An appeal to the court pursuant to the Business Names Registration Act is a review on the record rather than a hearing de novo

Administrative law – Decisions of administrative tribunals – Director of Companies Office – Business names – Registration – Appeal process – Hearing de novo – Judicial review – Appeals – Compliance with legislation

Brian Neil Friesen Dental Corp. v. Director of Companies Office (Manitoba), [2011] M.J. No. 50, 2011 MBCA 20, Manitoba Court of Appeal, February 9, 2011, F.M. Steel, M.H. Freedman and R.J.F. Chartier J.A.

The appellant, Brian Neil Friesen Dental Corp., carries on business as Images Dental Centre. The respondents carry on business as Dental Image Therapy Centre St. Vital and Dental Image Therapy Centre Garden City. The appellant filed a formal complaint with the Director of Companies Office pursuant to The Business Names Registration Act, C.C.S.M., c. B110 (“the BNRA”). The Director dismissed the complaint on the basis that the names were sufficiently different and thus did not contravene the BNRA. Pursuant to s. 14 of the BNRA, which permits “any person who feels aggrieved” by a decision of the Director to “apply to the Court of Queen’s Bench” for relief, the appellants applied for an order cancelling the business name registrations of the respondents. The chambers judge declined to grant the relief sought. The appellants argue that the chambers judge erred by treating the application under s. 14 as a judicial review of the Director’s decision rather than as a hearing de novo.

The court stressed that in determining whether a hearing is a judicial review or a hearing de novo the first point of reference must always be the language of the legislation. Some statutes clearly indicate how the hearing ought to be treated. In this case, while the English version of s. 14 of the BNRA simply states that one “may apply” to the court, the French version of the provision provides that a person “peut en appeler” or “may appeal” the decision. The court accepted that an application pursuant to s. 14 ought to be properly understood as an appeal.

However, the court noted that in some circumstances a statutory appeal can still require that a hearing de novo take place, and that the nature of the decision appealed from should be examined in order to determine the precise nature of the appeal. An appeal from a specialized tribunal, for example, is more likely to be a review rather than a hearing de novo because the expertise of such a tribunal would be lost if there was a full rehearing. Here, 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 that 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.

The court concluded that the appeal pursuant to s. 14 of the BNRA is in the nature of a review on the record rather than a hearing de novo and dismissed this ground of review.

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