R. v. Anthes Business Forms Ltd. et al., (1977) 22 N.R. 541 (SCC)

• Judge: Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 15, 1977
• Jurisdiction: Canada (Federal)
• Citations: (1977), 22 N.R. 541 (SCC);[1978] 1 SCR 970;1977 CanLII 32 (SCC)

R. v. Anthes Business Forms Ltd. (1977), 22 N.R. 541 (SCC)

MLB headnote and full text

R. v. Anthes Business Forms Limited et al.

Indexed As: R. v. Anthes Business Forms Ltd. et al.

Supreme Court of Canada

Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré, JJ.

February 15, 1977.

Summary:

This case arose out of a charge against the accused companies of conspiring to lessen competition by a price fixing agreement contrary to s. 32(1)(c) of the Combines Investigation Act, R.S.C. 1970, c. C-23. The accused were manufacturers of business forms, the market for which was dominated by two of the accused. The two dominant manufacturers were the only ones with the expertise to develop a price list. Accordingly, other manufacturers tended to use modified versions of such lists. In 1942 the accused formed an organization called the Institute of Business Forms Manufacturers and entered an agreement which required the members to file details of transactions in which they sold business forms for less than the list price. This information was available for those other members who requested it. There was no rule against a manufacturer discounting the list price and over the years following the agreement there was considerable discounting by the members. The accused were charged with conspiring to lessen competition from 1942 to 1968 contrary to s. 32(1)(c) of the Combines Investigation Act. Grant, J., of the Ontario High Court in a judgment reported at paragraphs 115 to 291 below and in 16 C.P.R.(2d) 216; 19 C.C.C.(2d) 394, acquitted the accused. Grant, J., held that the effect of the agreement between the accused was not to lessen competition and, if it did, competition was not unduly lessened. The Crown appealed.

The Ontario Court of Appeal in a judgment reported at paragraphs 2 to 114 below and in 20 C.P.R.(2d) 1, dismissed the appeal. The Ontario Court of Appeal held that Grant, J., had misdirected himself on the burden of proof on the Crown in finding that there was no conspiracy. However, because Grant, J., made a finding that competition was not unduly lessened, even if there was a conspiracy to lessen competition, the Court of Appeal held that his judgment should not be disturbed. The Crown appealed.

The Supreme Court of Canada in a judgment reported at paragraph 1 below dismissed the appeal and affirmed the judgment of Grant, J., of the Ontario High Court.

Criminal Law - Topic 2647

Conspiracies - Elements of offence - The Ontario High Court set out the elements of the proof of conspiracy in a charge of conspiracy to lessen competition by a price fixing agreement contrary to s. 32(1)(c) of the Combines Investigation Act, R.S.C. 1970, c. C-23 - See paragraphs 127 to 134.

Criminal Law - Topic 2680

Conspiracies - Evidence - Admissibility of document found in possession of an alleged co-conspirator, which was prepared prior to the co-conspirator entering the alleged conspiracy - An undated document of unknown origin was found in possession of an alleged co-conspirator - The document must have been prepared prior to 1959 and the co-conspirator did not enter the agreement alleged to have been a conspiracy until 1965 - The Ontario Court of Appeal held that the document was admissible against the other co-conspirators under s. 45 of the Combines Investigation Act, R.S.C. 1970, c. C-23 - See paragraphs 87 to 108.

Criminal Law - Topic 2681

Conspiracies - Circumstantial evidence - The Ontario High Court stated that in conspiracy cases, where the evidence is often largely circumstantial, it may be that facts proved by the Crown have little probative value in isolation but when the facts are considered together, they may constitute a proper basis for a conviction - See paragraphs 149 to 150, 47 to 48.

Criminal Law - Topic 4802

Appeals - Indictable offences - Burden on Crown appellant respecting errors by trial judge - The Ontario Court of Appeal held that, when the Crown appeals on the ground of an error by the trial judge, the Crown to succeed must show that, if the error had not occurred, the result would not necessarily have been the same - See paragraphs 109 to 113.

