Irvine v. Canada (Restrictive Trade Practices Commission)

Irvine v. Canada (Restrictive Trade Practices Commission)
Collection
Supreme Court Judgments
Date
1987-03-26
Report
[1987] 1 SCR 181
Case number
16950
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Le Dain, Gerald Eric
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Notes
SCC Case Information: 16950
Decision Content
Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181
IN THE MATTER OF an Application under Section 18 of the Federal Court Act ; AND IN THE MATTER OF the Combines Investigation Act and section 32 thereof; AND IN THE MATTER OF an Inquiry relating to the production, manufacture, purchase, sale and supply of flat rolled steel, plate steel, bar and structural steel and related products; AND IN THE MATTER OF decisions, orders or rulings made by Mr. H. H. Griffin
Harold Irvine, Namasco Limited, Charles Ian McKay, Drummond McCall Inc., Samuel, Son & Co. Limited, W. Grant Brayley, Westeel‑Rosco Limited, York Russel Inc., L. F. Newbery, Norman Katzman, John M. White, Leon Robidoux, Timothy H. Coughlin, Newman Steel Ltd., Benjamin P. R. Newman, Sigmund R. Taube, Zenon P. Karcz, Peter R. Sheppard, Lorne Gilbert Coons, James Arthur Jobin, Donald Charles Grinstead, Hugh Fitzgerald Thomson, William Alexander Mowat and Bruce Scott Moore Appellants
and
The Restrictive Trade Practices Commission, the Director of Investigation and Research Appointed under the Combines Investigation Act and Mr. H. H. Griffin Respondents
indexed as: irvine v. canada (restrictive trade practices commission)
File No.: 16950.
1984: October 25, 26; 1987: March 26.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard*, Lamer and Le Dain JJ.
*Chouinard J. took no part in the judgment.
on appeal from the federal court of appeal
Administrative law ‑‑ Boards and tribunals ‑‑ Restricted Trade Practices Commission ‑‑ Investigatory hearing ‑‑ Rights of parties and witnesses ‑‑ Combines Investigation Act, R.S.C. 1970, c. C‑23, ss. 8(b), 17(1), 20(1).
The Restrictive Trade Practices Commission ordered twenty‑nine persons to appear before the Chairman or person named by him and later made an order appointing a Hearing Officer to examine these witnesses. The hearings were part of an in camera fact‑finding exercise. The Hearing Officer made a number of rulings concerning the conduct of the hearing and the role of counsel. He did not allow cross‑examination and excluded a potential witness and excused another, Kirch, from testifying, and he found that the Director need not disclose his "reasonable and probable grounds" for commencing the inquiry. When it became known that the Hearing Officer was not a Commissioner, one of the parties requested an adjournment in order to apply to a member of the Commission for an order for representation by counsel pursuant to s. 20. This adjournment was denied. The witnesses and the parties whose conduct was under investigation then launched a notice in the Federal Court Trial Division, pursuant to s. 18 , to set aside the proceedings before the Hearing Officer for want of authority on his part and in particular because of these rulings. The trial judge quashed the refusal (1) to permit the parties under investigation and witnesses, where represented by counsel, to be present throughout the whole of the examinations; and (2) to permit counsel to cross‑examine or re‑examine their clients without restriction or to cross‑examine other witnesses. All issues were placed, by appeal and cross‑appeal, before the Federal Court of Appeal. The order of the Trial Division quashing the orders of the Hearing Officer was set aside but its refusal to require Kirch to testify or to order the Commission's counsel to give the objective cause of the inquiry was confirmed. At issue was the validity of the inquiry absent any demonstration by the Director of his reasons for believing an offence against the Act had been committed, the extent and role of counsel permitted under s. 20 of the Act, and the role and function of the Hearing Officer, the Director and counsel representing other parties with respect to the examination of Kirch.
Held: The appeal should be dismissed.
Appellants, at this stage of the investigatory process, are not entitled to an order quashing the inquiry because of the Director's failure to disclose to those being examined, pursuant to s. 17, his reasons for believing the existence of one or more conditions in s. 8(b). There is no linkage in the statute between ss. 8 and 17. Both are silent on the issue of disclosure and neither prescribes disclosure by the Director. The pattern set by the statute does not confine the activities of the Director to an inquiry in the formal sense. It is reasonable to construe the provision establishing an investigatory process as requiring nothing more of the Director than that he disclose the basis for his investigation when he seeks to invoke the coercive provisions of the Act.
