COMPETITION TRIBUNAL TRIBUNAL DE LA CONCURRENCE
FILED I PRODUIT June 11, 2008 CT- 2008-006 File No.: CT- 2008-006 Chantal Fortin for I pour. Registry Document No.: REGISTRAR I REGISTRAIRE OTTAWA, ONT. # 0038 COMPETITION TRIBUNAL IN THE MATTER OF the Competition AcC R.S.C. 1985, c. C-34, as amended; IN THE MATTER OF an application by the Canadian Standard Travel Agent Registry, doing business as CSTAR, for an order pursuant to section 103.1 granting leave to make application under section 75 of the Competition Act,
AND IN THE MATTER OF an application by the Canadian Standard Travel Agent Registry, doing business as CSTAR for an order pursuant to rule 312 of the Federal Courts Rules and rule 34(1) of the Competition Tribunal Rules granting leave to file a supplementary affidavit in support of the application pursuant to section 103.1 granting ·leave to make an application under section 75 of the Competition Act.
Competition Tribunal BETWEEN: CANADIAN STANDARD TRAVEL AGENT REGISTRY doing business as CSTAR
Applicant AND INTERNATIONAL AIR TRANSPORT ASSOCIATION doing business as IATA
Respondent NOTICE OF MOTION TAKE NOTICE THAT the Applicant, the Canadian Standard Travel Agent Registry, doing business as CSTAR, will make a motion to be heard at the Competition Tribunal (the "Tribunal") in Toronto.
THIS MOTION IS FOR: 1. An order granting the Applicant leave to file a supplementary affidavit in support of the s. 103.1 application seeking leave and representative standing to make an application under s. 75 of the Competition Act,
2. An order allowing the Respondent, International Air Transport Association (hereinafter referred to as "IATA''), to cross-examine on the subject supplementary affidavit, if necessary;
3. An order granting an extension on the time for the Respondent to file responding materials in opposition to the s. 103.1 application seeking leave and representative standing to make an application under s. 75 of the Competition Act
THE GROUNDS FOR THE MOTION ARE: 4. The Applicant has made an application under Rule 34 of the Competition Tribunal Rules and on Rule 114 of the Federal Courts Rules for the designation of CSTAR by the Tribunal as a valid representative of 146-accredited travel agencies in Canada, and for leave under s. 103.1 to bring an application under s.75 of the Competition Act
5. Part 8 of the Competition Tribunal Rules specify the rules that relate to private access applications such as the subject application. Section 115(1) of the Competition Tribunal Rules provides that an application under s. 103.1 of the Competition Act should be accompanied by affidavit evidence. However, the Competition Tribunal Rules are silent with respect to the filing of supplementary affidavits.
6. Rule 34(1) of the Competition Tribunal Rules provides that "if, in the course of proceedings, a question arises as to the practice or procedure to be followed in cases not provided for by these Rules, the practice and procedure set out in the Federal Courts Rules may be followed."
7. Rule 312 of the Federal Courts Rules states that with leave of the Court, a party may file affidavits additional to those originally filed in support of an application.
8. The Applicant respectfully submits that supplementary affidavits may be filed in accordance with Rule 312 of the Federal Courts Rules by the application of Rule 34(1) of the Competition Tribunal Rules.
9. The Federal Court of Appeal,· in Atlantic Engraving Ltd. v. LaPointe Rosenstein (2002), 2002 FCA 503, found that additional affidavits may be filed pursuant to Rule 312 of the Federal Courts Rules where the evidence to be adduced will serve the interests of justice, assist the Court and not cause substantial or serious prejudice to the other side. Some courts have interpreted this decision to include a fourth factor, that the additional evidence to be adduced was not available as of an earlier date. This fourth factor was developed to address the potential concern that a party would not put its best case forward at the first opportunity. The Applicant respectfully submits that, while the majority of the evidence to be adduced in the supplementary affidavit was not available at the time the materials were filed, any evidence available prior to the original affidavit was unknown to the Applicant's solicitors at the time of filing.
10. The additional evidence that the Applicant proposes to be adduced in the supplemental affidavit consists of the following: twenty-three complaints by authorizing travel agencies evidencing the potential impact of the implementation of IATA's policy implemented on June 1, 2008, received before June 1, 2008; ongoing complaints received after June 1, 2008; forty-two additional travel agencies who have given CSTAR authorization to represent them in the present
application; and information with respect to changes within the management of BSP Canada.
11. In the present case, the Applicant is only able to put its best foot forward if the supplemental evidence is adduced into record. The Applicant submits that the Tribunal would be assisted in reaching an informed decision having the additional evidence, thereby serving the interests of justice. The evidence is directly relevant to the issues facing the tribunal.
12. The Applicant further submits that in these circumstances, there would be no substantial or serious prejudice to the Respondents because the Applicant is consenting to provide the Respondents with additional time to prepare their responding material. In addition, any delay caused by the admittance of the supplementary affidavit is minimal. IATA has already implemented its policy and will suffer no inconvenience as a result of a few days delay.
13. Rule 5 of the Competition Tribunal Rules allows the Tribunal to vary time any of the time limits prescribed by the Rules. Rule 119(1) of the Competition Tribunal Rules provides that the Respondent shall file their representations in writing within 15 days after receiving the Tribunal's notice under Rule 118. The Applicant respectfully submits that Rule 5 allows the Tribunal to grant an extension to the Respondent's 15 day response period.
14. The Applicant attempted to obtain the Respondent's consent to file a supplementary affidavit. The Applicant also attempted to postpone the cross-examination of Mr. Bill Bishins and extend the Respondent's deadline in filing its written submissions with respect to leave and representation in order to allow the Respondents to have all of the relevant evidence prior to cross-examination. The Respondent did not consent to the offer.
15. The Applicant submits that it has attempted to proceed with these proceedings as expeditiously as possible and will continue to do so. The Applicant further
submits that it would in the best interests of justice to allow the submission of a supplementary affidavit, as this will assist the court to reach its findings and will not prejudice the Respondent in any way.
THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion:
1. The Affidavit of Samantha Trottola, sworn June 10, 2008; and 2. Such other evidence as counsel may advise and this Honourable Court may permit.
DATED at Toronto, Ontario, this 10th day of June, 2008. Tim G" ert Alex tack Nawel Bailey GILBERT'S LLP 49 Wellington Street East Toronto, Ontario MSE 1C9 Tel: 416-703-1100 Fax: 416-703
Counsel for the Applicant TO: The Registrar Competition Tribunal The Thomas D'Arcy McGee Building 90 Sparks Street, Suite 600 Ottawa, Ontario KIP 584 Tel: 613-954-0857 Fax: 613-952-1123
AND TO: Sheridan Scott Commissioner of Competition 50 Victoria Street
Gatineau, Quebec KIA OC9 Tel: 819-997-3301 Fax: 819-997-0324
AND TO: International Air Transport Association 800 Place Victoria Montreal, Quebec H4Z lMl Tel : 514-874-0202 Fax: 514-874-9632