Competition Tribunal Tribunal de la Concurrence Citation: Commissioner of Competition v. Sears Canada Inc., 2004 Comp. Trib. 11 Date of order: 20040630 Docket: CT2002004
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)
Before: Dawson J. (presiding) Registry document no.: 0138 Date of Hearing: 20040628 Order signed by: Madame Justice Eleanor R. Dawson
ORDER REGARDING SEARS' MOTION FOR ADJOURNMENT
[1] UPON hearing the motion, made orally on June 28,2004, by Sears Canada Inc. ("Sears") for an order adjourning the oral argument of the issues other than those relating to the constitutionality of subsection 74.01(3) of the Competition Act, R.S.C. 1985, c. C-34 ("Act"), on the grounds that the nature and content of the Commissioner of Competition's ("Commissioner") reply delivered on June 25,2004, required further time for consideration and response;
[2] AND UPON noting in Sears' written argument its purported reservation of the right to adduce further evidence and submit further argument (both written and oral) regarding the factors identified in subsection 74.1(5) of the Act and noting the Commissioner's position in her written reply argument that Sears cannot reserve such right;
[3] AND UPON hearing the oral submissions of counsel; [4] AND UPON considering the obligation of the Competition Tribunal ("Tribunal") to deal with proceedings as informally and expeditiously as the circumstances and conditions of fairness permit and concluding that considerations of fairness require the making of this order;
[5] AND UPON counsel consenting to the making of paragraph 8 of this order; THE TRIBUNAL ORDERS THAT: [6] The oral argument of the issues other than the constitutionality of subsection 74.01(3) of the Act is adjourned to a date to be set by the Tribunal.
[7] Sears is given leave to file a written reply relevant only to subsection 74.01(5) of the Act, such reply to be sewed and filed on or before July 6, 2004.
[8] If the parties wish to refer to additional authorities relevant to issues other than the constitutionality of subsection 74.01(3) of the Act they shall exchange copies of such authorities, with relevant portions of such authorities highlighted. Sears shall serve any new authorities no later than 10 clear days before the commencement of the oral argument and the Commissioner shall serve any new authorities no later than five clear days before the commencement of oral argument.
[9] The Tribunal will sit on Tuesday, July 20, 2004, at 9:30 a.m. for the purpose of hearing a motion to be brought by Sears seeking leave to adduce evidence relevant to subsection 74.1(5) of the Act. This date is viewed by the Tribunal as being peremptory.
[10] Sears will serve and file its motion materials with respect to this motion on or before July 12, 2004, and the Commissioner shall serve and file her responding materials on or before July 16, 2004.
[11] Sears' motion materials shall deal with why evidence relevant to subsection 74.1(5) was not previously adduced, the nature of the evidence sought to be tendered, the number of witnesses proposed to be called, whether the proposed witnesses are experts, the anticipated
duration of such testimony and dates on which proposed witnesses are available to testify in July, August and September of 2004 (including weekends).
[12] Sears shall ensure that any deponent of an affidavit filed in support of its motion is available for cross-examination for at least a period of seven days after service of the affidavit upon the Commissioner and before the hearing of the motion.
[13] On July 20, 2004, counsel should be prepared to address the issue of costs, including the quantum of any costs to be thrown away if the motion is successful.
[14] The Tribunal has reserved the weeks of August 16, 2004 and September 20, 2004, to facilitate the more expeditious conclusion of this proceeding.
DATED at Ottawa, this 30 th day of June, 2004. SIGNED on behalf of the Tribunal by the presiding judicial member. (s) Madame Justice Eleanor R. Dawson
APPEARANCES: For the applicant: The Commissioner of Competition John L. Syme Leslie Milton Arsalaan Hyder Geneviève Léveillé
For the respondent: Sears Canada Inc. William W. McNamara Philip J. Kennedy Martin J. Huberrnan Teresa J. Walsh Stephen A. Scholtz Martha A. Healey