Neither s. 20(1) of the Act nor the doctrine of fairness provides the appellants with a right to cross‑examine witnesses at the inquiry. Fairness is a flexible concept whose content varies depending on the nature of the inquiry and the consequences for the individuals involved. The extent of the right to counsel and the role of counsel, where counsel are authorized by statute, are determined by the characteristics of the proceeding, the nature of the resulting report and its circulation to the public, and the penalties which will result when events succeeding the report are put in train. The investigating body must control its own procedure. When the body has determinative powers, however, different considerations enter the process. The Act provides that the case against the investigated must be made known to him at each of the progressive stages of the inquiry.
It was premature in fact and under the Act to argue that the consequential impact of the reduced scope of counsel activity allowed by the Hearing Officer would result in a loss of reputation, exposure to criminal prosecution, reduction of freedom to compete with others because of loss of tariff protection and the exposure to adverse action by other federal agencies. The Hearing Officer could not bring about these results.
The proceedings were not at the stage where it was necessary to look at the procedure in its setting and to ask whether it operated unfairly to the point where the courts must supply the legislative omission. It was sufficient that the Hearing Officer allowed all parties to be represented by counsel who could object to improper questioning and re‑examine their clients. The courts, which are inclined not to intervene where the process is in embryonic form engaged in gathering raw evidence, become more "interventionist" where the investigating body has powers to determine.
The Hearing Officer had the discretion to exclude a potential witness from the hearing. The proceeding was not a trial where a corporation might need an employee to assist its counsel. No such right attaches to a purely investigatory process, particularly in the preliminary stage of an elaborate statutory structure where the corporation is represented by counsel.
This Court had no legal basis to respond to the application for mandamus aimed at compelling either the Hearing Officer or the Director to obtain testimony from Kirch. The Act authorized a Commissioner to appoint "any other person" before whom a person was to appear and be examined. The Hearing Officer had no statutory duty other than to preside over the witness named in the order and he was present and ready to do so. There was no basis upon which mandamus could be directed against the Director because nothing in the record or in the allegations and submissions of any party indicated that the Director had rendered himself incapable of fulfilling any other duty arising under the Act because of his not examining Kirch. No case or submission called for mandamus to be issued against the Chairman or any member of the Commission.
The Court did not address the impact of the Charter on ss. 17 and 20(1) of the Act because no oral argument had been presented after the denial of an application under Rule 32 of the Supreme Court Rules for the stating of a question as to constitutional validity. The Charter, furthermore, did not apply to the facts of this case because all rulings of the Hearing Officer being challenged were made before the Charter come into force.
Cases Cited
