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Federal Court - Orders - Set-aside [R399]. Atkinson v. Commissioner of Competition [review procedure for ex parte orders]
In Atkinson v. Commissioner of Competition (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against the Federal Court's decision that "the Commissioner’s right to seek a section 11 [SS: 'Order for oral examination, production or written return'] order did not end with an application before the Competition Tribunal".
Here the court contrasted the application of the FCR R399 provision regarding setting aside an ex parte order, with an FCA s.27 appeal:[4] The procedural question is whether recourse for a person subject to an ex parte order lies in a motion to set aside under rule 399 of the Federal Courts Rules, S.O.R./98-106, in an appeal to this Court under section 27 of the Federal Courts Act, R.S.C. 1985, c. F-7, or both. I see no error in the judge’s consideration of the relationship between rule 399 and rights of appeal under section 27 of the Federal Courts Act and the conclusion that either route is available.
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[13] .... With respect to the burden on the moving party under rule 399, the Federal Court drew on Canada (Commissioner of Competition) v. Canada Tax Reviews Inc., 2021 FC 921 [Canada Tax Reviews], which also dealt with a motion to set aside a section 11 order:[30] The general test for having an Order set aside or varied on a motion under Rule 399(1)(a) is whether the respondent has disclosed a prima facie case why the Order should not have been made. This requires the respondent to provide sufficient facts and law to justify a conclusion in its favour, in the absence of a response from the applicant: Ont. Human Rights Commission v Simpsons-Sears Limited, 1985 CanLII 18 (SCC), [1985] 2 SCR 536 at 558. For Orders issued under section 11 of the Act, this can be achieved by providing sufficient facts and law to justify one of the following conclusions: (i) that the Commissioner did not satisfy the elevated duty of disclosure that applies in such proceedings, (ii) that the Commissioner has not initiated a bona fide inquiry under section 10 of the Act, (iii) that some or all of the information that was ordered to be produced is irrelevant to the Commissioner’s inquiry, or (iv) that some or all of that information would be excessive, disproportionate or unnecessarily burdensome.
[Emphasis consistent with Federal Court Decision at para. 28.] ....
V. Appeal or Motion
[26] The appellants contend that the judge erred in requiring them to have appealed the section 11 order to this Court as opposed to moving under rule 399.
[27] I do not agree with the appellants’ characterization of the reasons of the Federal Court. The judge did not dismiss the appellants’ motion on the basis that they ought to have appealed; the motion failed because the appellants did not establish a prima facie case that the judge ought to reconsider his decision.
[28] Rule 399 and section 27 of the Federal Courts Act serve different purposes. Either recourse, a motion to set aside or an appeal, is open to a party, but they have different procedures, burdens and standards of review.
[29] On a motion under rule 399, the burden is on the moving party to make a prima facie case as to why the order ought not to have been made, and, in an effort to discharge that burden, a party may lead new evidence. On an appeal, in contrast, the Housen standards of review apply and the appellant must demonstrate an error of law or a palpable and overriding error of fact or mixed fact and law in the lower court’s decision(Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Canada (Health) v. Elanco Canada Limited, 2021 FCA 191 at paras. 32–33; Export Development Canada v. Canada (Information Commissioner), 2025 FCA 50 at paras. 31–32).
[30] The judge noted that as the appellants did not "“offer any evidence or legal basis that was not already before the Court”", they were, in effect, re-arguing the same issues before the same judge (Federal Court Decision at para. 48). As their principal objection was a purely legal one—that the section 11 power was spent—they could have brought the question to this Court via an appeal of the section 11 order. The choice was theirs to make; a motion to set aside and appeal each come with their own substantive and procedural considerations. However, having led no evidence, the judge correctly characterized the motion as an effort to re-argue a legal point already determined—something, which, as I will explain, is not the purpose of rule 399.
