The appellant Competition Tribunal issued an order against Chrysler Canada Ltd. under Part VIII of the Competition Act requiring it to resume the supply of automotive parts to one of its customers. The Director of Investigation and Research, having reason to believe that Chrysler was not complying with the order, filed a motion with the Tribunal for an order directing Chrysler to show cause why it should not be held in contempt of the Tribunal. At the hearing of the motion, Chrysler objected to the Tribunal's jurisdiction. The Tribunal ruled that it had jurisdiction to entertain proceedings for [page395] contempt of its orders. The Federal Court of Appeal reversed the decision.

Held (McLachlin J. dissenting): The appeals should be allowed.

Per La Forest, L'Heureux-Dubйй, Sopinka, Gonthier and Cory JJ.: While at common law only superior courts have the power to punish for contempt ex facie curiae, clear and unambiguous statutory language can override the common law and confer ex facie contempt powers on an inferior tribunal. Enactments which deprive superior courts of their jurisdiction must be given a narrow construction, but barring constitutional considerations, if a statute, read in context and given its ordinary meaning, clearly confers upon an inferior tribunal a jurisdiction that is enjoyed by the superior court at common law, while not depriving the superior court of its jurisdiction, it should be given effect. The Competition Tribunal, an inferior court of record, has jurisdiction over civil contempt for breaches of its orders under Part VIII of the Competition Act. Parliament intended the Tribunal to oversee Part VIII, the civil part, and was strongly concerned with long-term compliance with the Competition Act, in both its criminal and civil parts, but the Act itself does not make any provision for the enforcement of the Tribunal's orders through contempt or similar proceedings. Section 8(1) of the Competition Tribunal Act is the basis of the Tribunal's jurisdiction. It confers on the Tribunal jurisdiction "to hear and determine all applications made under Part VIII of the Competition Act and any matters related thereto". When the English and French versions are read together, it becomes apparent that the additional powers conferred by the phrase "any matters related thereto"/"toute question s'y rattachant" pertain to the applications, and not to the hearing and determination of the applications. The Tribunal's jurisdiction does not terminate upon the determination of an application, but may encompass other matters related to the application, such as the enforcement of an order made pursuant to the application. Since the Tribunal has jurisdiction to hear and determine Part VIII applications, the common law would have conferred upon it jurisdiction over incidental and ancillary matters arising in the course of the hearing and determination. No need would arise to add the phrase "and any matters related thereto". Since this phrase should be given some meaning, it should be taken as a grant of jurisdiction over matters related to Part VIII applications, but arising outside of the hearing and determination of these applications. These matters [page396] may include the enforcement of the orders made under Part VIII.

Section 8(2) of the Competition Tribunal Act confirms and consolidates the Tribunal's jurisdiction. It expressly confers on the Tribunal the powers of a superior court with respect to the enforcement of its orders, which include the power over contempt for breaches of its orders. This conclusion is further supported by s. 8(3), which requires that the judicial member of the Tribunal concur in a finding of contempt and in the consequences attached to this contempt by the Tribunal. Inferior tribunals, whose members are seldom all lawyers or judges, may generally find persons in contempt in facie and punish them without the need for judicial endorsement. Section 8(3), because of this unique requirement, is indicative of the intention of Parliament to give the Tribunal contempt powers going beyond those which an inferior tribunal would ordinarily exercise.

Even if s. 96 of the Constitution Act, 1867 limited the powers of Parliament in the same manner and to the same extent as it limits the powers of provincial legislatures, it would have been respected in this case. The Tribunal's powers should be characterized as jurisdiction over civil contempt for breaches of its orders for purposes of the historical inquiry; contempt over breaches of a tribunal's orders is a species of contempt ex facie curiae, and as such fell within the purview of s. 96 courts at the time of Confederation. The Tribunal also has a judicial function. With regard to institutional setting, effective enforcement of orders made under the Competition Act, particularly Part VIII, is essential, to avoid seeing these orders circumvented through elaborate relational arrangements which, although on the surface innocuous, effectively create the same obstacles that the orders sought to remove. Only a specialized tribunal such as the Tribunal can properly ensure the enforcement of the orders it makes. Because of the institutional setting, the jurisdiction conferred by s. 8 of the Competition Tribunal Act upon the Tribunal with respect to civil contempt for breaches of its orders would not [page397] infringe s. 96 of the Constitution Act, 1867, in the event it should apply to Parliament.