Considered: Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; St. John v. Fraser, [1935] S.C.R. 441; Guay v. Lafleur, [1965] S.C.R. 12; In re Pergamon Press Ltd., [1971] Ch. 388; Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12; Hannah v. Larche, 363 U.S. 420 (1959); Jenkins v. McKeithen, 395 U.S. 411 (1969); F.C.C. v. Schreiber, 329 F.2d 517 (1964); referred to: Re Armstrong Commercial Investigators of Canada Ltd. and Turner (1975), 9 O.R. (2d) 284; Canadian Bank of Commerce v. Attorney General of Canada, [1962] S.C.R. 729; Point ofAyr Collieries, Ltd. v. Lloyd‑George, [1943] 2 All E.R. 546; Godson v. City of Toronto (1890), 18 S.C.R. 36; Board of Education v. Rice, [1911] A.C. 179; Local Government Board v. Arlidge, [1915] A.C. 120; Wilson v. Esquimalt and Nanaimo Railway Co., [1922] 1 A.C. 202; Saulnier v. Quebec Police Commission, [1976] 1 S.C.R. 572; Martineau v. Matsqui Institution Inmate Disciplinary Board (No. 1), [1978] 1 S.C.R. 118; Re Nanticoke Ratepayers Association and Environmental Assessment Board (1978), 83 D.L.R. (3d) 722; Re McGavin Toastmaster Ltd. and Powlowski (1972), 31 D.L.R. (3d) 370, and (1973), 37 D.L.R. (3d) 100 (Man. C.A.); Ryan v. Board of Inquiry under the Human Rights Act (1976), 22 N.S.R. (2d) 444; Desjardins v. Bouchard (1976), 71 D.L.R. (3d) 491; Chisholm v. Jamieson, [1974] 6 W.W.R. 169; Re Sedlmayr, Gardiner and Demay and the Royal Commission into the Activities of Royal American Shows Inc. (1978), 82 D.L.R. (3d) 161; Re Underwood McLellan & Associates Ltd. and Association of Professional Engineers of Saskatchewan (1978), 86 D.L.R. (3d) 501, reversed on other grounds (1979), 103 D.L.R. (3d) 268; Ridge v. Baldwin, [1964] A.C. 40; Malloch v. Aberdeen Corp., [1971] 2 All E.R. 1278; Bates v. Lord Hailsham, [1972] 1 W.L.R. 1373; Pearlberg v. Varty, [1972] 1 W.L.R. 534; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; Innisfil (Corporation of the Township) v. Corporation of the Township of Vespra, [1981] 2 S.C.R. 145; Re Abel and Advisory Review Board (1980), 119 D.L.R. (3d) 101; Bushnell v. Secretary of State for the Environment, [1980] 2 All E.R. 608; Mahon v. Air New Zealand Ltd., [1984] 3 All E.R. 201; Re Royal Commission on Thomas Case, [1980] 1 N.Z.L.R. 602; Re Boehler and College of Nurses of Ontario (1982), 133 D.L.R. (3d) 642; Re Seaway Trust Co. and The Queen in Right of Ontario (No. 2) (1983), 143 D.L.R. (3d) 252; Fraternité inter‑provinciale des ouvriers en électricité c. Office de la construction du Québec, [1983s <) C.A. 7, 148 D.L.R. (3d) 626; Jones v. S.E.C., 298 U.S. 1 (1936); In re Groban, 352 U.S. 330 (1957); Anonymous No. 6 v. Baker, 360 U.S. 287 (1959); Genuine Parts Co. v. F.T.C., 445 F.2d 1382 (1971); Sneaker Circus Inc. v. Carter, 457 F.Supp. 771 (1978), aff'd 614 F.2d 1290 (1979); Georator Corp. v. Equal Employment Opportunity Commission, 592 F.2d 765 (1979); Re The Ontario Crime Commission, Ex parte Feeley and McDermott, [1962] O.R. 872; Public Inquiries Act and Shulman, Re, [1967] 2 O.R. 375; Re Children's Aid Society of the County of York, [1934] O.W.N. 418; Batary v. Attorney General for Saskatchewan, [1965] S.C.R. 465; Faber v. The Queen, [1976] 2 S.C.R. 9; R. v. McDonald, Ex parte Whitelaw (1968), 2 D.L.R. (3d) 298; Wiseman v. Borneman, [1971] A.C. 297; Barnes v. City of London Real Property Co., [1918] 2 Ch. 18.
Statutes and Regulations Cited
Administrative Procedure Act, 5 U.S.C.A., s. 555(b).
Canada Evidence Act, R.S.C. 1970, c. E‑10, s. 5.
Canadian Charter of Rights and Freedoms, ss. 7 , 8 .
Collection Agencies Act, R.S.O. 1980, c. 73.
Combines Investigation Act, R.S.C. 1970, c. C‑23, ss. 7 , 8 (b), (c), 9, 10, 11, 12, 14, 15(1), (2), 16, 17(1), 18(1)(a), (b), (2), (3), (4), 19(2), (5), 20(1), (2), 21, 26, 27(1), (2), 27.1, 28, 31.2, 32(2), (3), 47(1)(b), (2).
Competition Act, S.C. 1986, c. 26, ss. 18‑47, 67.
Constitution of the United States of America, Fourteenth Amendment, Bill of Rights.
Criminal Code, R.S.C. 1970, c. C‑34, s. 643.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 18, 28.
Income Tax Act, R.S.C. 1952, c. 148.
Inquiries Act, R.S.C. 1970, c. I‑13.
Public Inquiries Act, R.S.O. 1960, c. 323, s. 5(1).
Supreme Court Rules, SOR/83‑74, as am., s. 32.
Authors Cited
de Smith, Stanley Alexander. Judicial Review of Administrative Action, 4th ed. By J. M. Evans. London: Stevens & Sons, 1980.
Halsbury's Laws of England, vol. 3, 4th ed. London: Butterworths, 1973.
