Competition Tribunal Tribunal de la Concurrence Reference: Swenson Inc. v. Trader Corporation, 2008 Comp. Trib. 20 File No.: CT-2008-007 Registry Document No.: 18
IN THE MATTER of the Competition Act, R.S.C. 1985, c. C-34, as amended; AND IN THE MATTER of an Application by Swenson Inc. for an order pursuant to section 103.1 of the Competition Act granting leave to make application under section 75 of the Competition Act;
B E T W E E N: Swenson Inc. (applicant)
and Trader Corporation (respondent)
Decided on the basis of the written record Presiding Judicial Member: Simpson J. (Chairperson) Date of Order: August 8, 2008 Order signed by: Madam Justice Sandra J. Simpson
ORDER DISMISSING WITHOUT PREJUDICE THE APPLICATION FOR LEAVE PURSUANT TO SECTION 103.1 OF THE COMPETITION ACT
[1] FURTHER TO a notice of application filed by Swenson Inc. (the “Applicant”) on July 16, 2008, for an order pursuant to section 103.1 of the Competition Act, R.S.C. 1985, c. C-34, as amended (the “Act”), granting leave to make an application under section 75 of the Act;
[2] AND FURTHER TO a motion, on consent, made by the respondent for an order extending the time to file its response pursuant to Rule 119 of the Competition Tribunal Rules, SOR/2008-141 (the “Rules”) to within 10 days of receiving the transcript of the cross-examination of the Applicant’s affiant. The Applicant had consented to the cross-examination of the affiant;
[3] AND UPON being advised that the deponent of the Applicant’s affidavit is on vacation and cannot be reached to provide instructions about when he might be cross-examined;
[4] AND UPON being advised that no date can be set for the filing of the response, which is dependent on the date of cross-examination, because counsel do not know when the cross-examination of the Applicant’s affiant can be scheduled and transcripts obtained;
[5] AND UPON noting that the Tribunal suggested October 31st, 2008 as a date for the response but counsel for the parties were not prepared to agree given their inability to set a date for the cross-examination of the Applicant’s affiant;
[6] AND UPON concluding that the Tribunal is not prepared, even on consent, to grant an open ended adjournment for the filing of the response which was due today;
[7] AND UPON determining that it is not appropriate for an applicant to file an application for leave at a time when there is no prospect of moving the matter forward in a reasonable time frame;
NOW THEREFORE THE TRIBUNAL ORDERS THAT: [8] The application for leave is hereby dismissed without prejudice to the Applicant to refile when it is ready to proceed.
DATED at Ottawa, this 8 th day of August 2008. SIGNED on behalf of the Tribunal by the Chairperson. (s) Sandra J. Simpson
COUNSEL: For the applicant Swenson Inc. William G. Haight For the respondent Trader Corporation Neil Finkelstein Brian Facey Catherine Beagan Flood Rahat Godil