Date: 20050513
Docket: T-37-03
Citation: 2005 FC 691
Between:
CINÉMAS GUZZO INC.
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
ROULEAU J.
[1] This is an application for judicial review of a decision of the Commissioner of Competition (the Commissioner) to discontinue an inquiry into the distribution of motion pictures in Canada. In this decision, dated December 13, 2002, the Commissioner found no evidence of anti-competitive practices.
[2] The applicant has been in the motion picture theatre business since 1974. According to its claims, between 1974 and 1985, it was unable to obtain first-run films from distributors, since these distributors had given Famous Players and Odeon exclusive rights to them. The applicant would thus only receive a film once Famous Players or Odeon had withdrawn it from their theatres.
[3] In 1983, Cineplex filed a complaint with the Competition Bureau (the Bureau), since it was denied access to these first-run films. Shortly thereafter, Cineplex acquired Odeon, becoming Cineplex Odeon. Certain distributors, along with Cineplex Odeon and Famous Players, then signed agreements with the Bureau under the terms of which they would let all movie theatre operators have easier access to films, thus putting the complaint to rest.
[4] Around 1985, the applicant agreed to pay Cineplex Odeon ten percent of its box office receipts in return for films. In 1991, the applicant reached an agreement with Cineplex Odeon giving it exclusive rights over the area in the eastern part of Montréal under the same terms and conditions of the 1985 agreement.
[5] The applicant submits that, in 1998, Famous Players and Cineplex Odeon demanded that distributors give them exclusive rights to certain films that had been granted to the applicant.
[6] In June 1998, the applicant filed a complaint, and certain facts were brought to the attention of the Commissioner. A number of movie theatre operators had allegedly come together to pressure certain film distributors not to allow the theatres' competitors to obtain commercially valuable films. More specifically, the following allegations were made:
- Famous Players and Cineplex Odeon controlled the motion picture market in Canada through certain policies imposed on leading film distributors;
- these film distributors were in league with Famous Players and Cineplex Odeon;
- Famous Players and Cineplex Odeon, in collusion with the distributors, had set up a system to ensure that their competitors would be unable to obtain these films; and
- certain practices of the motion picture industry contravened section 79 of the Competition Act[1] (the Act), which relates to the abuse of dominant position.
[7] On April 28, 2000, the Commissioner ordered that an inquiry be commenced under subparagraph 10(1)(b)(ii) of the Act. The inquiry was to look into business practices relating to the distribution of motion pictures and determine if there were sufficient grounds to issue orders under sections 75 and 79 of the Act.
[8] The applicant claims that, while the inquiry was in progress, the distributors and theatre operators began complying with the Act, thus giving the applicant access to the films.
[9] In May 2001, the Commissioner asked the applicant's opinion on the application of the decision in Director of Investigation and Research v. Warner et al.[2] In the applicant's view, this decision would not apply to the motion picture industry.
[10] On March 28, 2002, the Commissioner sent the applicant his findings, along with a document setting out the solutions applied following a similar inquiry in Australia (the report had been introduced into the record at the hearing and was subject to a confidentiality order). The report's introductory page stated that the report contained preliminary findings that were subject to change.
[11] On April 2, 2002, Bureau members met with the applicant to inform the applicant about developments in the inquiry. According to the applicant's claims, the inquiry was discontinued at this time (applicant's memorandum, at paragraph 42). In a letter accompanying the July report, it was mentioned that, during this meeting, Bureau representatives allegedly notified the applicant that they had hired an external economist to review the evidence. On May 31, 2002, the Commissioner once again informed the applicant that an external economist had been retained to analyse the evidence (this letter came with a confidentiality order).
[12] The Commissioner issued a report on July 12, 2002 (the report was introduced at the hearing and came with a confidentiality order). Essentially, the report stated that there was insufficient evidence to support a finding of anti-competitive practices and that the solutions at the Commissioner's disposal were limited because of paragraph 32(2)(c) of the Act. The report indicated that, since the March report, supplementary interviews and additional analysis had been carried out. It also mentioned that an external economist had been used. The letter accompanying the report invited the applicant to comment on the report.
