Toronto, Ontario, April 7, 2006
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
DR. MARY JANE ASHLEY, DR. ROBERT CUSHMAN, DR. PIERRE J. DURAND, DAVID HILL, Q.C., GARFIELD MAHOOD, DR. RICHARD STANWICK, DAVID SWEANOR, FRANCIS THOMPSON, and DR. FERNAND TURCOTTE
and
SHERIDANSCOTT, COMMISSIONER OF COMPETITION
REASONS FOR ORDER AND ORDER
[1] Dr. Mary Jane Ashley, Dr. Robert Cushman, Dr. Pierre J. Durand, David Hill, Q.C., Garfield Mahood, Dr. Richard Stanwick, David Sweanor, Francis Thompson, and Dr. Fernand Turcotte (the "Applicants") seek an order of mandamus pursuant to the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, to compel Sheridan Scott, Commissioner of Competition ("Commissioner" or "Respondent") to complete an inquiry commenced pursuant to paragraph 10(1)(a) of the Competition Act, R.S.C. 1985, c. C-34 (the "Act"). The Applicants allege that the Commissioner has unreasonably delayed in completing an inquiry relative to the practice of cigarette manufacturers to describe or represent their products to be "light" or "mild".
[2] The Applicants now seek an order in the nature of mandamus compelling the Commissioner to complete the inquiry and further, to refer the matter to the Attorney General of Canada for consideration of whether an offence has been committed contrary to section 52 of the Act or to apply to a competent court under section 74.1 of the Act to determine whether there has been "reviewable conduct".
II. Background
[3] The Applicants are medical doctors, professors, lawyers and public health officials. In an application filed with the Commissioner on June 13, 2003, they requested an inquiry concerning representations made by Imperial Tobacco Canada Ltd., Rothmans, Benson and Hedges Inc., JTI-Macdonald Corp. and other cigarette manufacturers promoting their tobacco items as "light", "mild", "extra light", "ultra light", "extra mild" and "special mild" (collectively "light and mild"). The Applicants allege that light and mild representations are false and misleading in a material respect, contrary to section 52 and paragraph 74.01(1)(a) of the Act. Pursuant to subsection 9(2) of the Act, the Applicants submitted materials detailing the nature of the alleged contravention, together with evidence supporting their opinion.
[4] By letter dated August 12, 2003, the Deputy Commissioner advised the Applicants that then Commissioner Konrad von Finckenstein had commenced a formal inquiry in respect of the promotional practices complained of in the section 9 application. The letter of August 12, 2003 provides in part as follows:
Dear Ms. Ashley, MD:
I am writing on behalf of Konrad von Finckenstein, Commissioner of Competition, regarding your application, dated June 13, 2003, brought pursuant to section 9 of the Competition Act ("Act"). [...]
Please be advised that pursuant to paragraph 10(1)(a) of the Act, the Commissioner has commenced an inquiry into this matter under the misleading representations and deceptive marketing practices provisions of the Act. [...]
[Emphasis added]
[5] Seven months then passed without correspondence between the parties. On March 19, 2004, the Applicants wrote to both Ms. Sheridan Scott, the newly appointed Commissioner, and the Deputy Commissioner requesting to be informed of the inquiry's progress, in accordance with their rights under subsection 10(2) of the Act. They also repeated their concern about the gravity of perceived harm to public health by the delay in the conduct of the section 10 inquiry.
[6] By letter dated April 7, 2004, the Deputy Commissioner advised the Applicants that the section 10 inquiry was ongoing. This letter provides in part as follows:
Dear Dr. Ashley ...
[...] Please be assured that the Bureau's inquiry is ongoing and although we have not exercised any formal powers, we have met with several parties and obtained a significant volume of information which is being reviewed. As you have pointed out and which has become quite apparent through our examination, this is a very complex issue which requires a thorough review. We will communicate with you should we require any additional information and/or when we have reached a decision. [...]
[7] On July 22, 2004, the Applicants wrote a second letter to the Deputy Commissioner, expressing their concern concerning the Commissioner's delay in reaching a conclusion of her inquiry.
