Case Documents

THE COMPETITION TRIBUNAL

File No: CT-2004-007

IN THE MATTER OF the Competition Act, R.S.C. 1985, C-34, as amended; AND IN THE MATTER OF an application by Goshen Professional Care Inc. for an Order pursuant to section 103.1 of the Competition Act;

AND IN THE MATTER OF an application by Goshen Professional Care Inc. for an order pursuant to sections 75 and 79 of the Act;

BETWEEN:

GOSHEN PROFESSIONAL CARE INC.

-AND-

Applicant

THE SASKATCHEWAN HEALTH AUTHORITY and THE MINISTRY OF HEALTH Respondents ______________________________________________________________________ MEMORANDUM OF FACT AND LAW – THE MINISTRY OF HEALTH OF THE GOVERNMENT OF SASKATCHEWAN

(Motion to Strike and/or Dismiss the Application of Goshen Professional Care Inc.) ______________________________________________________________________

MILLER THOMSON LLP One London Place 2010-255 Queens Avenue London, ON N6A 5R8

Brian Whitwham (LSO#: 60659I) bwhitwham@millerthomson.com Tel: 519.931.3515

Lawyers for the Respondent, The Ministry of Health

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THE COMPETITION TRIBUNAL

File No: CT-2004-007

IN THE MATTER OF the Competition Act, R.S.C. 1985, C-34, as amended; AND IN THE MATTER OF an application by Goshen Professional Care Inc. for an Order pursuant to section 103.1 of the Competition Act;

AND IN THE MATTER OF an application by Goshen Professional Care Inc. for an order pursuant to sections 75 and 79 of the Act;

BETWEEN:

GOSHEN PROFESSIONAL CARE INC.

-AND-

Applicant

THE SASKATCHEWAN HEALTH AUTHORITY and THE MINISTRY OF HEALTH Respondents

TABLE OF CONTENTS OVERVIEW ..................................................................................................................... 3 STATEMENT OF FACT .................................................................................................. 6 ISSUE ........................................................................................................................... 13 SUBMISSIONS – NO JURISDICTION .......................................................................... 13 ORDER REQUESTED .................................................................................................. 18

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OVERVIEW 1. The Ministry of Health of Saskatchewan (the “Ministry”) should not have been named as a party to this proceeding.

2. The Ministry therefore seeks an order striking the application of Goshen Professional Care Inc. (“Goshen”) or, in the alternative, dismissing the application (the “Application”) as against the Ministry.

3. The Saskatchewan Health Authority (the “SHA”) has also moved to strike the Application, and the Ministry adopts and relies upon the SHA’s Memorandum of Fact and Law in support of that motion. In particular, Goshen’s Application should be struck because:

a. the relief sought on the Application is moot and therefore presents no reasonable cause of action or any reasonable chance of success;

b. the Application seeks to relitigate issues that were addressed before the Court of King’s Bench, ultimately with an order to which Goshen consented; and

c. Goshen’s conduct and delay throughout this Application has shown a sustained lack of interest in moving this proceeding forward.

4. Even beyond the above grounds, which are addressed in greater detail in the SHA’s submissions, there is a more fundamental problem with this Application as it pertains to the Ministry. The relief sought on the Application has no bearing upon the Ministry, and the Competition Tribunal has no jurisdiction over the Ministry by virtue of s. 2.1 of the Competition Act. 1

1 Competition Act, R.S.C., 1985, c. C-34, s 103.1 [“Competition Act”].

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5. These submissions are focused on the jurisdiction issue, but it bears emphasis that this motion should not have been necessary. Goshen’s counsel had acknowledged back in November – within a month of this Application being commenced – that the Competition Act has no application to the Ministry and the Competition Tribunal has no jurisdiction over the Ministry.

6. Goshen’s counsel also confirmed in early November that his client had no objection to the Ministry being removed from this proceeding. However, Goshen’s counsel later ceased to act for Goshen and its principals on this matter. Goshen’s principals, Ms. Adebunme Onasanya and Dr. Lanre Onasanya, have not responded to messages from the Ministry’s counsel seeking to clarify their position.