[13] On July 15, the applicant tried to obtain a copy of the external economist's opinion but was turned down by the Commissioner. In a letter dated July 22, the Bureau informed the applicant that [translation] "the substance of the documents of which you are requesting copies has already been shared with you". The Bureau maintained that the essential points of the external economist's report were included in the July 12 report. The Bureau also offered to meet with the applicant if the applicant wanted additional information or clarification to help prepare its written representations.
[14] On July 22, 2002, the applicant filed an application for declaratory judgment against the Commissioner in Federal Court (T-1284-02). The application asked that section 32 of the Act be declared inapplicable to the applicant.
[15] Through an exchange of correspondence and a series of telephone conversations, the parties tried to schedule a meeting, but none ever took place. In a letter dated October 9, 2002, the applicant explained that it could not attend the meeting, since it was unable to prepare a reply, as it did not have a copy of the report.
[16] On October 8, 2002, the applicant filed another application for judicial review to obtain a copy of this report. A motion for interlocutory injunction was filed as well to prevent the Commissioner from tabling any final findings before the applicant introduced its reply. The motion was dismissed by Rouleau J. on October 22, 2002 (T-1717-02). On December 1, 2003, the applicant dropped the other two cases, limiting itself to pursuing the one currently at bar.
[17] On December 13, the Commissioner informed the applicant that the inquiry was being discontinued. The applicant has made no application to have this decision reviewed by the Minister of Industry (subsection 22(4) of the Act).
[18] First, the Bureau states that, given that the distributors hold the licensing rights to their films in Canada, and in light of the decision in Warner, in which the Competition Tribunal dismissed the Commissioner's application on the ground that the licences were not a "product" within the meaning of section 75 of the Act, it determined that it could not take action on the complaints filed by the distributors pursuant to section 75.
[19] With regard to section 79, abuse of dominant position, the available evidence was insufficient to convince the Tribunal that Famous Players had put pressure on the distributors. Furthermore, the alleged dominance wielded jointly by the distributors and the theatre operators could not be demonstrated. Certain distributors' preferences and the practice of granting only one licence per region did not constitute anti-competitive actions. Finally, there was no evidence that these practices reduced or prevented competition.
[20] The applicant submits that the Bureau's decision to discontinue its inquiry demonstrates a refusal to carry out its duties. It explains that the Bureau did not need to retain the services of an external economist. With regard to the report, the applicant states that the Bureau was obliged to provide it with a copy and that the Bureau's refusal to do so was a breach of its duty to act fairly.
[21] Furthermore, according to the applicant, the Bureau did not act fairly, in that the Bureau should have waited for the Federal Court's rulings on the two applications made by the applicant; it should have obtained a third opinion and/or allowed the applicant to obtain one, since the two economists' reports were contradictory; the Bureau's findings are contradictory; and the decision in Warner is not applicable, since a film is a product.
[22] Finally, the applicant submits that the audi alteram partem rule was broken, since the Bureau prevented the applicant from filing a reply, even though it had a duty to allow the applicant to respond to this report. In order to respond adequately, the applicant needed access to the entire report.
[23] At the hearing, the applicant devoted much of its arguments to the fact that it was notified of the use of an external economist for the first time in the letter of May 31. The Bureau sent the July 12 report to the applicant. Thus, according to the applicant's claims, the Bureau had already made its decision before allowing the applicant to prepare a reply, even though the Bureau was obliged to give the applicant an opportunity to respond before issuing its final findings.
[24] By means of a motion to amend, the applicant was allowed to add the following conclusions: (1) rescind the decision dated December 12, 2002, and (2) declare that section 32 does not apply in the present case. The applicant also asked for the addition of a conclusion ordering that the external economist's report be handed over to the applicant, but the Protonotary refused (order dated April 12, 2005). This decision was the subject of an appeal heard by Rouleau J. on April 18, 2005.