[8] In an undated letter received by the Applicants in August 2004, the Deputy Commissioner responded that the inquiry was still ongoing and was "proceeding as expeditiously as possible". On January 10, 2005, the Applicants commenced the within application for judicial review. The filing date of that notice of application was 1 year, 4 months and 29 days after the Deputy Commissioner had informed the Applicants of the formal section 10 inquiry, that is after the letter of August 12, 2003.
III. Issue
[9] The sole issue raised in this application is whether the Applicants are entitled to an order of mandamus requiring the Commissioner to complete her inquiry and to refer the matter to the Attorney General of Canada or apply to a court of competent jurisdiction for determination of reviewable conduct.
IV. Submissions
A. Applicants
[10] The parties agree that the test for obtaining an order of mandamus was set out by the Federal Court of Appeal in Apotex Inc. v. Canada (Attorney General) (1993), 162 N.R. 177 (F.C.A.), aff'd. [1994] 3 S.C.R. 1100. The Court identified eight factors that must be satisfied before mandamus will issue, as follows:
1. there must be a public legal duty to act;
2. the duty must be owed to the applicant;
3. there is a clear right to performance of that duty, in particular:
(a) the applicant has satisfied all conditions precedent giving rise to the duty:
(b) there was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay;
4. where the duty sought to be enforced is discretionary, the following rules apply:
(a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as "unfair", "oppressive" or demonstrate "flagrant impropriety" or "bad faith";
(b) mandamus is unavailable if the decision-maker's discretion is
characterized as being "unqualified", "absolute", "permissive" or
"unfettered";
(c) in the exercise of a "fettered" discretion, the decision-maker must act upon "relevant", as opposed to 'irrelevant", considerations;
(d) mandamus is unavailable to compel the exercise of a "fettered
discretion" in a particular way; and
(e) mandamus is only available when the decision-maker's discretion is "spent"; i.e., the applicant has a vested right to the performance of the duty.
5. no other adequate remedy is available to the applicant;
6. the order sought will be of some practical value or effect:
7. the court in the exercise of its discretion finds no equitable bar to the relief sought;
8. on a "balance of convenience" an order in the nature of mandamus should (or should not) issue.
[citations omitted]
(1) Public Legal Duty
[11] The Applicants argue that the Commissioner has a public legal duty to complete her section 10 inquiry, arising from the use of mandatory language in the Act. Paragraph 10(1)(a) of the Act provides that the Commissioner "shall" cause an inquiry to be made into all matters the Commissioner deems necessary. They argue that when an inquiry is begun pursuant to subsection 10(1) of the Act, the Commissioner must decide within a reasonable time whether the section 9 application has merits that warrant the exercise of remedial provisions elsewhere in the Act, or whether the inquiry should be discontinued for lack of merit. While the Commissioner may exercise a discretion as to what matters she deems necessary to investigate, the Applicants submit that such discretion does not relieve her of the public legal duty to complete the matter and decide the outcome of the inquiry one way or the other.
(2) Duty Owed to Applicant
[12] The Applicants submit that the Commissioner owes her public legal duty to section 9 applicants. No authority was cited for this proposition, other than reference to subsection 10(1) of the Act.
(3) Right to Performance
[13] The Applicants argue that they have satisfied all conditions precedent giving rise to the Commissioner's public legal duty to complete her section 10 inquiry. They submitted their application pursuant to subsection 9(1), together with a statutory declaration satisfying the required elements of paragraph 9(2)(a) to (c), that is their names and addresses, the alleged contravention and grounds for complaint, and a concise statement of evidence supporting their view.
[14] The Applicants further submit that they have made repeated requests that the Commissioner discharge her public legal duty.
[15] They argue that the test for assessing reasonableness of a delay, amounting to an implied refusal to decide a matter, was addressed by this Court in Dragan v. Canada(Minister of Citizenship and Immigration), [2003] 4 F.C. 189 (T.D.) where Justice Kelen said the following at paragraph 54:
54. These cases provide some guidance with respect to assessing the reasonableness of a specific delay. In particular, in Bhatnager, supra, Strayer J. stated at page 317:
... mandamus can issue to require that some decision be made. Normally this would arise where there has been a specific refusal to make the decision, but it may also happen where there has been a long delay in the making of a decision without adequate explanation.