[31] Rule 399 is an important safety valve. The authority of the Court to set aside its own orders is necessary to deal with the case where the court made a decision in the absence of a party or based on misleading or incomplete information. Rule 399(2)(a) confers discretion on the Court to vary or set aside a decision "“by reason of a matter [« faits nouveaux » in the French version] that arose or was discovered subsequent to the making of the order.”" Orders may also be set aside if it is established that the party seeking an ex parte order did not fulfill the obligation to make full disclosure. This is why evidence is admissible on a rule 399 motion.
[32] While the rule serves to guard against unfairness that could arise from an ex parte hearing, its role is not to invite judges to reconsider their decisions.
[33] The principle of finality of judicial decisions means that setting aside a judgment must be based on serious or compelling grounds: Siddiqui v. Canada (Citizenship and Immigration), 2016 FCA 237 at para. 12, citing Collins v. Canada, 2011 FCA 171 at para. 12. That is why the burden on a rule 399 motion, that of establishing a prima facie case, is a high one. In commenting on the text of the predecessor to rule 399, Marceau J.A. noted in C.U.P.W. v. Canada Post Corp., [1987] 3 F.C. 654, 1986 CanLII 6804 (F.C.A.), "“the words used to describe the power reserved in Rule 330 are not consistent with the idea of simply repeating the operation performed by the first judge so as to determine its validity”" (at pp. 660–61). While Marceau J.A. was writing in dissent, the same point was made by Lacombe J.A. for the majority, who noted that a party seeking to set aside an ex parte order needed to show a "“fundamental defect”" in the original decision, such as a finding made in a complete absence of evidence, and could not simply ask the reviewing judge to "“substitute his view of the evidence for that of the Judge who had made the ""ex parte order”": Canada Post at pp. 672–73.
[34] It is in this context that I understand Gascon J.’s comments. The appellants were asking him to revisit his decision on a point of law, already determined. If that is the objective, the proper recourse is to appeal, not to try to convince the motions judge to change their mind. Gascon J. refused to do so, and rightly so.
[35] I flag, however, a reservation with respect to Canada Tax Reviews, which sets out a limited list of grounds that may be available under rule 399(1) to a party who seeks to challenge a section 11 order:(i) that the Commissioner did not satisfy the elevated duty of disclosure that applies in such proceedings, (ii) that the Commissioner has not initiated a bona fide inquiry under section 10 of the Act, (iii) that some or all of the information that was ordered to be produced is irrelevant to the Commissioner’s inquiry, or (iv) that some or all of that information would be excessive, disproportionate or unnecessarily burdensome.
Canada Tax Reviews at para. 30. [36] While these grounds are well-established, I do not think it advisable to consider the list of circumstances that may support setting aside an ex parte order as a closed list in the context of a section 11 order or that there should, more generally, be a closed list.
[37] Ex parte orders are authorized under a great number of statutes, and it is impossible to foresee the mix of facts and law that might support a motion under rule 399, save to say that the circumstances must be exceptional. Ex parte orders are made in intellectual property matters, as is the case with Anton Piller orders and Mareva injunctions, and in contempt proceedings. In motions to set aside default judgment, for example, the criteria differ and require a reasonable explanation for the delay, the existence of a prima facie defence, and diligence in bringing the motion after learning of default judgment (Babis (Domenic Pub) v. Premium Sports Broadcasting Inc., 2013 FCA 288). . Canada (Commissioner of Competition) v. Amazon.com.ca, ULC
In Canada (Commissioner of Competition) v. Amazon.com.ca, ULC (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against the denying to the Commissioner of Competition of "an order requiring the respondents to produce transaction data about certain products on their online store" (under s.11 ['Order for oral examination, production or written return'] of the Competition Act).
Here the court considers FCR R399(1) ['Setting aside or variance' (ex parte)]:[65] Rule 399(1) is a procedural rule of general application that enables an affected party to challenge any ex parte order. Rule 399(1) provides that such an order may be varied or set aside if the party against whom the order was made discloses a prima facie case why the order should not have been made: TMR Energy Ltd. v. State Property Fund of Ukraine, 2005 FCA 28 at para. 31; Babis (Domenic Pub) v. Premium Sports Broadcasting Inc., 2013 FCA 288 at paras. 5-6 [Babis]. A prima facie case features sufficient facts and law to justify a conclusion in a party’s favour unless rebutted by the opposing party: Canada Tax Reviews at para. 30, citing Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at p. 558 (S.C.C.).