Evidence - Topic 8

Question of fact - What constitutes - Conspiracy - The Ontario High Court held that whether a person conspires to lessen competition contrary to s. 132(1) of the Combines Investigation Act, R.S.C. 1970, c. C-23, is a question of fact - See paragraph 125.

Evidence - Topic 1580

Hearsay rule exceptions - Business records - The Ontario Court of Appeal affirmed the admission into evidence of documents submitted by the accused, where the documents were records made in the usual and ordinary course of business by the accused and where they were admitted to show a practice and not the truth of statements in the documents - See paragraphs 49 to 53 and 223 to 226.

Practice - Topic 8817

Appeals - Duty of appeal court where trial judge failed to give reasons for judgment - The Ontario Court of Appeal held that it was not necessary for a trial judge to set out in his reasons the facts on which he relies to make a finding nor the reasons which led him to the conclusion - See paragraph 86.

Trade Regulation - Topic 502

Competition - Purpose of Combines Investigation Act, R.S.C. 1970, c. C-23 - The Ontario High Court stated that the purpose of the Combines Investigation Act is to protect the public interest in free competition and the test of illegality is injury to that public interest - See paragraph 119.

Trade Regulation - Topic 510

Competition - Article - Defined - The Ontario High Court held that the word "article" in s. 32(1)(c) of the Combines Investigation Act, R.S.C. 1970, c. C-23, means an article or commodity that may be the subject of trade or commerce - See paragraphs 116 to 117.

Trade Regulation - Topic 601

Competition - Price fixing agreements - General principles - The accused companies were accused of a conspiracy to lessen competition by a price fixing agreement - The alleged price fixing agreement was an information sharing agreement made by the accused as members of a trade institute formed for the purpose - The Ontario High Court held that to convict it must be proved in addition to the agreement that there was a collateral agreement to use the information gained under the agreement to fix prices - See paragraphs 214 to 219.

Trade Regulation - Topic 603

Competition - Price fixing agreements - Elements of offence - Combines Investigation Act, R.S.C. 1970, c. C-23, s. 32(1)(c) - The Ontario High Court set out the ingredients or elements of the offence of conspiring to lessen competition by a price fixing agreement contrary to s. 32(1)(c) of the Combines Investigation Act - See paragraphs 126 to 134.

Trade Regulation - Topic 605

Competition - Price fixing agreements - Unduly - Meaning of - Combines Investigation Act, R.S.C. 1970, c. C-23, s. 32(1)(c) - The Ontario High Court discussed the meaning of "unduly" on a charge of conspiring to unduly lessen competition contrary to s. 32(1)(c) of the Combines Investigation Act - See paragraphs 271 to 284 - The Ontario Court of Appeal stated that the share of the market held that by the alleged conspirators was an important and material, but not decisive, factor in determining whether competition was unduly lessened - See paragraphs 75 to 86.

Trade Regulation - Topic 617

Competition - Price fixing agreements - Evidence and proof - Admissibility of documents found in possession of accused - Combines Investigation Act, R.S.C. 1970, c. C-23, s. 45 - The Ontario High Court held that the admission of documents under s. 45 of the Combines Investigation Act was for the assistance of the Crown only and was not for use by the accused - See paragraphs 134 to 148.

Cases Noticed:

Re Black and Decker Mfg. Co. Ltd. and the Queen (1973), 10 C.P.R.(2d) 154; [1973] 2 O.R. 460; 11 C.C.C.(2d) 470, revd [1975] 1 S.C.R. 411; 1 N.R. 299; 13 C.P.R.(2d) 97; 15 C.C.C.(2d) 193, refd to. [paras. 15 and 122].

R. v. Black and Decker Mfg. Co. Ltd. (1973), 10 C.P.R.(2d) 154; [1973] 2 O.R. 460; 11 C.C.C.(2d) 470, revd [1975] 1 S.C.R. 411; 1 N.R. 299; 13 C.P.R.(2d) 97; 15 C.C.C(2d) 193, refd to. [paras. 15 and 122].

