A-851-88
American Airlines, Inc. (Appellant)
v.
Competition Tribunal, Air Canada, Air Canada
Services Inc., PWA Corporation, Canadian Air
lines International Ltd., Pacific Western Airlines
Ltd., Canadian Pacific Air Lines, Limited,
154793 Canada Ltd., 153333 Canada Limited
Partnership, The Gemini Group Automated Dis
tribution System Inc., Director of Investigation
and Research, Wardair Canada Inc., Consumers'
Association of Canada, Attorney General of the
Province of Manitoba (Respondents)
INDEXED AS: AMERICAN AIRLINES, INC. V. CANADA (COMPE-
TITION TRIBUNAL)
Court of Appeal, Iacobucci C.J., Heald and Stone
JJ.—Ottawa, October 25 and November 10, 1988.
Combines — Practice — Scope of interventions before Com
petition Tribunal under Competition Tribunal Act s. 9(3) —
Tribunal not prevented by Act s. 9(3) from allowing interveners
to fully participate in proceedings, including right to discovery,
calling of evidence and cross-examination of witnesses
Specific role of interveners in particular case matter for
Tribunal's discretion.
Construction of statutes — Meaning of "making representa
tions" in Competition Tribunal Act, s. 9(3) — Scope of
intervention allowed thereby — In pari materia rule of inter
pretation can be rebutted by more persuasive arguments.
When Air Canada or its subsidiary and Canadian Airlines
International Limited and its associated companies were
believed to have formed a merger of their computer reservation
systems, the Director of Investigation and Research (the Direc
tor) applied to the Competition Tribunal for an order dissolving
the merger, alleging that it would prevent or lessen competition
in the provision of computer reservation systems services.
American Airlines, Inc. (American) and others applied to the
Competition Tribunal for leave to intervene in these proceed
ings pursuant to subsection 9(3) of the Competition Tribunal
Act which allows interveners, with leave of the Tribunal, to
make representations in respect of any matter affecting them.
The Tribunal granted leave to intervene but interpreted subsec
tion 9(3) as preventing interveners from participating in exami
nation for discovery, calling evidence and cross-examining wit
nesses. This is an appeal and a cross-appeal from that decision.
Held, the appeal and cross-appeal should be allowed.
The principle that a court has authority and discretion over
its procedure—and the Tribunal was clearly given court-like
powers in that respect—was so fundamental that it could be
abrogated only by clearly expressed statutory language.
"Representations", according to the dictionary definition,
extend not only to arguments, but also to facts and reasons.
That being so, interveners should be allowed to provide the
facts on which they rely. This interpretation is strengthened by
the broad purpose of the Competition Act as stated in section
1.1 thereof. It is logical that Parliament has also, for the
achievement of that purpose, provided a means to ensure that
those who may be affected can participate effectively in the
proceedings in order to inform the Tribunal of the ways in
which matters complained of impact on them. A wider input
makes for a better-informed and more appropriate decision.
Allowing interveners to play a wider role may prolong and
complicate proceedings, but that was a price that had to be
paid in the interests of fairness, which was expressly required
by subsection 9(2).
The fact that sections 97 and 98 of the Competition Act, a
statute in pari materia with the Competition Tribunal Act,
authorize the Director "to make representations and call evi
dence" does not necessarily mean that Parliament intended the
phrase "to make representations" in subsection 9(3) of the
Competition Tribunal Act to exclude the calling of evidence.
The applicable rule of interpretation is one that can be rebut
ted, as it has been in this case, by more persuasive arguments.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C. 1970, Appendix III.
Competition Act, R.S.C. 1970, c. C-23 (as am. by S.C.
1986, c. 26, s. 19), ss. 1.1 (as enacted idem), 22 (as
enacted idem, s. 24), 60 (ss. 50-100, enacted idem, s.
47), 64, 73, 76, 77, 97, 98.
Competition Tribunal Act, S.C. 1986, c. 26, ss. 8,
9(1),(2),(3), 13(1), 16, 17.
Federal Court Rules, C.R.C., c. 663, R.R. 344(3) (as
am. by SOR/87-221), 1203 (as am. by SOR/79-57, s.
20), 1312.
