Case Documents

Competition Tribunal Tribunal de la Concurrence Reference: National Capital News Canada v. Milliken, 2002 Comp. Trib. 41 File no.: CT2002005 Registry document no.: 0004

IN THE MATTER OF an application by Mr. Robert Gilles Gauthier, carrying on business as The National Capital News Canada, pursuant to section 103.1 of the Competition Act, R.S.C. 1985, c. C-34, for leave to make an application under section 75 of the Act.

B E T W E E N: The National Capital News Canada (applicant)

and The Honourable Peter Milliken, M.P. (respondent)

Decided on the basis of the written record. Member: Dawson J. (presiding) Date of reasons and order: 20021213 Reasons and order signed by: Dawson J.

REASONS AND ORDER REGARDING APPLICATION FOR LEAVE TO MAKE AN APPLICATION UNDER SECTION 75 OF THE COMPETITION ACT

I. INTRODUCTION [1] This is the first application to the Competition Tribunal (“Tribunal”) brought by a party other than the Commissioner of Competition (“Commissioner”). Pursuant to recent amendments to the Competition Act, R.S.C. 1985, c. C-34, (“Act”) an application by a party other than the Commissioner can only be commenced if leave is granted by a judicial member of the Tribunal.

II. RELEVANT FACTS [2] Mr. Robert Gilles Gauthier (“applicant”) filed, pursuant to subsection 103.1(1) of the Act, an application for leave (“leave application”) to make an application under section 75 of the Act (“application”) against the Honourable Peter Milliken. Mr. Milliken is named in his capacity as Speaker of the House of Commons (“Speaker”). Sections 75 and 103.1 of the Act are attached to these reasons as Schedule A.

[3] In substance, Mr. Gauthier, as proprietor of The National Capital News Canada (“National Capital News”), seeks an order under section 75 of the Act requiring that he and his associates and employees be provided with access to the Parliamentary Press Gallery, without becoming a member of Canadian Parliamentary Press Gallery Inc., and without “ . . . being required to meet unfair or arbitrarily restrictive conditions of any other person, group or government official.”

[4] Contained within the leave application is a statement of grounds and material facts on which the applicant relies. The applicant also filed an affidavit sworn by him in support of the leave application. The applicant asserts that he has been substantially affected in his business, and is significantly precluded from carrying on business, due to his alleged inability to obtain full access to substantial supplies of information and to essential services (including listing on the Press Gallery journalist list) that are provided to his competitors by the Speaker. The Speaker is said to control such access on behalf of the Parliament of Canada. The affidavit describes the history of the National Capital News and its business environment, its alleged need to gain access to sources of information related to the Parliament and Government of Canada and the difficulties encountered over the years to obtain access. Exhibits attached to the affidavit consist of: (1) a copy of a March 25, 1994, letter from Mr. Brian A. Crane, Q.C., counsel for the Speaker of the House of Commons at the time; (2) a letter dated November 10, 1989, from Mr. Marcel R. Pelletier, Q.C., the House of Commons Law Clerk and Parliamentary Counsel, confirming that there has been no legislation ceding a certain power to the Parliamentary Press Gallery; (3) an order of the Ontario Court (General Division) dated January 8, 1996, prohibiting Mr. Gauthier from coming onto the premises of the Canadian Parliamentary Press Gallery; and (4) a letter dated October 16, 1995, from M.G. Cloutier, the Sergeant-at-Arms, House of Commons, confirming there is no restriction on Mr. Gauthier’s access to the buildings on Parliament Hill on the same basis as other visitors, with the exception of access to the Press Gallery premises.

[5] The affidavit does not describe in any detail the facilities and services provided to the media by the Speaker, the physical location of the Parliamentary Press Gallery, or the location at which other services are provided.

[6] The Speaker did not file any material in reply to the leave application. While a respondent to a leave application is not required to make any response, the Tribunal would generally be assisted by relevant material and submissions filed by a respondent in opposition to a leave application.

III. THE TEST FOR THE GRANTING OF LEAVE UNDER SECTION 103.1 OF THE ACT

[7] The test for the granting of leave is contained in subsection 103.1(7) of the Act. It provides as follows:

The Tribunal may grant leave to make an application under section 75 or 77 if it has reason to believe that the applicant is directly and substantially affected in the applicants’ business by any practice referred to in one of those sections that could be subject to an order under that section. (emphasis added)

[8] In order to exercise its discretion to grant leave, the Tribunal must therefore be satisfied that it has reason to believe that: (1) the applicant is directly and substantially affected in the applicant’s business by any practice referred to in section 75 or 77 of the Act; and (2) the alleged practice could be subject to an order under that section.