Pollock, Sir Frederick and Frederic William Maitland. The History of English Law, vol. 1, 2nd ed., reissued. Cambridge: Cambridge University Press, 1968.
Schopler, Ernest H. "Right to Assistance by Counsel in Administrative Proceedings" (1970), 22 ALR3d 229.
Shorter Oxford English Dictionary, "Inquiry". Oxford: Clarendon Press, 1959.
"The Distinction Between Informing and Prosecutorial Investigations: A Functional Justification for `Star Chamber' Proceedings" (1963), 72 Yale L.J. 1227.
Wade, Henry William Rawson. Administrative Law, 5th ed. Oxford: Clarendon Press, 1982.
APPEAL from a judgment of the Federal Court of Appeal, [1982] 2 F.C. 500, 132 D.L.R. (3d) 323, allowing an appeal from a judgment of Collier J., [1982] 1 F.C. 73. Appeal dismissed.
Edgar Sexton, Q.C., and Valerie Dyer, for the appellant Harold Irvine.
Jeffrey Leon, for the appellants Namasco Limited and Charles Ian McKay.
S. N. Lederman, Q.C., and Robert Rueter, for the appellant Drummond McCall Inc.
John A. B. Macdonald, Q.C., and Hugh A. Christie, for the appellants Samuel, Son & Co. and W. Grant Brayley.
J. A. Hodgson and N. R. Finkelstein, for the appellant Westeel‑Rosco Ltd.
F. J. C. Newbould, Q.C., for the appellants York Russel Inc., L. F. Newbury, Norman Katzman, John M. White, Leon Robidoux and Timothy H. Coughlin.
Robert Mongeon, for the appellants Newman Steel Ltd., Benjamin P. R. Newman, Sigmund R. Taube, Zenon P. Karcz and Peter R. Sheppard.
John Sopinka, Q.C., and David Brown, for the appellants Lorne Gilbert Coons, James Arthur Jobin, Donald Charles Grinstead, Hugh Fitzgerald Thomson, William Alexander Mowat and Bruce Scott Moore.
Bryan Finlay, Q.C., and Graham Garton, for the respondents.
The judgment of the Court was delivered by
1. Estey J.‑‑This appeal raises many questions about the rights and obligations of persons concerned with administrative procedures and hearings under the Combines Investigation Act, R.S.C. 1970, c. C‑23, as amended (hereinafter referred to as "the Act"). Substantial portions of the Act have been repealed and replaced by the Competition Act (An Act to establish the Competition Tribunal and to amend the Combines Investigation Act and the Bank Act and other Acts in consequence thereof, S.C. 1986, c. 26, ss. 18‑47). Section 67 of the transitional provisions in Part IV of the Act provides that the Combines Investigation Act is continued in effect for the purposes of completing any inquiry or proceeding which commenced prior to the enactment of the 1986 revisions.
2. The story, which becomes complicated, all began with an order issued by the Chairman of the Restrictive Trade Practices Commission some time between January 27 and February 2, 1981 directing the attendance on March 2, 1981 of twenty‑nine persons before the Chairman or any person named by him, to give evidence under oath. This was made on the application of the Senior Deputy Director of the Investigation and Research Branch of the Commission on January 27, 1981, presumably pursuant to s. 17(1) of the Act.
3. This constitutive order is not in the record. Its style of cause is known.
IN THE MATTER OF the Combines Investigation Act and section 32 of the said act
and
IN THE MATTER OF an Inquiry relating to the production, manufacture, purchase, sale and supply of flat rolled steel, plate steel, bar and structural steel and related products
In a subsequent order issued on February 3, 1981 the Chairman recited in his preface:
Upon an application of the Senior Deputy Director of Investigation and Research, Combines Investigation Act, dated January 27, 1981, I ordered, pursuant to section 17(1) of the Act, that the twenty‑nine persons hereinafter listed, attend before me or before any other person named for the purpose by me pursuant to section 17, at ... on Monday, the second day of March, 1981, ... to give evidence upon oath in connection with the above inquiry.
4. In this order the Chairman appointed Mr. H. H. Griffin as "the person before whom such evidence shall be given...." The order then lists the twenty‑nine witnesses. Mr. Griffin is not one of the Commissioners on the Restrictive Trade Practices Commission. In these reasons, Mr. Griffin will be referred to as the Hearing Officer. Section 32 referred to in the style of cause above sets out some offences under Part V of the Act, entitled "Offences in Relation to Competition".
