Friesen (Brian Neil) Dental Corp. et al. v. Date:, 2011 MBCA 20

Citation: Friesen (Brian Neil) Dental Corp. et al. v. Date: 20110209 Director of Companies Docket: AI 10-30-07343 Office (Man.) et al., 2011 MBCA 20 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Martin H. Freedman Mr. Justice Richard J. Chartier BETWEEN : BRIAN NEIL FRIESEN DENTAL ) CORPORATION AND ZDAN ROMAN ) (DE LELIVA) SHULAKEWYCH DENTAL ) N. D. M. Hamilton CORPORATION carrying on business as

a) for the Appellant partnership under the firm name and style ) IMAGES DENTAL CENTRE ) ) S. D. Boyd (Applicant) Appellant ) for the Respondent ) Director of Companies - and - ) Office ) DIRECTOR OF COMPANIES OFFICE ) (MANITOBA) and SV DENTAL ) K. T. Williams and CORPORATION carrying on business as ) P. J. Karsten DENTAL IMAGE THERAPY CENTRE ) for all other Respondents ST. VITAL, also known as DENTAL ) IMAGE and MARK JOHNSTON in ) partnership with M.J.

DENTAL ) Appeal heard: CORPORATION, LINDA PATRICIA ) September 20, 2010 SIMPSON DENTAL CORPORATION and ) G&D DENTAL CORPORATION ) carrying on business as DENTAL IMAGE ) Judgment delivered: THERAPY CENTRE GARDEN CITY ) February 9, 2011 ) (Respondents) Respondents ) STEEL J.A. 1 The Director of Companies Office (the Director) refused to cancel a business name registration pursuant to The Business Names Registration Act , C.C.S.M., c. B110 (the BNRA ). An appeal of the Director’s decision to the Court of Queen’s Bench was dismissed. This is an appeal of that dismissal. 2 There are two main issues on this appeal.

First, is the review of the Director’s decision a hearing de novo ? If it is not, then what is the applicable standard of review and was it applied appropriately in this case? BACKGROUND 3 The appellant carries on business as Images Dental Centre. While the name has been continually registered since 2001, the appellant only started using the name in association with a business in December 2006. The respondent, SV Dental Corporation, carries on business as Dental Image Therapy Centre St. Vital and the respondent, Mark Johnston, carries on business as Dental Image Therapy Centre Garden City.

The respondents registered their business names in 2006. In operating their businesses, the respondents use the shortened unregistered version of their business names, Dental Image.

4 The appellant filed a formal complaint with the Companies Office asserting that confusion is caused by the coexistence of the two business names “Images Dental Centre” and “Dental Image Therapy Centre.” Subsequently, the parties made written submissions to the Director. 5 The Director determined that either (or both) of the business names “Dental Image Therapy Centre St.

Vital” and “Dental Image Therapy Centre Garden City” were not of such a degree of similarity to the business name “Images Dental Centre” so as to contravene the standards set out in s. 13 of the BNRA . 6 Pursuant to s. 14(1) of the BNRA , the appellant filed an application in the Court of Queen’s Bench seeking, inter alia , an order cancelling the business name registrations of the respondents. 7 The applications judge dismissed the application holding that: 1.

An application under s. 14(1) of the BNRA is a hearing on the record and not a hearing de novo and, as such, affidavit evidence filed with the court, but not previously filed before the Director, should not be considered. 2. The standard of review to be applied to a decision of the Director is reasonableness; and 3. The Director’s decision was reasonable. 8 The appellant appeals that dismissal arguing that the application is in the nature of a trial de novo , not a hearing on the record.

In the alternative, even if the application was in the nature of a hearing on the record and the standard of review is that of reasonableness, it is submitted that the applications judge erred in finding that the Director’s decision was reasonable. 9 Counsel for the Director filed a factum and appeared at the hearing, but only for the purpose of providing submissions on the standard of review to be applied by a judge considering an application under s. 14 of the BNRA and to comment on the relief requested by the appellants in the application. 10 Thus, the three grounds of appeal that arise are: 1.

Did the applications judge err in holding that an application under s. 14(1) of the BNRA should be a hearing on the record? 2. Did the applications judge err in holding that the standard of review of the Director’s decision is that of reasonableness? 3.

Did the applications judge err in applying the reasonableness standard to the Director’s decision? 11 For the reasons given below, I find that the application under s. 14 of the BNRA is a statutory appeal on the record and the applications judge was correct when he held that the applicable standard is that of reasonableness. 12 However, the applications judge erred in applying that standard in that he did not examine the reasonableness of the reasons given. Not only must the outcome be reasonable, but the outcome must be supported by intelligible, justifiable and transparent reasons.

In this case, the reasons did not reach that standard. Therefore, the matter must be remitted back to the Director of Companies Office for a further hearing. HEARING DE NOVO OR STATUTORY APPEAL? 13

Section 12 of the BNRA states that a business name shall not be registered if it is the same as, liable to be confused with, or closely resembles a name that is already registered.

Section 13 of the BNRA gives the Director the power to direct that a registered name be changed where the name is the same as one already registered or where it is “so similar thereto as to be liable to be confounded therewith, or is otherwise on public grounds objectionable.” 14 Where a person feels aggrieved by virtue of, inter alia , the acceptance and registration of a business name or the Director’s refusal to make a direction under s. 13 , they may apply to the court for an order cancelling the registered name or changing it. In this regard, s. 14(1) states as follows: Application to Court of Queen’s Bench 14(1) A person who feels aggrieved (

a) as a result of the acceptance and registration of a declaration under this Act or the refusal to accept and register a declaration under this Act; (

b) by the decision of the Director to reserve a name or to refuse to do so; (

c) by a direction made by the Director under

section 13 or the refusal of the Director to make a direction under

section 13 ; or

(

d) by the cancellation by the Director of a registration or of a renewal of a registration made under this Act; may apply to the Court of Queen’s Bench for an order (

e) cancelling the registration of any declaration referred to in clause (

a) or requiring the acceptance and registration of a declaration referred to in clause (a); (e.1) cancelling the registration of a Manitoba limited liability partnership or an extra-provincial limited liability partnership; (

f) directing the Director to change a decision referred to in clause (b); (

g) changing the name set out in the declaration or in the direction made by the Director under

section 13 ; (

h) directing that the cancellation referred to in clause (

d) be rescinded; and the Court may so order and make any further order it thinks fit. 15 The appellant’s fundamental argument here is that an application to the Court of Queen’s Bench under s. 14 of the BNRA is an entirely fresh hearing and not a judicial review. Therefore, the concept of deference and the standard of review analysis do not apply. The court is entitled to consider the matter de novo . 16 Recently in the case of Guinn v.

Manitoba , 2009 MBCA 82 , 245 Man.R. (2d) 57, I made some comments on when a matter may be determined to be a hearing de novo and when it should be treated as a statutory review or appeal on the record. Given the importance of that issue in this case and the somewhat contradictory and dated case law on this point, in the context of business names especially, it may be helpful to expand on those comments. 17 The first point of reference is always the legislation itself.

Some statutes are quite clear and identify that the review or appeal to the courts from the decision of the tribunal is to be treated as a trial de novo . Some examples of this are: The Forest Act , C.C.S.M., c. F150 (at s. 39(5) ): Appeal to judge 39(5) A person whose licence, or permit, or agreement, is cancelled by the minister under this section, may within 30 days after receipt of the notice of cancellation, appeal the cancellation to a judge of the Court of Queen’s Bench and the hearing of the appeal shall be a hearing de novo. And The Court of Queen’s Bench Small Claims Practices Act , C.C.S.M., c.