CASES JUDICIALLY CONSIDERED
APPLIED:
Fishing Vessel Owners' Association of British Columbia
et al. v. Canada (1985), 57 N.R. 376 (F.C.A.).
COUNSEL:
Colin L. Campbell, Q.C. for appellant.
Nick J. Shultz and Janet Yale for Consum
ers' Association of Canada.
Marshall E. Rothstein, Q.C. for Air Canada
Ltd., 153333 Canada Limited Partnership,
Air Canada Services Inc.
Jo'Anne Strekaf for PWA Corporation,
Canadian Airlines International Ltd., Pacific
Western Airlines Ltd., Canadian Pacific Air
Lines, Limited, 154793 Canada Ltd., 153333
Canada Limited Partnership, Air Canada
Services Inc.
John F. Rook, Q.C. and Trevor S. Whiffen
for Director of Investigation and Research.
No one appearing for Attorney General of the
Province of Manitoba.
No one appearing for Wardair Canada Inc.
SOLICITORS:
McCarthy & McCarthy, Toronto, for appel
lant.
Consumers' Association of Canada, Ottawa,
on its own behalf.
Aikins, MacAulay & Thorvaldson, Win-
nipeg, for Air Canada Ltd., 153333 Canada
Limited Partnership, Air Canada Services
Inc.
Bennett Jones, Calgary, for PWA Corpora
tion, Canadian Airlines International Ltd.,
Pacific Western Airlines Ltd., Canadian
Pacific Air Lines, Limited, 154793 Canada
Ltd., 153333 Canada Limited Partnership,
Air Canada Services Inc.
Holden, Murdoch & Finlay Toronto, for
Director of Investigation and Research.
Attorney General of the Province of Manito-
ba, Winnipeg, on its own behalf.
Blake, Cassels & Graydon Toronto, for
Wardair Canada Inc.
The following are the reasons for judgment
rendered in English by
IAcoBucci C.J.: This is an appeal by American
Airlines, Inc. (American or appellant), pursuant to
subsection 13(1) of the Competition Tribunal Act,
S.C. 1986, c. 26, from the order of Strayer J. of
the Competition Tribunal [order dated 18/7/88,
CT-88/1, not yet reported] with respect to an
application by American to intervene, pursuant to
subsection 9(3) of the Competition Tribunal Act,
in a proceeding before the Competition Tribunal.
The proceeding in question was instituted by the
application of the Director of Investigation and
Research (Director) for, amongst other things, an
order under section 64 of the Competition Act,
R.S.C. 1970 c. C-23, as amended [by S.C. 1986, c.
26, ss. 19, 47],* and for an interim order under
section 76 of the Competition Act.' In effect, the
Director has alleged that Air Canada and Canadi-
an Airlines International Limited and other named
parties have formed a merger of the computer
reservations systems of Air Canada and Canadian
Airlines International Limited which prevents or
lessens, or is likely to prevent or lessen, competi
tion substantially within the meaning of section 64
of the Competition Act, in the provision of com
puter reservation system services to airlines, travel
agents and consumers in Canada.
Requests to intervene in the proceeding were
also filed by Wardair Canada Inc. (Wardair), and
the Consumers' Association of Canada (CAC).
The order of Strayer J. gave leave to intervene in
the proceeding to American, Wardair and CAC
and, in particular, allowed them to attend and
present argument on all motions and at all pre-
hearing conferences and hearings, on any matter
affecting them, respectively.
American, supported by CAC, appeals because
of the limited scope of the intervention afforded by
the order of Strayer J. CAC has appealed to this
Court by way of cross-appeal pursuant to Rule
1203 of the Federal Court Rules [C.R.C., c. 663
(as am. by SOR/79-57, s. 20)]. It is noteworthy
that the Director supports the arguments of the
appellant and other interveners for an increased
role in their intervention.
The appellant argues in short that Strayer J.
erred in law in his interpretation of subsection 9(3)
of the Competition Tribunal Act which had the
* Editor's Note: Sections 50 to 100 of the Competition Act
were added by S.C. 1986, c. 26, s. 47.