5. On February 2, 1981 notices were sent to corporate employers whose employees had been directed to attend and give testimony, and/or to others who were engaged in the business described in the style of cause. These notices were under the above style of cause and ordered:
Pursuant to authority conferred by and under the said Act, you are hereby required and ordered to attend before Mr. O. G. Stoner, Chairman of the Restrictive Trade Practices Commission or before any other person named for the purpose by me at ... on Monday, the second day of March, 1981, ... to give evidence upon oath in connection with the above inquiry.
6. On February 25, 1981 the Hearing Officer commenced the examination of these witnesses, under oath. Counsel for the Director explained to the Hearing Officer the nature of the proceedings in this way:
At the present time we are involved in a fact‑finding exercise; no individual and no company has been charged with any offence of the Combines Investigation Act at this time.
Counsel for the Director then went on to advise the Hearing Officer that these hearings were generally conducted under the policy of the Director in camera and that if other people were hereafter subpoenaed and were inadvertently advised by counsel of those presently before the Hearing Officer of the evidence taken to date,
... this would definitely prejudice the Director's opportunity to gather information, and, as I say once again, this is only a fact‑finding exercise and is not contemplated as being a Star Chamber exercise: no one has been charged yet.
Consequently, I submit that, in order for the Director to be able to gather all of the relevant evidence, both indicating the possibility of a crime having been committed and that which would refute such an allegation, it is in the Director's interests that a full and complete opportunity to gather this information be granted to him.
7. In the ensuing hearing, the Hearing Officer made the following rulings in response to objections and submissions by counsel representing some of the witnesses and some of the persons whose conduct appeared to be under investigation, and by counsel for the Director:
1.Counsel appearing for witnesses and for those persons (including companies) whose conduct is apparently under investigation could be present at the hearing subject to later exclusion by the Hearing Officer if prejudicial evidence was being received and the presence of a formidable array of counsel might discourage a witness or dissuade him or her from giving evidence.
2. Counsel for the Director may examine a witness on documents seized from his employer and other companies and need not furnish the witness with copies of those documents taken from his own employer. The Director must, however, at the time of the examination provide the witness with copies of those documents seized from other companies.
3. An officer of the company (Drummond McCall Inc.), already represented by its counsel, could not remain in the hearing as he might later be called as a witness although he was not included in the twenty‑nine witnesses named in the order of the Chairman.
4. Counsel for the Director would conduct the examination‑in‑chief of each witness, with the role of counsel for the witness being limited to re‑examination for the purpose of clarification or explanation of matters raised in the Director's examination, and generally to assist the witness.
5. The Director need not examine a witness (one Kirch) who objected to testifying in the presence of other counsel on the basis that he felt "intimidated". The Hearing Officer declined to examine Kirch himself and refused to allow counsel for other witnesses and persons whose conduct was being investigated to do so.
6. The Hearing Officer would not order the Director to disclose his "reasonable and probable grounds" for commencing the inquiry to those whose conduct was apparently being investigated.
8. About this time some of the parties became aware that the Hearing Officer was not a Commissioner. Counsel for one of the companies appearing by officer and by counsel (Drummond McCall Inc.) thereupon requested an adjournment of the hearing to permit an application to a member of the Commission for an order pursuant to s. 20 of the Act, for representation by counsel. The adjournment was denied by the Hearing Officer who was concerned with the expense of delaying the proceedings to both the public and the companies whose conduct was being inquired into. A notice of motion was then launched in the Trial Division of the Federal Court of Canada under s. 18 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, by witnesses and by persons whose conduct was apparently under investigation, for relief in the nature of certiorari, prohibition and mandamus "to restrain and set aside all proceedings pending before [the Hearing Officer] under the apparent authority of s. 17 of the Combines Investigation Act on the ground that he is without authority to preside over them"; and in particular, to make the first six of the several rulings already enumerated. Item 6 was the subject of a supplementary application:
(a) his decision that objective cause need not be given by Commission Counsel to the parties whose conduct is being inquired into when an inquiry is commenced under s. 8(b) of the Combines Investigation Act R.S.C. 1970 c. C‑23 as amended.
