R. v. Multitech Warehouse (Manitoba) Direct Inc. and McKenna, (1993) 89 Man.R.(2d) 115 (QB)

• Judge: Clearwater, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: September 28, 1993
• Jurisdiction: Manitoba
• Citations: (1993), 89 Man.R.(2d) 115 (QB)

R. v. Multitech Warehouse Direct (1993), 89 Man.R.(2d) 115 (QB)

MLB headnote and full text

Her Majesty The Queen (appellant) v. Multitech Warehouse (Manitoba) Direct Inc. and Michael J. McKenna (Accused/respondents)

(File No. CR 91-01-10357)

Indexed As: R. v. Multitech Warehouse (Manitoba) Direct Inc. and McKenna

Manitoba Court of Queen's Bench

Winnipeg Centre

Clearwater, J.

September 28, 1993.

Summary:

The accused, Multitech Warehouse (Manitoba) Direct Inc. and McKenna, were charged with numerous counts of breaching s. 57(2) of the Competition Act. The charges alleged that the accused advertised certain products at bargain prices in two newspa­pers, but failed to supply those products in reasonable quantities.

The Manitoba Provincial Court, per Lis­mer, P.C.J., acquitted the accused. The Crown appealed.

The Manitoba Court of Queen's Bench allowed the appeal in part. The court set aside the acquittals of the corporate accused and substituted convictions. The court affirmed McKenna's acquittals.

Trade Regulation - Topic 646

Competition - Advertising - Not supply­ing reasonable quantities of goods - The accused corporation advertised certain electronic items for sale at low prices - However, when customers went to a store operated by the corporation, they were told the items were not available or upsold to higher priced items - The Manitoba Court of Queen's Bench convicted the corporate accused of advertising products at bargain prices without supplying reasonable quan­tities of the products for sale (Competition Act, s. 57(2)) - The court held that the corporate accused was responsible for the advertising, the goods were offered at "bargain prices", were not "supplied" in reasonable quantities and the accused did not establish the defence of due diligence on a balance of probabilities - See para­graphs 1 to 41.

Trade Regulation - Topic 646

Competition - Advertising - Not supply­ing reasonable quantities of goods - The accused corporation advertised certain electronic items for sale at low prices - When customers went to a store operated by the corporation, they were told the items were not available or upsold to higher priced items - The Manitoba Court of Queen's Bench convicted the corporate accused of advertising products at bargain prices without supplying reasonable quan­tities of the products for sale (Competition Act, s. 57(2)) - The court, however, affirmed the acquittal of the part owner and director of the corporation, where, notwithstanding that he was responsible for the advertising, it was not proved beyond a reasonable doubt that he instructed, had knowledge of, or acquiesced in, the sales practices at the store in question - See paragraphs 42 to 45.

Trade Regulation - Topic 646

Competition - Advertising - Not supply­ing reasonable quantities of goods - The Competition Act, s. 57(2), made it an offence to advertise goods at bargain prices if the vendor does not supply the items in reasonable quantities - The Manitoba Court of Queen's Bench dis­cussed the obligations imposed on vendors by s. 57(2) - See paragraph 46.

Trade Regulation - Topic 646

Competition - Advertising - Not supply­ing reasonable quantities of goods - The Competition Act, s. 57(2), made it an offence to advertise goods at bargain prices if the vendor does not supply the items in reasonable quantities - The Manitoba Court of Queen's Bench dis­cussed what the Crown must prove to sustain a conviction under s. 57(2) and what an accused must prove to establish a defence of due diligence - See paragraphs 25 to 41.

Trade Regulation - Topic 646

Competition - Advertising - Not supply­ing reasonable quantities of goods - The Competition Act, s. 57(2), made it an offence to advertise goods at bargain prices if the vendor does not supply the items in reasonable quantities - The Manitoba Court of Queen's Bench dis­cussed the meaning of the phrase "bargain price" and the word "supply" as used in s. 57(2) - See paragraphs 26 to 41.

Words and Phrases

Bargain price - The Manitoba Court of Queen's Bench discussed what constituted a "bargain price" within the meaning of s. 57(2) of the Competition Act, R.S.C. 1985, c. C-34 - See paragraphs 26 to 31.