' The Director's application was subsequently amended by
order of the Competition Tribunal to include a prayer for relief
under subparagraph 64(1)(e)(iii), section 77 and paragraph
77(1)(b) of the Competition Act.
effect of preventing the interveners from par
ticipating in examination for discovery, calling
evidence, and cross-examining witnesses.'
I am of the view that the appeal and cross-
appeal should be allowed, but before setting out
my reasons, I would like to refer to parts of the
judgment appealed from because of the impor
tance of the issue to proceedings under the Com
petition Act and because of the admirably compre
hensive approach taken by Strayer J. in his
reasoning.
At the outset I think it appropriate to refer to
section 9 of the Competition Tribunal Act, which
provides as follows:
9. (1) The Tribunal is a court of record and shall have an
official seal which shall be judicially noticed.
(2) All proceedings before the Tribunal shall be dealt with
as informally and expeditiously as the circumstances and con
siderations of fairness permit.
(3) Any person may, with leave of the Tribunal, intervene in
any proceedings before the Tribunal to make representations
relevant to those proceedings in respect of any matter that
affects that person. [Emphasis added.]
JUDGMENT APPEALED FROM
Strayer J. interpreted "representations" in sub
section 9(3) to mean "arguments" and held that
the subsection could not be taken to include the
rights claimed by the interveners, viz., participat
ing in discovery, calling evidence and cross-exam
ining witnesses. In this connection, he stated [at
pages 13-14 of order]:
Subsection 9(3) of the Competition Tribunal Act authorizes
any person, with leave of the Tribunal, to "intervene ... to
make representations ..." .... The first point to note is that
the authority is given to intervene for a particular purpose only,
and one therefore cannot derive any broader authority by
reference to other meanings which the term "intervene" may
have in other contexts. The term "to make representations" in
normal English usage would suggest the presentation of argu
ment; that is, persuasion rather than proof. If there is any
lingering ambiguity of this term in the English version, it
appears to be clarified in the French version which states the
purpose of a permitted intervention as "afin de présenter des
observations". The term "observations" is most commonly
2 Before Strayer J., Wardair apparently did not ask to par
ticipate in discovery but wished to call evidence and cross-
examine witnesses in addition to presenting argument.
applied to the presentation of comments or argument before a
court or tribunal. [Appeal Book, pages 14-15.]
Strayer J. said that this interpretation of subsec
tion 9(3) was strengthened by reference to sections
97 and 98 of the Competition Act which author
izes the Director to participate before federal and
provincial, respectively, boards and agencies. In
each of those sections the Director is authorized to
"make representations to and call evidence" before
the board. A distinction is thus made between
representations and the calling of evidence, which
is supported in the French version of the two
sections: "présenter des observations et des
preuves". in section 97, and "présenter des obser
vations et soumettre des éléments de preuve" in
section 98. Because Strayer J. found the Competi
tion Tribunal Act and the Competition Act in pari
materia, he stated that similar language in the two
statutes should be given similar meanings. Accord
ingly, since in sections 97 and 98 of the Competi
tion Act "representations" do not include the pres
entation of evidence, so it should be in subsection
9(3) of the Competition Tribunal Act, namely,
that "making representations" should not include
the calling of evidence.
In reaching this conclusion, Strayer J. also noted
that to grant the interveners the role they wished
would be tantamount to treating them as parties,
and under the Competition Act only the Director
can apply for orders against specified persons.
Thus the only parties in proceedings under the
Competition Act are to be the Director and the
persons against whom orders are sought. He con
cluded that the Competition Act does not provide
any private right of action against the parties to an
anti-competitive merger since the only action con
templated is one taken by the Director.
Strayer J. also found that the general implied
authority of a court to permit interventions on
terms it thinks fit was restricted by the limiting
language of subsection 9(3) of the Competition
Tribunal Act. In addition, in looking at the context
of the Competition Act, Strayer J. was of the view
that proceedings before the Competition Tribunal
were justiciable in nature which in his view rein
forced a narrow interpretation of subsection 9(3).