7. The Ministry is a subdivision of the executive branch of the Government of Saskatchewan, and it is not a separate legal entity from the government. The Ministry is responsible for public policy and service delivery in the area of healthcare within Saskatchewan. Reference to the Ministry throughout this document refers to “The Government of Saskatchewan” which is the proper party to have been named in this proceeding, as prescribed by section 12 of The Proceedings Against the Crown Act, 2019, SS 2019, c P-27.01.

8. Neither the issues set out in the Application materials, nor the remedies sought on this matter engage the Ministry or the steps that it has taken in accordance with its public policy role, its function as the regulator of personal care homes, and its duty to govern the health care system in Saskatchewan.

9. Goshen commenced this Application on October 2, 2024, seeking leave pursuant to s. 103.1 of the Competition Act. Goshen’s stated purpose in doing so was that if leave were granted, Goshen would proceed with an application for an order preventing

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the sale of Goshen’s private personal care home at the time – the Emmanuel Villa Personal Care Home (“Emmanuel Villa”) – to the SHA.

10. The SHA is the provincial health authority established pursuant to The Provincial Health Authority Act, SS 2017, c P-30.3, and it is a separate legal entity from the Ministry. In the event that leave is granted, Goshen is also seeking an order directing the SHA to reinstate a pilot project or, in the alternative, enter into a new agreement to provide Goshen with public sector long-term care residents in Saskatchewan.

11. These forms of relief do not concern the Ministry, and they are both moot at this point. Goshen had been engaged in a receivership proceeding in Saskatchewan when its principals started this Application. The sale transaction involving the Emmanuel Villa was presented for judicial approval before the Court of King’s Bench on August 26, 2024. The Court of King’s Bench reserved on the matter and it later approved the sale transaction on January 10, 2025. 2

12. Goshen had sought leave to appeal the Court of King’s Bench’s Order in January. The Saskatchewan Court of Appeal dismissed Goshen’s application for leave to appeal on February 12, 2025. The sale of Emmanuel Villa subsequently closed on February 19, 2025. 3

13. The Receivership proceeding in Saskatchewan ultimately resulted in a Distribution and Discharge Order that the parties negotiated and the Court of King’s Bench granted on consent. Goshen confirmed within the terms of the Distribution and Discharge Order that:

2 Affidavit of Mackenzie Laforet, sworn June 11, 2025 (the “Laforet Affidavit”), Tab 2 of the Motion Record for the Ministry (“Ministry MR”), at paras. 8 and 22.

3 Laforet Affidavit at para. 34 and Exhibit “S” of the Ministry MR.

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•

•

•

it would not take any steps to attack or otherwise impair the sale of Emmanuel Villa to the SHA;

it shall not seek or obtain any relief against the Receiver, whether before the Competition Tribunal or in any other proceeding; and

it agreed that the Receiver had acted in a commercially reasonable manner in fulfilling its mandate. 4

14. The Ministry was not a party to the sale transaction involving Emmanuel Villa. The issues identified in Goshen’s materials for adjudication on this Application have nothing to do with the Ministry. In fact, the only portions of the Applicant’s materials that reference the Ministry at all describe the appropriate and lawful exercise of the Ministry’s authority, within its mandate, on matters of policy.

15. For all of these reasons, there is no order sought – and no order that can be made – to bind the Ministry in any manner in this proceeding.

16. Goshen’s Application for leave should therefore either:

•

•

be struck based on the grounds set out in the SHA’s motion materials; or

at the very least, be dismissed as it relates to the Ministry.

STATEMENT OF FACT 17. The Applicant’s materials have set out a long explanation of Goshen’s version of events on the background to this matter. Most of Goshen’s statements on its rendition

4 Laforet Affidavit at paras. 55-59 and Exhibit “EE” of the Ministry MR.

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of the facts have no bearing upon the absence of jurisdiction with respect to the Ministry in this proceeding.

18. The Ministry’s submissions are directed solely at the jurisdictional issue, and not the extraneous information set out in Goshen’s materials. However, nothing in the Ministry’s submissions on this matter should be taken as an agreement or admission with respect to the Applicant’s allegations. The Ministry denies Goshen’s allegations, except where expressly admitted below.