IV. THE REQUIREMENT OF “REASON TO BELIEVE” [9] While the phrase “reason to believe” is new to the Act, it has been judicially considered in other contexts. In Regina v. Rollins, 80 C.C.C. (3d) 385, the British Columbia Supreme Court considered the phrase as it was contained in section 756 of the Criminal Code, R.S.C. 1985, c. 27 (1 st Supp), which generally allowed a justice to place an offender in custody for observation where there was reason to believe that evidence might be obtained as a result of the observation that would be relevant to dangerous offender proceedings. The Court concluded that the expression “reason to believe” requires reasonable grounds for the “reason to believe”. McKinnon J. wrote, at page 395, that:

I accept that s. 756 requires reasonable grounds for the “reason to believe.” That is a precondition to the belief and in most cases will come from the medical opinion but might come from other sources as well; however, in any event, there nevertheless exists the requirement that the court’s opinion must be supported by the evidence of at least one medical practitioner. There are, therefore, criteria which offer controlled direction in the exercise of the court’s discretion and an ability to obtain a “settled meaning” in relation to the wording or test enunciated in s. 756 which can be used in each application.

I find that s. 756 is a broad test that is not unduly vague and which does set forth an “intelligible” standard, albeit not a difficult one to meet. (emphasis added)

[10] I accept that the requirement that the Tribunal has “reason to believe” does not require that it be satisfied that an applicant be directly and substantially affected, but rather that there are reasonable grounds to believe the applicant’s allegations that he has been so affected.

[11] As to the nature of the evidence required to establish reasonable grounds upon which to believe that an applicant has been directly and substantially affected, the Federal Court has considered the standard of proof required to show the existence of reasonable grounds for a belief.

[12] In Canada (Attorney General) v. Jolly, [1975] F.C. 216 (C.A.), the Federal Court of Appeal was asked to determine whether there were “reasonable grounds for believing” that an organization, with whom the respondent was associated, was a subversive organization. The Court concluded that, even after prima facie evidence had been adduced by the respondent denying the fact, it was only necessary for the Minister to show the existence of reasonable grounds for believing the fact. It was unnecessary for the Minister to go further and establish the subversive character of the organization. The Court stated at paragraph 18:

. . . But where the fact to be ascertained on the evidence is whether there are reasonable grounds for such a belief, rather than the existence of the fact itself, it seems to me that to require proof of the fact itself and proceed to determine whether it has been established is to demand the proof of a different fact from that required to be ascertained. It seems to me that the use by the statute of the expression “reasonable grounds for believing” implies that the fact itself need not be established and that evidence which falls short of proving the subversive character of the organization will be sufficient if it is enough to show reasonable grounds for believing that the organization is one that advocates subversion by force, etc. In a close case the failure to observe this distinction and to resolve the precise question dictated by the statutory wording can account for a difference in the result of an inquiry or an appeal. (emphasis added)

[13] Subsequently, in Chiau v. Canada (Minister of Citizenship and Immigration) (C.A.), [2001] 2 F.C. 297, the Federal Court of Appeal, when asked to determine the proper interpretation of the term “reasonable grounds” in the context of paragraph 19(1)(c.2) of the Immigration Act of Canada, R.S.C. 1985, c. I-2, stated at paragraph 60:

As for whether there were “reasonable grounds” for the officer’s belief, I agree with the Trial Judge’s definition of “reasonable grounds” . . . as a standard of proof that, while falling short of a balance of probabilities, nonetheless connotes “a bona fide belief in a serious possibility based on credible evidence.” See Attorney General of Canada v. Jolly, [1975] F.C. 216 (C.A.). (emphasis added)

Leave to appeal to the Supreme Court of Canada was denied (see [2001] S.C.C.A. No. 71).

[14] Accordingly, on the basis of the plain meaning of the wording used in subsection 103.1(7) of the Act and the jurisprudence referred to above, I conclude that the appropriate standard under subsection 103.1(7) is whether the leave application is supported by sufficient credible evidence to give rise to a bona fide belief that the applicant may have been directly and substantially affected in the applicant’s business by a reviewable practice, and that the practice in question could be subject to an order.

V. APPLICATION OF THE TEST TO THIS LEAVE APPLICATION [15] I turn now to whether the evidence before the Tribunal is sufficient to satisfy it that there is reason to believe that:

(1) the applicant is directly and substantially affected in his business by a practice referred to in section 75 of the Act; and (2) the alleged practice could be subject to an order under section 75 of the Act.

[16] It is the second element of the test which I consider to be dispositive of the leave application. I conclude that, for the following reasons, the applicant has failed to establish that the alleged reviewable practice could be subject to an order under section 75 of the Act.

