Swenson v. Trader - Order dismissing without prejudice the application for leave pursuant to section 103.1 of the Competition Act

Swenson v. Trader - Order dismissing without prejudice the application for leave pursuant to section 103.1 of the Competition Act

The Tribunal dismissed the leave application without prejudice because the applicant filed when the matter could not reasonably proceed: the affiant was unavailable for cross-examination, no schedule for cross-examination or transcript could be set, and the Tribunal would not permit an open-ended adjournment for the...

Source-derived case information.

Citation
2008 Comp Trib 20
Parties
Applicant: Swenson Inc.; Respondent: Trader Corporation
Court
Competition Tribunal
Jurisdiction
Canada
Judgment Date
8 August 2008
Procedural Posture
Application for Leave Under Section 103.1 of the Competition Act (to Bring a Section 75 Claim) / Order on Leave Application Dismissing Without Prejudice Prior to Response Filing
Outcome
Application for leave dismissed without prejudice
Legal Topics
Leave to Commence Proceedings, Section 103.1, Section 75, Adjournment, Tribunal Procedural Readiness
Source Language
english
Competition Law Administrative Law Procedure Leave to Commence Proceedings Section 103.1 Section 75 Adjournment Tribunal Procedural Readiness

Source-derived case record

Summary, issues, holding and outcome

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Parties

Swenson Inc.

Applicant

Trader Corporation

Respondent

Procedural Posture

Application for Leave Under Section 103.1 of the Competition Act (to Bring a Section 75 Claim) / Order on Leave Application Dismissing Without Prejudice Prior to Response Filing

Legal Issues

  1. 1 Whether the application for leave under s.103.1 should be dismissed where there is no prospect of moving the matter forward within a reasonable timeframe
  2. 2 Whether the Tribunal may grant an open-ended adjournment for filing a respondent's response dependent on an unscheduled cross-examination

Ratio Decidendi

The Tribunal dismissed the leave application without prejudice because the applicant filed when the matter could not reasonably proceed: the affiant was unavailable for cross-examination, no schedule for cross-examination or transcript could be set, and the Tribunal would not permit an open-ended adjournment for the respondent's response. The appropriate remedy was dismissal without prejudice, allowing refiling when ready to proceed.

Court Disposition

Application for leave dismissed without prejudice

Orders

  • The application for leave under section 103.1 is dismissed without prejudice to the Applicant to re-file when it is ready to proceed
  • The Tribunal will not grant an open-ended adjournment for filing the respondent's response