Sunbeam Corp. (Canada) Ltd. v. The Queen, [1969] S.C.R. 221; 56 C.P.R. 242; [1969] 2 C.C.C. 189; 53 C.P.R. 102; [1967] 1 O.R. 661; [1967] 3 C.C.C. 149, appld. [para. 38].

Lampard v. The Queen, [1949] S.C.R. 373; [1969] 3 C.C.C. 249; 4 D.L.R.(2d) 98, appld. [para. 38].

United States v. Container Corp. of America et al. (1969), 393 U.S. 333, refd to. [para. 43].

Ciglen v. The Queen, [1970] S.C.R. 804; [1970] 4 C.C.C. 83; 11 D.L.R. (3d) 1, refd to. [para. 56].

Container Materials Ltd. et al. v. The King, [1942] S.C.R. 147; 77 C.C.C. 129; [1942] 1 D.L.R. 529, appld. [para. 63].

R. v. Northern Electric Co. Ltd. et al. (1955), 24 C.P.R. 1; [1955] O.R. 431; 111 C.C.C. 241, appld. [paras. 65, 103 and 133].

R. v. Ash-Temple Co. et al., [1949] O.R. 315; 93 C.C.C. 267; 8 C.R. 66, appld. [paras. 74 and 101].

R. v. Abitibi Power & Paper Co. Ltd. et al. (1960), 36 C.P.R. 188; 131 C.C.C. 201; 36 C.R. 96, appld. [paras. 77, 84, 106, 128 and 141].

R. v. Elliott (1905), 9 C.C.C. 505, 9 O.L.R. 648, appld. [paras. 78, 129 and 272].

R. v. Electrical Contractors Ass'n of Ontario and Dent (1961), 37 C.P.R. 1; [1961] O.R. 265; 131 C.C.C. 145, appld. [paras. 83, 106 and 125].

R. v. Lacey et al. (1848), 3 Cox C.C. 517, refd to. [para. 99].

R. v. Howard Smith Paper Mills Ltd. et al. (1954), 22 C.P.R. 10; [1954] O.R. 543; 109 C.C.C. 65, affd 25 C.P.R. 27; [1955] O.R. 713; 122 C.C.C. 108, appld. [paras. 100, 129, 104 and 143].

R. v. B.C. Sugar Refining Co. (1960), 38 C.P.R. 177; 129 C.C.C. 7; 36 C.R. 32, appld. [para. 105].

R. v. Sunbeam Corp. (1967), 53 C.P.R. 102; [1967] 1 O.R. 661; [1967] 3 C.C.C. 149, reversed [1969] S.C.R. 221; 56 C.P.R. 242; [1969] 2 C.C.C. 189, consd. [para. 106].

White v. The King, [1947] S.C.R. 268; 89 C.C.C. 148; 3 C.R. 232, appld. [para. 110].

Cullen v. The King, [1949] S.C.R. 658; 94 C.C.C. 339; [1949] 3 D.L.R. 24, appld. [para. 110].

R. v. Savoie (1956), 117 C.C.C. 327, appld. [para. 111].

R. v. Peterson (1970), 1 C.C.C.(2d) 197; 13 C.R.N.S. 34, [1971] 1 W.W.R. 321, appld. [para. 111].

R. v. Canadian Coat and Apron Supply Ltd. et al. (1967), 52 C.P.R. 189; [1967] 2 Ex C.R. 53; 2 C.R.N.S. 62, appld. [paras. 119 and 280].

Container Materials Ltd. et al. v. The King (1942), 77 C.C.C. 129; [1942] 1 D.L.R. 529; [1942] S.C.R. 147, appld. [para. 119].

R. v. J.J. Beamish Construction Co. Ltd. (and 11 other corporations) (1966), 50 C.P.R. 97; [1967] 1 C.C.C. 301; 59 D.L.R.(2d) 6, affirmed 53 C.P.R. 43; [1968] 2 C.C.C. 5; 65 D.L.R.(2d) 260, refd to. [para. 122]; appld. [para. 279].

Mulcahy v. The Queen (1868), L.R. 3 H.L. 306, appld. [para. 128].