9. The learned trial judge, Collier J. quashed the following decisions of the Hearing Officer:
1.the refusal to permit persons whose conduct is being inquired into, and witnesses where represented by counsel, to be present throughout the whole of the examinations;
2. the refusal to permit counsel representing persons whose conduct is being inquired into and counsel representing witnesses, to examine or re‑examine without restriction their own clients, or to cross‑examine other witnesses;
3. the refusal of the request by Drummond McCall Inc. for an adjournment of the hearing so as to permit the applicant to apply to a Commissioner for an order permitting representation by counsel at the inquiry. (This issue is not raised in this Court.)
He rejected all other parts of the above applications. The trial judge specifically concluded that because the Hearing Officer owed a duty to the Commission and not to the applicants to take the evidence of Kirch, the application for an order directing the examination of Kirch by the Hearing Officer, Commission counsel or counsel for the applicants was denied.
10. All these issues were placed before the Federal Court of Appeal by appeal and cross‑appeal. The Federal Court of Appeal set aside the order of the Trial Division quashing the orders of the Hearing Officer as enumerated above; and confirmed the refusal by the Trial Division (a) to require Kirch to testify and to permit counsel for the applicants to put questions to Mr. Kirch; and (b) to make an order requiring the Commission's counsel to give to parties whose conduct was being inquired into in an inquiry which in the view of Collier J. was being held under s. 8 (b), the objective cause of the inquiry. The appellants in their supplementary application, supra, likewise assumed the inquiry was being conducted under s. 8 (b). In the result, the Court of Appeal dismissed the applicants' Notice of Motion and supplementary Notice of Motion in their entirety.
Issues
11. The questions raised in these proceedings fall into three categories:
1. The validity of the inquiry being conducted under the Act by the Director in the absence of any demonstration by the Director that he had "reason to believe" an offence against the Act has been committed by any person whose conduct is being inquired into, or that grounds exist for an order by the Commission under Part IV.1 of the Act; or that the inquiry has been directed by the Minister, all as may be provided or required by s. 8 of the Act;
2. Can the first issue be raised under the present applications which are concerned only with the Hearing Officer's rulings or orders, which relate to but make no mention of an order issued on or after January 27, 1981 and on or before February 2, 1981 by the Chairman of the Commission and which order is not in the record?
3. The extent of the role of the counsel "allowed" or "permitted" under s. 20 of the Act to represent a person whose conduct is being inquired into or a person being examined under oath;
4. The role and function of the Hearing Officer, the Director and counsel representing other parties in the examination of Mr. Kirch, a person called to attend and give evidence at the inquiry under the order of the Commission issued on February 3, 1981 and probably under the order of the Chairman issued on or after January 27, 1981 as well.
The Act
12. Many if not all these issues require for their answer an interpretation and assessment of the relevant portions of the Act. The Act is divided into seven parts of which Part I‑‑Investigation and Research; Part II‑‑Consideration and Report; Part III‑‑General; and Part VII‑‑Investigation of Monopolistic Situations, principally concern us in this appeal.
13. In Part I the office of the Director of Investigation and Research is established. Part II of the Act establishes the Restrictive Trade Practices Commission consisting of a Chairman and not more than three other members. The Commission has many duties and functions under the Act including the authorization of the examination of witnesses under oath by the Director and the production of documents by such witnesses (s. 17); the reception of statements of evidence from the Director and the hearing of submissions from persons against whom allegations are therein made (s. 18); the making of reports to the Minister on such matters (s. 19); and permitting or allowing counsel to represent witnesses or persons whose conduct is being inquired into at a hearing before a Commissioner or a person nominated by a Commissioner (s. 20(1)) as in the case of the Hearing Officer in these proceedings. Part III includes s. 26 which authorizes the Minister to require the Director to submit interim reports on any inquiry being conducted by the Director and such interim report shall set out the evidence thus far obtained and the Director's opinion as to the effect of the evidence. Part III also provides that all inquiries under the Act shall be conducted in private except where the Commission itself may conduct an inquiry in whole or in part in public (s. 27); and the Director, at the request of any federal board or on his own initiative or on direction from the Minister, shall make representations to and call evidence before any such board in respect of the maintenance of competition (s. 27.1). Part IV provides for the reduction of importation duties by the Governor in Council whenever, as the result of an inquiry or of judgments in courts, it appears that by reason a conspiracy or combination the public is disadvantaged (s. 28). Part V as mentioned at the outset sets out the offences in relation to competition. Part VII includes provisions for the directing of an inquiry by the Director into monopolistic and other conditions of trade and to report thereon to the Minister (s. 47); together with other responsibilities not here relevant.