C285 (at s. 12(5) ): Conduct of appeals 12(5) An appeal under subsection (2) or (3) shall be a new trial and shall be dealt with in a

summary manner and unless otherwise ordered by the judge on application of a party to the appeal, the rules of the court, other than rules specifically applicable to claims under this Act, do not apply. And also The Fortified Buildings Act , C.C.S.M., c. F153 (at s. 10(5) ): Appeal a new hearing 10(5) The hearing of the appeal shall be a hearing de novo, and the court may hear evidence and submissions respecting the removal order subject to appeal.

18 Our concern here is with those statutes that do not clearly identify the nature of the review before the courts. In those cases,one must look more carefully at two things: the statute as a whole in its appropriate context, and any prior cases that dealt with similarlegislation. I turn first to an examination of the statute itself. 19 The Supreme Court of Canada has made it clear that the one basic rule of statutory

interpretation is a contextual one. Whenthe meaning of any statutory phrase is in issue, the

interpretation of those words should be ascertained by a consideration of theirgrammatical and ordinary sense, the overall context, the object of the statute and the intention of the Legislature.

See Rizzo & RizzoShoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 at para. 21. 20 This will mean that a court should consider the usual meaning of the words and, as interpreted by other courts in the samecontext, should review other provisions and regulations of the Act to ascertain its general scheme, should determine the object of the Actand any policy objectives at play, and should consider looking at past versions of the Act to ascertain the intention of the legislativebody. 21 Looking to the language of the specific section, I see that the English version of s. 14 simply states that one “may apply” foran order from the Court of Queen’s Bench. 22 However, the French version of the BNRA (Loi sur l’enregistrement des noms commerciaux) clearly indicates that theapplication is an appeal.

The relevant parts of the French version of s. 14(1) of the BNRA states: Requête à la Cour du Banc de la Reine 14(1) Quiconque s’estime lésé :

a) par suite de l’acceptation et de l’enregistrement d’une déclaration visée par la présente loi ou … . . . . .

c) par les instructions visées à l’article 13 ou le refus de donner de telles instructions … . . . . . peut en appeler devant la Cour du Banc de la Reine. Celle-ci peut, par ordonnance :

e) annuler l’enregistrement de toute déclaration visée à l’alinéa a) ou … . . . . .

g) changer le nom contenu dans la déclaration … . . . . . Le tribunal peut également rendre toute autre ordonnance qu’il estime indiquée. [emphasis added]

23 The words “peut en appeler” would normally be translated in this context as “may appeal it,” as opposed to “may apply,”which is used in the English version of s. 14 of the BNRA. Indeed, a computerized search reveals that the word “appeler” appears in 76Manitoba statutes, and in almost all of those statutes, when the French word “appeler” is used, the English version uses the word“appeal” (the one other exception besides the BNRA is The Manitoba Water Services Board Act, C.C.S.M., c. W90 at s. 8(2)). How thendoes one interpret the relevant provision in light of the discrepancy between the English and French versions of the section? 24 The two fundamental rules of

interpretation applying to bilingual legislation are described in The Honourable Mr. JusticeMichel Bastarache et al., The Law of Bilingual

Interpretation (Markham: LexisNexis Canada Inc., 2008) as follows (at p. 15): The bilingual model is based upon two fundamental principles, which we will discuss in this section. The first principle is the EqualAuthenticity Rule. According to this rule, both the English and French versions of a statute are equally authentic statements oflegislative intent, and neither one is supreme or paramount over the other. The second principle is the Shared Meaning Rule.

This ruleprovides, in short, that both versions of the statute are expressions of the same legislative intent and that courts interpreting statutesshould, as far as possible, attempt to ascertain that intent through a determination of the shared or common meaning of the two versions. See also, Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis Canada Inc., 2008) at 96; Reference reManitoba Language Rights, (SCC), [1985] 1 S.C.R. 721 at 736-43; R. v. Lewis, (SCC), [1996]1 S.C.R. 921 at para.72; and R. v.

Middleton, 2009 SCC 21 , [2009] 1 S.C.R. 674 at para. 27. 25 Thus, it is the duty of the court to read both the French and English version of the BNRA together in order to determine thelegislative intention. They are of equal validity and one version cannot simply be chosen over the other. However, there is here clearlya discrepancy between the French and English versions, making it difficult to easily ascertain the legislative intention. 26 Consequently, the second fundamental rule of

interpretation of bilingual legislation, “the Shared Meaning Rule,”(Bastarache, at p. 15) comes into play. In R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217, the leading case on bilingual

interpretation,Bastarache J. discussed this rule at some length (at paras. 26, 28-30): The Court has on several occasions discussed how a bilingual statute should be interpreted in cases where there is a discrepancy betweenthe two versions of the same text. For example, in Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269, 2002 SCC 62, at para.56, LeBel J. wrote: A principle of bilingual statutory

interpretation holds that where one version is ambiguous and the other is clear and unequivocal, thecommon meaning of the two versions would a priori be preferred; see: Côté, [The

Interpretation of Legislation in Canada, 3rd ed.(Scarborough: Carswell, 2000)], at p. 327; and Tupper v. The Queen, (SCC), [1967] S.C.R. 589. Furthermore, whereone of the two versions is broader than the other, the common meaning would favour the more restricted or limited meaning: see Côté,supra, at p. 327; R. v. Dubois, (SCC), [1935] S.C.R. 378; Maurice Pollack Ltée v. Comité paritaire du commerce de détailà Québec, (SCC), [1946] S.C.R. 343; Pfizer Co. v. Deputy Minister of National Revenue for Customs and Excise, (SCC), [1977] 1 S.C.R. 456, at pp. 464-65; and Gravel v.

City of St-Léonard, (SCC), [1978] 1 S.C.R. 660, atp. 669. …. . . . . . We must determine whether there is an ambiguity, that is, whether one or both versions of the statute are “reasonably capable of morethan one meaning”: Bell ExpressVu, [2002 SCC 42, [2002] 2 S.C.R. 559], at para. 29. If there is an ambiguity in one version but not theother, the two versions must be reconciled, that is, we must look for the meaning that is common to both versions: Côté, supra, at p.327. The common meaning is the version that is plain and not ambiguous: Côté, supra, at p. 327; see Goodyear Tire and Rubber Co. ofCanada v. T.

Eaton Co., (SCC), [1956] S.C.R. 610, at p. 614; Kwiatkowsky v. Minister of Employment and Immigration, (SCC), [1982] 2 S.C.R. 856, at p. 863. If neither version is ambiguous, or if they both are, the common meaning is normally the narrower version: Gravel v. City of St-Léonard, (SCC), [1978] 1 S.C.R. 660, at p. 669; Pfizer Co. v. Deputy Minister of National Revenue For Customs andExcise, (SCC), [1977] 1 S.C.R. 456, at pp. 464-65.

Professor Côté illustrates this point as follows, at p. 327: There is a third possibility: one version may have a broader meaning than another, in which case the shared meaning is the more narrowof the two. The second step is to determine whether the common or dominant meaning is, according to the ordinary rules of statutory

interpretation,

consistent with Parliament’s intent: Côté, supra, at pp. 328-329. At this stage, the words of Lamer J. in Slaight Communications Inc. v.Davidson, (SCC), [1989] 1 S.C.R. 1038, at p. 1071, are instructive: First of all, therefore, these two versions have to be reconciled if possible.