Per McLachlin J. (dissenting): The Court of Appeal correctly concluded that Parliament did not confer jurisdiction over contempt ex facie curiae on the Competition Tribunal. At common law an "inferior court" is limited in its jurisdiction to the punishment of contempt in facie curiae absent clear and express statutory language to the contrary. By long tradition, exercise of the power to punish contempt outside the presence of the court has been confined to superior courts, and this restriction is sound, being grounded in significant policy considerations. Parliament can expressly legislate to confer a general contempt power on an inferior tribunal, subject to the constitutional issue. There is a presumption, however, in construing statutes conferring powers on inferior tribunals, that they will not be considered to possess the power of contempt outside the presence of the court unless the language of Parliament is clear and unequivocal. No such language is found in s. 8 of the Competition Tribunal Act. This presumption does not apply only in cases where the enactment extinguishes or diminishes the power of a superior court. Even if the presumption does not apply, ss. 8 and 9 of the Competition Tribunal Act, correctly construed, do not confer that power on the Tribunal. The Tribunal's primary role in the legislative scheme is that of dispute resolution; it has no general supervisory power, and the task of enforcement is left to others. The scheme provides for enforcement by a variety of other means; enforcement by contempt is unnecessary. The power of the Tribunal as set out in s. 8 is confined to the resolution of disputes and making of orders. The phrase in s. 8(1) "and any matters related thereto" is most naturally construed as referring to interlocutory matters arising in the course of an "application". Most of the powers referred to in s. 8(2) relate to the conduct of the hearing: the phrase "enforcement of its orders" can be entirely explained in the context of interlocutory orders made in the course of the hearing, and the general phrase "and other matters necessary or proper for the due exercise of its jurisdiction" refers back to whatever jurisdiction the Tribunal is granted by other provisions, primarily s. 8(1). As for s. 8(3), its requirement that the judicial member of the Tribunal concur in any finding of contempt is completely explicable by reference to the power of contempt in the face of the court conferred by s. 8(1) and (2) and the judicial member's exclusive jurisdiction over all questions of law. It is noted that clothing the Tribunal with the power [page398] to commit for ex facie contempt leads to difficult s. 96 issues.

Cases Cited

By Gonthier J.

Distinguished: Canadian Broadcasting Corp. v. Quebec Police Commission, [1979] 2 S.C.R. 618; referred to: Chrysler Canada Ltd. v. Director of Investigation and Research, Competition Act (1991), 129 N.R. 77; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; Canada (Director of Investigation and Research under the Combines Investigation Act) v. Newfoundland Telephone Co., [1987] 2 S.C.R. 466; Interprovincial Pipe Line Ltd. v. National Energy Board, [1978] 1 F.C. 601; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Sobeys Stores Ltd. v. Yeomans, [1989] 1 S.C.R. 238; Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; American Airlines, Inc. v. Canada (Competition Tribunal), [1989] 2 F.C. 88, aff'd [1989] 1 S.C.R. 236.

By McLachlin J. (dissenting)

Canadian Broadcasting Corp. v. Quebec Police Commission, [1979] 2 S.C.R. 618; Vachliotis v. Exodus Link Corp. (1987), 23 C.P.C. (2d) 72; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252; McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704; Sobeys Stores Ltd. v. Yeomans, [1989] 1 S.C.R. 238.

Statutes and Regulations Cited

Act to establish the Competition Tribunal and to amend the Combines Investigation Act and the Bank Act and other Acts in consequence thereof, R.S.C., 1985, c. 19 (2nd Supp.).Broadcasting Act, S.C. 1991, c. 11, ss. 13, 32.Canadian International Trade Tribunal Act, R.S.C., 1985, c. 47 (4th Supp.), s. 16.Combines Investigation Act, R.S.C. 1970, c. C-23, s. 17.