R. v. Hammond & Webb (1799), 2 Esp. 719; 170 E.R. 508, appld. [para. 130].

R. v. Crown Zellerback Canada Ltd., Bartram Paper Products Co. Ltd. and Columbia Paper Co. Ltd. et al. (1955), 113 C.C.C. 212; [1955] 5 D.L.R. 27; 22 C.R. 1, appld. [paras. 13 and 277].

R. v. Eddy Match Co. (1951), 17 C.P.R. 17; 104 C.C.C. 39, appld. [para. 132].

Paradis v. The King (1933), 61 C.C.C. 184; [1934] 2 D.L.R. 88; [1934] S.C.R. 165, appld. [para. 134].

Eddy Match Co. Ltd. et al. v. The Queen (1953), 20 C.P.R. 107; 109 C.C.C. 1; 18 C.R. 357, appld. [para. 138].

R. v. Canadian Breweries Ltd. (1960), 34 C.P.R. 179; 126 C.C.C. 133; [1960] O.R. 601, appld. [para. 149].

R. v. Burrows et al. (1966), 54 C.P.R. 95, appld. [para. 150].

Cote v. The King (1941), 77 C.C.C. 75; [1942] 1 D.L.R. 336, appld. [para. 150].

Quinn v. Leathem, [1901] A.C. 495, appld. [para. 186].

Tag Manufacturing Institute et al. v. Federal Trade Commission (1949), 174 F. 2d 452 consd. [para. 194].

United States v. Container Corp. of America et al. (1969), 89 S.Ct. 510, consd. [para. 194].

Maple Flooring Manufacturers Assoc. v. United States (1925), 45 S.Ct. 578, appld. [para. 199].

Lennard's Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd., [1915] A.C. 705, consd. [para. 269].

R. v. St. Lawrence Corp. Ltd. and 19 other Corporations (1969), 59 C.P.R. 97; [1969] 3 C.C.C. 263; 5 D.L.R.(3d) 263, consd. [para. 269].

R. v. Howard Smith Paper Mills Ltd. et al. (1954), 22 C.P.R. 10; 109 C.C.C. 65; [1954] 4 D.L.R. 161, affd. 29 C.P.R. 6; 118 C.C.C. 321; 8 D.L.R.(2d) 449, appld. [para. 273].

Statutes Noticed:

Combines Investigation Act, R.S.C. 1970, c. C-23, sect. 32(1)(c) [paras. 16, 116]; sect. 45 [paras. 40, 136].

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 605(1)(a) [para. 38]; sect. 613(1)(b)(iii) [para. 109].

Authors and Works Noticed:

Gosse, The Law of Competition in Canada (1962), p. 141 [para. 86].

Kenny's Outline of Criminal Law (17th Ed.), p. 495 [para. 219].

Roscoe's, Criminal Evidence (16th Ed. 1952), p. 488 [para. 100].

Special Lectures of the Law Society of Upper Canada, 1963, pt. 2. p. 17 [para. 79].

Counsel:

Rod Heather and R. Murray, for the appellant;

J.J. Robinette, Q.C. and G.G.S. Takach, for Moore Business Forms Limited;

Gordon F. Henderson, Q.C. and Gordon Clarke, for R. L. Crain Limited;

J.W. Brown, Q.C. and C.S. Goldman, for Autographic Business Forms Limited, Continuous Forms (Alberta) Ltd., Continuous Forms Limited, Savoy Business Forms Limited, Systems Equipment Limited & Western Business Forms Limited;

B. Clive Bynoe, Q.C., for ABF Automated Business Forms (Western) Limited;

John Rook, for Keystone Business Forms.

This case was heard on February 14 and 15, 1977, at Ottawa, Ontario, before LASKIN, C.J.C., MARTLAND, JUDSON, RITCHIE, SPENCE, PIGEON, DICKSON, BEETZ and de GRANDPRE, JJ., of the Supreme Court of Canada.

On February 15, 1977, LASKIN, C.J.C., orally delivered the following judgment for the Supreme Court of Canada: