Commissioner of Competition v. Moosehead Breweries Limited

Commissioner of Competition v. Moosehead Breweries Limited

Material non-disclosure by the Commissioner — specifically failure to disclose prior representations to the Court that earlier s.11 orders would likely suffice and failure to disclose substantial overlap/duplication with prior s.11 orders — was established; had the Court been given that disclosure it would not have granted the November 8, 2007 order in the form issued; accordingly the November 8, 2007 order is set aside without prejudice to the Commissioner bringing a fresh s.11 application on notice, and Moosehead is awarded costs at the upper end of Column 5 including costs of second counsel.

Citation
2008 FC 105
Parties
Applicant (respondent on the Motion): The Commissioner of Competition; Respondent (moving Party): Moosehead Breweries Limited
Court
Federal Court
Jurisdiction
Canada
Judgment Date
28 January 2008
Procedural Posture
Competition Act S.11 Production Order / Ex Parte Application / Motion to Set Aside or Vary November 8, 2007 Order (rule 399 Motion)
Outcome
November 8, 2007 production and information order against Moosehead set aside without prejudice to the Commissioner's right to bring fresh s.11 applications on notice; costs awarded to Moosehead at the upper end of Column 5 including costs of second counsel.
Legal Topics
Section 11 Orders, Ex Parte Relief and Duty of Full Disclosure, Duplication and Relevance of Disclosure, Costs Order
Source Language
English
Competition Law Administrative Law Civil Procedure Section 11 Orders Ex Parte Relief and Duty of Full Disclosure Duplication and Relevance of Disclosure Costs Order

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Parties

The Commissioner of Competition

Applicant (respondent on the Motion)

Moosehead Breweries Limited

Respondent (moving Party)

Procedural Posture

Competition Act S.11 Production Order / Ex Parte Application / Motion to Set Aside or Vary November 8, 2007 Order (rule 399 Motion)

Legal Issues

  1. 1 Whether material non-disclosure in an ex parte application justifies setting aside the order
  2. 2 Whether the Commissioner misled the Court by failing to disclose prior representations that earlier s.11 orders would suffice
  3. 3 Whether there was substantial overlap/duplication between earlier s.11 orders and the November 8, 2007 order

Ratio Decidendi

Material non-disclosure by the Commissioner — specifically failure to disclose prior representations to the Court that earlier s.11 orders would likely suffice and failure to disclose substantial overlap/duplication with prior s.11 orders — was established; had the Court been given that disclosure it would not have granted the November 8, 2007 order in the form issued; accordingly the November 8, 2007 order is set aside without prejudice to the Commissioner bringing a fresh s.11 application on notice, and Moosehead is awarded costs at the upper end of Column 5 including costs of second counsel.

Court Disposition

November 8, 2007 production and information order against Moosehead set aside without prejudice to the Commissioner's right to bring fresh s.11 applications on notice; costs awarded to Moosehead at the upper end of Column 5 including costs of second counsel.

Orders

  • The November 8, 2007 orders against Moosehead are set aside without prejudice to the right of the Commissioner to bring fresh applications for section 11 orders on notice to Moosehead.
  • Moosehead is entitled to one set of costs associated with this motion, including the costs of second counsel, at the upper end of Column 5.