[page399]

Competition Act, R.S.C., 1985, c. C-34 [am. c. 19 (2nd Supp.)], ss. 1.1, 10, 33, 34, 36, 67, 73, 74, 75, 86, 99, 106.Competition Tribunal Act, R.S.C., 1985, c. 19 (2nd Supp.), ss. 8, 9(1), 13.Constitution Act, 1867, ss. 96 to 101.Federal Court Rules, C.R.C. 1978, c. 663, r. 1716.Interpretation Act, R.S.C., 1985, c. I-21, ss. 12, 31.Official Languages Act, R.S.C. 1970, c. O-2. s. 8(2)(c).Oil and Gas Production and Conservation Act, R.S.C., 1985, c. O-7, ss. 13, 62.Ontario Supreme Court Rules Respecting Criminal Proceedings -- Part I, SI/85-152, r. 2.Public Inquiry Commission Act, R.S.Q. 1964, c. 11, ss. 7, 11, 12.Rules of Civil Procedure, O. Reg. 560/84, rr. 13.01, 13.02.

Authors Cited

Beauprйй, Michael. Interpreting Bilingual Legislation, 2nd ed. Toronto: Carswell, 1986.Canada. Economic Council of Canada. Interim Report on Competition Policy. Ottawa: Queen's Printer, 1969.Cффtйй, Pierre-Andrйй. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: ЙЙditions Yvon Blais Inc., 1992.Halsbury's Laws of England, vol. 44, 4th ed. London:

Butterworths, 1983.

APPEALS from a judgment of the Federal Court of Appeal, [1990] 2 F.C. 565, 111 N.R. 368, 31 C.P.R. (3d) 510, 48 B.L.R. 125, reversing a decision of the chairman of the Competition Tribunal dismissing an objection to jurisdiction. Appeals allowed, McLachlin J. dissenting.

	C. Christopher Johnston, Q.C., and Jane Graham, for the appellant, the Competition Tribunal.Rory R. Edge and William J. Miller, for the appellant, the Director of Investigation and Research.Thomas A. McDougall, Q.C., and Richard A. Wagner, for the respondent, the Chrysler Canada Ltd.
	Solicitors for the appellant, the Competition Tribunal:
	Johnston & Buchan, Ottawa.Solicitor for the appellant, the Director of Investigation and Research: The Deputy Attorney General of Canada, Ottawa.Solicitors for the respondent, Chrysler Canada Ltd.:
	Perley-Robertson, Panet, Hill & McDougall, Ottawa.

[page400]

The judgment of La Forest, L'Heureux-Dubйй, Sopinka, Gonthier and Cory JJ. was delivered by

1 GONTHIER J.:—— These appeals are concerned with the jurisdiction of the Competition Tribunal (hereinafter the Tribunal) to entertain proceedings for civil contempt of its orders under Part VIII of the Competition Act, R.S.C., 1985, c. C-34, as amended by R.S.C., 1985, c. 19 (2nd Supp.) (hereinafter CA).

I -- Facts and Proceedings

2 On October 13, 1989, the Tribunal issued an order against the respondent under s. 75 CA, requiring it to resume the supply of Chrysler automotive parts to one Richard Brunet. This order was upheld by the Federal Court of Appeal on September 19, 1991: 129 N.R. 77.

3 On February 19, 1990, the Director of Investigation and Research (hereinafter "the Director"), having reason to believe that the respondent was not complying with the order, filed a motion with the Tribunal for an order directing the respondent and others to appear before the Tribunal to show cause why they should not be held in contempt of the Tribunal. At the hearing of the motion, on February 20, 1990, the respondent objected to the jurisdiction of the Tribunal. On the same day, the Tribunal ruled that it had jurisdiction to entertain contempt proceedings. The respondent appealed from that decision. On July 10, 1990, the Federal Court of Appeal unanimously reversed and denied the jurisdiction of the Tribunal, for the reasons of Iacobucci C.J. (as he then was). This Court granted leave to appeal this judgment on May 2, 1991.

II -- Relevant Statutory Dispositions

4 Competition Tribunal Act, R.S.C., 1985, c. 19 (2nd Supp.), s. 8 (hereinafter CTA):

[page401]

8. (1) The Tribunal has jurisdiction to hear and determine all applications made under Part VIII of the Competition Act and any matters related thereto.

(2) The Tribunal has, with respect to the attendance, swearing and examination of witnesses, the production and inspection of documents, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, all such powers, rights and privileges as are vested in a superior court of record.

(3) No person shall be punished for contempt of the Tribunal unless a judicial member is of the opinion that the finding of contempt and the punishment are appropriate in the circumstances.

