BETWEEN:
and
NADEAU POULTRY FARM LIMITED
Heard at Ottawa, Ontario, on February 13, 2013.
Judgment delivered from the Bench at Ottawa, Ontario, on February 13, 2013.
REASONS FOR JUDGMENT OF THE COURT BY: TRUDEL J.A.
Docket: A-290-12
Citation: 2013 FCA 42
CORAM: BLAIS C.J.
TRUDEL J.A.
MAINVILLE J.A.
BETWEEN:
GROUPE WESTCO INC.
Appellant
and
NADEAU FERME AVICOLE LIMITÉE/
NADEAU POULTRY FARM LIMITED
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on February 13, 2013)
TRUDEL J.A.
[1] Groupe Westco Inc. (Westco) is appealing from a decision of the Competition Tribunal (the Tribunal), dated May 18, 2012, in which the Tribunal dismissed Westco’s application for an order allowing Westco to submit a request to enforce the undertaking in damages given by Nadeau Poultry Farm Limited (Nadeau) in the context of the application for interim relief brought by Nadeau under section 104 of the Competition Act, R.S.C., 1985, c. C-34 (the Act).
[2] It is Westco’s opinion that the Tribunal erred in law because it did not properly define the parameters of the legal test applicable in this matter, as discussed in Gu v. Tai Foong International Ltd., [2003] O.J. No. 264, leave to appeal to S.C.C. refused, 29684 (November 13, 2003) [Gu], and Vieweger Construction Co. v. Rush & Tompkins Construction Ltd., [1965] S.C.R. 195 [Vieweger]. More specifically, according to Westco, the Tribunal afforded too much weight to the fact that Westco had been found in contempt by the Tribunal in the matter opposing it to Nadeau and too little weight to the fact that Westco had complied with the sentencing order and paid Nadeau costs. The Tribunal should also have given weight to the fact that Westco had supplied Nadeau with a significant number of chickens at a lower profit and that Nadeau nonetheless exercised its right under section 36 of the Act to bring an action for compensation before the New Brunswick courts.
[3] If the Tribunal had assessed the positive and negative factors that emerge from the facts concerning the parties, it would have arrived at a different conclusion. According to Westco, the present order creates an unfair and inequitable situation between the parties and is contrary to the teachings of the Court of Appeal for Ontario in Gu. We disagree.
[4] We are not satisfied that the Tribunal made errors in fact and law warranting our intervention.
[5] Accordingly, the appeal will be dismissed with costs.
Certified true translation
Johanna Kratz, Translator
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-290-12
STYLE OF CAUSE: Groupe Westco Inc. v. Nadeau Poultry Farm Limited/Nadeau Ferme Avicole Limitée
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: February 13, 2013
REASONS FOR JUDGMENT OF THE COURT BY: BLAIS C.J.
TRUDEL J.A.
MAINVILLE J.A.
DELIVERED FROM THE BENCH BY: TRUDEL J.A.
APPEARANCES:
|
Martha A. Healey |
FOR THE APPELLANT
|
|
Andrea Marsland Ron Folkes |
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Montréal, Quebec |
FOR THE APPELLANT
|
|
Toronto, Ontario |
FOR THE RESPONDENT
|