19. The factual context for the motions from the Ministry and the SHA is set out in the affidavit of Mackenzie Laforet, dated June 11, 2025.

20. As noted above, Goshen commenced this Application in order to block the sale of Emmanuel Villa to the SHA. Goshen’s creditor, Canadian Western Bank, had commenced the receivership proceeding against Goshen in Saskatchewan on May 24, 2023. 5

21. MNP was appointed as the interim receiver for Goshen by court order dated August 2, 2023. The Court subsequently appointed MNP as the Receiver for Goshen by Order dated November 24, 2023. The formal decision was entered on January 11, 2024 (the “Receivership Order”). 6

22. The Court’s Receivership Order expressly granted MNP as Receiver with authority over all of Goshen’s “Property.” The term, “Property,” was defined to encompass all

5 Affidavit of Adebunmi Onasanya in support of leave pursuant to s. 103.1 of the Competition Act, sworn October 1, 2024, at para. 35; Affidavit of Mackenzie Laforet, sworn June 11, 2025 (the “Laforet Affidavit”), Tab 2 of the Motion Record for the Ministry (“Ministry MR”), at para. 7.

6 Laforet Affidavit at para. 7, and Exhibit “B” of the Ministry MR (the Receivership Order).

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“assets, undertakings and properties of [Goshen] acquired for, or used in relation to the business carried on by [Goshen], including all proceeds thereof.” 7

23. The powers that the Court of King’s Bench granted to MNP under the Receivership Order with respect to the Property included the authorization to do the following:

•

•

“to market any or all of the Property, including advertising and soliciting offers in respect of the Property or any part or parts thereof and negotiating such terms and conditions of sale as the Receiver in its discretion may deem appropriate;

to sell, convey, transfer, lease or assign the Property or any part or parts thereof out of the ordinary course of business,

o without the approval of this Court in respect of any transaction not exceeding $50,000, provided that the aggregate consideration for all such transactions does not exceed $150,000; and

o with the approval of this Court in respect of any transaction in which the purchase price or the aggregate purchase price exceeds the applicable amount set out in the preceding clause, and in each such case notice under section 59(10) of the PPSA shall not be required.” 8

24. Before Goshen started this Application, MNP had brought an application for judicial approval with respect to the sale of Emmanuel Villa to the SHA. The Receiver presented the application before the Court of King’s Bench in a hearing on August 26,

7 See Exhibit “B” of the Ministry MR, the Receivership Order. 8 See Exhibit “B” of the Ministry MR, the Receivership Order.

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2024. Goshen opposed the transaction in that proceeding and the Court reserved on the matter. The decision remained under reserve when Goshen commenced this Application on October 8, 2024. 9

25. The underlying relief on the Application is directed at the SHA and many of Goshen’s complaints about the sale process involving Emmanuel Villa are directed at MNP. As noted above, Goshen’s objective in commencing this proceeding was to have the Competition Tribunal issue orders that would block the proposed sale of Emmanuel Villa, and direct the SHA to provide Goshen with public sector long-term care residents. 10

26. MNP’s counsel sent a letter dated October 25, 2024 to the Competition Tribunal in which it explained the Receiver’s view that Goshen’s Application is in breach of the Receivership Order. MNP’s counsel also advised that the Receiver had reported to the Court of King’s Bench in Saskatchewan on this matter, and a hearing would be held between November 20 and 22, 2024 in Saskatchewan to address MNP’s concern that Goshen’s directors do not have the authority to commence this proceeding in Goshen’s name. 11

27. Goshen has identified the primary legal issues on the proposed underlying application as follows:

a) Do the SHA’s actions amount to Refusal to Deal (section 75)?;

9 Laforet Affidavit at para. 8. 10 Laforet Affidavit at para. 4, and Exhibit “A” of the Ministry MR (Goshen’s Notice of Application). 11 Laforet Affidavit at paras. 3 and 9, and Exhibit “C” of the Ministry MR.

