A-195-81
Central Cartage Company (Appellant)
v.
Attorney General of Canada on behalf of the
Minister of Industry, Trade and Commerce, and
Attorney General of Canada (Respondents)
Court of Appeal, Urie and Ryan JJ. and Kerr
D.J.—Ottawa, May 22 and 25, 1981.
Foreign investment review — Appeal from decision of Trial
Division dismissing appellant's application for an order to
amend and clarify injunction order made previously by adding
paragraph specified in notice of motion — Trial Judge
declined to grant order because it involved interpretation of
agreements which had not been executed and for adjudication
of legal consequences of future events — Notwithstanding that
evidence discloses that agreements had been executed, matter
falls within jurisdiction of Trial Division by virtue of Foreign
Investment Review Act — Appeal allowed as appellant is
entitled to a decision — Foreign Investment Review Act, S.C.
1973-74, c. 46, s. 19.
APPEAL.
COUNSEL:
G. Henderson, Q.C. and E. Binavince for
appellant.
J. Scollin, Q.C. and D. Friesen for respond
ents.
SOLICITORS:
Gowling & Henderson, Ottawa, for appellant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order of the
Court rendered in English by
URIE J.: This is an appeal from a judgment of
the Trial Division [supra page 140] dismissing the
application of the appellant for an order amending
and clarifying the injunction order made by Mr.
Justice Gibson, as amended by order of Mr. Jus
tice Mahoney, by adding thereto a paragraph
specified in the notice of motion. The learned
motions Judge declined to grant the order sought
by the appellant on the ground that he lacked
jurisdiction to make the amendment sought
because it called "for interpretation of agreements
which have not been executed and for adjudication
of the legal consequences of events that lie in the
future."
Counsel for each of the parties agreed that the
learned motions Judge erred in concluding that he
lacked jurisdiction to make the order sought. With
great respect, we agree. Not only does the evidence
disclose that the agreements referred to had been
executed but even if that had not been so the
matter in issue falls within the jurisdiction of the
Trial Division by virtue of section 19 of the For
eign Investment Review Act, S.C. 1973-74, c. 46.
The propriety of one Judge of the Trial Division
varying the terms of injunctive relief granted by
another Judge of that Division was not argued by
counsel so that we expressly refrain from making
any comment with respect thereto.
However, we must say that the appellant by
virtue of the apparent refusal of the Foreign
Investment Review Agency to examine the series
of transactions which the appellant sought in its
notice of motion to have excluded from the pur
view of the injunction order as amended, and to
otherwise carry out its statutory duties with regard
thereto, leaves the appellant in an impossible situa
tion in the circumstances. If it proceeds to imple
ment the series of transactions contemplated by
the agreements it not only runs the risk of being
cited in the Trial Division for ignoring the terms of
the injunction presently outstanding but also may
well find that the Foreign Investment Review
Agency will take the courses available to it under
the Foreign Investment Review Act where appro
val of the transactions has not been granted. In
effect, in our view, the Agency by its apparent
refusal to consider whether it should allow or
disallow the transactions referred to in the notice
of motion, is forcing this Court to make such a
determination for it. This is not our function. Since
the appellant is entitled to some decision on the
matter we propose to make the order which, in the
circumstances, in our view, the Trial Division
should have made and to grant the application,
although in terms somewhat different from those
sought, but which will have the effect of breaking
up the present "log-jam" without in any way
impeding an examination of the transactions pur-
suant to the Foreign Investment Review Act if
deemed necessary or advisable.
The appeal will, therefore, be allowed with costs
both here and below and the transactions in issue
will be excluded from the purview of Gibson J.'s
injunction.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.