Justice Strayer articulated two indicia of unreasonable delay: its long duration, coupled with an absence of a reasonable explanation. The same parameters were refined in Conille, supra, where Tremblay-Lamer J. noted at paragraph 23 that a delay will be considered unreasonable if:
(1) the delay in question has been longer than the nature of the process required, prima facie;
(2) the applicant and his counsel are not responsible for the delay;
(3) the authority responsible for the delay has not provided satisfactory justification.
[Footnotes omitted]
[16] The Applicants argue that the Commissioner's delay in completing her section 10 inquiry was unreasonable in light of the Competition Bureau's March 2003 Fee and Services Standard Policy that provides that the Commissioner is expected to provide a written opinion relating to the complex determinations of false and misleading representations within six weeks of an application. While they concede that they did not request a written opinion, the Applicants rely on this policy as a benchmark to guide the Court's determination of what constitutes a reasonable delay.
[17] They submit that the Commissioner's delay in this case, being 1 year, 4 months and 29 days from the start of the section 10 inquiry and the date when the Applicants filed their notice of application for a judicial review, is unreasonable because it exceeds the six week benchmark. The Applicants further argue that their repeated demands that the Commissioner comply with her public legal duty to demonstrate that it was not their conduct that caused the delay in this case.
[18] Finally, the Applicants argue that the Commissioner has provided no justification for the delay, other than citing the complexity of the scope of the section 10 inquiry. Relying upon the decisions of this Court in Hanano v. Canada (Minister of Citizenship and Immigration) (2004), 257 F.T.R. 66 (F.C.), Bakhsh v. Canada (Minister of Citizenship and Immigration) (2004), 256 F.T.R. 194 (F.C.) and Platonov v. Canada (Minister of Citizenship and Immigration) (2000), 192 F.T.R. 260 (T.D.), the Applicants say that the onus lies on the Commissioner to correct administrative shortcomings in the discharge of public legal duties. Accordingly, the Commissioner bears the burden to show that the delay in conducting her inquiry is reasonable in the circumstances.
(4) Discretionary Factors
[19] The Applicants take the position that the Commissioner is under a mandatory, not a discretionary duty to act.
(5) No Other Adequate Remedy
[20] The Applicants argue that only the Commissioner has standing to refer the subject matter of section 10 inquiries to the Attorney General of Canada or to apply to a competent court for a determination of reviewable conduct. On this basis, they allege that there is no other adequate remedy than to have the Commissioner complete the inquiry within a reasonable time.
(6) Value of Order Sought
[21] The Applicants argue that an order in the nature of mandamus will further the process leading to the prevention of deception and the misrepresentation of harmful products in the tobacco marketplace, which harmful effects are alleged to be thousands of preventable deaths annually. It is further argued that the Applicants and the public at large will suffer "irreparable harm" if mandamus is denied, because false and misleading light and mild representations are alleged to contribute to tobacco industry-caused deaths.
(7) Equitable Bars to Relief
[22] Equity is not a material issue between the parties.
(8) Balance of Convenience
[23] The Applicants argue that the balance of convenience favours the issue of mandamus because public health is greatly prejudiced by the delay.
B. Respondent
(1) Public Legal Duty
[24] The Respondent argues that there was no public legal duty in this case and in that regard, makes five arguments. First, she argues that section 22 of the Act expressly gives discretion to the Commissioner to discontinue an inquiry at any stage. She argues that her discretion to end an inquiry at any time is incompatible with recognizing a duty to complete an inquiry that has been commenced.
[25] Second, the Commissioner relies upon the decision in Charette v. Canada(Commissioner of Competition) (2003), 312 N.R. 358 (F.C.A.) where the Federal Court of Appeal dismissed an application for mandamus to compel the Commissioner to commence an inquiry. The Commissioner submits that if she has no duty to initiate a formal inquiry, she can have no duty to complete an inquiry once commenced.