[25] First of all, with regard to the facts, the respondent made the following assertions. The respondent stated that the inquiry team considered all of the documentation on record before recommending that the inquiry be discontinued.
[26] Second, at the April 2, 2002 meeting, the Bureau's representatives indicated that the inquiry was not over and that supplementary analyses respecting the preliminary results would have to be conducted. These discussions were undertaken without prejudice and were strictly confidential. On July 12, 2002, the Bureau notified the applicant that the external economist's study did not confirm the report's preliminary results.
[27] The respondent also stated that the external expert's objectivity was beyond reproach, since he had been referred by the Bureau's economist, who was favourable to the applicant's position. Moreover, the applicant had the opportunity to retain another expert to contradict the July report, but this was not done.
[28] The respondent noted that the applicant should have to exhaust all internal remedies before being allowed to apply for judicial review. Subsection 22(4) of the Act allows a decision to be reviewed upon application to the Minister. Furthermore, section 103.1 allows persons to apply directly to the Competition Tribunal, so it was open to the applicant to proceed in this manner.
[29] The respondent submits that the applicant has neither alleged nor demonstrated any grounds for judicial intervention. As the respondent explained, the Commissioner has considerable powers of inquiry under section 10 of the Act. Relying on decisions of the Federal Court of Appeal, the respondent argues that this provision does not oblige the Commissioner to commence an inquiry and that the Commissioner has wide discretion. The Commissioner's decision to refuse to open an inquiry is purely administrative and therefore not subject to judicial review.
[30] Should the Court find that the decision is subject to judicial review, the respondent submits that the standard of review is minimal and that the courts cannot intervene except in cases of fraud or bad faith. The respondent argues that the decision to discontinue the inquiry has not directly affected the applicant's rights.
[31] Moreover, the respondent is of the view that the applicant has not shown that the Commissioner's decision was unlawful or in bad faith.
[32] According to the respondent, the issue of access to the external economist's report should not have to be reviewed, since the Bureau handed over all the documentation it could, given the confidential nature of the inquiry. Even though the Bureau was under no obligation to consult with the applicant, it did everything necessary to keep the applicant informed about the inquiry and invited the applicant to make comments. Moreover, the Bureau did not need to wait for the Federal Court's decisions.
[33] With regard to the application of Warner, the respondent argues that, in order to reconcile intellectual property law with competition law, this decision does not apply if copyright is used for anti-competitive purposes. If copyright is used in this manner, review is possible.
[34] The following provisions of the Act are applicable in the case at bar:
| 10.(1) The Commissioner shall . . .
(b) whenever the Commissioner has reason to believe that . . . (ii) grounds exist for the making of an order under Part VII.1 or Part VII . . . cause an inquiry to be made into all such matters as the Commissioner considers necessary to inquire into with the view of determining the facts.
22.(1) At any stage of an inquiry under section 10, if the Commissioner is of the opinion that the matter being inquired into does not justify further inquiry, the Commissioner may discontinue the inquiry. . . . (4) The Minister may, on the written request of applicants under section 9 or on the Minister's own motion, review any decision of the Commissioner to discontinue an inquiry under section 10, and may, if in the Minister's opinion the circumstances warrant, instruct the Commissioner to make further inquiry.
32.(2) The Federal Court, on an information exhibited by the Attorney General of Canada, may, for the purpose of preventing any use in the manner defined in subsection of the exclusive rights and privileges conferred by any patents for invention, trade-marks, copyrights or registered integrated circuit topographies relating to or affecting the manufacture, use or sale of any article or commodity that may be a subject of trade or commerce, make one or the following orders: . . . .
103.(1) Any person may apply to the Tribunal for leave to make an application under section 75 or 77. The application for leave must be accompanied by an affidavit setting out the facts in support of the person's application under section 75 or 77.