In this respect, he said [at pages 20-211:
It is quite consistent with the view that Parliament has in effect
created a lis between the Director of Investigation and
Research and the parties to the merger; a lis which is to be
determined on the basis of the facts and the law for which the
proper parties to the proceedings have the prime responsibility
of presentation. In such a context it is not inappropriate that
the potential role of intervenors be quite limited, nor can an
interpretation of subsection 9(3) to this effect be considered
absurd or inconsistent with the general purposes of the Act. It
was open to Parliament to allow anyone potentially aggrieved
by a merger to commence a proceeding before the Tribunal
against the merging parties, but Parliament elected not to do
so. Instead it obviously saw the commencement of such a
proceeding and its direction as a matter involving an important
public interest which was to be defined and pursued by the
Director, a public officer, as he thinks best in the public
interest. In such circumstances it is irrelevant that other per
sons might take a different view of when or how such proceed
ing should be conducted. Their assistance will no doubt be
welcomed by the Director in the development of evidence
supportive of the allegations he has made but it is he who has
the carriage of the proceeding. It is he who, together with the
respondents, has the ultimate responsibility of shaping the
issues and, indeed, of settling the matter (subject to the approv
al of the Tribunal should a consent order be required). [Appeal
Book, pages 22-23.]
Strayer J. also pointed to subsection 9(2) which
directs the Competition Tribunal to deal with all
proceedings "as informally and expeditiously as
the circumstances and considerations of fairness
permit." In his view allowing interveners to pro
long proceedings through the multiplication of wit
nesses and cross-examination of witnesses could
only lead to delaying the decisions of the Tribunal
and discourage use of it. Thus a narrow interpreta
tion of "representations" in subsection 9(3) was
justified. By way of final comment, Strayer J.
referred to the intervention role of provincial and
federal attorneys general in constitutional cases at
the appellate level and the fact that they had not
been handicapped unduly in their interventions by
not having been involved at the trial level in the
presentation of evidence and cross-examination of
witnesses. He said [at page 25]:
The role of the Competition Tribunal in merger proceedings is
more akin to that of a court than to that of a public inquiry and
it is not absurd, illogical, or demeaning that non-parties to such
proceedings have only a limited part to play. If they have
evidence to provide which would be helpful to one of the
authorized parties to these proceedings it is difficult to believe
such party will not welcome their assistance. But if they want
to raise new issues which neither party is prepared to embrace,
they cannot do so because that would be inconsistent with the
adversarial system which Parliament has prescribed. [Appeal
Book, page 28.]
ISSUE BEFORE THE COURT
With this background and review of the reasons
of Strayer J., the issue before us focusses on the
meaning of subsection 9(3) of the Competition
Tribunal Act. Indeed, every party appearing
before this Court agrees with the observation made
by Strayer J. that, were it not for subsection 9(3),
the Tribunal would have implied authority to
permit interveners to call evidence and cross-
examine witnesses. The issue then is whether sub
section 9(3) restricts interveners in the manner
held by Strayer J. or whether, as contended by the
appellants, subsection 9(3) does not prevent the
Competition Tribunal from using its discretion to
decide the role that interveners will play.
REASONS FOR ALLOWING THE APPEAL
A useful starting point to answer the issue
before us is the principle, which is widely recog
nized and accepted, that courts and tribunals are
the masters of their own procedures. As a part of
this principle, courts have also been recognized as
having an inherent authority or power to permit
interventions basically on terms and conditions
that they believe are appropriate in the circum
stances. This principle was clearly articulated by
this Court in the Fishing Vessel Owners' Associa
tion case:
Every tribunal has the fundamental power to control its own
procedure in order to ensure that justice is done. This, however,
is subject to any limitations or provisions imposed on it by the
law generally, by statute or by the rules of Court. 3 [Emphasis
added.]
3 Fishing Vessel Owners' Association of British Columbia et
al. v. Canada (1985), 57 N.R. 376 (F.C.A.), at p. 381.
With respect to the Competition Tribunal, it is
clearly stated in its statute that the Tribunal is
given court-like powers and a concomitant proce
dural discretion to deal with matters before it: see
section 8, subsection 9(1) and section 16 of the
Competition Tribunal Act. 4 Of particular rele
vance is subsection 8(2):
8....
