T-1958-87
Samuel, Son & Co., Limited and W. Grant Bray-
ley (Applicants)
v.
Restrictive Trade Practices Commission and
Director of Investigation and Research, (The
Competition Act) (Respondents)
INDEXED AS: SAMUEL, SON & CO., LTD. V. CANADA (RESTRIC-
TIVE TRADE PRACTICES COMMISSION)
Trial Division, Reed J.—Ottawa, November 10
and 13, 1987.
Combines — Flat rolled steel inquiry commenced in 1981 —
Applicant ordered to attend to give evidence under Combines
Investigation Act, s. 17 — Proceedings adjourned, and
resumed in 1987 — Motion for disclosure of materials filed in
support of s. 17 order — Although decision to issue s. 17 order
reviewable to ensure compliance with rules of fairness or
fundamental justice, inappropriate case for exercise of judicial
discretion — Applicants not suffering prejudice — S. 17
meeting procedural requirements of Charter, s. 7 — Situation
otherwise under new Competition Act.
Constitutional law — Charter of Rights — Life, liberty and
security — Motion for disclosure of material filed in support
of order under Combines Investigation Act, s. 17 — Decision
to issue s. 17 order reviewable to ensure compliance with
Charter rules or fairness or fundamental justice — Motion
dismissed — Applicant not suffering prejudice if denied access
as nature of investigation known — Chairman's decision not
arbitrary — S. 17 meeting procedural requirements of Chart
er, s. 7.
This was a motion for an order to compel the respondents to
disclose all material filed in support of an order issued pursuant
to section 17 of the Combines Investigation Act. An inquiry
concerning flat rolled steel was commenced in 1981. The
applicant, Brayley, was ordered to attend to give evidence
pursuant to section 17. The proceedings were adjourned until
1987 when the Supreme Court, in Irvine, determined that the
procedure followed by the hearing Officer did not offend the
rules of natural justice or fairness. The notice of motion
initiating these proceedings sought access to the material on
which the 1981 order to attend was based. The Commission
then vacated the 1981 order and issued a new order. The notice
of motion was amended to seek access to the materials on
which both orders were based. The information sought was said
to be necessary to challenge the validity of the section 17 order.
The applicants argued that section 17 orders are discretionary,
and therefore that the rules of fairness and consequently the
rules of fundamental justice under section 7 of the Charter
apply. Furthermore, they argued that section 7 requires a
protective procedure of prior authorization which would involve
disclosure of the material in question. The respondents argued
that the decision to make a section 17 order is purely adminis
trative and non-reviewable.
Held, the application should be dismissed.
The applicants could not be entitled to access to material
related to the earlier order as it had been vacated.
The decision to issue a section 17 order is reviewable to
ensure that the rules of fairness or fundamental justice under
the Charter have been complied with. This was supported by
the respondents' argument that such orders may be challenged
for having been issued for an improper purpose, which demon
strated that these orders are reviewable by a superior court.
Also, a member of the Restrictive Trade Practices Commission
has a discretion in issuing such orders.
As to the scope of the rules of fairness and fundamental
justice, the cases referred to as authority for the proposition
that the applicant had a right to know the nature of the
material in question in order to contest the validity of the order
were distinguished as they dealt with the right to cross-examine
on affidavits filed in support of applications for search
warrants.
The fact that a section 17 order is "ex parte" and made on
"application" does not necessarily mean such orders are always
returnable to provide the party against whom the order has
been made with a chance to answer.
Even if there had been a breach of the rules of fairness, this
was not an appropriate case for the Court to exercise its
discretion to grant the relief sought. The applicants did not
suffer any prejudice in being unable to review the material.
They knew the nature of the investigation which had already
commenced. The Chairman's decision was neither arbitrary,
nor made without addressing his mind to the question of
whether or not there were reasonable grounds on which to
require that the applicants be ordered to attend.
As to whether prior authorization was required, Stelco Inc. v.
Canada (Attorney General), is authority for the proposition
that the procedure prescribed by section 17 does not offend the
principles of natural justice. If the inquiry was being conducted
under the new Competition Act, the applicants would be en
titled to their remedy in light of the amendments to section 10
of the Combines Investigation Act. However, statutory amend
ment is not indicative of the state of the law prior to the
amendment.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
An Act to establish the Competition Tribunal and to
amend the Combines Investigation Act and the Bank
Act and other Acts in consequence thereof, S.C. 1986,
c. 26, s. 67.