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10.(1) Le Commissaire fait étudier, dans l'un ou l'autre des cas suivants, toutes questions qui, d'après lui, nécessitent une enquête en vue de déterminer les faits: ... (b) chaque fois qu'il a des raisons de croire: ...
(ii) soit qu'il existe des motifs justifiant une ordonnance en vertu des parties VII.1 ou VIII
22. (1) Le commissaire peut, à toute étape d'une enquête visée à l'article 10, discontinuer l'enquête en question lorsqu'il estime que l'affaire sous étude ne justifie pas la poursuite de l'enquête. ...
(4) Le ministre peut, de sa propre initiative ou à la demande écrite des requérants visés à l'article 9, réviser la décision du commissaire de discontinuer l'enquête prévue à l'article 10 et, s'il estime que les circonstances le justifient, il peut donner au commissaire l'ordre de poursuivre l'enquête.
32.(2) La Cour fédérale, sur une plainte exhibée par le procureur général du Canada, peut, en vue d'empêcher tout usage, de la manière définie au paragraphe (1), des droits et privilèges exclusifs conférés par des brevets d'invention, des marques de commerce, des droits d'auteur ou des topographies de circuits intégrés enregistrées touchant ou visant la fabrication, l'emploi ou la vente de tout article ou denrée pouvant faire l'objet d'un échange ou d'un commerce, rendre une ou plusieurs des ordonnances suivantes: ...
103.(1) Toute personne peut demander au Tribunal la permission de présenter une demande en vertu des articles 75 ou 77. La demande doit être accompagnée d'une déclaration sous serment faisant état des faits sur lesquels elle se fonde. |
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[35] First, it is important to determine the nature of the decision made by the Commissioner. The Commissioner has considerable powers of inquiry in terms of preserving and encouraging competition in Canada. Section 10 of the Act sets out the conditions for initiating an inquiry, while section 22 explains the process for discontinuing one. It should be noted that the Minister of Industry may, on his or her own motion, review the Commissioner's decision to discontinue an inquiry (subsection 22(4)). Furthermore, an application to the Competition Tribunal can be made directly pursuant to section 103.1.
[36] The case law and doctrine have on numerous occasions considered the tests for determining the nature of an action. An administrative action can be defined as follows:
[translation]
An administrative action is generally a decision made by the Administration in pursuit of its mandate to manage, regulate, monitor and control various areas of economic or social activity, to investigate, to issue permits, to authorize or to grant economic or social benefits . . . . When the decision maker acts pursuant to a discretionary power, and especially in the public interest, the fact that he or she holds a hearing or accepts the submissions of the persons affected by the decision in no way changes the nature of the decision. The decision remains an administrative one if it deals with considerations of the collective good of the community as a whole, rather than with the rights of the parties to the dispute. The decision is administrative when the decision maker, in the furtherance of its mission to protect the public interest, controls an area of activity. This may include issuing, renewing, suspending and revoking permits in accordance with the conditions and limits prescribed by law . . . . The decision of the Minister to hold an inquiry or not is an administrative one.[3]
[37] Administrative action is often defined by what it is not, by characterizing it as judicial or quasi-judicial in light of the following criteria:
It is possible, I think, to formulate several criteria for determining whether a decision or order is one required by law to be made on a judicial or quasi-judicial basis. The list is not intended to be exhaustive.
(1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached?
(2) Does the decision or order directly or indirectly affect the rights and obligations of persons?
(3) Is the adversary process involved?
(4) Is there an obligation to apply substantive rules to many individual cases rather than, for example, the obligation to implement social and economic policy in a broad sense?
These are all factors to be weighed and evaluated, no one of which is necessarily determinative. Thus, as to (1), the absence of express language mandating a hearing does not necessarily preclude a duty to afford a hearing at common law. As to (2), the nature and severity of the manner, if any, in which individual rights are affected, and whether or not the decision or order is final, will be important, but the fact that rights are affected does not necessarily carry with it an obligation to act judicially . . . .
