the outset of the hearing before the Commission but is an on-going inquiry to be conducted by the Director.
His responsibility is not abandoned.
That being so the question then arises as to whether the issuance of subpoenae is merely an administrative act or an act to be made upon a judicial or quasi-judicial basis.
If the former is the case then mandamus will lie to compel the performance of that duty there being no discretion in the body which issues the document.
If the latter be the case then there is a discretion in the body from which it follows that mandamus will not lie.
By virtue of section 21 of the Combines Investi gation Act the Commission or a member thereof has the powers of a commissioner under the In quiries Act.
Under section 4 of that Act the commissioners have power to summon any witnesses to give evi dence and under section 5 have the same power of enforcement as is vested in any court of record in civil cases.
It follows that the issuance of subpoenae by the Commission or a member thereof is analogous to the issuance of a subpoena by the courts of the land.
That is an administrative act.
Under section 48 of the Combines Investigation Act the Governor in Council may make regula tions for the administration and carrying out of the Act.
In response to a query from myself I was informed that no such regulations had been made as to the procedure to be followed in the conduct of an inquiry before the Commission under section 47 but that a code of procedure was laid down applicable to the conduct of this particular inquiry to which the parties consented.
One such matter was the issuance of subpoenae which was hedged with conditions precedent to be complied with. I entertain reservations as to the validity of such procedure and whether it is bind ing upon the parties.
It was protested that the consent of the Director had not been given to the procedure from which it would follow that the procedure was adopted uni laterally by the Commission.
The premise I have accepted is that the initiative for the conduct of the inquiry is that of the Direc tor. That includes the production of evidence.
It is the duty of the Commission to hear and consider evidence brought before it.
The refusal by the Commission to issue subpo- enae to compel the attendance of witnesses to give evidence considered by the Director to be material and essential to the inquiry transcends a mere rejection of evidence and is tantamount to the Commission declining to enter upon an inquiry which is its duty to enter. In short, it is a declining of jurisdiction.
For the foregoing reasons the application is allowed.
ORDER
It is ordered that the Restrictive Trade Practices Commission or the Chairman thereof shall issue subpoenae as requested by the applicant herein directed to:
1. J. L. Stoik,
President and Chief Executive Officer,
Gulf Canada Limited;
2. R. W. D. Hanbidge,
President and Chief Executive Officer,
BP Canada Inc.;
3. Andrew Janisch,
President and Chief Operating Officer,
Petro-Canada;
4. C. William Daniel,
President and Chief Executive Officer,
Shell Canada Limited, and
5. Laurie Woodruff,
President,
Ultramar Canada Inc.
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