(2) The Tribunal has, with respect to the attendance, swear
ing and examination of witnesses, the production and inspection
of documents, the enforcement of its orders and other matters
necessary or proper for the due exercise of its jurisdiction, all
such powers, rights and privileges as are vested in a superior
court of record.
The principle of a court's authority and discre
tion over its procedure is so fundamental to the
proper functioning of a court and the interests of
justice that, in my view, only clearly expressed
language in a court's constating statute or other
applicable law should be employed to take away
that authority and discretion. When one looks at
the dictionary meaning of the operative words used
in section 9 as well as the context of the section
and of the proceedings under the Competition Act,
I do not think that the wording of subsection 9(3)
is clearly expressed to eliminate the Tribunal's
inherent authority or discretion in the manner
found by Strayer J.
Subsection 9(3) allows persons to intervene,
with leave of the Competition Tribunal, "to make
representations relevant to [the] proceedings in
respect of any matter that affects that person." To
ascertain the meaning of the words in the section
one should look not only at the dictionary defini
tion and the context but also at the nature of the
matters being dealt with in the action as well as
the overall objectives of the underlying legislation.
In The Shorter Oxford English Dictionary,
"representation" is stated to mean, among other
4 Subsection 8(1) gives the Tribunal jurisdiction to hear
applications under Part VII of the Competition Act and related
matters and subsection 8(3) deals with contempt orders of the
Tribunal. Subsection 9(1) stipulates that the Tribunal is a court
of record and shall have an official seal which shall be judicial
ly noticed. Section 16 gives rule making power to the Tribunal.
things, the following, which I find applicable to
subsection 9(3):
A formal and serious statement of facts, reasons or arguments,
made with a view to effecting some change, preventing some
action, etc .... [Emphasis added.]
Strayer J. chose to restrict "representations" to
mean only "argument" in the sense of persuasion
and not proof. Under Strayer J.'s reasoning, the
facts or reasons relied on by interveners to support
their arguments would be provided by the Director
(or possibly by the party against whom the Direc
tor was seeking an order).
But it is important to note that subsection 9(3)
allows persons to intervene to make representa
tions relevant to those proceedings in respect of
any matter that affects that person. It is expressly
recognized that orders of the Tribunal could be
made that would affect the interveners, such as in
the case at bar. If the interveners can make a
statement of facts, reasons or argument on matters
that affect them, the question arises whether they
should be allowed, at the discretion of the court in
accordance with the general principle discussed
above, to call evidence to support the facts which
would show the manner in which the intervener
was affected by the proceeding. Similarly, one can
question why the interveners cannot ensure that
their argument or reasons are supported by facts
that they have had the chance to prove in evidence.
It seems to me that it is not a satisfactory
answer to say that the Director must be relied on
to establish the facts (or reasons) for the interven-
ers because only the Director is a party, or only the
Director and the persons against whom an order is
sought are the parties or have a lis between them,
or that the Director must have carriage of the
proceedings under the Competition Act.
I fail to see how allowing interveners to have an
effective and meaningful intervention to ensure
they are able to show how they could be affected
by an order, all subject to the discretion and
supervision of the Tribunal, cannot be reconciled
with the adversarial or justiciable nature of pro
ceedings before the Tribunal. Moreover such a role
for interveners will not necessarily displace the
status of the parties before the Tribunal, the car
riage of the matter by the Director, or the lis
nature of the proceedings. I am confident that the
presiding members of the Competition Tribunal
can deal with the matters to give respect to those
concerns if or as needed.
My conclusion on this meaning of "representa-
tions" for the purpose of subsection 9(3) of the
Competition Tribunal Act is strengthened when
one looks to the wider context and nature of the
proceedings under the Competition Act.
The purpose of the Competition Act as shown in
section 1.1 [as enacted by S.C. 1986, c. 26, s. 19]
thereof is extremely broad:
1.1 The purpose of this Act is to maintain and encourage
competition in Canada in order to promote the efficiency and
adaptability of the Canadian economy, in order to expand
opportunities for Canadian participation in world markets
while at the same time recognizing the role of foreign competi
tion in Canada, in order to ensure that small and medium-sized
enterprises have an equitable opportunity to participate in the
Canadian economy and in order to provide consumers with
competitive prices and product choices.