[66] Setting aside a court order, even one made ex parte, is not done lightly. On review of an order issued ex parte, the reviewing judge may not "“substitute his discretion”" for that of the original issuing judge: Wilson v. The Queen, 1983 CanLII 35 (SCC), [1983] 2 S.C.R. 594 at p. 608 (S.C.C.). Rather, as the Federal Court observed in Air Canada at para. 13, cited in Labatt at para. 30: "“The non-disclosure or errors, in the evidence placed before the issuing judge, must be such as to have caused the issuing judge, had he or she known of them, to have refused to grant the order”".
[67] Rule 399(1) provides the target of a production order obtained by the Commissioner with a remedy for procedural unfairness that may arise by virtue of the hearing being held ex parte: Friedland at paras. 26-28. Where a section 11 order is issued ex parte, the respondent may move under Rule 399(1) to have the order set aside and file affidavit evidence in support of the motion: see e.g. Babis at paras. 11-12. On the Rule 399(1) motion, it is open to the respondent to argue, for example, that: (1) the Commissioner failed to meet its elevated duty of disclosure; (2) the Commissioner has not initiated a bona fide inquiry under section 10 or 10.1; (3) some or all of the information sought is irrelevant to the inquiry or (4) the section 11 order is unreasonable under section 8 of the Charter: Canada Tax Reviews at para. 30; Labatt at paras. 97-98; Empire Company Limited v. Canada (Attorney General), 2024 FC 810 at paras. 63-69. . Sierra Club Canada Foundation v. Canada (Environment and Climate Change)
In Sierra Club Canada Foundation v. Canada (Environment and Climate Change) (Fed CA, 2024) the Federal Court of Appeal dismissed a motion to set aside a judgment [under Rule 399(2)(a): 'Setting aside or variance'], here where the target order dismissed an appeal for mootness. The "matter that arose or was discovered subsequent to the making of the order" resulted from the constitutional strike-down of the IAA (which came down after the order-proceeding was argued, but before it was released), followed by the 'deeming' reinstatement of some of it's provisions in the Budget Implementation Act, 2024.
Here the court considered the meaning of a R399(2)(a) triggering "matter", particularly a change in the case law or a legislative amendment:[10] Rule 399(2)(a) confers discretion on the Court to vary or set aside a decision "“by reason of a matter (“faits nouveaux” in the French version) that arose or was discovered subsequent to the making of the order.”" However, the finality of judicial decisions means that setting aside a judgment must be based on exceptionally serious and compelling grounds: Siddiqui v. Canada (Citizenship and Immigration), 2016 FCA 237 at para. 12; Canada v. MacDonald, 2021 FCA 6 at para. 17.
[11] Three conditions must be satisfied for the Court to set aside a decision: (1) the newly discovered information must be a "“matter”"; (2) the "“matter”" must not be one which was discoverable prior to the making of the decision by the exercise of due diligence; and (3) the "“matter”" must be something which would have a determining influence on the decision in question: Ayangma v. Canada, 2003 FCA 382 at para. 3 [Ayangma].
A. The existence of a matter
[12] This Court has held that subsequent jurisprudence of our Court or of a higher Court does not constitute a "“matter that arose […] subsequent to the making of an order”": Ayangma at para. 4; Metro Can Construction Ltd. v. The Queen, 2001 FCA 227 [Metro Can]. Rothstein J. (as he then was) in writing on behalf of the Court explained the rationale behind the Court’s conclusion:If “a matter” included subsequent decisions, reconsideration could be sought in any previous case whenever there was a change in the law that would result in a different disposition of that previous case. Further, it would create unacceptable uncertainty for litigants and the public who must be satisfied that, once a judgment is rendered, it is final. We see no reason to depart from this analysis and conclusion.
