



COURT OF APPEAL FOR ONTARIO

CITATION: Canada
    (Competition Bureau) v. Yellow Pages Marketing B.V., 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 appellants 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 appellants 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 appellants 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 judges 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 Competitions 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 appellants 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 judges 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 appellants AMP.  This consideration
    included Mr. Marks evidence on the appellants 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) 50 C.C.C. (2d) 193 and in
Sengmueller
, 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.