To do this, an attempt must be made to get from the twoversions of the provision the meaning common to them both and ascertain whether this appears to be consistent with the purpose andgeneral scheme of the Code. 27 Applying this reasoning to s. 14(1) of the BNRA, it is clear that there is a discrepancy between the English and Frenchversions of the section. The English version indicates that an aggrieved person “may apply” for an order, which is ambiguous since it isnot clear whether it is an application for appeal, an application for judicial review, or an application for a hearing de novo.

On the otherhand, the French version indicates that the aggrieved person “peut en appeler,” may appeal the decision of the Director. This version isunambiguous and plain. It is an appeal that is contemplated by the French version. It is consequently an appeal that is common to bothversions.

According to the shared meaning rule, then, s. 14(1) should be interpreted to mean that the application to the court is anapplication for an appeal, unless this meaning is not consistent with the legislative intent. 28 However, the conclusion that the application in s. 14(1) is in the nature of an appeal does not end the discussion. A statutoryappeal can still require that a hearing de novo take place.

For example, The Court of Queen’s Bench Small Claims Practices Act, s. 12(5)specifically provides that an appeal “shall be a new trial.” 29 In the present case, the appellant argued that the application should have been treated as a hearing de novo because the BNRAdoes not indicate that the parties should file with the court a record of the earlier proceedings and because s. 14(1) of the BNRA gives thecourt the power to make “any further order it thinks fit.” 30 The respondents, on the other hand, rely on the Guinn decision for the proposition that, absent specific language indicatingthat the court may accept further evidence or that the application is to be a hearing de novo, the application ought to be on the record. 31 In Guinn, the issue was whether a provision in The Farm Lands Ownership Act, C.C.S.M., c.

F35, permitted a hearing denovo even though it specifically used the word “appeal.” Section 16(1) of the provision in question, states: Appeal 16(1) Any person affected by any order of the board, other than an order under subsection 3(3) which order is final and binding and fromwhich no appeal may be taken, may appeal the order within 30 days of the date thereof, to a judge of the Court of Queen’s Bench who,upon hearing the appeal, may make such order as to him seems just. 32 In attempting to determine whether this appeal to the courts was to be on the record or by way of a hearing de novo, this courtconsidered a number of factors.

First, the provision itself was silent as to the possibility of a hearing de novo. This raised a presumptionin favor of a review on the record. As stated by Sara Blake in Administrative Law in Canada, 4th ed. (Markham: LexisNexis CanadaInc., 2006) (at p. 165): …. A hearing de novo is permitted where the statute calls for a new hearing on appeal. .... Some statutes do not state whether an appeal is on the record or by way of a new hearing.

If the appeal is to a superior court, it is usuallyon the record. …. 33 Next, as has been noted, in other Manitoba statutes where the Legislature intended a hearing de novo, the intention wasexplicitly so stated or at least there was an explicit reference to the right to present further evidence. Beside the fact that the provision inquestion used the word “appeal,” The Farm Lands Ownership Act as a whole did not contain any language indicating that a fresh hearingwas envisioned or that further evidence could be heard on the appeal.

There was nothing that indicated the Legislature intendedanything other than an appeal on the record. 34 As well, the nature of the decision appealed from should be examined in order to determine the nature of the appeal. InGuinn, the purpose of The Farm Lands Ownership Act was to establish a board to regulate and enforce limits on foreign ownership offarm land. The wording and scheme of The Farm Lands Ownership Act showed that the Legislature intended the board to be aspecialized tribunal with acquired expertise in determining the precise issues brought before it.

That expertise would be lost if the appealwas in the nature of a hearing de novo with no deference to the original decision. 35 The analysis and conclusion in Guinn is in accord with the jurisprudence in this area. For example, the decision in McKenziev. Mason (1992), 9 C.P.C. (3d) 1 (B.C.C.A.) was referred to in Guinn. In McKenzie, the issue before the Court of Appeal was whetherthe appeal from the decision of the Chief Gold Commissioner to a judge could be heard by way of a trial de novo.

Section 35 of theMineral Tenure Act, S.B.C., 1988 c. 5, simply indicated that a complainant “may … appeal the decision” to a judge.

36 The court in McKenzie indicated at paras. 30 and 44, after examining the particular provision, the whole statute and thescheme of the Mineral Tenure Act, that where a statute uses the words “may … appeal,” and nothing in the statute or the scheme of theAct appears to expand the nature and scope of the appeal hearing, such an appeal will not envisage a trial de novo. 37 The decision in McKenzie was re-examined by a full five-member panel of the British Columbia Court of Appeal in Duprasv. Mason (1994), (BC CA), 120 D.L.R. (4th) 127.

Again, the issue related to the nature of the right of appeal to theBritish Columbia Supreme Court from a decision of the Chief Gold Commissioner, pursuant to the Mineral Tenure Act.

The underlyingissue was whether Dupras was correct in determining that, “if the legislature had intended that an appeal to the Supreme Court should bein the exceptional form of a trial de novo, it would have specified the availability of that form of appeal” (at p. 129). 38 In Dupras, the court noted that the procedure to be followed by the Chief Gold Commissioner in reaching a decisionspecifically contemplated a written complaint, a possibility of a report from a mineral title inspector, an opportunity for interested partiesto inspect the report and make written submissions, and a decision only being made after the report and submissions were considered.

The court then compared the nature of a trial de novo and a true appeal, and discussed this in conjunction with the legislation’s clearindication that the Chief Gold Commissioner would have expertise on the subject of whether a claim properly complied with the MineralTenure Act.

The court stated (at p. 134): The distinction between a trial de novo and a true appeal is that in a trial de novo the question before the court is the very question thatwas before the chief gold commissioner, namely, was the claim located or recorded according to the Act and Regulations, whereas in atrue appeal the question before the court is whether the chief gold commissioner made a reviewable error of fact, of law, or ofprocedure. A trial de novo ignores the original decision in all respects, except possibly for the purposes of cross-examination.

A trueappeal focuses on the original decision and examines it to determine whether it is right or wrong, flawed or unflawed. Running through the consideration of s. 35 must be an understanding of the function and expertise of the chief gold commissioner. He orshe may be expected to have had many years of experience with respect to the mining industry in general and the locating and recordingof mineral claims in particular. That expertise will imbue the carrying out of his or her functions under s. 35.

It will also make his or herdecision under s. 34 about good faith non-compliance a decision which is well informed by practical experience of what constitutes agood faith attempt to comply with the Act and Regulations, and about whether a failure to comply was calculated to mislead other freeminers. If an appeal were to be taken by trial de novo the chief gold commissioner’s expertise would no longer be available in the process ofdecision-making under ss. 35 and 34. For that reason and for the other reasons set out by Mr.

Justice Toy for this court in McKenzie v.Mason, including particularly the fact that the appeal is not specified in the statute to be by trial de novo, I conclude that s. 35(10) of theMineral Tenure Act does not contemplate or permit an appeal to a Supreme Court judge by trial de novo. 39 Therefore, the court in Dupras affirmed the decision in McKenzie, but clarified that the determination of whether an appeal isa “true appeal” (at p. 137) or a hearing de novo will depend not only on the specific wording of the legislation, but also on aconsideration of the scheme of the legislation as a whole, including the particular duties and expertise of the original decision-maker andthe nature of the decision appealed from. 40 Although a different conclusion was reached in the British Columbia Chicken Marketing Board v.

British ColumbiaMarketing Board, 2002 BCCA 473, 216 D.L.R. (4th) 587 case, the British Columbia Court of Appeal applied the same rule as in theDupras case. Both the Chicken Marketing Board and Dupras decisions clarify that the words “may appeal” cannot simply be read inisolation from the rest of the statute, but must be read having regard to the legislative scheme and the purposes of the legislation inquestion.

