The Federal Court of Canada has dismissed an application for judicial review of the Commissioner of Competitionís decision to discontinue an inquiry into the distribution of motion pictures in Canada. The main issue was whether the Bureau was obliged to provide the complainants with a copy of an external economistís report, which had played a role in the Commissionerís decision to discontinue the inquiry. The complainant claimed that the Bureauís refusal to provide a copy of the report was a breach of its duty to act fairly, and also prevented the applicant from filing a reply to the report, in violation of its right to hear and respond to the case against it.
The Federal Court considered whether the Commissionerís decision to discontinue an inquiry is judicial or quasi-judicial in nature, or purely "administrative" (and thus less amenable to court interference). Based on the facts that the Competition Act does not provide for a hearing, the decision does not affect complainant rights or obligations, and the proceeding is not an adversarial one, the court concluded that the Commissionerís decision is an administrative act. The court referred to the Supreme Courtís decision in Baker v. Canada (MCI)  2 S.C.R. 817 for the guidelines for analysing such discretionary decisions and held that "courts must defer to discretionary decisions in the absence of bad faith on the part of decision-makers, the exercise of discretion for an improper purpose, or the use of irrelevant considerations."
The Court held that there was no evidence of bad faith or the use of irrelevant considerations, and further held that the Bureau was under no obligation to provide a copy of the external economistís report to the complainants. It was sufficient that the essential points and conclusions of the economistís report were contained in the Commissionerís report, which was provided to the complainant. The court pointed out that the complainant was invited to reply to the Commissionerís report, and the applicant did not have a valid reason for not taking that opportunity, since it had no right to more information than what the Commissioner had already disclosed. This decision confirms the Commissionerís very broad discretion in conducting and discontinuing inquiries, and the high threshold for judicial intervention in the Commissionerís decisions in that regard.
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The Canadian Competition Bureau issued a template document for use as a form of Consent Agreement, to be filed with the Competition Tribunal to resolve concerns the Bureau may have with proposed mergers.
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