Canada Evidence Act, R.S.C. 1970, c. E-10.
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 7, 8.
Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 10
(as. am. by S.C. 1986, c. 26, s. 24), 17, 32. (as am. by
S.C. 1974-75-76, c. 76, s. 14).
Competition Act, R.S.C. 1970, c. C-23 (as am. by S.C.
1986, c. 26, s. 19), s. 9.
CASES JUDICIALLY CONSIDERED
APPLIED:
Stelco Inc. v. Canada (Attorney General), judgment
dated October 22, 1987, Federal Court, Appeal Division,
A-728-87, not yet reported.
DISTINGUISHED:
Re Butler Manufacturing Co. (Canada) Ltd. and Minis
ter of National Revenue (1983), 42 O.R. (2d) 784 (S.C.);
Corr (T.A.) et al. v. The Queen, [1987] 1 C.T.C. 148
(S.C. Ont.).
CONSIDERED:
Irvine v. Canada (Restrictive Trade Practices Commis
sion), [1987] 1 S.C.R. 181; Hunter et al. v. Southam
Inc., [1984] 2 S.C.R. 145; 11 D.L.R. (4th) 641; Thomson
Newspapers Ltd. et al. v. Director of Investigation &
Research et al. (1986), 57 O.R. (2d) 257 (C.A.); Ziegler
v. Hunter, [1984] 2 F.C. 608; (1983), 81 C.P.R. (2d) 1
(C.A.); Stelco Inc. v. Canada (Attorney General), [1988]
1 F.C. 510 (T.D.); Yri-York Ltd. v. Canada (Attorney
General), [1988] 2 F.C. 537 (T.D.).
REFERRED TO:
Re Director of Investigation and Research and Restric
tive Trade Practices Commission et al. (1985), 18
D.L.R. (4th) 750 (F.C.A.); Restrictive Trade Practices
Commission et al. v. Director of Investigation and
Research, Combines Investigation Act (1983), 145
D.L.R. (3d) 540 (F.C.T.D.); A. G. Sask. et al. v. Boy-
chuk et al., [1977] 5 W.W.R. 750 (Sask. C.A.); Tribune
Newspaper Co. v. Ft. Frances Pulp & Paper Co., Re
Macklin, [1932] 4 D.L.R. 179 (Man. C.A.); Rex v.
Baines, [1909] 1 K. B. 258.
COUNSEL:
William J. Miller for applicants.
No one appearing for respondent Restrictive
Trade Practices Commission.
Peter A. Vita, Q.C. for respondent Director of
Investigation and Research.
SOLICITORS:
Smith, Lyons, Torrance, Stevenson & Mayer,
Ottawa, for applicants.
No one representing respondent Restrictive
Trade Practices Commission.
Deputy Attorney General of Canada for
respondent Director of Investigation and
Research.
The following are the reasons for order ren
dered in English by
REED J.: The applicants bring a motion seeking
an order to compel the respondents to disclose all
material filed in support of an order, issued pursu
ant to section 17 of the Combines Investigation
Act, R.S.C. 1970, c. C-23, as amended. Section 17
provides that a member of the Restrictive Trade
Practices Commission, either at the behest of the
Director of Investigation and Research or on the
member's own motion, may order any person to be
examined on oath or make production of
documents.' The section 17 order in question
requires the applicant Mr. W. G. Brayley to give
evidence with respect to an inquiry relating to the
17. (1) On ex parte application of the Director, or on his
own motion, a member of the Commission may order that any
person resident or present in Canada be examined upon oath
before, or make production of books, papers, records or other
documents to such member or before or to any other person
named for the purpose by the order of such member and may
make such orders as seem to him to be proper for securing the
attendance of such witness and his examination, and the pro
duction by him of books, papers, records or other documents
and may otherwise exercise, for the enforcement of such orders
or punishment for disobedience thereof, all powers that are
exercised by any superior court in Canada for the enforcement
of subpoenas to witnesses or punishment of disobedience
thereof.
(2) Any person summoned under subsection (1) is competent
and may be compelled to give evidence as a witness.
(Continued on next page)
production, manufacture, purchase, sale and
supply of flat rolled steel, plate steel, bar, structur
al steel and related products. The inquiry pertains
to section 32 [as am. by S.C. 1974-75-76, c. 76, s.