Words and Phrases

Supply - The Manitoba Court of Queen's Bench discussed the meaning of the word supply and it was used in s. 57(2) of the Competition Act, R.S.C. 1985, c. C-34 - See paragraphs 32 to 41.

Cases Noticed:

R. v. Purves (1979), 3 Man.R.(2d) 88; 50 C.C.C.(2d) 211 (C.A.), refd to. [para. 22, Schedule].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 181; 44 C.C.C.(3d) 193; 66 C.R.(3d) 1, refd to. [para. 22, Sched­ule].

R. v. Morin (K.M.), [1992] 3 S.C.R. 286; 142 N.R. 141; 131 A.R. 81; 25 W.A.C. 81; 76 C.C.C.(3d) 193, refd to. [para. 23, Schedule].

R. v. G.B. et al. (No. 3), [1990] 2 S.C.R. 57; 111 N.R. 62; 86 Sask.R. 142; 77 C.R.(3d) 370; 56 C.C.C.(3d) 181, refd to. [para. 23].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161; 67 C.C.C.(3d) 193; 8 C.R.(4th) 145, refd to. [para. 24, Sched­ule].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295; 85 D.L.R.(3d) 161; 40 C.C.C.(2d) 353; 3 C.R.(3d) 30; 7 C.E.L.R. 53, refd to. [para. 24, Sched­ule].

R. v. 279707 Alberta Ltd., [1991] 5 W.W.R. 561; 116 A.R. 13 (C.A.), refd to. [para. 34, Schedule].

R. v. Wright (1984), 3 O.A.C. 293 (C.A.), refd to. [Schedule].

R. v. Mancheese (1986), 40 Man.R.(2d) 193 (Q.B.), refd to. [Schedule].

R. v. Giles and Ash (1990), 81 Nfld. & P.E.I.R. 1; 255 A.P.R. 1; 54 C.C.C.(3d) 66 (Nfld. C.A.), refd to. [Schedule].

R. v. Imperial Tobacco Products Ltd., [1971] 5 W.W.R. 409 (Alta. C.A.), refd to. [Schedule].

R. v. International Vacations Ltd. (1980), 33 O.R.(2d) 327 (C.A.), refd to. [Sched­ule].

R. v. Westfair Foods Ltd. (1986), 41 Man.R.(2d) 205; 11 C.P.R.(3d) 345 (Q.B.), refd to. [Schedule].

R. v. Air Canada (1987), 17 C.P.R.(3d) 392 (Ont. Dist. Ct.), refd to. [Schedule].

R. v. Multitech Warehouse Direct (Ontario) Inc. (1992), 115 N.S.R.(2d) 315; 314 A.P.R. 315 (Prov. Ct.), refd to. [Schedule].

R. v. MacDonald (1976), 9 N.R. 271; 29 C.C.C.(2d) 257 (S.C.C.), refd to. [Sched­ule].

Chiemelewski, Re, [1928] 61 O.L.R. 651 (C.A.), refd to. [Schedule].

Bland v. Agnew, [1933] 1 W.W.R. 681 (B.C.C.A.), leave to appeal refused [1933] S.C.R. 345, refd to. [Schedule].

Statutes Noticed:

Competition Act, R.S.C. 1985, c. C-34, sect. 1.1(a) [para. 33]; sect. 57(1) [para. 4]; sect. 57(2) [para. 3]; sect. 57(3), sect. 57(4) [para. 4].

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(4) [para. 20]; sect. 686(4)(b)(ii) [paras. 7, 20]; sect. 813(b)(i) [para. 18]; sect. 822(1) [para. 19].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 12 [para. 33].

Authors and Works Noticed:

Oxford English Dictionary [para. 30].

Shorter Oxford English Dictionary [para. 35].

Sopinka, John and Lederman, Bryant N. (1974), The Law of Evidence in Civil Cases, p. 19 [Schedule].

Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1992), p. 477 [Schedule].

Counsel:

Glenn D. Joyal, for the appellant;

Thomas J. Dunne, Q.C., for the accused.

This appeal was heard before Clearwater, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the follow­ing judgment on September 28, 1993.