[2013] 2 F.C.R. D-3
Foreign Investment Review
Judicial review of decision of Minister of Canadian Heritage and Official Languages (respondent) in which not directly responding, in letter, to two specific requests made by applicant regarding corporate acquistion; not providing direct reasons for not doing so—Postmedia Network Canada Corp. (Postmedia) acquiring newspaper assets of CanWest Global Communications Corp. (CanWest) in July 2010—Applicant, union, representing 1 800 employees of former CanWest publishing divisions—Alleging that control in fact of Postmedia held by non-Canadians; therefore, that respondent ought to have conducted review of Postmedia’s acquisition to determine whether acquisition likely of net benefit to Canada—Applicant requesting in writing that respondent find that Postmedia in fact controlled by non-Canadian shareholders, creditors; satisfy himself that Postmedia’s acquisition of net benefit to Canada—Respondent responding briefly in one-page letter to applicant—Whether respondent’s response letter constituting “decision” or “matter” within meaning of Federal Courts Act, R.S.C., 1985, c. F-7, s. 18.1; whether, upon request made by third-party, respondent having duty to review acquisition to determine whether entity controlled in fact by one or more non-Canadians; whether applicant’s inability to bring judicial review application of response letter resulting in untrammelled discretion in respondent’s hands—Investment Canada Act, R.S.C., 1985 (1st Supp.), c. 28 primary mechanism for reviewing foreign investments in Canada—Under Act, s. 26(2.1), respondent having broad discretion to commence review under Act; required to apply complex, important statutory scheme to foreign investments in Canadian cultural activities—Respondent’s letter to applicant simply acknowledgement of applicant’s request, not reflecting any decision by respondent; response not constituting “matter” within meaning of Federal Courts Act, s. 18.1—Nothing in evidence suggesting that decision to review Postmedia acquisition not carried out or would not be conducted as claimed by applicant—Respondent not having duty to act on applicant’s request—Nothing in Act, s. 26(2.1) or anywhere in Act providing for third party complaint or request to review transaction—Parliament not intending to allow third party to trigger review of acquisition in such circumstances; otherwise, explicit language stating such would have been included—No evidence that respondent turning back on duties or that negligence, bad faith existing herein—Respondent’s discretion not amounting to absolute or untrammelled discretion—Based on evidence, only considerations relevant to Act’s statutory scheme, function taken into account in present case; third party submissions reviewed to enable proper administration of Act’s objectives—Respondent not immunized from judicial review; discretion under Act not absolute; court may intervene if factors irrelevant to Act’s purpose, context in which administered, considered—Application dismissed.
Communications, Energy and Paperworkers Union of Canada v. Canada (Attorney General) (T-685-11, 2013 FC 34, Snider J., judgment dated January 15, 2013, 20 pp.)