In more general terms, one must have regard to the subject matter of the power, the nature of the issue to be decided, and the importance of the determination upon those directly or indirectly affected thereby: see Durayappah v. Fernando. The more important the issue and the more serious the sanctions, the stronger the claim that the power be subject in its exercise to judicial or quasi-judicial process.[4]
[38] In the field of competition law, the Federal Court of Appeal determined that the Director's refusal to proceed with an inquiry was a purely administrative decision and therefore not subject to judicial review:
On November 14, 1989, the section 28 applicants (respondents on this motion) sent a letter to the Director informing him of facts which, in their view, were sufficient to induce the Director to direct an inquiry under section 10. The Director wrote the applicants on April 22, 1991, and told them that he would not direct an inquiry under section 10 because a summary investigation of the matter lead him to believe that, in the circumstances, the Competition Act had not been contravened. That is the "decision" which is the subject of this section 28 application.
We are all of the view that this motion to quash must succeed. In the light of the decisions of the Supreme Court of Canada in M.N.R. v. Coopers and Lybrand, [1979] 1 S.C.R. 495, and in Syndicat des employés de production du Québec et de l'Acadie v. Canadian Human Rights Commission, [1989] 2 S.C.R. 879, no other conclusion can be reached but that the "decision" in question is purely administrative, not required by law to be made on a judicial or quasi judicial basis and, as a consequence, not reviewable under section 28 of the Federal Court Act.
The section 28 application will therefore be quashed.[5]
[39] The Federal Court of Appeal has also explained that the Commissioner has broad discretion under sections 10 and 22 of the Act.[6]
[40] Therefore, if we apply the tests recognized in case law for characterizing actions as judicial or quasi-judicial, and based on the teachings of the Federal Court of Appeal, we must conclude that the Commissioner's decision is an administrative act. The Act does not provide for a hearing, the decision does not affect rights or obligations, and the proceeding is not an adversarial one. Under the Act, the Commissioner is merely obliged to inform (on application) the persons concerned of the inquiry's status and notify the complainant and the Minister when the inquiry is discontinued (section 22). Furthermore, subsection 10(3) provides that the inquiry must be conducted in private.
[41] The Supreme Court's decision in Baker[7] is a landmark one in administrative law, since it explains the concept of procedural fairness and the factors determining its scope. The Court explained:
[T]he purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker. (paragraph 22)
[42] The factors set out in this decision are the following: the nature of the decision being made and the process followed in making it; the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; the importance of the decision to the individual or individuals affected; the legitimate expectations of the person challenging the decision; and the choices of procedure made by the body itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures, or when the body has an expertise in determining what procedures are appropriate in the circumstances (paragraphs 23-28).
[43] This decision set several guidelines for analysing discretionary decisions:
Administrative law has traditionally approached the review of decisions classified as discretionary separately from those seen as involving the interpretation of rules of law. The rule has been that decisions classified as discretionary may only be reviewed on limited grounds such as the bad faith of decision-makers, the exercise of discretion for an improper purpose, and the use of irrelevant considerations: see, for example, Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, at pp. 7-8; Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231. A general doctrine of "unreasonableness" has also sometimes been applied to discretionary decisions: Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223 (C.A.). In my opinion, these doctrines incorporate two central ideas - that discretionary decisions, like all other administrative decisions, must be made within the bounds of the jurisdiction conferred by the statute, but that considerable deference will be given to decision-makers by courts in reviewing the exercise of that discretion and determining the scope of the decision-maker's jurisdiction. These doctrines recognize that it is the intention of a legislature, when using statutory language that confers broad choices on administrative agencies, that courts should not lightly interfere with such decisions, and should give considerable respect to decision-makers when reviewing the manner in which discretion was exercised. However, discretion must still be exercised in a manner that is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law (Roncarelli v. Duplessis, [1959] S.C.R. 121), in line with general principles of administrative law governing the exercise of discretion, and consistent with the Canadian Charter of Rights and Freedoms (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038). (paragraph 53)
[44] Thus, the courts must defer to discretionary decisions in the absence of bad faith on the part of decision makers, the exercise of discretion for an improper purpose, or the use of irrelevant considerations.