[26] Third, the Commissioner argues that a public legal duty only arises where the Commissioner deems such inquiry necessary. Subsection 10(1) of the Act provides that "[t]he Commissioner shall ... cause an inquiry to made into all such matters as the Commissioner considers necessary to inquire into with the view to determining the facts". On this analysis, the Commissioner is submitted to have a public legal duty to complete her inquiry where she finds it necessary to do so. On the basis of this statutory provision, the Commissioner argues that a public legal duty to complete her inquiry arises only where she finds it necessary to do so.
[27] Fourth, in Gauthier v. Canada (Director of Investigation and Research) (1991), 139 N.R. 77 (F.C.A.) the Federal Court of Appeal held that the Commissioner's refusal to commence an inquiry is an administrative decision not subject to judicial review under section 28 of the Federal Courts Act. Presumably, the decision to continue an ongoing inquiry is also a purely administrative decision that would be beyond this Court's jurisdiction on judicial review, pursuant to section 18.1 of the Federal Courts Act.
[28] Fifth, in the course of inquiry, the Commissioner has alternative actions available to her, in lieu of completing the inquiry. These include remitting records or evidence to the Attorney General of Canada under subsection 23(1) of the Act, applying to a competent court under section 74.1 seeking administrative remedies to ensure compliance with the Act, or entering informal dispute resolution schemes under subsection 74.12(2). The Commissioner argues that since she had such broad discretion available to her, it cannot be said that she is under a duty to complete her inquiry.
(2) Duty Owed to Applicant
[29] The Commissioner argues that in the event that this Court finds the existence of a public legal duty to complete an inquiry once commenced, that duty is not owed to the Applicants. Rather, she argues that the only duty owed to the Applicants is to inform them, on request, as to the progress of the inquiry, pursuant to subsection 10(2) of the Act.
(3) Right to Performance
[30] The Commissioner submits that the inquiry is ongoing and for that reason, it cannot be said there has been a refusal to act. Further, she argues that this Court must find an implicit refusal to act by reason of unreasonable delay, having regard to the three part test set forth by this Court in Conille v. Canada (Minister of Citizenship and Immigration) (1998), 159 F.T.R. 215 (T.D.), where Justice Tremblay-Lamer said at paragraph 23 that a delay will be considered unreasonable if:
(1) the delay in question has been longer than the nature of the process required, prima facie;
(2) the applicant and his counsel are not responsible for the delay; and
(3) the authority responsible for the delay has not provided satisfactory justification.
[Footnotes omitted]
[31] The Commissioner submits that the Applicants have failed to demonstrate prima facie that the delay has been longer than the nature of the process requires. The Commissioner's Fee and Service Standards Policy cannot be relied upon to establish a benchmark time for the conclusion of an inquiry. Rather, the Commissioner argues that this policy specifies a timeline for the issuance of a written opinion.
[32] As well, the Commissioner argues that in light of the decision in Dragan, this Court must assess the reasonableness of delay relative to the potential prejudice of the Applicants. She argues that the primary interests of the Applicants, that is public health, is collateral to the purpose of the Act as set out in section 1.1, that is fostering economic competition. As well, the Respondent submits that the issues to be decided in the course of this section 10 inquiry are sufficiently complex as to not render unreasonable the time taken to conduct the inquiry. She points out that Health Canada conducted an inquiry into the very same issues and alleges that, to date, it has taken no formal action under section 20 of the Tobacco Act, S.C. 1997, c. 13, as amended.
(4) Discretionary Factors
[33] The Commissioner argues that the decision of this Court in RockyMountain Ecosystem Coalition v. Canada(National Energy Board) (1999), 174 F.T.R. 17 (T.D.) is authority that mandamus cannot issue where the conduct under review involves the manner in which a decision maker performs duties.