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b) Do the SHA’s actions amount to Abuse of a Dominant Position (section 79)?; and

c) Does the proposed sale of Emmanuel Villa to the SHA undermine the interests of a competitive market? 12

28. None of these issues – and none of the relief requested – have any bearing upon the Ministry or its work in governing Saskatchewan’s health care system. Furthermore, the only references to the Ministry in the Applicant’s materials either:

a. describe matters that are strictly within the Ministry’s mandate, such as the allocation of publicly funded long-term care beds (which Emmanuel Villa does not currently have), or decisions on the number of private personal care home beds Goshen is authorized to have through its operating licence; or

b. inaccurately treat the SHA and the Ministry as a single organization.

CORRESPONDENCE WITH GOSHEN’S COUNSEL

29. The Ministry’s counsel specifically addressed the jurisdiction issue with Goshen’s counsel, Mr. Tavengwa Runyowa, within weeks of this Application being commenced. Mr. Runyowa confirmed during those discussions in early November that:

a. Goshen agreed that the Competition Tribunal has no jurisdiction with respect to the Ministry, pursuant to s. 2.1 of the Competition Act;

12 Goshen’s Notice of Application, Exhibit “A” of the Ministry MR, at paras. 3 and 7.

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b. Goshen had only named the Ministry as a respondent on this Application because it is an “interested party”; and

c. Goshen has no objection to the removal of the Ministry from this proceeding.

13

30. Mr. Runyowa ceased to act as Goshen’s counsel in January 2025, and he formally withdrew from the record as Goshen’s counsel before the Court of King’s Bench and the Court of Appeal at that point. 14

31. As noted above, the Court of Appeal subsequently dismissed Goshen’s application for leave to appeal on February 12, 2025, and the sale of Emmanuel Villa to the SHA closed on February 19, 2025. 15

32. As set out in the affidavit of Mackenzie Laforet on this motion, Goshen has never appointed new legal counsel to represent it before the Competition Tribunal. Goshen’s principals, the Onasanyas, have not responded to the correspondence from respondents’ counsel (seeking to clarify their position and whether they intend to proceed). They also have not addressed the Competition Tribunal’s Directions about getting new counsel, and they have not even confirmed whether they intend to proceed with this Application. 16

33. Goshen’s principals did not attend the Case Management Conferences that the Competition Tribunal directed the parties to attend in April and May. 17 With respect to the Case Management Conference in April, the Onasanyas advised the

13 Laforet Affidavit at paras. 12-21, and Exhibits “F”-“J” of the Ministry MR. 14 Laforet Affidavit at paras. 24-25, and Exhibits “M” and “N” of the Ministry MR. 15 Laforet Affidavit at para. 34. 16 Laforet Affidavit at paras. 35-61, and Exhibits “T”-“”FF” of the Ministry MR. 17 Laforet Affidavit at paras. 42-44 and para. 51, as well as Exhibits “X”-“Z” of the Ministry MR.

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Competition Tribunal that they were busy getting ready for their vacation in Africa. 18 With respect to the subsequent Case Management Conference in May, the Onasanyas told the Tribunal in an email dated May 7, 2025 that:

“We just came back from a stressful and exhausting trip, we do not have the mental capability to undergo another mentally stressful and demanding situation. This is not a priority for us.” 19 (emphasis added)

34. The Competition Tribunal issued a Direction to the Parties and Counsel on May 15, 2025. It directed the parties to attend the next Case Management Conference scheduled for June 20, 2025, and Justice Little specifically ordered that the Onasanyas were to do the following by Tuesday, June 10, 2025:

•

•

“Inform the Registry by way of email of the contact information of the newly appointed legal counsel to represent it in this proceeding; or

File a formal or informal motion and supporting evidence if the applicant’s representatives wish to apply to represent the applicant, Goshen Professional Care Inc. (On such a motion, the Tribunal may refer to Rule 34(1) of the Competition Tribunal Rules, SOR/2008-141, and Rule 120 of the Federal Court Rules, SOR/98-106).” 20

35. The Competition Tribunal confirmed on June 11, 2025 that the Onasanyas had not complied with Justice Little’s Direction. The Tribunal said it had not received any

18 Laforet Affidavit at paras. 36-38 and Exhibits “U”-“W” of the Ministry MR. 19 Laforet Affidavit at para. 49 and Exhibit “CC” of the Ministry MR. 20 Laforet Affidavit at paras. 52-53, and Exhibit “DD” of the Ministry MR.

