Symbol Technologies Canada ULC v. Barcode Systems Inc.

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Court of Appeal (Canada)
• Judge: Richard, C.J., Létourneau and Rothstein, JJ.A.
• Citation: (2004), 327 N.R. 296 (FCA),2004 FCA 339
• Date: 28 September 2004
• Subject Matter: TRADE REGULATION

Symbol Tech. Can. v. Barcode Systems (2004), 327 N.R. 296 (FCA)

MLB headnote and full text

Temp. Cite: [2004] N.R. TBEd. OC.062

Symbol Technologies Canada ULC (appellant/respondent) v. Barcode Systems Inc. (respondent/applicant)

(A-39-04; 2004 FCA 339)

Indexed As: Symbol Technologies Canada ULC v. Barcode Systems Inc.

Federal Court of Appeal

Richard, C.J., Létourneau and Rothstein, JJ.A.

October 7, 2004.

Summary:

Barcode Systems Inc. applied to the Com­petition Tribunal under s. 103.1(1) of the Competition Act for leave to make an appli­cation to the Tribunal against Symbol Tech­nologies Canada ULC. Barcode alleged that Symbol was en­gag­ing in the reviewable re­strictive trade prac­tice of "refusal to deal" within the mean­ing of s. 75 of the Act. Pur­suant to s. 103.1(7) of the Act, the Tribu­nal granted Barcode leave to make the appli­ca­tion against Symbol. Symbol appealed from the Tribunal's decision.

The Federal Court of Appeal held that the Tribunal member who granted leave erred in refusing to consider whether Symbol's al­leged refusal to deal was likely to have an adverse effect on competition in a market as required by s. 75(1)(e) of the Act. However, the court held that there was some evidence that might meet the requirements of s. 75(1)(e) and while it might not be strong, it was it sufficient to constitute reasonable grounds to believe that Symbol's alleged re­fusal to deal could be the subject of an order under s. 75(1). The court therefore dismissed the appeal from the decision granting leave.

Trade Regulation - Topic 245

Regulatory bodies - Competition tribunal - Decisions - Standard of review - Barcode Systems applied to the Competition Tribu­nal under s. 103.1(1) of the Competition Act for leave to make an application to the Tribunal against Symbol Technologies - Barcode alleged that Symbol was engaging in the reviewable restrictive trade practice of "refusal to deal" within the meaning of s. 75 of the Act - Pursuant to s. 103.1(7) of the Act, the Tribunal granted Barcode leave to make the application against Sym­bol - Symbol appealed from the Tribunal's decision - At issue was whether, in exer­cising its discretion to grant leave, the Tribunal was required to consider all the elements of the restrictive trade practice of refusal to deal set out in s. 75(1) - The Federal Court of Appeal reviewed prag­matic and functional considerations and concluded that the standard of review on the appeal was correctness - See para­graphs 11 to 15.

Trade Regulation - Topic 722

Competition - Unfair competition - Restric­tive trade practices - Leave to bring appli­cation - Barcode Systems applied to the Competition Tribunal under s. 103.1(1) of the Competition Act for leave to make an application to the Tribunal against Symbol Technologies - Barcode alleged that Sym­bol was engaging in the reviewable restric­tive trade practice of "refusal to deal" within the meaning of s. 75 of the Act - Pursuant to s. 103.1(7) of the Act, the Tribunal granted Barcode leave to make the application against Symbol - Symbol appealed from the Tribunal's decision - The Federal Court of Appeal held that the Tribunal member who granted leave erred in refusing to consider whether Symbol's alleged refusal to deal was likely to have an adverse effect on competition in a market as required by s. 75(1)(e) of the Act - However, the court held that there was some evidence that might meet the requirements of s. 75(1)(e) and while it might not be strong, it was it sufficient to constitute reasonable grounds to believe that Symbol's alleged refusal to deal could be the subject of an order under s. 75(1) - The court therefore dismissed the appeal from the decision granting leave - See paragraphs 24 to 29.

Trade Regulation - Topic 722

Competition - Unfair competition - Restric­tive trade practices - Leave to bring appli­cation - Section 103.1(1) of the Competi­tion Act provided that any person could apply to the Competition Tribunal for leave to make an application under s. 75 (refusal to deal) or s. 77 (tied selling) - Section 103.1(7) provided that in order to grant leave, the Tribunal had to have rea­son to believe that the applicant was direc­tly and substantially affected in its business by any practice that could be the subject of an order under s. 75 or s. 77 - The Federal Court of Appeal stated that "The elements of the reviewable trade practice of refusal to deal that must be shown before the Tribunal may make an order are those set out in subsection 75(1). These elements are conjunctive and must all be addressed by the Tribunal, not only when it considers the merits of the application, but also on an application for leave under subsection 103.1(7). That is because, unless the Tribu­nal considers all the elements of the prac­tice set out in subsection 75(1) on the leave application, it could not conclude, as required by paragraph 103.1(7), that there was reason to believe that an alleged prac­tice could be subject to an order under subsection 75(1)" - See paragraph 18.

Trade Regulation - Topic 726

Competition - Unfair competition - Restric­tive trade practices - Refusal to deal - [See second Trade Regulation - Topic 722 ].

Cases Noticed:

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 12].

National Capital News Canada v. Canada (Speaker House of Commons) (2002), 23 C.P.R. (4th) 77 (Comp. Trib.), refd to. [para. 16].

Statutes Noticed:

Competition Act, R.S.C. 1985, c. C-34, sect. 75(1) [para. 8]; sect. 103.1(1) [para. 6]; sect. 103.1(7) [para. 7].

Counsel:

Steven Field and Dave Hill, for the appel­lant/respondent;

Lindy Choy, for the respondent/applicant.

Solicitors of Record:

Hill Abra Dewar, Winnipeg, Manitoba, for the appellant/respondent;

Thompson Dorfman Sweatman, Winnipeg, Manitoba, for the respondent/applicant.

This appeal was heard on September 28, 2004, at Winnipeg, Manitoba, before Richard, C.J., Létourneau and Rothstein, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Rothstein, J.A., on October 7, 2004.