COURT OF APPEAL FOR ONTARIO

2013 ONCA 71

DATE: 20130204

DOCKET: C55403

Epstein, Pepall and Tulloch JJ.A.

BETWEEN

The Commissioner of Competition

Applicant

(Respondent in the Appeal)

and

Yellow Pages Marketing B.V., Yellow Publishing Ltd.,

Yellow Data Services Ltd., Yellow Business Marketing Ltd.,

Jan Marks, Steve Green, Brandon Marsh and Backoffice Support SL

Respondents

(Appellant in the Appeal)

Igor Ellyn, Q.C. and Evelyn Perez-Youssoufian, for the appellant, Steve Green

Derek J. Bell and Christopher S. McKenna, for the respondent

Heard: January 24, 2013

On appeal from the order of Justice Sidney N. Lederman of the Superior Court of Justice, dated March 2, 2012.

ENDORSEMENT

[1] The respondent, the Commissioner of Competition, brought an application for relief under the Competition Act, RSC 1985, c. C-34. It arose out of alleged misleading business practices by a number of companies (the “Yellow companies”) and individuals associated with those companies, including the appellant, Steven Green.

[2] Lederman J. on the basis of his finding that the Yellow companies were part of a common enterprise engaged in business practices contrary to the provisions of the Act, made various orders including the imposition of an administrative monetary penalty (“AMP”) against Mr. Green, in the amount of $500,000.

[3] Mr. Green appeals on the basis that he was deprived of a fair hearing. He argues that the application judge should have adjourned the hearing, on his own initiative, to allow him to adduce evidence relevant to his defence. This would include evidence showing the appellant’s lack of involvement in the Yellow companies’ practices and relevant to the factors mandated by the Act in determining the quantum of any AMP.

[4] The appellant relies on what can only be described as ineffectiveness of counsel to explain the absence of this evidence.

[5] Before this court, the appellant also seeks to adduce fresh evidence concerning these two issues.

[6] The appellant chose not to file his own affidavit. The only defence evidence before the application judge was contained in the affidavit of Jan Marks, an admitted principal of the Yellow companies. Among other matters, the Marks affidavit addressed the appellant’s involvement with the Yellow companies and his financial circumstances.

[7] The respondent made repeated unsuccessful requests to cross-examine Mr. Marks and the appellant. In these circumstances, it was open to the application judge, in the exercise of his discretion under rule 34.15(1) of the Rules of Civil Procedure, to give little or no weight to the Marks affidavit.

[8] The appellant further submits that the hearing took place in a manner that was unfair to him. He argues that in the light of the nature and potentially serious consequences of the application together with the unsatisfactory and limited record, the application judge should have adjourned the hearing to ensure that the appellant was aware of his exposure and was given an opportunity to protect himself.

[9] We cannot accept this argument.

[10] First, there is no evidence from anyone who was present before the application as to what transpired at the hearing. The only available inference is that no concerns were raised about the state of the evidence and no adjournment was requested on the appellant’s behalf.

[11] Furthermore, we do not agree that the application judge had any independent obligation to become involved in the nature and extent of the evidence called by counsel on behalf of the appellant. Communications between counsel and client – meaning providing advice and taking instructions on how to present the case – are matters within the exclusive domain of client and counsel. The court is entitled to assume that the lawyer is keeping the client informed of the developments in the case and their consequences, is providing the client with his best professional advice and is following the instructions received. Other than in extraordinary circumstances such as when it is apparent that a conflict has arisen between the client and his or her counsel, the court should not, on its own accord, become involved in the actual presentation of the case.

[12] The application judge’s finding of liability against the appellant is unassailable. The appellant knew that the Yellow companies were making false and misleading representations to Canadians and was aware of prior efforts to obtain compliance with consumer legislation elsewhere, such as in Iowa. The Commissioner of Competition’s warning in 2010 was specifically drawn to his attention. In addition, he decided how to handle the complaints and set up another corporation in clear violation of an order of the Superior Court. The appellant was responsible for a significant portion of the activities undertaken by the Yellow companies and it was reasonable for the application judge to attribute their misrepresentations to him. The findings of the application judge that the appellant was integral to this scheme were not just reasonable, they were correct.

[13] We now turn to the appellant’s challenge to the amount of the AMP.

[14] The amount of the AMP has to be considered against the backdrop of the 2009 amendment to the Act that allowed for an AMP of up to $750,000 for an individual and the application judge’s findings set out in para. 65 of his reasons that the appellant and Mr. Marks ran an enterprise with minimal costs that netted many millions of dollars. These findings of fact made by the application judge are entitled to deference.

[15] At para. 70, the application judge considered the 11 factors in paras. 74.1(5)(a)-(l) of the Act before determining the extent of the appellant’s AMP. This consideration included Mr. Mark’s evidence on the appellant’s current financial circumstances. Among other things, the application judge noted at para. 70 that the Yellow companies were only vehicles for their principals, Mr. Marks and the appellant. The AMP was expressly aimed at promoting conduct by the appellant that was in conformity with the purposes of the Act and not with a view to punishment.

[16] In our view, the application judge committed no error in determining the quantum of the AMP.

[17] Finally, we find that the fresh evidence should not be admitted. The appellant has met none of the elements of the test for admission of fresh evidence set forth in Palmer v. The Queen (1979) 1979 CanLII 8 (SCC), 50 C.C.C. (2d) 193 and in Sengmueller, 1994 CanLII 8711 (ON CA), 17 O.R. (3d) 208 (C.A.). We specifically conclude that the proposed fresh evidence could not reasonably be expected to affect the result. Putting this another way, admitting the proposed evidence would have no effect on our determination of this appeal.

[18] For these reasons, the appeal is dismissed. The respondent is entitled to its costs of the appeal, including the fresh evidence motion, fixed in the amount of $16,000 inclusive of disbursements and applicable taxes.

“Gloria Epstein J.A.”

“S.E. Pepall J.A.”

“Tulloch J.A.”