[45] In the present case, the Commissioner's decision to discontinue the inquiry was discretionary, and the duty of fairness was minimal. The Act clearly grants wide discretion. The Commissioner enjoys a high degree of latitude in conducting an inquiry and, as confirmed in Charette, has broad discretion under subsection 22(4) to discontinue one. Subsection 10(2), meanwhile, merely creates a right to be informed of an inquiry's progress, upon request, and subsection 10(3) provides that inquiries are to be held in private.
[46] In the case at bar, the applicant was unable to show that the Commissioner's decision was tainted by unlawfulness or bad faith or was based on irrelevant considerations.
[47] Essentially, the applicant is accusing the Bureau of not having provided it with a copy of the external economist's report. Given the expressly confidential nature of inquiries under the Act, the Commissioner gave the applicant all of the documents he was in a position to disclose. I agree with the respondent that the July report contained the essential points of the external economist's findings (letter dated July 22, 2002, p. 13 of the respondent's record). Moreover, Mr. Dunleavy's affidavit indicated that he had cited all of the conclusions of the expert's report in the July report.[8] Therefore, the applicant had sufficient information.
[48] The introductory page of the report dated March 28, 2002, clearly stated that the document was "for discussion purposes", that the inquiry was ongoing, and that these preliminary conclusions were subject to change. It stated that certain practices could be construed as violating section 79. There was no mention of section 75. It is important to note that the report made conditional, non-committal statements, contained very few details, and was, on the whole, hardly conclusive. According to Mr. Dunleavy's affidavit, the proposed economic theory required further analysis to determine if the practices were anti-competitive.[9] In my view, although certain statements at this time are favourable to the applicant, it is incorrect to say that these conclusions are definitive and that the inquiry was closed at that time. Moreover, the events that followed pointed instead to a continuation of the inquiry.
[49] The applicant's assertion that the inquiry had been discontinued in March is therefore incorrect. The letter accompanying the July report very clearly explains that, at the April meeting, the applicant was informed that the first phase of the inquiry was over, that the inquiry would continue, and that the preliminary conclusions were subject to confirmation. Moreover, it was at that point that the applicant was notified that an external economist would be used to assess the evidence.
[50] The applicant also accuses the Bureau of not having provided an opportunity to reply. Although he was under no obligation to do so, the Commissioner gave the parties an opportunity to make comments. The applicant refused to give a reply without being given access to the report. Since the Commissioner was under no obligation to disclose the report, the applicant did not have a valid reason for not making a reply.
[51] The applicant had an opportunity to reply but chose not to take that opportunity. The July report set out a number of conclusions, but the Bureau was open to the parties' comments. According to Mr. Dunleavy's affidavit, the report addressed the latest developments in the inquiry.[10] It is impossible to claim that the Bureau had formed a definitive opinion at that time, given the letter accompanying the report, which gave the applicant an opportunity to respond. Moreover, the exchange of correspondence between the parties shows that the Bureau offered on numerous occasions to meet with the applicant to discuss the conclusions. Since the applicant declined to attend meeting and filed no submissions, the report's conclusions were adopted in the Bureau's final decision, which was issued to the applicant in December.
[52] Consequently, I cannot accept the applicant's argument that the Bureau had already made its decision before providing an opportunity to reply. The applicant was notified that an external economist had been used to assess the preliminary economic theories, not only in the letter dated May 31, 2002, but also at the meeting of April 3, 2002 (letter accompanying the July report).
[53] With regard to the applicant's argument that the Bureau should have sought a second expert opinion, I am of the view that it too must fail. There was nothing stopping the applicant from hiring its own expert to refute the findings of the external economist.
[54] It is also important to note that the Bureau's conduct was transparent to the extent possible under the Act. The applicant was given due and timely notice of the inquiry's progress, conclusions and use of an external economist.