It is only when the words are interpreted in the context of the legislation as a whole that a court can determine the nature of thehearing intended by the legislature. 41 Like the British Columbia Court of Appeal, the New Brunswick Court of Appeal supported the use of the contextualapproach to the

interpretation of the words “may appeal” in a statute in the case of McAllister v. Cleary (1999), (NBCA), 213 N.B.R. (2d) 156. As well, the provision in that case, as in this one, provided that the court may make “any order it considersjust” (Law Society Act, S.N.B. 1996, c. 89 at s. 91(1)). Where the court has examined the legislation and come to the conclusion that theLegislature intended an appeal to the superior court, such language will not change the categorization.

In McAllister, Drapeau J.A. heldthat the power of the appeal court to “make any order it considers just” (at para. 31) had to be interpreted in a manner consistent with theappellate nature of the process created by the Act. He stated (ibid.): ….

Those powers are constrained by the legislative context and they must not be exercised, as they were here, in such a way that the“appeal” created by s. 91(1) is metamorphosed into a trial de novo. 42 Thus, the general case law on this point suggests that when a statute uses the word “appeal,” and nothing in the statuteappears to expand the nature and the scope of the appeal hearing, then the appeal will be considered a “true appeal” as opposed to a denovo hearing. The fact that the court is given the power to “make any further order it thinks fit” (s. 14(1) of the BNRA) will not changethat conclusion.

43 Unfortunately, a review of the case law in respect of business name disputes does not assist the analysis to any great extent. The jurisprudence has varied over time according to the seemingly ever-changing wording of the applicable legislation, and in responseto other decisions. Not only does the wording of the legislation vary from province to province, but even within provinces, the languageof business names protection statutes varies. Moreover, the nature of administrative law has changed dramatically over the years andmany of the older cases in this area do not consider the nature of the appeal.

However, I believe that two general lines of authority exist,both of them reacting to the leading case of Canadian Motorways Ltd. v. Laidlaw Motorways Ltd., (SCC), [1974] S.C.R.675, either distinguishing it or relying upon it. 44 In Canadian Motorways pursuant to s. 12(2) of Ontario’s The Corporations Act, R.S.O. 1960, c. 71, Canadian Motorwaysasked the Minister to change the name of Laidlaw Motorways, arguing that the name was the “same as or similar to” their own. Ahearing was held and the Minister determined that Laidlaw should change its name.

Laidlaw applied to the court for a review of thisdecision pursuant to s. 12(3) of The Corporations Act, which stated:

(3) A person who feels aggrieved as a result of the giving of a name under subsection 1 or the changing or refusing to change a nameunder subsection 2 may, upon at least seven days notice to the Minister and to such other persons as the court directs, apply to the courtfor a review of the matter, and the court may make an order changing the name of the corporation to such name as it considers proper ormay dismiss the application. [emphasis added] 45 The majority of the Supreme Court of Canada considered the issue of the nature of the review under this section.

Laskin J.stated (at p. 683): The Court, in the exercise of the power of review conferred by s. 12(3), is undoubtedly authorized to consider the meaning andapplication of the statutory standard fixed under s. 12(1). There is, however, the anterior question of the scope of the power of reviewwhich has been granted. “Review” is not a hearing de novo but is related here to a prior administrative decision. I do not read the powerto review as authorizing a substitution of a judicial for an administrative opinion on no other basis than disagreement with theadministrative decision.

Nor do I regard it as permitting a Court to come to a different conclusion merely on the basis of its conclusion asto the weight of the evidence which was before the administrative authority. 46 Thus, the majority of the court in Canadian Motorways held that where a specialized and experienced decision-maker isgiven the authority to make a decision, and a record is available, the court, which is given the authority to review that decision, shouldnot hold a hearing de novo, but should review the decision in a manner similar to that in a traditional appeal. 47 Canadian Motorways was quickly distinguished in Ontario and Quebec by a series of cases which were governed bydifferent legislation or legislation which had been amended.

These cases take the position that, although deference should be shown tothe administrative decision-maker, the wording of the legislation permits the court to consider additional evidence and arguments, andarrive at its own conclusion as to whether the administrative decision can be upheld. In these cases, additional affidavit evidence andcross-examinations are generally considered admissible before the reviewing court based on the specific language of the governinglegislation. See, for example, Ebsco Investments Ltd. and Ebsco Subscription Services Ltd., Re (1975), (ON CA), 11O.R. (2d) 305 (C.A.).

See Fordprint Ltd. and Minister of Consumer and Commercial Relations et al., Re (1976), (ONSC), 11 O.R. (2d) 434 (H.C.J. Div. Ct.); Prime Locations Ltd. v. Prime Real Estate Ltd. et al., Re (1976), 30 C.P.R. (2d) 38 (Ont. H.C.J.Div. Ct.); and Cantrade Sales and Import Co. Ltd. Re (1977), (ON SC), 15 O.R. (2d) 562 (H.C.J. Div. Ct.). See also,New World Pictures et al. and New World Video Inc. Re (1986), (ON SC), 53 O.R. (2d) 794 (H.C.J.) and Travel 2000Ltd. v. iTravel2000.com Inc., [2003] O.J. No. 770 (S.C.J. Div. Ct.) (QL). 48 What should be noted is that the Ontario Business Corporations Act, R.S.O. 1990, c.

B16, is worded very differently fromthat in Manitoba’s BNRA. The Ontario legislation specifies that the court may direct the Minister to make such decisions “as the courtthinks proper, having regard to the material and submissions before it” (s. 252(5)). 49 The Quebec courts followed the Ontario courts and proceeded in a similar fashion when interpreting s. 239 of the CanadaBusiness Corporations Act (version française remplacée par S.C. 1978-79, C-9, annex). See Paladium St-Robert inc. c. Sparling, [1980]J.Q. no 79 (Que. S.C.) (QL) and Browns (I.) Packaging Inc. v. Dir. of the Corps.

Branch of the Dept. of Consumer & Corporate Affairs(1982), 24 B.L.R. 44 (Que. S.C.) 50 The second line of cases arising from the Canadian Motorways decision developed mainly in the courts of Saskatchewan andAlberta. These cases relate to business name dispute statutes that generally call for an “appeal” or a “review” of the administrativedecision. The courts in these cases are not consistent, but for the most part, they emphasize the deference to be paid to the decision-maker’s decision and take the position that the review or appeal is generally to be based on the record and should not involve a hearingde novo.

These courts have essentially concluded, relying on Canadian Motorways, that the review of a business name dispute decisionshould not be conducted in the manner of a de novo hearing. See, for example, Bargain Tire Centre Ltd. v. Registrar of BusinessCorporations Act and Pro-Western Tire Corporation (1984), (SK KB), 32 Sask.R. 12 (Q.B.) and Six M. SalesCorporation Ltd. v. Flory and Markwart (1985), (SK KB), 44 Sask.R. 10 (Q.B.). In both of these decisions, thejudges treat the matter as a review of the Director’s decision, rather than simply as a new exercise in discretion.

51 Northland Office Systems Group Inc. v. Northland Stationers

(1963) Ltd. et al. (1988), (SK KB), 71Sask.R. 157 (Q.B.), appeal dismissed (1989), (SK CA), 80 Sask.R. 153 (C.A.), dealt with s. 239(1) of theSaskatchewan’s Business Corporations Act, R.S.S. 1978, c. B-10, legislation which is very similar to s. 12(1) of the BNRA. 52 In considering the scope of the review to be taken under this section, Geatros J., in the Court of Queen’s Bench decisionstated (at para. 8): The Director has a discretionary power to refuse or direct a change of corporate name.

