R. v. Multitech Warehouse (Manitoba) Direct Inc. and McKenna, (1995) 102 Man.R.(2d) 141 (CA)

• Judge: Scott, C.J.M., Lyon and Kroft, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 08, 1995
• Jurisdiction: Manitoba
• Citations: (1995), 102 Man.R.(2d) 141 (CA);1995 CanLII 6261 (MB CA);100 CCC (3d) 153;62 CPR (3d) 305;[1995] MJ No 285 (QL);102 Man R (2d) 141;27 WCB (2d) 571

R. v. Multitech Warehouse (1995), 102 Man.R.(2d) 141 (CA);

    93 W.A.C. 141

MLB headnote and full text

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

(Suit No. A.R. 94-30-01621)

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

Manitoba Court of Appeal

Scott, C.J.M., Lyon and Kroft, JJ.A.

July 6, 1995.

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 dismissed the information. The Crown appealed.

The Manitoba Court of Queen's Bench, in a decision reported at 89 Man.R.(2d) 115, allowed the appeal in part. The court set aside the acquittals of the corporate accused and substituted convictions. The court affirmed McKenna's acquittals. The corpo­rate accused appealed.

The Manitoba Court of Appeal dismissed the appeal.

Criminal Law - Topic 7472

Summary conviction proceedings - Appeals - General - Appeal from acquittal - The Manitoba Court of Appeal discussed the jurisdiction of the summary conviction appeal court on an appeal by the Crown from an acquittal - See paragraphs 28 to 43.

Criminal Law - Topic 7472

Summary conviction proceedings - Appeals - General - Appeal from acquittal - The Manitoba Court of Appeal opined that "on a Crown appeal from an acquittal in a summary conviction matter the appeal court has the jurisdiction to reverse a finding of fact. But in doing so, it must pay heed to the indisputable advantage given to the trial judge who saw and heard the witnesses, and the attendant 'elbow room' that follows from this principle. Once this is understood, it seems to me to follow that on a Crown summary convic­tion appeal the appeal court must be free to reverse an acquittal on findings of fact when examination of all of the evidence discloses that the verdict is unreasonable" - See paragraph 42.

Criminal Law - Topic 7603

Summary conviction proceedings - Appeal to a court of appeal - What constitutes a "question of law" - The accused company was charged with bait and switch selling (i.e., advertising at a bargain price a prod­uct that is not supplied in reasonable quantities) - The trial judge found reason­able doubt as to failure to "supply in rea­sonable quantities" and as to whether the advertised price of items were "bargains" - Accordingly, the trial judge dismissed the information - The Manitoba Court of Appeal held that the conclusion drawn from the facts as found by the trial judge were questions of law - See paragraphs 44 to 55.

Criminal Law - Topic 7659

Summary conviction proceedings - Appeals - Grounds - Verdict unreasonable or unsupported by evidence - [See second Criminal Law - Topic 7472 ].

Criminal Law - Topic 7659

Summary conviction proceedings - Appeals - Grounds - Verdict unreasonable or unsupported by evidence - The accused company was acquitted of bait and switch selling (i.e., advertising at a bargain price a product that is not supplied in reasonable quantities) - The Crown appealed pursuant to s. 813(b) of the Criminal Code - The Manitoba Court of Appeal discussed the summary conviction appeal judge's author­ity regarding findings of fact by the trial judge - See paragraphs 28 to 43.

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 price items - The summary convic­tion appeal court judge 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 Mani­toba Court of Appeal affirmed the decision and that the accused did not establish the defence of due diligence.

Cases Noticed:

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. 18].

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. 18].

R. v. Purves (1979), 3 Man.R.(2d) 88 (C.A.), refd to. [para. 29].

R. v. Antonelli (1977), 38 C.C.C.(2d) 206 (B.C.C.A.), refd to. [para. 29].

Metivier v. Cadorette and Gourde, [1977] 1 S.C.R. 371; 8 N.R. 129, refd to. [para. 29].

R. v. Colbeck (1978), 42 C.C.C.(2d) 117 (Ont. C.A.), refd to. [para. 33].

R. v. Century 21 Ramos Realty Inc. and Ramos (1987), 19 O.A.C. 25; 37 D.L.R.(4th) 649 (C.A.), refd to. [para. 33].

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. [para. 33].

R. v. Sall (1990), 81 Nfld. & P.E.I.R. 10; 255 A.P.R. 10; 54 C.C.C.(3d) 48 (Nfld. C.A.), refd to. [para. 33].

R. v. Hay (1990), 25 M.V.R.(2d) 121 (B.C.C.A.), refd to. [para. 36].

R. v. Harper, [1982] 1 S.C.R. 2; 40 N.R. 255; 133 D.L.R.(3d) 546; 65 C.C.C.(2d) 193, refd to. [para. 36].

R. v. Nelson, [1979] 3 W.W.R. 97; 3 Sask.R. 45 (C.A.), refd to. [para. 37].

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. 39].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 45].

R. v. 279707 Alberta Ltd., [1991] 5 W.W.R. 561; 116 A.R. 13 (C.A.), refd to. [para. 51].

R. v. Cassidy, [1989] 2 S.C.R. 345; 100 N.R. 321; 36 O.A.C. 1; 50 C.C.C.(3d) 193, refd to. [para. 55].

Statutes Noticed:

Competition Act, R.S.C. 1985, c. C-34, sect. 57(1) [para. 5].

Counsel:

T.J. Dunne, Q.C., for the appellant;

G.D. Joyal, for the respondent.

This appeal was heard on June 8, 1995, before Scott, C.J.M., Lyon and Kroft, JJ.A., of the Manitoba Court of Appeal. On July 6, 1995, Scott, C.J.M., delivered the following judgment for the court.