[55] The Bureau has very broad discretion in conducting inquiries and deciding whether or not to refer a case to the Competition Tribunal. In the case at bar, the Commissioner held a full and thorough inquiry into the applicant's complaint before concluding that the evidence did not show that the trade practices of the distributors and theatre operators violated the Act. There was no evidence that the inquiry had not been conducted correctly. The applicant's arguments to the effect that the Bureau acted unfairly are without merit. Moreover, the Commissioner was under no obligation to disclose the external economist's report to the applicant.
[56] In my view, Warner does not apply in the case at bar. In that case, the dispute was between a licencee and distributors and concerned the granting of licences. In the present case, the dispute is instead between distributors and movie theatre operators over the acquisition of copies of films, not licences. However, in my view, the term "product" does, within the meaning of the Act, include licences, since to conclude otherwise would prevent the Act from having any application at all in the area of intellectual property.
[57] For these reasons, the application for judicial review must be dismissed with costs, since the applicant has failed to show that the Court's intervention is warranted. There is no evidence supporting the conclusion that the Bureau acted unfairly or in bad faith. The Bureau acted in accordance with the Act. The applicant was informed of the inquiry's progress on several occasions. Additionally, the Commission gave the applicant the opportunity to comment following the July report. Unfortunately, despite having this opportunity, the applicant offered no reply.
"P. Rouleau"
JUDGE
OTTAWA, Ontario
May 13, 2005
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-37-03
STYLE OF CAUSE: CINÉMAS GUZZO INC. v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 19, 2005
REASONS BY: The Honourable Mr. Justice Rouleau
DATED: May 13, 2005
APPEARANCES:
Franco Iezzoni FOR THE APPLICANT
Nathalie Benoit FOR THE RESPONDENT
SOLICITORS OF RECORD:
PATERAS & IEZZONI FOR THE APPLICANT
Suite 2314
500 Place d'Armes
Montréal, Quebec
H2Y 2W2
Justice Canada FOR THE RESPONDENT
Guy Favreau Complex
200 René Lévesque Blvd. W.
East Tower, 5th floor
Montréal, Quebec
H2Z 1X4
Date: 20050513
Docket: T-37-03
Ottawa, Ontario, the 13th day of May 2005
Present: the Honourable Mr. Justice Rouleau
Between:
CINÉMAS GUZZO INC.
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
[58] This is an appeal against the decision of Protonotary Morneau dated April 12, 2005. The case was heard before me on April 18, 2005, in Montréal.
[59] Further to a motion to amend, the applicant had been permitted to add the following conclusions: set aside the decision dated December 12, 2002, and declare that section 32 does not apply to the present case. The applicant also sought the addition of a conclusion ordering that the external economist's report be disclosed to the applicant, but this conclusion was dismissed by the Protonotary.
[60] For the reasons explained in the matter of the application for judicial review, the Protonotary's decision is well founded. The appeal is dismissed.
"P. Rouleau"
JUDGE
Certified true translation
Michael Palles
[1] R.S.C. (1985), c. C-34.
[2] (1997) 78 C.P.R. (3d) 321, docket No. CT-97/3 (hereafter, Warner)
[3]P. Garant, Droit administratif. 5th ed. Cowansville: Éditions Yvon Blais, 2004, p. 176 (references omitted).
[4]Canada (M.N.R.) v. Coopers and Lybrand, [1979] 1 S.C.R. 495 at 504.
[5]Gauthier v. Canada (Director of Investigation and Research), [1991] F.C.J. No. 1002 (F.C.A.).
[6]Charette v. Canada (Competition Commissioner), [2003] F.C.J. No. 1697 (F.C.A.).
[7]Baker v. Canada (MCI), [1999] 2 S.C.R. 817
[8]Exhibit 5, paragraph 29, respondent's record.
[9]Exhibit 3, paragraph 19, respondent's record.
[10]Exhibit 4, paragraph 27, respondent's record