Canada Waste Services Holdings Inc. v. Canada (Commissioner of Competition)

Canada Waste Services Holdings Inc. v. Canada (Commissioner of Competition) Court (s) Database Federal Court of Appeal Decisions Date 2003-03-12 Neutral citation 2003 FCA 131 File numbers A-644-01 Decision Content Date: 20030312 Docket: A-644-01 A-45-02 Neutral citation: 2003 FCA 131 CORAM: RICHARD C.J. NOËL J.A. SEXTON J.A. BETWEEN: CANADIAN WASTE SERVICES HOLDINGS, INC., CANADIAN WASTE SERVICES INC. AND WASTE MANAGEMENT, INC. Appellants and COMMISSIONER OF COMPETITION Respondent and CORPORATION OF THE MUNICIPALITY OF CHATHAM-KENT Intervenor Heard at Ottawa, Ontario, on March 11-12, 2003. Judgment delivered from the Bench at Ottawa, Ontario, on March 12, 2003. REASONS FOR JUDGMENT OF THE COURT BY: RICHARD C.J. Date: 20030312 Docket: A-644-01 A-45-02 Neutral citation: 2003 FCA 131 CORAM: RICHARD C.J. NOËL J.A. SEXTON J.A. BETWEEN: CANADIAN WASTE SERVICES HOLDINGS, INC., CANADIAN WASTE SERVICES INC. AND WASTE MANAGEMENT, INC. Appellants and COMMISSIONER OF COMPETITION Respondent and CORPORATION OF THE MUNICIPALITY OF CHATHAM-KENT Intervenor REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa, Ontario on March 12, 2003) RICHARD C.J. [1] This is an appeal from two decisions of the Competition Tribunal (Tribunal). The Commissioner of Competition (Commissioner) sought an order from the Tribunal pursuant to section 92 of the Competition Act, R.S.C. 1985, c. C-34 requiring the appellant, Canadian Waste Services (CWS), to divest the Ridge Landfill facility acquired by CWS as a part of a purchase of shares and assets in the waste disposal business from Browning-Ferring Industries Ltd. in March 2000. [2] The Tribunal concluded that the merger would substantially prevent or lessen competition in the Greater Toronto Area and the Chatham-Kent area. In a second decision, the Tribunal concluded that the appropriate remedy was the divestiture of the Ridge landfill. [3] CWS appeals both decisions to this Court. The Ridge is now being held separately from CWS in accordance with a Consent Order. [4] The central issue in this case is whether there would be an excess of capacity of disposal sites for waste in Southern Ontario in the future. The Tribunal concluded that there would be excess capacity for disposal of waste following the merger based on its analysis of changes in capacity and demand. Standard of Review [5] CWS does not allege that the Tribunal made any pure errors of law but rather that it made errors of fact and errors of mixed fact and law. In essence, CWS has asked this Court to retry the case that was heard and decided by the Tribunal. However, the findings which CWS attacks fall squarely within the Tribunal's specialized expertise and should therefore be given deference. [6] The appropriate standard of review for this Tribunal's findings on questions of mixed fact and law has already been decided by the Supreme Court of Canada in Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748, to be reasonableness simpliciter. [7] The appropriate standard of review for findings of fact of the Tribunal is patent unreasonableness. Conclusion [8] The appellants have not established that the Tribunal made any reviewable error in reaching its conclusion that the merger would likely result in a substantial lessening or prevention of competition in the GTA or in the Chatham-Kent area. [9] Further, the Tribunal did not commit any reviewable error in holding that the divestiture of the Ridge landfill was the effective remedy in the circumstances. [10] Accordingly, both appeals will be dismissed with one set of costs to the respondent. "J. Richard" Chief Justice FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-644-01 and A-45-02 STYLE OF CAUSE: CANADIAN WASTE SERVICES HOLDINGS INC. ET AL. v. COMMISSIONER OF COMPETITION ET AL. PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: March 11 and 12, 2003 REASONS FOR JUDGMENT OF THE COURT (Richard, C.J., Noël, Sexton JJ.A.) RENDERED FROM THE BENCH BY: Richard, C.J. APPEARANCES: Mr. David W. Scott, Q.C. for Appellants Mr. Shawn C. D. Neylan for the Appellants Mr. Nicholas P. McHaffie Mr. Donald B. Houston for the Respondent Mr. W. Michael G. Osborne Ms. Josée S. Gravelle Mr. André Brantz for the Respondent Mr. Anthony E. Fleming for the Intervener SOLICITORS OF RECORD: Borden Ladner Gervais LLP for the Appellants Ottawa, Ontario Stikeman Elliott for the Appellants Toronto and Ottawa, Ontario Kelly Affleck Greene for the Respondent Toronto, Ontario Mr. Morris Rosenberg for the Respondent Deputy Attorney General of Canada Ottawa, Ontario Wilms & Shier for the Intervener Toronto, Ontario