COMPETITION |
P.V.I. International Inc. v. Canada (Commissioner of Competition)
A-408-02
2004 FCA 197, Evans J.A.
19/5/04
10 pp.
Appeal from Competition Tribunal (Tribunal) decision appellants engaged in reviewable conduct contrary to Competition Act, s. 74.01(1)(a) and (b)--Tribunal finding appellants made false or misleading statements about increased fuel efficiency, reduction of emissions in order to promote use of platinum vapor injector (PVI) in gasoline-fuelled and diesel engines--Orders prohibited repeating misrepresentations, imposed fines with respect to misrepresen-tations pertaining to gasoline engines-- Commissioner of Competition cross-appealed, saying Tribunal erred in law by declining to order appellants to issue notice under Act, s. 74.1(1)(b) correcting misrepresentations and by declining to impose fines under s. 74.1(1)(c) with respect to misrepresen-tations applicable to diesel engines--As to appeal, Tribunal not making any reviewable error--Not function of Appeal Court to reweigh evidence and Tribunal has considerable discretion over procedure--Appeal dismissed-- Cross-appeal seeking to impugn use of Tribunal's reasons for denying some forms of relief, as this was first case brought under Part VII.I of Act dealing with deceptive marketing practices--Tribunal based decision on ground U.S. Federal Trade Commission only made such orders in minority of cases--However, no evidence on record to this effect and, if Tribunal proposed to take official notice of U.S. regulatory practice as basis for its own decision, it should have so indicated, and given parties opportunity to respond--Tribunal holding corrective notice inappropriate because of complexity of claims--Tribunal of view notice must contain explanation of claims and evidence showing false or misleading--Neither s. 74.1(1)(b), nor s. 74.1(4) which sets out general purpose of order under s. 74.1(1)(b), requires detail apparently contemplated by Tribunal and, by taking into account irrelevant consideration, Tribunal erred in law in exercise of discretion--In view of time elapsed, remitting matter to Tribunal for reconsideration of exercise of discretion of little practical value--Tribunal not erring in law when, exercise of broad remedial discretion, declined to impose administrative penalty with respect to misrepresentations relating to diesel engines--Cross-appeal allowed in part--Competition Act, R.S.C., 1985, c. C-34, ss. 1 (as am. by R.S.C., 1985 (2nd Supp.), c. 19, s. 19), 74.01 (as enacted by S.C. 1999, c. 2, s. 22), 74.1 (as enacted idem).