(5) No Other Adequate Remedy
[34] The Commissioner argues that subsection 22(4) of the Act provides the Applicants with an adequate alternate remedy to the issue of an order of mandamus, namely the ability to make a written request to the Minister of Industry to review a decision of the Commissioner to discontinue a section 10 inquiry. Since the Applicants have not sought such a review from the Minister of Industry and because subsection 22(4) authorizes the Minister of Industry to require the Commissioner to resume any discontinued inquiry, she submits that the Applicants have failed to avail themselves of an adequate alternate remedy. The Commissioner also argues that other adequate alternate remedies include suing the tobacco companies for damages or requesting the Minister of Health to begin a prosecution under section 20 of the Tobacco Act.
(6) Value of Order Sought
[35] The Commissioner submits that an order to proceed with or discontinue the inquiry would have no practical effect. For that reason, the relief sought should be denied.
(7) Equitable Bars to Relief
[36] Equity is not a material issue in dispute between the parties.
(8) Balance of Convenience
[37] The Commissioner submits that the balance of convenience weighs heavily against issuing mandamus since the Applicants have not availed themselves of alternate remedies, they are not directly prejudiced by the conduct or outcome of the inquiry, and because they filed their section 9 application for a reason collateral to the purpose of the Act.
V. Discussion and Disposition
[38] The hallmark of an order of mandamus is that it is a discretionary remedy. Its availability depends on whether the Applicants can meet the cumulative elements for that remedy. In the present case, the parties agree that the test to be met is that established by the Federal Court of Appeal in Apotex.
[39] The first element is the existence of a public legal duty upon the Commissioner to act, that is to complete the inquiry that has been commenced pursuant to paragraph 10(1)(a) of the Act. In support of their arguments that such a public legal duty exists in this case the Applicants rely on the language of the statute, as follows:
| 10. (1) The Commissioner shall (a) on application made under section 9, ... 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. |
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 : a) sur demande faite en vertu de l'article 9; |
[40] The Applicants argue that once an inquiry is commenced pursuant to this statutory provision, then they are owed a public legal duty to have that inquiry completed in a reasonable time.
[41] This argument is problematic. First, there is no specific wording in paragraph 10(1)(a) that clearly says that the commencement of a section 10 inquiry gives rise to a public legal duty on the part of the Commissioner. Section 10 is found in Part II of the Act which is entitled "Administration". Reference to the other provisions in Part II shows that there is no statutory guidance in the conduct of an inquiry. Rather, the Commissioner is afforded very broad discretion, even to the extent of discontinuing an inquiry. Subsection 22(1) provides as follows:
| 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. |
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. |
[42] If the Commissioner discontinues an inquiry pursuant to subsection 22(1), at any stage and if she is of the opinion that no further inquiry is justified, she is required to make a written report to the Minister, showing the information obtained and providing the reasons for her action in discontinuing; see subsection 22(2). Pursuant to subsection 22(3), if the Commissioner discontinues an inquiry that had been commenced upon a section 9 application, she must inform the applicants and give the grounds for her discontinuance.
[43] In the event of such a discontinuance, section 9 applicants may, upon written request to the Minister, seek ministerial review of the decision to discontinue a section 10 inquiry. The Minister may undertake such review on his own initiative and he may instruct, in the exercise of his discretion, the Commissioner to make further inquiry. These two situations are addressed in subsection 22(4).
[44] It is noteworthy that subsection 22(4) confers a discretion upon the Minister insofar as the result of a ministerial review is concerned. He may, but is not obliged to, require the Commissioner to continue with further inquiry.
[45] There is nothing in Part II of the Act that clearly requires the Commissioner to complete any inquiry that is undertaken pursuant to paragraph 10(1)(a). On the contrary, in addition to the discretionary power given by subsection 22(1) to discontinue an inquiry at any time, section 23 also recognizes the Commissioner's discretion to not continue an inquiry. According to subsection 23(1), the Commissioner may "at any stage of an inquiry under section 10, in addition to or in lieu of continuing the inquiry", refer any records, returns or evidence to the Attorney General of Canada who may consider whether an offence has been or is about to be committed. The Attorney General may then determine what action he may wish to take. Pursuant to subsection 23(2), the Attorney General may undertake a criminal prosecution.