14] of the Combines Investigation Act, which sec
tion prescribes it to be an offence for anyone to
conspire, combine or agree to prevent or unduly
limit competition. 2
The flat rolled steel inquiry was commenced by
application, of the Director to the Commission in
January 1981. An order was issued to the appli
cant on February 2, 1981 requiring him to attend
to give evidence. The inquiry hearings commenced
in March 1981. (These hearings involved not only
(Continued from previous page)
(3) A member of the Commission shall not exercise power to
penalize any person pursuant to this Act, whether for contempt
or otherwise, unless, on the application of the member, a judge
of the Federal Court of Canada or of a superior or county court
has certified, as such judge may, that the power may be
exercised in the matter disclosed in the application, and the
member has given to such person twenty-four hours notice of
the hearing of the application or such shorter notice as the
judge deems reasonable.
(4) Any books, papers, records, or other documents produced
voluntarily or in pursuance of an order under subsection (1)
shall within thirty days thereafter be delivered to the Director,
who is thereafter responsible for their custody, and within sixty
days after the receipt of such books, papers, records or other
documents by him the Director shall deliver the original or a
copy thereof to the person from whom such books, papers,
records or other documents were received.
2 Subsection 32(1) provides:
32. (1) Every one who conspires, combines, agrees or
arranges with another person
(a) to limit unduly the facilities for transporting, produc
ing, manufacturing, supplying, storing or dealing in any
product,
(b) to prevent, limit or lessen, unduly, the manufacture or
production of a product, or to enhance unreasonably the
price thereof,
(c) to prevent, or lessen, unduly, competition in the pro
duction, manufacture, purchase, barter, sale, storage,
rental, transportation or supply of a product, or in the
price of insurance upon persons or property, or
(d) to otherwise restrain or injure competition unduly,
is guilty of an indictable offence and is liable to imprison
ment for five years or a fine of one million dollars or to both.
the applicant but 28 other witnesses as well.)
Objections to the procedure being followed by the
hearing officer arose. The proceedings were
adjourned to allow the parties to contest the validi
ty of that procedure. The Supreme Court recently
determined that the procedure being followed was
valid (i.e. did not offend the rules of natural justice
or fairness): Irvine v. Canada (Restrictive Trade
Practices Commission), [1987] 1 S.C.R. 181.
Consequent upon the Supreme Court's decision
notice was given to the applicants that the inquiry
would be resumed.
The applicants filed a notice of motion, dated
September 21, 1987 initiating the present proceed
ing. The notice of motion sought access to the
material on which the Commission's February 2,
1981 order was based. The Commission, on Octo-
ber 6, 1987 vacated the February 2, 1981 order
and issued a new order effective October 6, 1987.
There is no dispute that the Commission has the
authority to vacate and re-issue the order, despite
the recent amendments to the Combines Investi
gation Act. An Act to establish the Competition
Tribunal and to amend the Combines Investigation
Act and the Bank Act and other Acts in conse
quence thereof, S.C. 1986, c. 26, states:
67. (1) Notwithstanding any other provision of this Act, the
members of the Restrictive Trade Practices Commission
appointed under the Combines Investigation Act (in this section
referred to as the "members" and the "Commission"), while
this subsection is in force, continue in office as such and may
exercise such of the powers and perform such of the duties and
functions as were, before the coming into force of this Act,
vested in them as such for the purpose only of completing any
inquiry or other matter or proceeding commenced under the
Combines Investigation Act or any other Act of Parliament
before the coming into force of this section.
(2) For the purposes of any inquiry or other matter or
proceeding referred to in subsection (1), the Combines Investi
gation Act and any other Act of Parliament amended by this
Act shall be read as if this Act had not come into force.
After the rescinding of the February 2, 1981
order and the issue of its replacement, on October
6, 1987, the applicants amended their notice of
motion so as to seek access to the materials on
which both the February 2, 1981 order and the
October 6, 1987 order were based. The applicants
argue that they should be entitled to see both sets
of materials because the two orders comprise,
essentially, one transaction. I disagree. If the
applicants are entitled to have access to any ma
terial, it can only be to that on which the October
6 order is based. The earlier order having been
vacated, it is now irrelevant.