(Metro Can at para. 4) [13] The moving parties take the position that, unlike new jurisprudence, the abovementioned provisions in the Budget Implementation Act, 2024, No. 1 do not result in a change in the law. Rather, these provisions reinstate the law, that is, the regulations and the provisions of the Act pertaining to regional assessments, on which this Court was asked to decide the appeal. Accordingly, the abovementioned provisions of the Budget Implementation Act, 2024, No. 1 are a "“matter”" within the meaning of Rule 399(2)(a).
[14] We do not accept that the abovementioned provisions in the Budget Implementation Act, 2024, No. 1 merely reinstate the law on which this Court was asked to decide the appeal. On the contrary, two of the provisions on which the moving parties rely, section 318 and subsection 302(1), bring about a change in the law. These provisions deem the regulations to have been made on June 20, 2024 rather than on June 3, 2020—the date on which they were actually made.
[15] Within this frame of reference, the Budget Implementation Act, 2024, No. 1 is akin to new jurisprudence. For that reason, we are not persuaded that the abovementioned provisions in the Budget Implementation Act, 2024, No. 1 constitute a "“matter”" within the meaning of Rule 399(2)(a). Even if we were to accept that there exists a "“matter”", we find that the other two criteria to set aside the judgment are not met.
B. The "“matter”" must not be discoverable prior to the decision
[16] The moving parties argue that no exercise of due diligence could have allowed them to determine, prior to this Court’s judgment, that the provisions of the Budget Implementation Act, 2024, No. 1 would be adopted.
[17] We do not dispute that the moving parties did not know about the Budget Implementation Act, 2024, No. 1 before its adoption. Nevertheless, we are of the view that this is not sufficient to meet the second condition for setting aside the judgment.
[18] This Court heard the appeal in Halifax on March 21, 2023. On that same day, the Supreme Court heard the reference on the validity of the Act. One appellant, World Wildlife Fund Canada, was a party to the reference before the Supreme Court. Thus, while the appellants may not have known what the Supreme Court’s opinion was going to be, nor how the Government of Canada was going to react to the opinion, surely they knew that there was a possibility that the Act, or a portion thereof, would be declared unconstitutional with the ensuing possibility of legislative action. Yet they remained silent.
[19] Indeed, when this Court directed the parties to provide submissions concerning the impact of the Supreme Court’s decision, the appellants referred to the government’s stated intention to amend the Act. Nonetheless, the appellants never asked this Court to hold the appeal in abeyance pending the amendments. In this context, the second condition for setting aside the judgment is not met. As well, it would be a disregard of the principle of finality of judicial decisions to set aside a decision where the parties knew consequential legislative changes might happen after the decision but they chose to remain silent.
C. The “matter” must have a determining influence on the decision
[20] Paragraph 75 of this Court’s reasons is as follows:Were the Minister to consider the Regional Assessment in making future regulations, perhaps a ruling from this Court that the [assessment] is reasonable and procedurally fair would be of no avail to the appellants. For instance, the passage of time or contextual changes might support arguments against the reasonableness or procedural fairness of the [assessment] that were not made in this appeal, thereby justifying another judicial challenge. [21] The amendments brought by the Budget Implementation Act, 2024, No. 1 do not contradict these words; in our opinion, they underscore their correctness. Before the Supreme Court’s decision, the issue before our Court, as far as the regulations were concerned, was whether it was reasonable for the Minister to make these regulations in 2020 after having considered the assessment completed in that same year. By contrast, pursuant to the Budget Implementation Act, 2024, No. 1, the Minister is deemed to have made the regulations in 2024 after having considered "“an assessment”" that is in relation to the activities designated in the regulations. The Budget Implementation Act, 2024, No. 1 raises new issues. For instance, was it reasonable to make the regulations in 2024? Was it reasonable to do so on the basis of a regional assessment completed in 2020? Does the phrase "“an assessment”" include, as the respondents argue, follow-up reports issued since 2020?
[22] It follows that the Budget Implementation Act, 2024, No. 1 would not have a determinative influence on the judgment. Quite the reverse, the Budget Implementation Act, 2024, No. 1 would raise new issues and require new evidence.
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