14. The "Minister" referred to in the Act is the Minister of Consumer and Corporate Affairs except where specific reference is made, for example in s. 31.2, to the Minister of Finance, and in s. 15 where the reference is to the Attorney General of Canada.
15. The statutory scheme was no doubt clear and consistent when the statute was first enacted. It has over the years had new provisions patched on, older sections deleted, phrases wedged in or subsections carved out until the meaning of some of the provisions is obscure. By the time of its revision in 1986, the statutory scheme seriously lacked any symmetry. The Court must nonetheless interpret and apply the main sections and the core of this Act in order to dispose of this appeal while recognizing throughout that this statute itself has largely been repealed and replaced.
16. Part I established the Director of Investigation and Research and s. 8 prescribes some of the circumstances in which the Director will cause an inquiry to be made. Because this section is of fundamental importance to the ensuing discussions it should be set out in full:
8. The Director shall
(a) on application made under section 7 ,
(b) whenever he has reason to believe that
(i) a person has contravened or failed to comply with an order made pursuant to section 29, 29.1 or 30,
(ii) grounds exist for the making of an order by the Commission under Part IV.1, or
(iii) an offence under Part V or section 46.1 has been or is about to be committed, or
(c) whenever he is directed by the Minister to inquire whether any of the circumstances described in subparagraphs (b)(i) to (iii) exists,
cause an inquiry to be made into all such matters as he considers necessary to inquire into with the view of determining the facts.
It will be seen that the Director must, for example, launch an inquiry when he receives a citizen's application under s. 7 or a ministerial direction under s. 8 (c). He must also cause an inquiry to be made "when he has reason to believe" that there has been a failure to comply with orders issued by a court under the Act, that there are grounds for a recommendation by the Commission to the Minister of Finance for the removal or reduction of customs tariffs and the issuance by the Commission of related orders, or that an offence has been committed under the provisions of the Act forbidding the undue limitations on competition.
17. Section 8 contains no rules or procedures for the guidance of the Director in investigating those matters by statute assigned to him. The word "inquiry" appears in the Act to be carrying its ordinary meaning which, according to the Shorter Oxford English Dictionary (1959), at p. 1012, is the "action or an act or course of inquiring ... the action of seeking ... truth, knowledge or information concerning something; search, research, investigation, examination". The verb "to inquire" is on the same page and is defined as including "to investigate". The section does not set up any organization in the sense that the word inquiry is sometimes employed. Nor does it prescribe any process or procedure or rules for the guidance of the Director in making his inquiry.
18. By other sections in Part I the Director is authorized in the course of the conduct of his inquiry to enter premises and copy or remove documents, or to require a return of any information required of a business. Where circumstances require, the Director may apply to the Commission for authority to require evidence upon affidavit. These provisions of Part I also authorize the Director to discontinue any inquiry (unless the evidence taken has already been placed before the Commission) (s. 14). All this is established in Part I of the Act under the heading "Investigation and Research". The Director may also, during such an inquiry or on its termination, turn any evidence or records over to the Attorney General of Canada "for consideration as to whether an offence has been or is about to be committed against this Act, and for such action as the Attorney General of Canada may be pleased to take" (s. 15(1)). Subsection (2) authorizes the Attorney General of Canada to institute and conduct any prosecutions under the Act. The Director is given no role in any such proceedings.
19. Part II of the Act (by s. 16) establishes the Restrictive Trade Practices Commission to which reference has already been made in Part I of the Act in s. 14. Part II then proceeds to lay out the program for the processing by the Commission of the material gathered by the Director in his inquiries. When the Director requires coercive measures to obtain evidence, he may secure from the Commission, on ex parte application, an order directed to anyone present in Canada to appear before a member of the Commission, or any other person named for the purpose, and be examined upon oath or produce documents (s. 17(1)). This section curiously is not found in Part I but in Part II entitled "Consideration and Report", which is concerned in the main with the work of the Commission after the Director has delivered the evidence received in his inquiries. Because s. 17(1) is central to this appeal it should be set out in full:
17. (1) On ex parte application of the Director, or on his own motion, a member of the Commission may order that any person resident or present in Canada be examined upon oath before, or make production of books, papers, records or other documents to such member or before or to any other person named for the purpose by the order of such member and may make such orders as seem to him to be proper for securing the attendance of such witness and his examination, and the production by him of books, papers, records or other documents and may otherwise exercise, for the enforcement of such orders or punishment for disobedience thereof, all powers that are exercised by any superior court in Canada for the enforcement of subpoenas to witnesses or punishment of disobedience thereof.