III -- Judgments Below

Competition Tribunal

5 Reed J. stated that inferior tribunals do not have the power to punish for contempt committed outside of their presence (contempt ex facie curiae), unless a statute confers such a power on them. She found that s. 8 CTA did grant such jurisdiction to the Tribunal, a conclusion that was further buttressed by the nature of the competition scheme, especially the separation of investigative and adjudicative powers between the Director and the Tribunal respectively.

Federal Court of Appeal, [1990] 2 F.C. 565

6 Iacobucci C.J. began with the same premise as Reed J., referring to Dickson J. (as he then was) in Canadian Broadcasting Corp. v. Quebec Police Commission, [1979] 2 S.C.R. 618 (hereinafter CBC), for the proposition that the statutory grant must be clear and unambiguous. He examined the three subsections of s. 8 CTA. He found that the words "hear and determine" in s. 8(1) limited the jurisdiction of the Tribunal to the issuance of the order determining the application under Part VIII CA. The phrase "enforcement of its orders" in s. 8(2) was qualified by the phrase "necessary or proper for the due exercise of its jurisdiction" and therefore could not give the Tribunal a greater jurisdiction than s. 8(1) outlines. Finally, s. 8(3) does not indicate that it applies to anything more than contempt in the presence of the Tribunal (in [page402] facie curiae). He concluded that the Tribunal did not have any jurisdiction over contempt proceedings for breaches of its orders under Part VIII CA.

IV -- Issue

7 As stated at the outset of these reasons, the sole issue before the Court is whether the Tribunal has jurisdiction over civil contempt for breaches of its orders under Part VIII CA. The parties made numerous references to contempt ex facie curiae in general, and I wish to underscore that the powers of the Tribunal over contempt ex facie curiae as such are not at issue here. This Court is only concerned with one species of ex facie contempt, failure to comply with an order of the Tribunal.

V -- Analysis

8 It is not contested by the parties, and the Court agrees, that the Tribunal is an inferior court of record, as stated in s. 9(1) CTA.

A. The Common Law

9 This Court reviewed the common law with respect to the contempt powers of inferior tribunals in CBC, supra. There, the CBC had broadcast a photograph of a witness before the Quebec Police Commission (hereinafter "the Commission"), despite a publication ban from the Commission. The Commission ordered the CBC to appear before it and show cause why it should not be held in contempt. The CBC challenged the jurisdiction of the Commission. Various legislative grounds had been advanced in support of the jurisdiction of the Commission, including ss. 7, 11 and 12 of the Public Inquiry Commission Act, R.S.Q. 1964, c. 11:

[page403]

7. A majority of the commissioners must attend and preside at the hearing of witnesses, and they, or a majority of them, shall have, with respect to the proceedings upon the hearing, all the powers of a judge of the Superior Court in term.

11. Any person refusing to be sworn when duly required, or omitting or refusing, without just cause, sufficiently to answer any question that may be lawfully put to him, or to render any testimony in virtue of this act, shall be deemed to be in contempt of court and shall be punished accordingly.

...

12. If any person refuse to produce, before the commissioners, any paper, book, deed or writing in his possession or under his control which they deem necessary to be produced, or if any person be guilty of contempt of the commissioners or of their office, the commissioners may proceed for such contempt in the same manner as any court or judge under like circumstances.

Articles 46 (general powers of courts and judges) and 49 to 54 (contempt of court) of the Code of Civil Procedure were also invoked.

10 For the majority of the Court, Beetz J. first reviewed the common law. He concluded at p. 638:

... the Anglo-Canadian authorities on the power to punish for contempt committed ex facie curiae have been firmly established for more than two hundred years. According to these authorities, this power is enjoyed exclusively by the superior courts.

Such a rule is moreover justified in principle by the following considerations. The power to punish for contempt committed ex facie is liable to result in inquiries which may well involve a lower court in areas which are practically impossible to define in terms of jurisdiction and completely foreign to its own area of jurisdiction, which by definition is limited. Such an obstacle does not arise in the case of a court like the Superior Court, which is a court of original general jurisdiction (art. 31 C.C.P.) with a priori jurisdiction, or courts sitting in appeal from decisions of the Superior Court, which may in general render the decisions which the latter would have rendered. Moreover, the power to punish a contempt committed ex facie is necessarily bound up with the superintending and controlling power which only a superior court may exercise over inferior courts. This [page404] controlling power could become illusory if, in the case of a contempt committed ex facie, an inferior court had the right to go beyond its own particular field. There would also be the danger of conflict between the superior and inferior courts, of the kind that formerly existed in England between the common law and equity courts. Finally, the inferior courts are not without any means of ensuring that their lawful orders are observed ... the superior courts may come to their aid ...

