Commissioner of Competition v. Labatt Brewing Co. et al., (2008) 372 N.R. 305 (FCA)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Court of Appeal (Canada)
• Judge: Richard, C.J., Noël and Sharlow, JJ.A.
• Citation: (2008), 372 N.R. 305 (FCA),2008 FCA 22
• Date: 22 January 2008
• Subject Matter: COURTS,TRADE REGULATION

Competition Commr. v. Labatt Brewing (2008), 372 N.R. 305 (FCA)

MLB headnote and full text

Temp. Cite: [2008] N.R. TBEd. MR.003

The Commissioner of Competition (appellant) v. Labatt Brewing Company Limited, Lakeport Brewing Company Limited, Lakeport Brewing Limited Partnership, Roseto Inc. and Teresa Cascioli (respondents)

(A-192-07; 2008 FCA 22)

Indexed As: Commissioner of Competition v. Labatt Brewing Co. et al.

Federal Court of Appeal

Richard, C.J., Noël and Sharlow, JJ.A.

January 22, 2008.

Summary:

The Commissioner of Competition applied for an interim order under s. 100(1)(a) of the Competition Act to prevent Labatt Brewing Company from taking steps to acquire a competitor. The Competition Tribunal dismissed the application. The Commissioner appealed. Meanwhile, the acquisition was completed rendering the appeal moot.

The Federal Court of Appeal exercised its discretion to hear the appeal despite the mootness. The court dismissed the appeal.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - The Commissioner of Competition applied for an interim order under s. 100(1)(a) of the Competition Act respecting what was then the proposed acquisition of a competitor by Labatt Brewing Company - The Competition Tribunal dismissed the application - The Commissioner appealed - Meanwhile, the acquisition was completed rendering the appeal moot - The Federal Court of Appeal held that the appeal should be heard despite it mootness because it raised a point of law that was likely to recur and the time constraints associated with a decision to grant or deny a s. 100(1)(a) application rendered such decisions evasive of appellate review - See paragraph 3.

Trade Regulation - Topic 248

Regulatory bodies - Competition tribunal - Interim orders - The Competition Tribunal dismissed the Commissioner of Competition's application for an interim order under s. 100(1)(a) of the Competition Act to prohibit Labatt Brewing Company from taking steps to acquire a competitor - The Commissioner appealed, asserting that the Tribunal reformulated s. 100(1)(a) by restoring the requirement of the former s. 100(1)(a) that the Commissioner establish the particulars of the perceived substantial lessening of competition and the remedies that would be needed to eliminate the substantial lessening of competition - The Commissioner asserted that where the Commissioner commences an inquiry and expresses the opinion that more time was required to determine whether an application should be sought under s. 92 to stop proposed transaction, the only limitation on obtaining an interim order was the Tribunal's residual discretion to refuse an order if the Commissioner had acted in a patently unreasonable manner or was not acting in good faith, or if the application was an abuse of process - The Federal Court of Appeal rejected the assertions - Parliament did not intend the Tribunal's role to be so limited - The Tribunal correctly explained that in assessing whether the third condition for the issuance of an interim order under s. 100(1)(a) was met, it had to consider the effectiveness of the available s. 92 remedies in the absence of an interim order, assuming that there was a determination that the proposed transaction would, or would be likely to, prevent or lessen competition - The Tribunal did not deny an interim order because of any failure by the Commissioner to establish that the proposed acquisition was reasonably likely to prevent or lessen competition substantially - Rather, it found that the Commissioner failed to establish that, without an interim order, the Tribunal's remedial powers under section 92 would be substantially impaired - That conclusion was not wrong in law, and was reasonably open to the Tribunal on the record.

Cases Noticed:

Air Canada v. Commissioner of Competition et al., [2002] 4 F.C. 598; 288 N.R. 113 (F.C.A.), refd to. [para. 3].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 3].

Elders Grain Co. et al. v. Ship Ralph Misener et al., [2005] 3 F.C.R. 367; 334 N.R. 1 (F.C.A.), refd to. [para. 4].

Commissioner of Competition v. Superior Propane Inc. et al., [2001] 3 F.C. 185; 269 N.R. 109; 2001 FCA 104, refd to. [para. 5].

Commissioner of Competition v. Canada Pipe Co., [2007] F.C.R. 3; 350 N.R. 291 (C.A.), refd to. [para. 5].

Statutes Noticed:

Competition Act, R.S.C. 1985, c. C-34, sect. 100(1)(a) [para. 10].

Counsel:

J.F. Rook, Q.C., J. Syme and R. Levine, for the appellant;

N. Finkelstein, B.A. Facey and C. Beagan Flood, for the respondents.

Solicitors of Record:

Department of Justice, Competition Law Division, Gatineau, Quebec, for the appellant;

Blake, Cassels & Graydon LLP, Toronto, Ontario, for the respondents.

This appeal was heard at Ottawa, Ontario, on January 22, 2008, by Richard, C.J., Noël and Sharlow, JJ.A., of the Federal Court of Appeal. Sharlow, J.A., delivered the following judgment for the court orally on the same date.