20. As we have seen, notices were sent out to the appellants by the Director of the orders made by the Chairman of the Commission under s. 17. It is not at all clear in either the wording or the layout of the statute in general whether the powers under s. 17 are designed to feed an inquiry under s. 8 in another part of the Act or are directed to the assistance of the Director in preparation for a Commission hearing under the ensuing sections in Part II. This consideration bears upon the submissions by the appellants that all inquiries must be under s. 8 and that in order to launch an inquiry the Director must demonstrate reasonable belief in one or more of the matters described in s. 8 . If section 17 is intended as an initiating part of the program in Part II as distinct from Part I, no such requirement would ordinarily be inferred or implied and certainly has not been expressly assigned by the section to the Director.
21. By section 18 of the Act, where the Director is of the opinion that the evidence obtained discloses an offence under Part V (the principal competition offences in the Act), the Director may, or if the inquiry relates to an alleged or suspected offence under Part V and the Minister so requires, the Director shall "prepare a statement of the evidence obtained in the inquiry which shall be submitted to the Commission and to each person against whom an allegation is made therein". Unlike Part I where the inquiry section (s. 8 ) is followed by a section (s. 15) authorizing the Director to turn evidence and materials gathered in the inquiry over to the Attorney General of Canada for consideration as to whether or not a prosecution should be instigated, s. 18 provides that the Director may forward a statement of the evidence obtained in the inquiry to the Commission if he is of the opinion that "the evidence obtained discloses a situation contrary to any provision in Part V" (s. 18(1)(a)). The Director is neither directed nor authorized by the statute to include any findings, facts or recommendations in such a statement. Subsection (1) concludes with a direction to the Director to forward to each person a copy of the statement submitted by the Director to the Commission, "against whom an allegation is made therein". What remains unexplained in the statute is how the Minister is made aware that an inquiry is being conducted by the Director under the Act with reference to an allegation or suspected offence under Part V except where the Minister has himself directed the inquiry under s. 8 . In any event, if he becomes aware of such an inquiry he may direct the Director to prepare a statement to the Commission.
22. The Commission thereupon conducts a hearing at which the Director and persons against whom allegations are made in a statement under s. 18(1) shall be heard "in person or by counsel". The Commission is not limited, however, to the statement of evidence prepared by the Director. Subsection (3) states:
(3) The Commission shall, in accordance with this Act, consider the statement submitted by the Director under subsection (1) together with such further or other evidence or material as the Commission considers advisable.
Subsection (4) appears to be added to s. 18 out of an abundance of caution:
(4) No report shall be made by the Commission under section 19 or 22 against any person unless such person has been allowed full opportunity to be heard as provided in subsection (2).
23. By section 19 the Commission is required, "as soon as possible" after the proceedings under s. 18 are concluded, to "make a report in writing and without delay transmit it to the Minister". The Commission's report shall (a) review the evidence and material, presumably including both that contained in the Director's "statement" and that received by the Commission on its own hearing under s. 18; (b) "appraise the effect on the public interest of arrangements and practices disclosed in the evidence"; (c) "contain recommendations as to the application of remedies provided in this Act or other remedies" unspecified in the legislation; and (d) where from Commission proceedings under s. 18 it appears that a conspiracy, combination, agreement or arrangement has existed, include a finding whether they relate only to matters described in s. 32(2) (the conspiracy offence provisions), and if so, make a further finding as to whether such conspiracy, etc., has lessened or is likely to lessen competition, including competition in respect to prices, production or other matters mentioned in s. 32(3).
24. I digress to point out that by s. 27(1) (a provision found in another Part of the Act) "All inquiries under this Act shall be conducted in private". The section goes on to state, however: "except that the Chairman of the Commission may order that all or any portion of such an inquiry that is held before the Commission or any member thereof be conducted in public". It is not clear whether this includes the taking of evidence by the person designated by a Commissioner under s. 17. In this appeal that was the Hearing Officer. By subsection (2) the rule is reversed with respect to all proceedings before the Commission "other than proceedings in relation to an inquiry". Commission proceedings shall be in public unless the Chairman of th