A review of his decision is not a hearing de novo.It does not authorize a substitution of a judicial for an administrative opinion merely on the basis of a different assessment of the weightof the evidence which was before the Director, the administrative authority. The underlining principle is that great weight should begiven to the Director’s conclusion. These propositions are to be found in Canadian Motorways Ltd. v.

Laidlaw Motorways Ltd.(1973), (SCC), 40 D.L.R. (3d) 52. 53 On appeal, the Saskatchewan Court of Appeal agreed that the reviewing court was correct in determining the appeal of theDirector’s decision on the basis of the record, and in determining that no further evidence should be admitted. 54 The next case, relied upon by the respondents, is Unitel International Inc. v. Unitel Communications Inc., (SK KB), [1992] 3 W.W.R. 548 (Sask. Q.B.).

While the court in Unitel did refer to the court’s “independent consideration of thematter,” (at para. 31) it also clearly held that the hearing was in the nature of a review or appeal and not a hearing de novo. 55 It appears that the Alberta, as well as the Saskatchewan courts are treating business name dispute decisions as reviews orappeals as opposed to a hearing de novo. In Merchant Commercial Real Estate Services Inc. v. Alberta (Registrar of Corporations)(1997), (AB KB), 48 Alta. L.R. (3d) 119 (Q.B.), Brooker J. followed the Canadian Motorways decision andconducted a review on the record.

In Janus Academy Society v. Alberta (Registrar of Corporations), 1998 ABQB 761, 66 Alta. L.R.(3d) 366 (Q.B.), the court relied on the Merchant case stating that “[t]he correct standard of review to be used here is that of patentunreasonableness, that is whether the Registrar’s decision was wrong in law or patently unfair” (at para. 39). 56 The appellant relies on several Manitoba Court of Queen’s Bench decisions which appear to be inconsistent and do not assistme greatly. 57 In the case of Tire Specialists (Manitoba) Ltd. v.

Director of Corporations (Man.) et al. (1991), (MBKB), 74 Man.R. (2d) 240 (Q.B.), the court clearly approached the application as a new hearing and substituted its own opinion for that ofthe Director on the issue of whether the names of the companies were likely to cause confusion. However, the court did not conduct anyanalysis of whether the provision under the BNRA provided for a hearing de novo or a traditional appeal and did not refer to any case lawon this issue. The same is true of the case of Italia (Azzurri) Soccer Club Inc. v.

Director of Corporations Branch (Man.) et al. (1988), (MB KB), 55 Man.R. (2d) 273 (Q.B.). 58 On the other hand, in the case of Saskatchewan Wheat Pool v.

Director of Corporations Branch (Man.) et al. (1997), (MB KB), 119 Man.R. (2d) 212 (Q.B.), the court did consider the standard of review to be applied by the court withrespect to s. 14(1) of the BNRA and concluded (at paras. 18-19): From a review of the Manitoba decisions, it would appear that this province has given similar treatment to the resolution of these issuesbut I would emphasize that the director, in dealing with these issues, has developed a specialized approach to the issue of similar namesand the likelihood of confusion arising, and I would pay particular heed to the decision of the director, absent any manifest or patent errorin applying the

section or assessment of the facts. In this case I am satisfied that the decision of the director was correct and I would not interfere with her decision. It should also be noted, however, that in that case, the court did consider additional affidavit evidence, along with the record before theDirector, thereby suggesting that he in fact used “a combination of review and the hearing of additional evidence” (at para. 15). 59 In

summary, a review of the jurisprudence related to business name disputes and the differing treatment of the CanadianMotorways case indicates that, fundamentally, the type of review or appeal that will be held depends on the wording of the legislationbeing considered. 60 Applying all of these principles to an examination of s. 14(1) of the BNRA, I conclude that the Legislature intended theapplication to the Court of Queen’s Bench to be a true appeal and not a trial de novo. 61 With respect to the provision itself, an application of the rules of bilingual statutory

interpretation leads me to conclude thatthe application referred to in that

section should be considered an application for an appeal, unless this meaning is not consistent with thelegislative intent. 62 A consideration of the legislative history of this particular provision also supports the view that a de novo hearing was notcontemplated. Section 14(1) of the BNRA was originally enacted by R.S.M. 1987, c. B110. The original versions stated as follows:

14(1) A person who feels aggrieved … may … apply to a judge for a review of the matter … [emphasis added] 63 This version was amended by The Statute Law Amendment Act (1987), S.M. 1987-88, c.66, s.2 (in force July 17, 1987) to the current version of s. 14(1) of the Act, which, as we have seen, provides that an aggrieved person “may apply to the Court of Queen’s Bench for an order” or “peut en appeler devant la Cour du Banc de la Reine.” There can be two points of view regarding this amendment, both of which suggest that a hearing de novo was not in contemplation.

First, as this amendment was part of a statute law amendment act, it would be unusual if any substantive change was intended, and certainly one would expect that something would have been said during the Assembly or Standing Committee Proceedings if a substantive change was intended, but it was not. Therefore, as the language of the previous

section echoes the legislation at issue in Canadian Motorways , it may be concluded that both the previous and current version of the

section are to be read consistently with the Canadian Motorways case, and that this review “is not a hearing de novo ” (at p. 683). 64 The other way of considering this is to conclude that the Legislature purposefully changed the language of s. 14(1) from a “review” to an “appeal.” As discussed above, there have been decisions and legal writings in which the “review” power was considered to be broader than the “appeal” power, especially in terms of considering evidence: see McAllister and McKenzie .

Thus, it may be that the Legislature purposefully jettisoned the older “review” language to ensure that the narrower scope of review – an “appeal” on the record – would be used. 65 A perusal of the BNRA reveals that there are no sections which suggest that the court should engage in a de novo hearing, such as might be argued, for example, with respect to s. 8(2) of The Manitoba Water Services Board Act , where the Board is to make a decision on the appeal application “after hearing both parties.” Although the appellant is correct in noting that the BNRA does not require the parties to file a record of the earlier proceedings with the appeal court, the legislation does give any person the right to inspect, copy and require a certified true copy of any document kept, filed or registered by the Director (see s. 15(1)).

This suggests that a record of documents submitted to the Director would be available on any appeal. 66 The scheme of the BNRA appears to provide a quick, inexpensive and informal mechanism by which the Director can determine whether a proposed business name is the same or similar to another named business, and can determine whether the proposed business name is objectionable for other reasons indicated in the BNRA or the Business Names Registration Regulation , Man. Reg. 381/87R.

The scheme of the BNRA is such that a person presents a business name for registration, and the Director determines whether it can be registered. The regulations give the Director some guidance as to what an appropriate business name would be (see s. 9(1) of the Regulation), and the legislation provides the Director with a complete set of elements to be considered when determining whether a particular business name should be registered or not (see s. 12 and s. 13 ), while providing a single level of appeal.

It should also be noted that there are no provisions which address the procedure which the Director is to take or the evidence that the Director is entitled to receive when considering whether to register or cancel a business name. 67 Furthermore, the scheme of the BNRA reveals that, although there are certain names which the Director is directed not to accept (for example, names that are exactly the same or are prohibited by an Act of Parliament), the Director has clearly been given a discretion to determine issues such as whether a name is “too general,” whether a name has “become established by a long and continuous use” or has become “distinctive,” whether the name is “objectionable on public grounds,” whether it is “confusing,” or whether a name is similar to another and likely to confuse or mislead (s. 9 of the Regulation).

