John Stewart Tyhurst

The defendants, Her Majesty the Queen in Right of Ontario and the Attorney General of Canada, moved to strike the plaintiffs' action as an abuse of process and res judicata.

The court found the action was substantially similar to two prior dismissed proceedings and was primarily intended to delay regulatory hunting and fishing prosecutions against the individual plaintiffs.

The court determined that constitutional issues related to the prosecutions should be raised in the Ontario Court of Justice, and other land claims could be pursued in a separate, ongoing action (17-71837).

The motion to strike was granted.

The Court allowed the appeal from the Federal Court of Appeal and set aside the divestiture order under s. 92 of the Competition Act.

A majority held the merger likely prevented competition substantially, but concluded the efficiencies defence in s. 96 succeeded because proven efficiency gains outweighed proven anti-competitive effects after the Commissioner failed to quantify quantifiable effects.