The applicants seek access to the information in
question, because, they say, they wish to challenge
the validity of the section 17 order requiring the
applicant, Mr. Brayley to attend and give evi
dence. In order to do so, it is argued that it is
necessary to know on what material the Chairman
of the Commission based his decision to order Mr.
Brayley to attend.
I find it necessary, first of all, to put the appli
cants' claim in the context of the recent jurispru
dence. The Supreme Court in Hunter et al. v.
Southam Inc., [1984] 2 S.C.R. 145; 11 D.L.R.
(4th) 641 held that section 10 of the Combines
Investigation Act infringed section 8 of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)]. Section 10
was held to authorize unreasonable searches and
seizures because it did not provide a mechanism of
prior authorization sufficient to ensure that the
searches or seizures, authorized by that section
were not arbitrary (i.e. it was held that there
should exist a statutory procedure to ensure that
reasonable grounds exist in order to authorize the
entry and searches of premises).
It is clear, that based on the Hunter case, an
argument might be made that a section 17 order,
which requires someone to attend and bring docu
ments is analogous to a search or seizure; there is a
similarity between searching a person's premises
(and seizing documents therefrom) and requiring
an individual to attend at a certain place and bring
documents with him to be handed over. This issue
was addressed in the decision in Thomson News
papers Ltd. et al. v. Director of Investigation &
Research et al. (1986), 57 O.R. (2d) 257 (C.A.).
In that case the Ontario Court of Appeal held that
section 17 orders were really no different from
subpoenas duces tecum which can be issued in
either civil or criminal proceedings, without any
requirement of assessing their reasonableness and
the conflicting interest of the parties. (The Thom-
son decision is presently on appeal to the Supreme
Court of Canada.) The Ontario Court of Appeal in
the Thomson decision referred to an earlier deci
sion of the Federal Court of Appeal: Ziegler v.
Hunter, [1984] 2 F.C. 608; (1983), 81 C.P.R. (2d)
1. In the Ziegler case both Mr. Justice Le Dain
and Mr. Justice Hugessen likened a section 17
order to a subpoena duces tecum. They referred to
American authorities stating that such subpoenas
are to be treated quite differently from searches
and seizures.
The issue was again dealt with by the Federal
Court of Appeal in Stelco Inc. v. Canada (Attor-
ney General) (judgment dated October 22, 1987,
Court file number A-728-87 not yet reported). The
Court of Appeal reiterated the reasoning found in
the Ontario Court of Appeal's decision in the
Thomson case. These cases deal with the argu
ment that section 17 orders should be considered
to be searches or seizures and therefore subject to
section 8 of the Charter. They reject that
contention.
The above-mentioned jurisprudence also deals
with another issue. While a section 17 order may
be analogous to a subpoena duces tecum there is
an important difference. An ordinary subpoena
duces tecum, either in a civil or criminal proceed
ing, is issued in the context of an actual trial where
the parties have been identified (in the case of a
criminal proceeding an accused has been charged)
and the fact situation and legal consequences
sought to be drawn therefrom are known. In the
case of a section 17 order, however, the order
requires individuals who may subsequently be
charged with a criminal offence, to attend and give
evidence before a charge is laid; and, the charge
may be laid as a result of the testimony given. The
cases cited above (the Ontario Court of Appeal in
the Thomson case and the Federal Court of
Appeal decision in both Zeigler and Stelco) have
indicated that this procedure does not infringe any
right against self-incrimination. That is, there is no
infringement of paragraph 11(c) of the Charter
and the normal Canada Evidence Act [R.S.C.
1970, c. E-10] guarantees apply to protect the
testimony a witness may give from being used
against him or her in a subsequent proceeding.
One last piece of jurisprudence must be noted.
Mr. Justice McNair, in what I will call the Yri-
York [Yri-York Ltd. v. Canada (Attorney Gener
al), [1988] 2 F.C. 537 (T.D.)] application was
asked to stay the flat rolled steel inquiry, until the
Supreme Court decision in the Thomson case was
handed down. He found it inappropriate to do so
(T-1983-87, order dated November 5, 1987).