[17] The order sought by the applicant against the Speaker is an order that: . . . pursuant to Section 75(1), (2) and (3) of the Competition Act, Restrictive Trade Practices, Refusal to Deal . . . full access to the Press Gallery facilities and services, including mailbox, listing and other benefits, be provided immediately to the applicant and his employees and associates without further delay . . . (application, paragraph 10)

[18] In the statement of grounds and material facts the applicant alleges that access to the services which he seeks is controlled by the Speaker, “ . . . who controls such access on behalf of the Parliament of Canada.” (application, paragraph 3) The evidence adduced by the applicant in his affidavit as it touches on this point is as follows:

6. I have invested 20 years of my life and more than my own financial resources into this business and have been seriously impeded by the Speaker of the House of Commons who finances and controls the facilities and services provided for the media by the House of Commons.

. . . 17. The House of Commons provides substantial facilities and services made available to members of the media and which allow journalists and their employers to earn their living and realize serious commercial rewards.

. . .

36. The facilities and services provided by the House of Commons fall under the direct control of the Speaker of the House of Commons who has the sole authority to determine who may have access to the Press Gallery facilities and services.

. . . 38. The power to regulate the admission of strangers to the precincts of Parliament, including the Press Gallery, resides with Parliament alone and has customarily been exercised by the Speaker. (Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 16 th ed. London: Butterworths, 1976.) 39. There has been no delegation of that power by either Parliament itself nor the Speaker of the House of Commons to the privately-owned Canadian Parliamentary Press Gallery Corporation, as confirmed by the House of Commons Law Clerk and Parliamentary Counsel, in his letter 10 November 1989 to the applicant’s Legal Counsel at that time, being Exhibit “B” to this my affidavit.

40. The applicant alleges that the Speaker is the sole person in control of the media facilities and services and therefore to the resultant commercial benefits derived by journalists and publishers who have access.

41. The Speaker has the duty to administer these publicly-funded facilities and services in a fair manner pursuant to the provisions of the Competition Act.

[19] The applicant is, I believe, correct that it is the Speaker who alone has the power to control access to any part of the House, including the Press Gallery. What is significant, however, is that the Speaker does so through constitutional powers and parliamentary privilege.

[20] The origin and nature of parliamentary privilege was reviewed by the Supreme Court of Canada in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) [1993] 1 S.C.R. 319. There, Justice McLachlin, as she then was, writing for the majority noted that Canadian legislative bodies possess those historically recognized inherent constitutional powers which are necessary to their proper functioning. Writing with respect to the historical tradition of parliamentary privilege, Justice McLachlin stated at pages 378 to 379:

. . . It has long been accepted that in order to perform their functions, legislative bodies require certain privileges relating to the conduct of their business. It has also long been accepted that these privileges must be held absolutely and constitutionally if they are to be effective; the legislative branch of our government must enjoy a certain autonomy which even the Crown and the courts cannot touch.

The Parliamentary privilege of the British Parliament at Westminster sprang originally from the authority of Parliament as a court. Over the centuries, Parliament won for itself the right to control its own affairs, independent of the Crown and of the courts. The

courts could determine whether a parliamentary privilege existed, but once they determined that it did, the courts had no power to regulate the exercise of that power. One of those privileges, held absolutely and deemed to be constitutional, was the power to exclude strangers from the proceedings of the House.

[21] Justice McLachlin went on to confirm that Canadian legislative bodies properly claim as inherent privileges those rights which are necessary to their capacity to function as legislative bodies (page 381), and, added at page 383, that:

. . . If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body. (emphasis added)

[22] As to the scope of that exclusive jurisdiction, at page 384 Justice McLachlin wrote: . . . The parameters of this jurisdiction are set by what is necessary to the legislative body’s capacity to function. So defined, the principle of necessity will encompass not only certain claimed privileges, but also the power to determine, adjudicate upon and apply those privileges. Were the courts to examine the content of particular exercises of valid privilege, and hold some of these exercises invalid, they would trump the exclusive jurisdiction of the legislative body, after having admitted that the privilege in issue falls within the exclusive jurisdiction of the legislative body. The only area for court review is at the initial jurisdictional level: is the privilege claimed one of those privileges necessary to the capacity of the legislature to function? A particular exercise of a necessary privilege cannot then be reviewed, unless the deference and the conclusion reached at the initial stage be rendered nugatory. (emphasis added)

[23] One of the specific privileges discussed by Justice McLachlin was the parliamentary privilege to eject strangers from the House and its precincts. She observed that this ancient privilege was now reposed in the Speaker “who alone has the power, whenever he or she sees fit, to order the withdrawal of strangers from any part of the House” (page 386). This privilege is necessary because the legislative chamber is at the core of the system of representative government (page 387).

