Date: 19990217
Docket: T-1498-98
BETWEEN:
SGL CANADA INC.
Applicant
and
THE DIRECTOR OF INVESTIGATION AND RESEARCH
and BRIAN GOVER, a Presiding Officer appointed pursuant
to section 11 of the Competition Act
Respondents
REASONS FOR ORDER
(Reasons delivered orally from the Bench
on August 6, 1998, as edited)
MCKEOWN J.
[1] The application for a stay is denied. TNT Canada Inc. v. Canada (Director of Investigation and Research), (1995) 60 C.P.R. 303 (FCTD), is distinguished. In that case, the inquiry had ended. The matter had been referred to the Attorney General of Canada and charges had been laid. In the case before me, the Director has just commenced his inquiry. He has proceeded under s. 11 and s. 15. Reference to s. 15 requires the Director to believe on reasonable grounds that an offence has been committed. Also, s. 10(1)(b)(iii) requires the Director to believe on reasonable grounds that an offense has been committed. Neither of these sections precludes resort to s. 11; instead, s. 11 requires the Court to be satisfied that an inquiry is being conducted, inter alia.
[2] Mr. Justice Hugessen, in Samson v. Addy [1995], 3 F.C. 306 (FCA) at 327 stated:
| [...] Even in cases where the inquiry indicates that a crime was committed it is far from certain that this will result in a criminal prosecution in which a conviction is sought. |
[3] The matter, to be properly before me, requires the applicant to show that a willful omission or fraud was involved in the Director's material before the judge who granted the ex-parte order. There is no such evidence before me.
[4] There is no legal impediment, such as in TNT, to the Director continuing his inquiry. This inquiry has not ended. There is no evidence of abuse by the Director.
[5] I note that the individuals are not parties before the Court, just their employer.
[6] I have treated the motion as being one coming under Rule 399 and not as a judicial review. However, there is no merit in the application. I have considered the subject of the delay and in my view, there was delay. However, I am not dismissing the application on this ground, but I have considered it, since the stay is an equitable remedy.
[7] I am satisfied that the application for a stay fails on all three grounds of the RJR McDonald and Metropolitan Store test. There is no serious issue, no irreparable harm and the balance of convenience is in favour of the Director.
[8] In my view, the Branch case and the Samson case are obstacles to my finding a serious issue here. The applicant corporation has no Charter rights and the individuals are protected under the Branch case. There is no section of the Competition Act which is challenged.
[9] There is no allegation of irreparable harm that the applicant might suffer, other than legal costs and costs of attendance at examination. These are clearly quantifiable losses that can be compensated and do not constitute irreparable harm.
[10] I also note that the Director does not have the authority to lay criminal charges. He can only refer the matter to the Attorney General of Canada, who makes the decision to prosecute independently. See Justice Estey in Irvine v. Canada (Restrictive Trade Practices Commission) [1987], 1 S.C.R. 181 at 232.
[11] The balance of convenience favours the Director. There is a compelling public interest element in the Director's investigative authority. See Justice Estey in Irvine, supra, at page 238. I also concur with Justice Estey's comments in Irvine, at page 235, where he states,
| [...] Courts must, in the exercise of this discretion, remain alert to the danger of unduly burdening and complicating the law enforcement investigative process. Where that process is in embryonic form engaged in the gathering of the raw material for further consideration, the inclination of the courts is away from intervention. Where, on the other hand, the investigation is conducted by a body seized of powers to determine, in a final sense or in the sense that detrimental impact may be suffered by the individual, the courts are more inclined to intervene. |
[12] In this case, the Director of Investigation is not a body seized of powers to determine in a final sense. Many of the concerns raised by the applicant will be appropriately dealt with by the trial judge.
[13] For the foregoing reasons, the application for a stay is dismissed. Costs have been settled between the parties.
William P. McKeown
J U D G E
OTTAWA, Ontario
February 17, 1999.