Director of Investigation and Research, Competition Act v. Irving Equipment and Barrington Industrial Services Ltd., (1986) 8 F.T.R. 107 (TD)

• Judge: Muldoon, J.
• Court: Federal Court (Canada)
• Case Date: November 24, 1986
• Jurisdiction: Canada (Federal)
• Citations: (1986), 8 F.T.R. 107 (TD)

Competition Act v. Irving Equipment (1986), 8 F.T.R. 107 (TD)

MLB headnote and full text

Director of Investigation and Research: The Competition Act, R.S.C. 1970, c. C-23, as amended S.C. 1986, c. 26, ex rel. Robert Weist v. Irving Equipment, a Division of J.D. Irving Limited, and Barrington Industrial Services Limited

(Nos. T-2265-86, T-2268-86, T-2269-86)

Indexed As: Director of Investigation and Research, Competition Act v. Irving Equipment and Barrington Industrial Services Ltd.

Federal Court of Canada

Trial Division

Muldoon, J.

December 1, 1986.

Summary:

The Director of Investigation and Research seized records and documents from two companies pursuant to warrants issued under s. 13 of the Competition Act. The Director applied under ss. 15(1)(b) and 15(3) of the Act for an order authorizing the retention of the documents for the purposes of investigation. The companies applied for an order to limit public access to the seized information, to ensure the confidentiality of the information until charges, if any, were laid.

The Federal Court of Canada, Trial Division, allowed both applications. The court ordered that the Director retain the documents for 60 days, subject to ss. 16(4)(b) and (c) of the Act. The court also ordered that the seized information be kept confidential with access limited to the parties and court officials until charges, if any, were laid.

Civil Rights - Topic 1225

Security of the person - Lawful or reasonable search - Disclosure of information obtained in seizure - The Director of Investigation and Research under the Competition Act seized corporate documents and obtained an order for their retention for investigative purposes - The companies submitted that the failure to ensure confidentiality of the information in the documents by precluding public access would deny the companies' right to security of the person under s. 7 of the Charter of Rights and Freedoms - The Federal Court of Canada, Trial Division, held that the protection sought by the companies was to be found in the common law, not s. 7 of the Charter - See paragraphs 18 to 24.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The Director of Investigation and Research under the Competition Act seized corporate documents and obtained an order for their retention for investigative purposes - The companies submitted that the failure to ensure confidentiality of the information in the documents by precluding public access would render the original search and seizure unreasonable contrary to s. 8 of the Charter of Rights and Freedoms - The Federal Court of Canada, Trial Division, held that the protection sought by the companies was to be found in the common law, not s. 8 of the Charter - See paragraphs 18 to 24.

Civil Rights - Topic 4905

Presumption of innocence - When applicable - The Federal Court of Canada, Trial Division, held that "formally and officially" the presumption of innocence under s. 11(d) of the Charter of Rights and Freedoms arises only when the person invoking s. 11(d) has been charged with an offence - See paragraph 24.

Practice - Topic 3683

Evidence - Affidavits - Use of - Affidavits by lawyers - Limitations - A company applied for an order - The affidavit in support of the application was made by the lawyer who was also counsel on the application - The Federal Court of Canada, Trial Division, held that such practice was improper; that the court would never again receive such an affidavit in evidence - See paragraphs 8 to 10.

Trade Regulation - Topic 9264

Enforcement - Search and seizure - Retention of seized documents - The Director of Investigation and Research under the Competition Act seized corporate documents under s. 13 of the Act - Pursuant to ss. 15(1)(b) and 15(3), the Director applied for an order authorizing retention of the documents for investigative purposes - The Federal Court of Canada, Trial Division, granted the order allowing the Director to retain the documents for 60 days, subject to the alternate time periods set out in ss. 16(4)(b) and (c) of the Act - See paragraphs 3 to 6.

Trade Regulation - Topic 9265

Enforcement - Search and seizure - Public access to seized documents - An issue arose as to whether information in documents seized and retained by the Director of Investigation and Research under the Competition Act should remain confidential until charges, if any, were laid - The documents contained sensitive commercial and business management secrets - The Federal Court of Canada, Trial Division, held that there was no valid public interest in public access to the secrets where charges were not laid - Until charges were laid, it was sufficient that the public know that a search warrant was issued and reasons may be given as long as the company's right to privacy was not compromised - The court ordered that the information be kept confidential, with access limited to the parties and court officials until charges, if any, were laid.

Cases Noticed:

R. v. A.& A. Jewellers Limited, [1978] 1 F.C. 479, refd to. [para. 8].

Martinoff & Page v. Gossen, Simmonds & Gardom, [1978] 2 F.C. 537, refd to. [para. 8].

Lex Tex Canada Limited v. Duratex Inc., [1979] 2 F.C. 722, refd to. [para. 8].

Attorney-General of Nova Scotia et al. v. MacIntyre, [1982] 1 S.C.R. 1975; 40 N.R. 181; 49 N.S.R.(2d) 609; 96 A.P.R. 609; 132 D.L.R.(3d) 385, consd. [para. 14].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 11 D.L.R.(4th) 641, refd to. [para. 14].

Southam Inc. v. Director of Investigation and Research et al., [1983] 3 W.W.R. 385; 42 A.R. 93 (Alta. C.A.), refd to. [para. 14].

Thompson Newspapers Ltd. et al. v. Director of Investigation and Research (1986), 26 D.L.R.(4th) 507 (Ont. S.C.), refd to. [para. 14].

Canadian Newspapers Co. Ltd. v. Attorney General of Canada, Attorney General for Ontario et al. (1986), 55 O.R.(2d) 737 (H.C.J.), refd to. [para 14].

Canadian Newspapers Company Limited v. Attorney General of Canada and Attorney General of Manitoba (1986), 39 Man.R.(2d) 161, refd to. [para. 14].

Statutes Noticed:

Competition Act, R.S.C. 1970, c. C-23, as amended by S.C. 1986, c. 26, sect. 13 [para. 3]; sect. 15(1), sect. 15(2), sect. 15(3) [para. 4]; sect. 16(4) [para. 6].

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 8, sect. 11(d) [para. 18].

Criminal Code, R.S.C. 1970, c. C-34, sect. 443.2 [para. 15].

Counsel:

Winston K. Fogarty, for the applicant;

Gerald Lawson, Sr., for the respondent.

Solicitors of Record:

Frank Iacobucci, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

Lawson & Lawson, Saint John, New Brunswick, for the respondent.

These applications were heard on November 24, 1986, at Ottawa, Ontario, before Muldoon, J., of the Federal Court of Canada, Trial Division, who delivered the following judgment on December 1, 1986.