[24] J.P. Joseph Maingot, Q.C., in Parliamentary Privilege in Canada, 2 nd Ed. (Montreal: McGill-Queen’s University Press, 1997) enumerates the rights, privileges and powers of the Senate and House of Commons in Chapter 11. One such privilege is the right to regulate internal affairs free from interference. This is said to include the right to administer internal affairs both within its precincts and beyond the debating chamber.

[25] No evidence or information was provided to suggest that any of the facilities or services that the applicant seeks fall outside the scope of Parliamentary privilege. The applicant asserts that the facilities and services which he seeks are provided by the House of Commons, and are financed and controlled by the Speaker who exercises Parliament’s power to regulate the admission of strangers to its precincts.

[26] Applying the principles articulated in New Brunswick Broadcasting, cited above, to the evidentiary record before me, I am satisfied that the Speaker’s alleged refusal to grant to the applicant full access to the Parliamentary Press Gallery facilities and services is an exercise of the parliamentary privilege to control access to the House and its precincts and to regulate the internal affairs of the House. Such privilege also encompass the power to adjudicate and apply those privileges.

[27] A similar conclusion was reached by the Ontario Court (General Division) in Gauthier v. Canada (Speaker of the House of Commons), (1994), 25 C.R.R. (2d) 286 where Madam Justice Bell found that the Court did not have jurisdiction to review the Speaker’s decision to deny the plaintiff access to the precincts of Parliament.

[28] Just as a court may not examine a particular exercise of these privileges, I conclude that the Tribunal is without jurisdiction to embark upon such examination. The Tribunal is, pursuant to section 9 of the Competition Tribunal Act, R.S.C. 1985, c. 19 (2 nd Supp.), a court of record and principles of Parliamentary privilege are as important and applicable to it as they are to other courts. Therefore the practice complained of could not be the subject of any order of the Tribunal under section 75 of the Act.

[29] It follows that the Tribunal does not have, and can not have, any basis upon which to believe that the practice complained of by the applicant could be subject to an order. This requirement of subsection 103.1(7) of the Act is not met and therefore the application for leave must fail. In view of this conclusion it is unnecessary to consider whether the applicant adduced sufficient evidence to meet the first element of the test for leave.

FOR THESE REASONS THE TRIBUNAL ORDERS THAT: [30] The leave application is denied. DATED at Ottawa, this 13 th day of December, 2002. SIGNED on behalf of the Tribunal by the judicial member. (s) Eleanor R. Dawson

[31] Schedule A: Legislative References to sections 75 and 103.1 of the Act. 75. (1) Where, on application by the Commissioner or a person granted leave under section 103.1, the Tribunal finds that (a) a person is substantially affected in his business or is precluded from carrying on business due to his inability to obtain adequate supplies of a product anywhere in a market on usual trade terms, (b) the person referred to in paragraph (a) is unable to obtain adequate supplies of the product because of insufficient competition among suppliers of the product in the market, (c) the person referred to in paragraph (a) is willing and able to meet the usual trade terms of the supplier or suppliers of the product, (d) the product is in ample supply, and (e) the refusal to deal is having or is likely to have an adverse effect on competition in a market, the Tribunal may order that one or more suppliers of the product in the market accept the person as a customer within a specified time on usual trade terms unless, within the specified time, in the case of an article, any customs duties on the article are removed, reduced or remitted and the effect of the removal, reduction or remission is to place the person on an equal footing with other persons who are able to obtain adequate supplies of the article in Canada. (emphasis added)

(2) For the purposes of this section, an article is not a separate product in a market only because it is differentiated from other articles in its class by a trade-mark, proprietary name or the like, unless the article so differentiated occupies such a dominant position in that market as to substantially affect the ability of a person to carry on business in that class of articles unless that person has access to the article so differentiated.

(3) For the purposes of this section, the expression “trade terms” means terms in respect of payment, units of purchase and reasonable technical and servicing requirements.

(4) In considering an application by a person granted leave under section 103.1, the Tribunal may not draw any inference from the fact that the Commissioner has or has not taken any action in respect of the matter raised by the application.

103.1 (1) Any person may apply to the Tribunal for leave to make an application under section 75 or 77. The application for leave must be accompanied by an affidavit setting out the facts in support of the person’s application under section 75 or 77.

(2) The applicant must serve a copy of the application for leave on the Commissioner and any person against whom the order under section 75 or 77 is sought.

(3) The Commissioner shall, within 48 hours after receiving a copy of an application for leave, certify to the Tribunal whether or not the matter in respect of which leave is sought