The applicants' argument, now however, focuses
on the procedural safeguards which flow from
section 7 of the Charter and which flow at
common law from the doctrine of fairness. It is
argued that when an individual is ordered to
attend an investigation and give evidence on oath,
a coercive type of proceeding exists which consti
tutes an infrigement of a person's liberty. Section 7
of the Charter provides:
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
The applicants argue that while the decision of
the Chairman of the Commission, in ordering the
applicant, Brayley, to attend to give evidence can
be classified as administrative as opposed to judi
cial or quasi-judicial, that decision is not automat
ic or lacking in discretion, as is the issuing of
subpoenas duces tecum by court officials. Juris
prudence which demonstrates that section 17
orders are of a discretionary nature, it is argued,
are: Re Director of Investigation and Research
and Restrictive Trade Practices Commission et al.
(1985), 18 D.L.R. (4th) 750 (F.C.A.); Restrictive
Trade Practices Commission et al. v. Director of
Investigation and Research, Combines Investiga
tion Act (1983), 145 D.L.R. (3d) 540 (F.C.T.D.).
Consequently, counsel argues the issue of a section
17 order is the kind of decision to which the rules
of fairness and consequently the rules of funda
mental justice under the Charter, apply. The rules
of fairness will vary depending upon the nature of
the proceeding.
I would characterize the applicants' Charter
argument on this point as having two aspects: (1)
an assertion that section 7 requires in the case of a
section 17 order a protective procedure of prior
authorization, as the Supreme Court held was the
case, in Hunter v. Southam, under section 8 for
search and seizures; and, (2) part of that prior
authorization procedure requires an assessment by
an independent decision-maker as to whether the
compelling of an individual to attend, give evi
dence and bring documents is reasonable in the
circumstances. Counsel would argue that the ma
terials presented to that independent decision-
maker should be available to the person compelled
to attend since that person has a right to know the
nature of the material which led to the authoriza
tion of the issuance of the order. Thus, it is argued,
the applicant has a right to know the nature of this
material in order to enable him to contest the
validity of the order.
The respondents' argument is that (1) the sec
tion 17 order is not one to which the rules of
natural justice, fairness, or fundamental justice
apply—it is purely administrative in the non-
reviewable sense; (2) if the order is reviewable, the
scope of the rules of natural justice, fairness or
fundamental justice do not require either any prior
authorization procedure or the disclosure of the
material in question.
I think it is fair to note in this regard that a
significant part of the respondents' concern with
the applicants' request seems to be that the origi
nal section 17 order was made before the Charter
of Rights came into force and before the Supreme
Court decision in Hunter v. Southam. That order
was made on the assumption that the proceedings
were totally confidential, at that point, and that
there could be no disclosure of the materials filed
with the Commission. It is suggested by counsel,
although there is no affidavit evidence to this
effect, that the Director may have filed with the
Commission all his investigative files, rather than
merely enough evidence to justify the issuing of a
section 17 order. Whether the respondents filed
different material in support of the October 9
order is not known. I should note that the respon
dents have not offered to make that material avail
able to the applicants. In any event, the respon
dents see the applicants' motion as designed to
gain access to all the Director's investigative files
and not for any valid purpose related to the
administrative guarantees of fairness.
I will deal first with the argument that a section
17 order is absolutely non-reviewable. I do not
think this is the case. Counsel for the respondents
argues that the order can only be challenged in the
way that subpoenas usually are challenged: i.e.
before the same body that issued the subpoena on
the ground that, for example it was issued to a
person who could not give material evidence or on
the ground that it was obtained for an indirect or
improper object. See: A. G. Sask. et al. v. Boy-
chuck et al., [1977] 5 W.W.R. 750 (Sask. C.A.);
Tribune Newspaper Co. v. Ft. Frances Pulp &
Paper Co., Re Macklin, [1932] 4 D.L.R. 179
(Man. C.A.); Rex. v. Baines, [1909] 1 K.B. 258.
The applicants argue that they are attempting to
challenge the order before the body which makes it
but that in order to do so they need the material
being sought.
In my view the decision to issue a section 17
order is one that is reviewable for the purpose of
ensuring that the rules of fairness, or fundamental
justice (under the Charter) have been complied
with. It seems to me that respondents' argument
that such orders are attackable for example, for
having been issued for an indirect or improper
purpose, (grounds which in administrative law
terms correspond to review for abuse of discretion,
or for having been made in a perverse or arbitrary
manner) itself demonstrates that these orders are
of a kind which could be reviewed by a superior
court. I accept too the argument that the member
of the Commission has a discretion in issuing such
orders.
What then of the scope of the rules of fairness
and fundamental justice. I should note I have been
referred to no authority which would demonstrate
that the ordinary common law rules of fairness
require the production of the material in question.