The scheme of the Act therefore suggests that the Legislature intended that the Director would establish an expertise in determining issues such as whether a name was confusing, similar, or objectionable on public grounds, and that decisions made by the Director on these issues would be well informed by practical experience.

The scheme promotes bureaucratic continuity. 68 Therefore, it is apparent that the object of the Legislature was to provide an informal, inexpensive process to register business names and resolve business name disputes in Manitoba by utilizing the expertise of a statutory decision-maker to make discretionary decisions which are well informed by past practical experience. Given this, it would be difficult to accept that the Legislature intended to permit aggrieved persons to present additional evidence to a court, on appeal, as a matter of course.

Not only would this defeat the object of having an informal and inexpensive process for dealing with these matters, but it would also be counter-intuitive to the discretion given to the Director with respect to issues as to whether a name was confusing, similar or objectionable on public grounds. Allowing a court to consider those issues anew, with additional evidence, would allow a court to disregard the expertise of the Director, and could potentially upset the bureaucratic continuity which otherwise would be established. 69 This view accords with sound policy reasons.

Appeals held as de novo hearings tend to be more protracted and costly than appeals on the record. It is more efficient to require the parties to put their best foot forward on the first occasion. To allow fresh or additional evidence at the Queen’s Bench level when that evidence could have been adduced in front of the Director is a waste of legal resources at both levels. It is singularly inefficient to run two full hearings. 70 Furthermore, this view is in line with the move in the case law of affording more curial deference to the decisions of administrative decision-makers generally.

The particular and specialized expertise of the Director, regarding the subject matter of this appeal, accentuates the preference both for appellate review and for deference to the Director’s findings of fact through the standard of review analysis. Procedural fairness can always be addressed through standard administrative law principles.

However, substance should be reserved for the decision-maker who has the most expertise. 71 Finally, the review of the case law dealing with other Canadian business name dispute statutes also supports the view that the application under s. 14(1) of Manitoba’s BNRA should be in the nature of a traditional appeal and not a hearing de novo. As discussed

above, the case law which sanctions a hearing de novo and/or new evidence is primarily based on statutory provisions which are wordedin a way that is not only different from Manitoba’s statutory provision, but which also clearly suggests that something broader than atraditional appeal is contemplated. The case law which endorses appeals on the record, on the other hand, is based upon legislationwhich is worded in a similar way to that in Manitoba’s BNRA. 72 Therefore, it is my view that the application discussed in s. 14(1) of the BNRA contemplates an appeal on the record and not ahearing de novo.

THE LEGAL OBLIGATION TO GIVE REASONS 73 Administrative tribunals can generally be described as exercising legislative, administrative, quasi-judicial administrative orjudicial functions. Tribunals which exercise quasi-judicial or judicial functions are generally concerned with the adjudication ofcompeting rights or interests as between individuals and groups.

This is to be contrasted with those tribunals which exercise legislativefunctions by enacting rules or regulations for the public at large rather than individuals; or those tribunals exercising administrativefunctions which deal with “questions of policy” involving competing views of the collective good of the community as a whole or thosedealing with polycentric issues that require the exercise of administrative discretion.

See Residential Tenancies Act, 1979, Re, (SCC), [1981] 1 S.C.R. 714 at 735, per Dickson J. 74 Even in the absence of a statutory requirement, tribunals and decision-makers may still be required to give reasons based onnatural justice and fairness. In Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R.817, the Supreme Court of Canada observed (at para. 43): … [I]n certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision.

Thestrong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has importantsignificance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should berequired. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion,constitute one of the situations where reasons are necessary.

The profound importance of [a humanitarian and compassionate] decision tothose affected, as with those at issue in Orlowski, [(1992) (BC CA), 94 D.L.R. (4th) 541] Cunningham, [[1991] 4 AllE.R. 310] and Doody, [[1994] 1 A.C. 531] militates in favour of a requirement that reasons be provided. It would be unfair for a personsubject to a decision such as this one which is so critical to their future not to be told why the result was reached. 75 The court listed several key factors which impacted a determination of the content of the duty of procedural fairness in anygiven situation.

These factors include: 1. the nature of the decision being made and process followed in making it; 2. the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; 3. the importance of the decision to the individual or individuals affected; 4. the legitimate expectations of the person challenging the decision; and 5. the choices of procedure made by the agency itself. 76 With respect to the BNRA, given that the Director was adjudicating competing interests between two groups, he wasexercising a quasi-judicial function.

Moreover, although the statute does not require reasons to be given, considering the above factors,including especially the statutory right of appeal, this is a case where the duty of procedural fairness will require a written explanation fora decision. It would be unfair for a person subject to a decision such as this one, not to be told why the result was reached. See Baker atpara. 43, and Clifford v. Ontario (Attorney General), 2009 ONCA 670, 312 D.L.R. (4th) 70 at paras. 19-21, appeal to the SCC dismissed,[2009] S.C.C.A. No. 461 (QL).

A written explanation for a decision does not need to impose an excessive burden on administrativedecision-makers. As I shall explain later in this judgment, the special nature of agency decision-making in different contexts should beconsidered when assessing the functionality of the reasons provided. STANDARD OF REVIEW 77 Appellate courts have been much occupied of late with the standard of review analysis. A recent decision of the AlbertaCourt of Appeal, in Newton v. Criminal Trial Lawyers’ Association (Alta.) et al., 2010 ABCA 399, has summarized the discussionnicely.

As Justice Slatter explained (at paras. 29-35): The analysis of standards of review in Canadian law has become much more sophisticated in the last decade. There are at present twomain paradigms governing the standard of review analysis: one concerning the relationship between appellate superior courts and trialcourts, and the other concerning the relationship between the superior courts and administrative tribunals.

The standard of review analysis respecting appellate superior courts and trial courts was definitively stated in Housen v. Nikolaisen,[2002] 2 S.C.R. 235, 2002 SCC 33. Shortly put, an appellate superior court reviews the decisions of trial courts on questions of law forcorrectness. Errors of fact, mixed errors of fact and law, and inferences to be drawn from the facts are generally reviewed for palpableand overriding error. The standards of review in Housen were set having regard to the fact that an appeal is not intended to be a retrial of the case.

Correctnessis applied to questions of law, because of the need to have universality in the statement of legal rules, and because of the accepted law-settling role of appellate courts. Deference is accorded to findings of fact (

a) to limit the number, length and cost of appeals, (

b) topromote the economy and integrity of trial proceedings, and (

c) to recognize the expertise and advantageous position of the trial judge: Housen at paras.16-8. The standard of review analysis respecting the relationship between superior courts and administrative tribunals is found in Dunsmuir v.New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, building on the platform laid down in Pushpanathan v. Canada (Minister ofCitizenship and Immigration), (SCC), [1998] 1 S.C.R. 982.

Dunsmuir summarized the standards used at para. 51: ... questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issuesgenerally attract a standard of reasonableness while many legal issues attract a standard of correctness. Some legal issues, however,attract the more deferential standard of reasonableness. Truly jurisdictional questions are usually reviewed for correctness. Errors of law within the expertise or mandate of the tribunal areoften reviewed for reasonableness.

Questions of law of more general interest to the legal system are often reviewed for correctness. The standard of review applied by the superior courts to decisions of administrative tribunals recognizes the purely supervisory role ofthe superior courts.

Judicial review has a constitutional foundation related to the rule of law. “The function of judicial review is thereforeto ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes”: Dunsmuir at para. 28.Because the role of the superior courts is supervisory, it is not their place to substitute their judgment for that of the tribunal. Thelegislature has given the authority to make the decisions under review to the tribunal, not the courts. Therefore, deference to the decisionof the tribunal is an important factor in setting the standard of review.