[46] Indeed, the only duty imposed upon the Commissioner in Part II of the Act is found in section 28, a provision that addresses a request by the Minister that the Commissioner produce an interim report "with respect to any inquiry ... under this Act". In such circumstances, section 28 provides as follows:
| 28. ... it is the duty of the Commissioner whenever thereunto required by the Minister to render an interim report setting out the action taken, the evidence obtained and the Commissioner's opinion as to the effect of the evidence. |
28. ... il incombe au commissaire, lorsqu'il en est requis par le ministre, de présenter un rapport provisoire indiquant les mesures prises, la preuve obtenue et son opinion sur l'effet de la preuve.
|
[47] The cumulative effect of sections 22, 23 and 28, in my opinion, weighs against finding, expressly or implicitly, the existence of a public legal duty upon the Commissioner to complete a section 10 inquiry that had been commenced upon receipt of a section 9 application. I find that, in the context of the Act, no public legal duty exists whereby the Commissioner is obliged to complete the inquiry that was formally commenced in August 2003.
[48] In this regard, I refer to the decision in Stevens v. Restrictive Trade Practices Commission, [1979] 2 F.C. 159 (T.D.) where the Court, in dealing with an inquiry under the Combines Investigation Act, R.S.C. 1970, c. C-23, as amended, the antecedent legislation to the Act, said the following at pages 162 and 163:
...The Commission, as counsel for the applicants quite candidly admitted, in conducting its inquiry is performing a purely administrative function. The inquiry results in a report to the Minister, who in turn may or may not lay charges. ...
[49] The language of the provision in the Combines Investigation Act that authorized the commencement of an investigation, upon the written request of a specified number of Canadian citizens, is a virtual reflection of the language in section 10 of the Act. In these circumstances, I am satisfied that the Court's characterization in Stevens of the conduct of a section 10 inquiry as a "purely administrative function" remains valid.
[50] It follows that, in the absence of a public legal duty to act, there is no legal duty owed by the Commissioner to the Applicants. It is clear, in these circumstances, that the remedy of mandamus is unavailable to the Applicants.
[51] In my opinion, the Applicants have also failed to show that the Commissioner delayed in the conduct of the section 10 inquiry. The Applicants' reliance upon the March 2003 Fee and Service Standards Policy is misplaced. That Policy refers to reasonable timeframes for the Commissioner to provide written opinions in respect of matters other than section 10 inquiries.
[52] I add that the Commissioner has likewise referred to irrelevant considerations when addressing the issue of unreasonable delay. Although she filed no evidence, in her submissions she referred to a lengthy list of steps that would be required before her inquiry could be completed. In my opinion, some of those concerns, for example the availability of a defence in response to a prosecution under the Act, more properly fall within the province of the Attorney General. It is the Attorney General, not the Commissioner, who may institute and conduct a prosecution under the Act; see subsection 23(2).
[53] Lastly, I am satisfied that mandamus does not lie in the circumstances of this case because the Applicants seek to compel the Commissioner to exercise her discretion in a particular way, namely to refer the complaint to the Attorney General or to apply to a competent court for determination of reviewable conduct. To the extent that these courses of action are discretionary, the remedy of mandamus is not available to the Applicants; see Apotex at paragraph 45.
[54] In conclusion, the application for an order of mandamus is dismissed. In the exercise of my discretion and pursuant to Rule 400(1) of the Federal Courts Rules, SOR/98-106, I make no order as to costs.
ORDER
The application for mandamus and collateral relief is dismissed; in the exercise of my discretion pursuant to the Federal Courts Rules, SOR/98-106, there is no order as to costs.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-23-05
STYLE OF CAUSE: DR. MARY JANE ASHLEY ET AL.
and
SHERIDAN SCOTT, COMMISSIONER OF COMPETITION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 7, 2006
REASONS FOR ORDER
AND ORDER BY: Heneghan J.
DATED: April 7, 2006
APPEARANCES BY:
Robert Cosman FOR THE APPLICANTS
Michael Peirce
Adam Newman FOR THE RESPONDENT
SOLICITORS OF RECORD:
Fasken, Martineau, DuMoulin LLP
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General
of Canada FOR THE RESPONDENT