Beetz J. went on to examine whether any of the above enactments conferred a power over contempt ex facie curiae on the Commission. He held that s. 7 of the Public Inquiry Commission Act was limited to the examination of witnesses, and therefore could not give the Commission more than the in facie contempt power it already had. Similarly, ss. 11 and 12 could be read as concerning contempt in facie curiae only. As for the articles of the Code of Civil Procedure, art. 46 was suppletive in nature and arts. 49 to 54 merely codified the common law of contempt. In adopting this interpretation, Beetz J. was guided by the principle of constitutionality of statutes: in deciding as to the appropriate interpretation of a statute, one should prefer a construction that conforms with the Constitution.

11 Beetz J. did not enunciate any formal requirement with respect to the wording of a statutory grant of ex facie contempt powers to an inferior court. In his analysis of the Code of Civil Procedure, though, he wrote that "[w]hen the legislator wishes to amend the common law, he does so by express provision" (p. 644), referring to art. 51 C.C.P., which reduced the discretion formerly enjoyed by courts of law as to punishment. Dickson J., writing for himself and Martland J., held that statutory language must be clear and unambiguous to override the common law and confer ex facie contempt powers on an inferior tribunal. I fail to see much difference between "express" and "clear and unambiguous". Both opinions adopt in substance the same interpretation principle. The common law may be modified through express statutory language, such as the [page405] grant of a power in terms different from the common law.

12 Furthermore, when dealing with common law rules on the jurisdiction of superior courts, it is important to distinguish between enactments which deprive superior courts of their jurisdiction, or privative clauses, and enactments which convey part of the jurisdiction of superior courts to another tribunal, while not extinguishing the jurisdiction of superior courts. In the former case, courts have insisted on a narrow construction, since the citizen may be deprived of a recourse to the superior court (see the line of cases culminating in Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220, where the rule of strict interpretation is given constitutional significance). In the latter case, I would think that there is little point in insisting upon precise formulae to the extent that the intention of Parliament may be thwarted (see P.-A. Cффtйй, The Interpretation of Legislation in Canada (2nd ed. 1992), at pp. 420-21). Barring constitutional considerations, if a statute, read in context and given its ordinary meaning, clearly confers upon an inferior tribunal a jurisdiction that is enjoyed by the superior court at common law, while not depriving the superior court of its jurisdiction, it should be given effect.

B. The Functions of the Competition Tribunal

13 The Tribunal was created in 1986, in the wake of "Stage II" of competition law reform. Part I of An Act to establish the Competition Tribunal and to amend the Combines Investigation Act and the Bank Act and other Acts in consequence thereof, R.S.C., 1985, c. 19 (2nd Supp.) (hereinafter the 1986 Act), became the CTA, and Part II made in-depth amendments to the CA.

14 The 1986 Act completed the broad division of the CA into two substantive parts, one criminal (Part VI) and one civil/administrative in nature [page406] (Part VIII), in accordance with proposals put forward as early as in 1969 by the Economic Council of Canada in its Interim Report on Competition Policy. Jurisdiction over the criminal part lies with the courts ordinarily dealing with criminal cases, as well as the Federal Court, Trial Division (ss. 67, 73 CA). As for the civil part, Part VIII, as its heading indicates, lists the matters reviewable by the Tribunal. Section 8(1) CTA confirms the jurisdiction of the Tribunal over Part VIII. The civil part of the CA therefore falls entirely under the Tribunal's jurisdiction. It is readily apparent from the CA and the CTA that Parliament created the Tribunal as a specialized body to deal solely and exclusively with Part VIII CA, since it involves complex issues of competition law, such as abuses of dominant position and mergers.

15 Moreover, the 1986 reform also concentrated the administration of the CA in the hands of the Director of Investigation and Research. The Director is responsible for the conduct of inquiries under the CA (s. 10 CA), and he holds a number of powers in this respect. He may request the Attorney General of Canada to consider a prosecution under Part VI CA. For all intents and purposes, since competition matters generally require extensive inquiry, prosecution will rarely be instigated without a request from the D