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Competition - Appeals. Cineplex Inc. v. Commissioner of Competition
In Cineplex Inc. v. Commissioner of Competition (Fed CA, 2026) the Federal Court of Appeal dismissed a Competition Act appeal, here brought against a Competition Tribunal finding that the appellant had "engaged in reviewable conduct by making pricing representations to the public that were false or misleading in a material respect" [CA ] - and issued a cease order, an administrative fine and costs.
Here the court sets out the appeal route for Competition Act appeals and the SOR:III. The Standard of Review
[24] Subsection 13(1) of the Competition Tribunal Act, R.S.C., 1985, c. 19 (2nd Supp.), provides that an appeal lies to this Court from a Competition Tribunal decision or order "“as if it were a judgment of the Federal Court”". The parties are thus agreed that the normal appellate standard of review applies to the issues raised by this appeal. That is, correctness for questions of law or questions of mixed fact and law where there is an extricable question of law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[25] Housen further provides that questions of fact and questions of mixed fact and law where no question of law is extricable are reviewable on the palpable and overriding error standard of review. An error is palpable when it is plainly seen and overriding when it affects the result: Canadian Imperial Bank of Commerce v. Canada, 2021 FCA 10 at para. 55. Indeed, as this Court stated in Canada (Commissioner of Competition) v. Rogers Communications Inc., 2023 FCA 16, "“on factually suffused questions of mixed fact and law, we defer to the [Competition] Tribunal, in fact quite significantly”". To interfere in such findings, this Court must find a palpable and overriding error on the part of the Tribunal that goes "“to the very core of the outcome of the case”": at para. 7.
[26] That said, this Court has cautioned against grounds of appeal being "“expressed in an artful way to make them appear to raise legal questions when they do not”": Bell Canada v. British Columbia Broadband Association, 2020 FCA 140 at para. 51; Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79 at para. 29. As will be explained further on in these reasons, the issues in this appeal relate primarily to the Tribunal’s fact-specific application of the law to Cineplex’s conduct, matters that merit significant deference.
[27] Finally, subsection 13(2) of the Competition Tribunal Act provides that a party may only appeal from a decision or order of the Competition Tribunal on a question of fact with leave of this Court. Cineplex has not sought leave to appeal any of the factual findings made by the Tribunal, characterizing all the issues that it raises in this appeal as involving errors of law. Consequently, Cineplex contends that the correctness standard should apply to all the matters at issue in this appeal. The accuracy of Cineplex’s characterization of the issues will be addressed as each issue is considered. . Canada (Commissioner of Competition) v. Rogers Communications Inc. [appeals]
In Canada (Commissioner of Competition) v. Rogers Communications Inc. (Fed CA, 2023) the Federal Court of Appeal considered a Commissioner of Competition s.13 appeal against a corporate telecommunications merger:[3] To make an order blocking the overall transaction, the Tribunal would have had to find that it would be likely to prevent or lessen competition substantially: section 92 of the Competition Act, R.S.C. 1985, c. C-34.
....
[5] On appeal, we are to treat the order of the Competition Tribunal "“as if it were a judgment of the Federal Court”": Competition Tribunal Act, s. 13(1).
[6] This means that we can reverse the Competition Tribunal where it has erred on:. legal points, including legal points that dominate the answer to a question of mixed fact and law, or
. factually suffused questions of mixed fact and law,
and the error(s) could have affected the result. ....
[8] Section 13 of the Competition Tribunal Act does not allow appeals on pure questions of fact where, as here, leave has not been sought. The case is brief for such a high-media case, but useful to understand anti-competitive merger law.
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