It is evident from the purpose clause that the
effects of anti-competitive behaviour, such as a
merger that has the result of substantially lessen
ing competition, can be widespread and of great
interest to many persons. In these matters, Parlia
ment has provided for the Director to serve as the
guardian of the competition ethic and the initiator
of Tribunal proceedings under Part VII of the
Competition Act; but Parliament has also provided
a means to ensure that those who may be affected
can participate in the proceedings in order to
inform the Tribunal of the ways in which matters
complained of impact on them. I would ascribe to
Parliament the intention to permit those interven-
ers not only to participate but also to do so effec
tively. A restrictive interpretation of subsection
9(3) could in some cases run counter to the effec
tive handling of disputes coming before the
Tribunal.
At issue in the case before us is, among other
things, an order for dissolution, pursuant to section
64 of the Competition Act, of the merger of com
puter reservation systems in the airline business.
Section 65 lists various factors that the Tribunal
may consider in deciding whether to issue such an
order. These factors are fairly broad and it would
seem reasonable to assume that persons attaining
intervener status under subsection 9(3) could be
well-positioned to provide insights concerning
them through argument and reasons based on
facts. Moreover they arguably could more effec
tively and efficiently prove these facts if they have
the ability to lead evidence or cross-examine wit
nesses depending on the issue involved and the
circumstances of the particular case.
It seems to me that permitting interveners to
play a role wider than simply presenting argument
is also a fairer way of treating them. Although the
Director is supporting the wider interpretation
before us, it is not difficult to envision future
situations where the Director and an intervener
might disagree on some matter of fact or evidence
of which the Tribunal should be apprised. It is
therefore not only logical to give the Tribunal the
jurisdiction to decide the issue rather than simply
leaving it to the Director to decide in each case,
but it is also fair.
Fairness is a relevant consideration because sub
section 9(2) of the Competition Tribunal Act
expressly requires that proceedings before the Tri
bunal be dealt with as informally and as expedi
tiously as the circumstances and fairness allow.
This point of fairness also answers the concern
raised by Strayer J. that a wider role for interven-
ers will prolong and complicate proceedings before
and thereby delay decisions of the Tribunal. But, if
a wider role for interveners does lead to longer or
more complex proceedings before the Tribunal,
surely that is a necessary price to pay in the
interests of fairness, which is expressly required
under subsection 9(2).
Finally, I refer to the view of Strayer J. that his
conclusion for a narrow interpretation was
strengthened when one looked to the wording of
sections 97 and 98 of the Competition Act. Those
sections, which were found by Strayer J. to be in a
statute in pari materia with the Competition Tri
bunal Act, distinguished between making
representations and calling evidence; he concluded
the same distinction should be made in interpret
ing subsection 9(3) of the Competition Tribunal
Act.
I do not dispute his finding the statutes in pari
materia; however, I do not accept that the choice
of words in sections 97 and 98 of the Competition
Act dictates their meaning in subsection 9(3) of
the Competition Tribunal Act. There are several
other sections in both statutes which use the words
"representations" or "make representations". Sec
tions 60 and 73 of the Competition Act allow
interventions by the attorneys general of provinces
"for the purpose of making representations" on
behalf of provinces; subsections 22 [as enacted by
S.C. 1986, c. 26, s. 24] (2) and (3) of the Compe
tition Act allow interested persons "to make
representations" with respect to proposed regula
tions relating to certain applications, orders and
proceedings; and section 17 of the Competition
Tribunal Act which invites interested persons "to
make representations ... in writing" with respect
to any rules that the Competition Tribunal may
make. I do not think that in each section of the two
statutes the use of "representation" must neces
sarily be given the same meaning, especially where
the context and purpose of a particular section
may dictate otherwise. Sections 97 and 98 of the
Competition Act deal with endowing the Director
with the authority to appear before federal and
provincial agencies or boards which raises differ
ent considerations from those raised by subsection
9(3) of the Competition Tribunal Act. It may be,
although I refrain from any formal holding on the
matter, that Parliament, out of an abundance of
caution, has added the "calling of evidence" in
sections 97 and 98 to ensure that making represen
tations is not interpreted narrowly by the federal
or provincial boards and agencies before which the
Director is appearing. In any event, I believe the
main task of a court is in each case to ascertain the
meaning of a specific section by looking to its
wording and context. The fact that Parliament has
chosen a formulation of words in another section
of a related statute which appears to convey a
particular meaning should not of itself displace
convincing reasons why the same interpretation
should not apply to the section in issue before the
court. The point made about sections 97 and 98 is,
after all, a rule of interpretation that can be
rebutted, and in this case has been, by more
persuasive arguments.
