Competition Tribunal Tribunal de la Concurrence Citation: Commissioner of Competition v. Sears Canada Inc., 2004 Comp. Trib. 14 File no.: CT200204
IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34; AND IN THE MATTER OF an inquiry pursuant to subparagraph l0(l)(b)(ii) of the Competition Act relating to certain marketing practices of Sears Canada Inc.;
AND IN THE MATTER OF an application by the Commissioner of Competition for an order pursuant to section 74.1 of the Competition Act.
B E T W E E N: The Commissioner of Competition (applicant)
and Sears Canada Inc. (respondent)
Date of hearing: July 20, 2004 Before: Dawson J. (presiding) Date of Order: July 21, 2004 Registry document no.: 0148 Order signed by: Madam Justice Eleanor R. Dawson
ORDER REGARDING A MOTION MADE ORALLY TO STRIKE PART OF AFFIDAVIT
[1] FURTHER TO the motion filed by the respondent for an order granting Sears Canada Inc. leave to present evidence and make submissions at a separate hearing relating to:
(i) the factors to be taken into account pursuant to section 74.1(5) of the Competition Act (the “Act”), in determining the amount of any monetary penalty and;
(ii) any penalty to be imposed pursuant to section 74.1(1) of the Act; [2] AND FURTHER TO the oral motion by the respondent to strike the fourth sentence of paragraph [3] of the Affidavit of Adam Zimmerman, sworn on July 16, 2004, and served on the same date by the Commissioner of Competition (the “Commissioner”) as part of its responding motion record;
[3] AND ON READING the Affidavit of Adam Zimmerman and hearing the submissions made by counsel for the Commissioner and the respondent on July 20, 2004;
FOR THE REASONS DELIVERED ORALLY ON JULY 20, 2004, THE TRIBUNAL ORDERS THAT:
[4] The fourth sentence of paragraph [3] of the Affidavit of Adam Zimmerman is expunged. [5] The similar sentence found in paragraph [3] of the Commissioner's Memorandum of Argument is also expunged.
[6] The letter of the Commissioner, dated July 19, 2004, shall be removed from the public record.
[7] The Commissioner of Competition shall file a redacted version of the Affidavit of Adam Zimmerman and of her Memorandum of Argument, as soon as possible.
DATED at Ottawa, this 21 st day of July, 2004. SIGNED on behalf of the Tribunal by the presiding judicial member. (s) Eleanor R. Dawson
APPEARANCES: For the applicant: Commissioner of Competition John L. Syme Leslie Milton
For the respondent: Sears Canada Inc. William W. McNamara Martha A. Healey Phillip J. Kennedy