Re Butler Manufacturing Co. (Canada) Ltd. and
Minister of National Revenue (1983), 42 O.R.
(2d) 784 (S.C.) and Corr (T.A.) et al. v. The
Queen, [1987] 1 C.T.C. 148 (S.C. Ont.) are
referred to as authority for the proposition that the
applicant has a right to know the nature of this
material in order to enable him to contest the
validity of the order. These cases are of no assist
ance. They both deal with applications made to a
court for issuance of a search warrant, which
application was supported by affidavits. The cases
only decide that cross-examination is to be allowed
on the affidavits.
Counsel makes much of the fact that a section
17 order is described as being an "ex parte order"
made on "application". It is argued that such
orders are always returnable to enable the party,
against whom the order has been given, to answer.
It is argued, that part of that process necessarily
involves access to the materials on which the order
was originally made. I think this reads too much
into the terms "ex parte" and "application" in
section 17.
In any event, in so far as the applicants' claim is
based on the argument that the rules of fairness
(apart from any Charter argument) operate so as
to require disclosure of the documents—an issue
that it is said was expressly left open by the
Supreme Court decision in the Irvine case (page
24 of the decision)—I find that claim easy to
answer. Even if there had been a breach of the
rules of fairness in this case, I would not deem it
appropriate to exercise my discretion to grant the
order sought. The applicants suffer no prejudice
from being unable to review the material in ques
tion. They know the nature of the investigation;
indeed, it has already commenced. There is not a
shred of evidence to suggest that the Chairman's
decision was arbitrary or made without addressing
his mind to the question of whether or not there
were reasonable grounds on which to require that
the applicants be ordered to attend. It is simply not
a case to exercise the Court's discretion in favour
of the applicants.
That leaves for consideration the broader issue:
whether section 7 of the Charter requires, in a case
such as the present, a procedure for prior authori
zation, analogous to that required by virtue of
section 8 in the case of searches and seizures. It is
to be noted that when section 10 of the Combines
Investigation Act was amended [S.C. 1986, c. 26,
s. 24], in response to the Hunter v. Southam
decision, a prior authorization procedure was
established to cover not only section 10 searches
and seizures but also orders which had previously
been granted under section 17 (refer: section 9 of
the Competition Act (as am. by S.C. 1986, c. 26, s.
19). Thus, if the flat rolled steel inquiry was being
conducted pursuant to the new Competition Act
rather than the Combines Investigation Act, the
applicants would be entitled to the remedy they
seek. It is, of course trite law that, statutory
amendment, in itself, cannot be taken as indica
tive, one way or the other, of the state of the law
prior to the amendment.
Before me, counsel argued that the jurispru
dence (Hunter v. Southam, Thomson and Ziegler)
did not deal with the section 7 argument in so far
as it related to procedural guarantees. Specifically,
it was argued that the question of whether or not
there was inherent in the requirements of funda
mental justice, in the case of an inquiry such as
that in issue in this case, a need for a procedure of
prior authorization, had not been argued in that
jurisprudence. The jurisprudence, it was said, only
dealt with either section 8 or the section 7 argu
ment as it related to issues of substantive fairness
and what is colloquially referred to as the right
against self-incrimination.
Strangely, neither counsel cited to me the recent
Federal Court of Appeal decision in Stelco Inc. v.
Canada (Attorney General) (Court file No.
A-728-87, decision dated October 22, 1987) nor
the Trial Division decision in that case, [1988] 1
F.C. 510. On reading those decisions, it seems to
me that the issue of procedural fairness has been
dealt with and determined by the Court of Appeal.
Associate Chief Justice Jerome was asked in the
Stelco case [at page 516] to determine whether
"the procedure prescribed by the legislation [sec-
tion 17 of the (Combines Investigation Act)] falls
short of the requirements of fundamental justice."
He stated that they did not. His decision charac
terized section 17 orders as administrative and
non-reviewable (refer pages 516-517 of his deci
sion). While the Court of Appeal indicated that it
might not agree with that characterization (at
page 3 of its decision), it upheld the decision which
had found that the procedure prescribed by the
legislation did not offend the Charter principles of
fundamental justice. Thus this issue has been
determined by the Court of Appeal contrary to the
position which the applicants take.
For the reasons given this application will be
dismissed.
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