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correspondence from the Onasanyas since their email on May 7, 2025, which stated that this Application is not a priority for them. 21

36. The Ministry’s counsel had contacted the Onasanyas to have them confirm, as they previously had through counsel, that they do not object to the removal of the Ministry from this proceeding. The Onasanyas have not responded to the Ministry’s counsel. 22

ISSUE – NO JURISDICTION WITH RESPECT TO THE MINISTRY 37. The sole issue to be addressed within these submissions is the absence of jurisdiction over the Ministry. As set out in greater detail below, the Competition Act expressly defines the legislation’s limited application to the Crown, and the Act does not extend to the Ministry.

38. Setting aside the lack of jurisdiction over the Ministry itself, it is clear that none of the conduct described on the part of the Ministry within Goshen’s materials would attract review under the Competition Act. It is also clear that while the relief sought on the motion is moot at this point, it would have no impact on the Ministry even if these forms of relief were not moot.

SUBMISSIONS – ABSENCE OF JURISDICTION 39. It is well established as a principle of statutory interpretation that legislation is presumed not to apply against the Crown where its application would prejudice the Crown in any way. This principle developed as a common law rule, and the federal

21 Laforet Affidavit at paras. 62-63, and Exhibit “GG” of the Ministry MR. 22 See e.g. Laforet Affidavit at paras. 47-49 and paras. 60-61, as well as Exhibits “BB” and “FF” of the Ministry MR.

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legislature formally incorporated the rule into the Interpretation Act. the Interpretation Act states that:

23 Section 17 of

“No enactment is binding on Her Majesty or affects Her Majesty’s rights or prerogatives in any manner, except as mentioned or referred to in the enactment.” 24

40. Any statute that binds the Crown must therefore explicitly state the manner in which the act or regulation is meant to apply. This is necessary to overcome the common law and statutory presumption of Crown Immunity.

41. The Competition Act contains an explicit provision that sets out the legislation’s limited application to the federal and provincial Crown. Section 2.1 of the Competition Act states that:

“The Act is binding on and applies to an agent of Her Majesty in right of Canada or a province that is a corporation, in respect of commercial activities engaged in by the corporation in competition, whether actual or potential, with other persons to the extent that it would apply if the agent were not an agent of Her Majesty.” 25

42. It is therefore clear that in order to fall within the parameters of the Competition Act, a government body must be:

•

•

•

a Crown corporation;

engaged in commercial activities; and

those activities must involve competition with other persons.

43. These requirements have not been met with respect to the Ministry in this case.

23 Interpretation Act, R.S.C. 1985, c. I-21. 24 Ibid, s 17. 25 Competition Act, supra note 1, s 2.1.

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44. First and foremost, the Ministry is not a corporation. It is not a private sector organization, and it is not engaged in commercial activities. The Ministry also does not in any manner compete with the Applicant.

45. The Ministry is the branch of the government that is responsible for overseeing the healthcare system in Saskatchewan, in accordance with more than 50 pieces of health legislation that fall within the Ministry’s mandate.

46. The courts have repeatedly recognized that s. 2.1 of the Competition Act confirms that the legislation does not apply to non-corporate Crown entities engaged in acts of governance and public policy.

47. In Sebastian v. Saskatchewan (Dept. of Highways & Transportation), the Saskatchewan Court of Queen’s Bench ruled that the Competition Act had no application to the provincial government’s Department of Highways and the Department of Tourism and Small Business. The Court explained in that case that:

“In these circumstances, the plaintiff seeks to have the government of Saskatchewan found to be a monopoly, to be committing an offence against s. 32 of the Competition Act and to be in contravention of s. 15(1) of the Charter of Rights and Freedoms.

The Supreme Court of Canada has said that the Combines Investigation Act (as it then was) does not bind the Crown: R. v. Eldorado Nuclear Limited; R. v. Uranium 1986 (1984), 50 N.R. 120 (S.C.C.). The Competition Act was amended in 1986 and it now applies to an agent of the Crown that is a corporation. This does not, however, assist the plaintiff in the present case; the plaintiff is dealing with the Crown, not an agent of the Crown which is incorporated. The plaintiff simply has no cause of action under the Competition Act against the Crown.” 26