In light of my reasons for allowing the appeal, I
do not find it necessary to deal with other argu
ments of the appellant relating to the judgment of
Strayer J. amounting to a denial of natural justice
or as being contrary to the Canadian Bill of
Rights [R.S.C. 1970, Appendix III].
CONCLUSION
Mindful of the ordinary dictionary meaning of
"representations" as discussed above, and of the
recognition in subsection 9(3) itself of interveners
as persons who are affected by competition pro
ceedings, and of the overall purpose and context of
the Competition Act and proceedings thereunder, I
conclude that the meaning of "representations" in
subsection 9(3) of the Competition Tribunal Act is
not as restrictive as decided by Strayer J. I would
therefore allow the appeal and the cross-appeal,
set aside the decision of Strayer J., and refer the
matter back to the Tribunal on the following
bases:
(a) that the Tribunal is not precluded, in exercis
ing its inherent discretion from allowing
interveners to fully participate in the proceed
ings before it, including, if it so determines,
the right to discovery, the calling of evidence
and the cross-examination of witnesses; and
(b) that the specific role of the interveners in this
proceeding should be left to the Tribunal to
decide, in the circumstances of this case, but
in accordance with fairness and fundamental
justice and subject to the requirements of
subsection 9(3) that the interveners' represen
tations must be relevant to this proceeding in
respect of any matter affecting those interven-
ers.
The only matter remaining to be considered is
the question of costs. Neither the appellant nor
any of those supporting it asked for costs either in
their memoranda or orally at the hearing of the
appeal. On the other hand, counsel for the
respondents appearing on the appeal asked, in
their memorandum, that the appeal be dismissed
with costs. They did not, however, make any oral
argument with respect to costs. The position then
of the Court is that no argument, written or oral,
has been addressed to it in this regard. However, I
am of the view that the question of costs should be
dealt with.
Subsection 13(1) of the Competition Tribunal
Act provides that any decision or order of the
Tribunal may be appealed to this Court "as if it
were a judgment of the Federal Court—Trial Divi
sion." Accordingly, it would seem that costs should
be disposed of in an appeal from the Tribunal on a
basis similar to that employed in appeals from the
Trial Division. Under new Rule 344 [as am. by
SOR/87-221], which came into effect on April 1,
1987, it seems clear that an award of costs is in the
complete discretion of the Court. Subsection (3) of
Rule 344 sets out a number of matters that the
Court is entitled to consider when awarding costs.
One of the matters enumerated is the result of the
proceeding. Since the appellant and those support
ing it have been successful in this appeal, I consid
er this to be a cogent reason, in the circumstances
of this case, for awarding costs. A perusal of the
various other matters enumerated in subsection
(3), when they are related to the circumstances of
this appeal, do not persuade me otherwise.
I should add that, were it not for the provisions
of subsection 13(1) of the Competition Tribunal
Act, the Court's discretion under Rule 344(1)
would have been displaced by the provisions of
Rule 1312, which is the general rule applicable to
appeals from tribunals other than the Trial Divi
sion. That Rule provides:
Rule 1312. No costs shall be payable by any party to an appeal
under this Division to another unless the Court, in its discre
tion, for special reasons, so orders.
If that Rule were otherwise to apply here, I
would have had no hesitation in concluding that
costs should not be awarded unless special reasons
to the contrary had been established on the record.
However, in view of the words used in section 13
supra, I think Rule 344(1) and not Rule 1312
applies to this appeal and because, if this were an
appeal from the Trial Division, I would award
costs for the reasons expressed earlier herein, I
would allow this appeal and the cross-appeal with
costs, if asked for.
HEALD J.: I concur.
STONE J.: I agree.
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.