The standard of review is set by considering four factors: “(1) thepresence or absence of a privative clause; (2) the purpose of the tribunal as determined by

interpretation of enabling legislation; (3) thenature of the question at issue, and; (4) the expertise of the tribunal”: Dunsmuir at para. 64. It is important to note that the four Dunsmuir/Pushpanathan factors rest on an unstated assumption: that the relationship of thereviewing and reviewed bodies is a constant. Dunsmuir/Pushpanathan deals with the relationship between a reviewing s. 96 superiorcourt of justice and an administrative tribunal. The four Dunsmuir/Pushpanathan factors presume that constant, and the four factorsare applied assuming that context.

Housen also rest on an unstated assumption about the relationship of the reviewing and reviewedbodies. Housen deals with the relationship between appellate courts and superior trial courts, which is likewise a constant in theanalysis. Housen can go one step further than Dunsmuir/Pushpanathan because the balancing of the relevant factors in setting thestandard of review that an appellate court will apply to decisions of a trial court is also a constant, so that the factors that go into thatanalysis are always the same.

Under Housen it is not necessary to do the standard of review analysis for each trial court, as must bedone under the Dunsmuir/Pushpanathan paradigm for each administrative tribunal. The Housen and the Dunsmuir/Pushpanathan analyses intersect when a court of appeal is reviewing the decision of a superior trialcourt, which has judicially reviewed the decision of an administrative tribunal. The trial court must be correct in its selection of thestandard of review it should apply to the tribunal: Dr. Q v.

College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R.226, 2003 SCC 19 at para. 43: At this stage in the analysis, the Court of Appeal is dealing with appellate review of a subordinate court, not judicial review of anadministrative decision. As such, the normal rules of appellate review of lower courts as articulated in Housen, supra, apply. The selection of the standard of review by the trial court is a question of law which the court of appeal reviews for correctness.

This is apure application of the Housen test, not the Dunsmuir/Pushpanathan test. 78 Therefore, the question of the right standard to select and apply is one of law and must have been answered correctly by the

applications judge in this case. My role is to determine whether the applications judge was correct when he chose and applied thestandard of reasonableness to the decision of the Director. If not, then I must apply and assess the Director’s decision in light of thecorrect standard of review. See Guinn at para. 21 and Dr. Q v.

College of Physicians and Surgeons of British Columbia, 2003 SCC 19,[2003] 1 S.C.R. 226 at para. 43. 79 What standard of review is applicable when a judge considers an application under s. 14 of the BNRA to review theDirector’s determination that two business names are not so similar as to confound with each other? 80 The appropriate standard of review analysis to be applied to this appeal is set out in Dunsmuir v.

New Brunswick, 2008 SCC9, [2008] 1 S.C.R. 190 at paras. 34, 63, which states that there are only two standards of review from which to choose in this situation;that of reasonableness, or that of correctness. 81 Again, in Dunsmuir, the court sets out the test for determining which of the two standards, reasonableness or correctness, isappropriate in a given case (see paras. 51-64). The court states (at para. 62): In

summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determinedin a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the firstinquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. 82 If we turn to previous case law, we see that courts have accepted that deference is due to the Director’s decisions.

SeeSaskatchewan Wheat pool at para. 18 and Unitel 83 In addition, the kind of question before the Director (i.e., are these names so similar that they are liable to be confounded?) isone which should be reviewed on the standard of reasonableness. In Dunsmuir, the court stated (at para. 53): Where the question is one of fact, discretion or policy, deference will usually apply automatically (Mossop, [ (SCC),[1993] 1 S.C.R. 554] at pp. 599-600; Dr. Q, at para. 29; Suresh [2002 SCC 1, [2002] 1 S.C.R. 3] at paras. 29-30).

We believe that thesame standard must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readilyseparated. 84 I agree with the applications judge in this case that the appropriate standard of review here is that of reasonableness. DID THE APPLICATIONS JUDGE ERR IN APPLYING THE REASONABLENESS STANDARD TO THE DIRECTOR’SDECISION? 85 The Director gave what was essentially a three-line decision.

The Director’s letter listed the evidence that he reviewed incoming to his decision; namely, the Companies Office registration files respecting the names in question and the correspondence he hadreceived from both parties. He correctly identified the statutory test under s. 13 of the BNRA. He then went on to give completelyconclusory reasons as follows: While there is some similarity in comparing each of the challenged names to “Images Dental Centre”, the Director is of the view that thesimilarity is not of such a degree that it would contravene the standard set out in

Section 13. …. 86 The applications judge made no reference to the reasonableness of the reasons, only to the reasonableness of the outcome. He stated (at paras. 15-16): Pursuant to the directions given by the Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R. (2d) 1; 844 A.P.R. 1; 2008 SCC9, the appropriate standard of review to beapplied in these circumstances is that of reasonableness. Since I am satisfied the Director’s conclusion that the names Dental Image Therapy Centre St.

Vital and Dental Image Therapy CentreGarden City were not so similar to the name Images Dental Centre that they were likely to be confounded with it was reasonable, I mustdismiss the application. 87 In Dunsmuir, Bastarache and LeBel JJ., for the rest of the court, in discussing the standard of review of reasonableness, madecomments relating to the nature of the reasons which should be given by a statutory decision-maker. Bastarache and LeBel JJ. stated (atpara. 47):

…. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to theprocess of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence ofjustification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision fallswithin a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [emphasis added] 88 More recently, in Canada (Citizenship and Immigration) v.

Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, Binnie J., for themajority, discussed the rationale for, and the importance of, reasons being given by administrative tribunals, stating (at para. 63): …. Dunsmuir thus reinforces in the context of adjudicative tribunals the importance of reasons, which constitute the primary form ofaccountability of the decision-maker to the applicant, to the public and to a reviewing court.

Although the Dunsmuir majority refers withapproval to the proposition that an appropriate degree of deference “requires of the courts ‘not submission but a respectful attention tothe reasons offered or which could be offered in support of a decision’” (para. 48 (emphasis added)), I do not think the reference toreasons which “could be offered” (but were not) should be taken as diluting the importance of giving proper reasons for anadministrative decision, as stated in Baker .... 89 Thus, the task of assessing the adequacy of reasons given by an administrative tribunal must be separated from the task ofassessing the substantive decision made.

If the specialized statutory decision-maker is entitled to deference consistent with the standardof reasonableness, then “its reasoning process must withstand the spotlight of scrutiny consistent with that standard” (Guttman v. LawSociety of Manitoba, 2010 MBCA 66, 255 Man.R. (2d) 151 at para. 63). 90 In Hill v.

Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, the Supreme Court ofCanada described a functional test for the legal sufficiency of reasons – whether the parties’ “functional need to know” (at para. 100)was met, and whether the reasons would allow for meaningful judicial review, having regard for the reasons in the context of the recordbefore the court. 91 The following year, and although determined in a criminal law context, the decision of the Supreme Court of Canada in R. v.R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, was also instructive on the issue.

The court recognized three principle purposes (at para. 11)for determining the sufficiency of reasons in the circumstances of a particular proceeding: 1. to tell the parties and others why the agency made the decision it did; 2. to provide public accountability with a view to justice done and being seen to be done; and 3. to permit effective judicial review. 92 In determining whether these purposes have been achieved, a court will look to the reasons as a whole, in the context of theevidence, arguments and the hearing, and with an appreciation for the purposes and functions for which the reasons have been delivered.

Good reasons will address the major points in issue. They will explain how and why the decision-maker reached the decision it did,setting out the facts, the law and the reasoning which formed the basis for the decision.

They will also show that the decision-maker didnot fail to consider the arguments and evidence presented by the parties, although, as noted by the Supreme Court of Canada in R.E.M.,not all the evidence need be recited and a detailed description of the reasoning process followed is unnecessary “so long as the findingslinking the evidence to the verdict can be logically discerned” (at para. 20). 93 With respect to reasons for business name dispute decisions specifically, regard may be had to Terranex Information ServicesInc. v.

Ontario (Director) appointed by the Minister pursuant to s. 260 of the Canada Corporations Act, 1990) (1995), (ON SC), 20 B.L.R. (2d) 192 (Ont. C.J. Gen. Div.), where the Director failed to give reasons for his order to Terranex to change itsname. The Director merely stated that Terranex had to change its name because of the likelihood of confusion with the name Teranet,“based on the Regulations and the representations of both parties” (at para. 14). No further clarification of the basis of the decision wasgiven.

Feldman J. made the following comment (at para. 28): …. … [T]he Director’s use of a form letter to deliver the decision, containing no reasons or explanation of the basis for concluding thatthere was a likelihood of confusion, together with the Director’s refusal to elaborate for the purpose of the appeal does not assist theparties or the court. The Director should provide reasons for a decision so that the parties can understand clearly why the decision wasmade and can have confidence that its submissions were understood and considered if not accepted.

The assistance of reasons for areviewing court has already been referred to. 94 Another business name dispute case in which the Director’s reasons were inadequate was the Janus case. In that case,Hutchinson J. stated (at para. 30):

I am not satisfied that the applicant was enabled through the Registrar’s notice directing the change of name to know what the reasons for her decision were. Simply to state that “it is my opinion that the names are similar” and refer to s. 4.2 of the Act [ R.S.A. 1980, c. S- 18 ] and 6(3)(

a) of the Societies Regulation does not amount to giving reasons. The Registrar has only stated a conclusion. The reasons were not proper, adequate or intelligible. The Registrar’s letter does not enable the applicant to assess whether it has grounds of appeal. …. The failure on the part of the Registrar to provide proper, adequate and intelligible reasons for her decision amounts to an error in law.

The Registrar’s decision is vacated and referred back to the actual incumbent Registrar of Corporations to be dealt with following an appropriate review in accordance with the opinion of this Court dealing with all of the issues raised in the societies application. 95 A good example of sufficient reasons in a business name dispute is contained in the case of Northland Office Systems Group Inc. where the Director offered the following reasons for his decision in a letter to the parties (at para. 6): In our opinion the names Northland Stationers

(1963) Ltd. and Northland Office Systems Group Inc. are so similar as to confuse or mislead. In reaching our decision, the tests established by judicial precedent were applied – that is, the visual and oral similarities of the names, the natures of business and proximity of the entities and the persons or class of persons who ordinarily deal with or might be expect (sic) to deal with both entities were considered. The reasons for our decision are as follows: 1. The distinctive elements in both names are the same, i.e. “Northland”. 2.

The natures of business of each is essentially the same, i.e. the sale of stationery and office products. 3. The businesses are located within proximity of each other and have the same trading area, primarily central and north central Saskatchewan. 4. Both entities would deal or might be expected to deal with the same classes of person, i.e. clients and suppliers. 5. There is evidence of confusion and there is substantial likelihood of continued confusion as a result of “Northland Office Systems Group Inc.’s” use of the word “Northland”. 6.

The descriptive words “Stationers” and “Office Products” or “Office Systems” are synonymous and have identical meaning insofar as the public is concerned. The names “Willson Stationers” and “Willson Office Systems” or “Supreme Office Products” and “Supreme Stationers” would, if operating in the same market area, be confused by the public. Accordingly, Northland Office Systems Group Inc. is hereby directed, pursuant to s. 2 of the Business Corporations Act to change its name to some other dissimilar available name.

If you will advise of an alternate name, this office will change your name to that name without fee. 96 For another example of sufficient reasons, see the Registrar’s decision in the case of D. Investments Ltd. v. Director of Business Corporations Branch (Sask.) et al. , 2000 SKQB 66 , 190 Sask.R. 261, where the Registrar conveyed his decision in a letter to the parties, and concluded as follows (at para. 9): …. In our opinion the names Diana’s Restaurant and Friendly Dianas Place are not so similar as to confuse or mislead.

In reaching our decision, the tests established by judicial precedent were applied -- that is, the visual and oral similarities of the names, the natures of the business and proximity of the entities and the persons or class of persons who ordinarily deal with or might be expected to deal with both entities were considered. The reasons for our decision are as follows: 1. There has been no evidence of confusion other than an indication of two inquiries from suppliers about “double orders”. This cannot be viewed as overwhelming evidence of confusion.

2. The businesses appear to have little, if any, overlap of clientele, i.e. Friendly Dianas Place is a restaurant open to the public whereasDiana’s Restaurant cannot be accessed by any public. Therefore, no one should be induced to deal with someone they had no intention to deal. …. 97 Although the Registrar’s decision was later overturned, there was no issue on appeal with the adequacy of the Registrar’sreasons.

In fact, in substituting its decision for that of the Registrar’s (because there was no affidavit evidence before the Registrar), thecourt followed a similar reasoning to that set out in the Registrar’s letter. 98 Recent decisions reveal that there is no clear unanimity of approach on the degree of specificity that will meet the test for thesufficiency of reasons. Compare, for example, the cases of Clifford and that court’s later decision in Law Society of Upper Canada v.Neinstein, 2010 ONCA 193, 317 D.L.R. (4th) 419.

It may be that the degree of significance of the decision to the individual, as well asthe nature of the question being decided, must be considered. It may be that a decision to disbar a lawyer may require more extensiveand detailed reasons than a decision to order a change of a business name. 99 I need not decide that issue here. I have quoted examples of adequate reasons in a business name dispute. The conclusoryreasons in this case do not come close to those levels.

They are not susceptible to effective appellate review and clearly do not evidencea decision-making process of “justification, transparency and intelligibility” as Dunsmuir requires (at para. 47). 100 I would allow the appeal. This brings us to the matter of remedy. I would not order the respondents to change their names orrequire the Director to cancel the respondents’ registrations. This would require this court to make a decision on the merits.

In view ofthe Director’s specialized knowledge in the area, I would vacate the Director’s decision and remit the matter back for a further hearing inaccordance with these reasons. 101 I understand that to send this matter back will involve all parties in additional time and expense. I also acknowledge that theBNRA gives the court the jurisdiction to make the decision itself. However, the adequacy of the reasons is a question independent fromthe merits of the decision. In the case of Punniamoorthy v.

Canada (Minister of Employment and Immigration) (1994), (FCA), 113 D.L.R. (4th) 663 (F.C.A.), the court was of the view that the power to give the decision should not be used unless theevidence on the record is “so clearly conclusive” (Nadarajah v. Minister of Employment and Immigration (1993), 151 N.R. 383 at para.6) that there is only one possible conclusion.

While I do not find it necessary to go so far as to adopt that high a standard, in this case, thereasonableness of the decision is not apparent on its face nor does it arise naturally from the evidence and submissions. 102 The appellant will have its costs against the respondents in this court and the court below. The Director is a decision-makerwhose decision was under review. His submissions were restricted to the nature of the review under s. 14 of the BNRA and the remedy. He made no submission with respect to the merits of the decision and did not ask for costs from any party.

Consequently, no order ofcosts will be made against him. J.A. I agree: J.A. I agree: J.A.