T-571-83
Michael Desborough and Desborough Meat
Market Ltd. (Plaintiffs)
v.
Attorney General for Canada (Defendant)
Trial Division, Grant D.J.—Toronto, October 25
and November 3, 1983.
Parties — Standing — Claim for declaration Weights and
Measures Regulations respecting metric conversion ultra vires
and contrary to Charter freedom of expression — Plaintiffs
selling at retail commodities in Canadian units of measure
ment in violation of Regulations — Defendant moving for
order plaintiffs lack standing — Motion to be allowed only in
clearest cases — Supreme Court of Canada decisions in
Thorson, McNeil and Borowsky followed — Plaintiffs meeting
"genuine interest" test set out in Borowsky — Plaintiffs having
vital interest in issue, as affecting operation of business —
Issue also affecting other businessmen — Issue to be decided
at trial — Motion dismissed — Weights and Measures Act,
S.C. 1970-71-72, c. 36, ss. 4(1),(2), 7(a),(b), 10(h.1) (as added
by S.C. 1976-77, c. 55, s. 9(3)), 35(1),(2),(3) — Weights and
Measures Regulations, C.R.C., c. 1605, ss. 338(1),(2) (as am.
by SOR/81-495, s. 2), 339 (as added idem), 340 (as added by
SOR/79-390, s. 3).
Weights and measures — Metric conversion — Plaintiffs
advertising and selling commodities for retail trade in Canadi-
an units of measurement from premises in Toronto — Weights
and Measures Regulation 338 prescribing use for advertising
purposes of metric units of measurement only in area such as
City of Toronto — Claim for declaration that Regulation 338
ultra vires and in violation of freedom of expression guaran
teed in Charter — Motion by defendant for order that plain
tiffs lack standing — Plaintiffs having vital interest in issue—
Issue affecting operation of plaintiffs' business as well as other
businessmen — "Genuine interest" test in Supreme Court case
of Borowski met — Motion dismissed — Weights and Meas
ures Act, S.C. 1970-71-72, c. 36, ss. 4(1),(2), 7(a),(b), 10(h.1)
(as added by S.C. 1976-77, c. 55, s. 9(3)), 35(1),(2),(3) —
Weights and Measures Regulations, C.R.C., c. 1605, ss.
338(1),(2) (as am. by SOR/81-495, s. 2), 339 (as added idem),
340 (as added by SOR/79-390, s. 3).
Constitutional law — Charter of Rights — Weights and
measures — Metric conversion — Retail sale of commodities
in Canadian units of measurement contrary to Weights and
Measures Regulation 338 — Claim for declaration Regulation
unconstitutional as contrary to Charter freedom of expression
— Motion for order plaintiffs lack standing dismissed —
Issue affecting manner of operation of plaintiffs' business —
Plaintiffs establishing vital interest in issue — Issue of interest
also to business community — Weights and Measures Act,
S.C. 1970-71-72, c. 36, ss. 4(1),(2), 7(a),(b), 10(h.1) (as added
by S.C. 1976-77, c. 55, s. 9(3)), 35(1),(2),(3) — Weights and
Measures Regulations, C.R.C., c. 1605, ss. 338(1),(2) (as am.
by SOR/81-495, s. 2), 339 (as added idem), 340 (as added by
SOR/79-390, s. 3) — Canadian Charter of Rights and Free
doms, being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.).
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Thorson v. Attorney General of Canada et al., [1975] 1
S.C.R. 138; Nova Scotia Board of Censors v. McNeil,
[1976] 2 S.C.R. 265; Minister of Justice of Canada et al.
v. Borowski, [1981] 2 S.C.R. 575.
CONSIDERED:
Smith v. The Attorney General of Ontario, [ 1924] S.C.R.
331; 42 C.C.C. 215.
COUNSEL:
Clayton C. Ruby for plaintiffs.
Arthur C. Pennington, Q.C. for defendant.
SOLICITORS:
Ruby & Edwardh, Toronto, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
GRANT D.J.: The plaintiff company is incorpo
rated under the laws of the Province of Ontario
with a head office in the City of Toronto. The
plaintiff Michael Desborough is the sole share
holder of such company. He is a butcher. Both
plaintiffs together sell meat and other foods and
offer and display the same for sale in retail trade
from premises in the said City.
Both plaintiffs sell, offer for sale, advertise and
display food for sale by retail trade in Canadian
units of measurement. The Weights and Measures
Act, S.C. 1970-71-72, c. 36, as amended pursuant
to section 9 of the Statute Law (Metric Conver
sion) Amendment Act, 1976, S.C. 1976-77, c. 55,
provides as follows:
UNITS OF MEASUREMENT
4. (1) All units of measurement used in Canada shall be
determined on the basis of the International System of Units
established by the General Conference of Weights and
Measures.
(2) The basic, supplementary and derived units of measure
ment for use in Canada and the symbols therefor are as set out
and defined in Part I, Part II and Part III of Schedule I,
respectively.
USE OF UNITS OF MEASUREMENT
7. No person shall, in trade, use or provide for the use of a
unit of measurement unless
(a) that unit of measurement is set out and defined in
Schedule I or II; or
(b) the use of that unit of measurement is authorized by the
regulations.
REGULATIONS
10. The Governor in Council may make regulations
(h.1) prescribing, in respect of any or all categories of trade
and in respect of any or all class or classes of persons
carrying on business therein, in any geographical areas of
Canada, a date beyond which a class, type or design of device
shall not be used in trade unless it is capable of weighing or
measuring in terms of units of measurement set out and
defined in Schedule I;
Subsection 35(1) of the Act provides:
35. (1) Every person who is guilty of an offence under any of
the provisions of sections 23 to 34 is liable
(a) on summary conviction, to a fine not exceeding one
thousand dollars or to imprisonment for a term not exceeding
six months or to both ...
(2) ;Every person who contravenes any provision of this Act
or the regulations, for the contravention of which no punish
ment is elsewhere provided in this Act, is guilty of an offence
and liable on summary conviction to a fine not exceeding one
thousand dollars.
(3) Where a corporation is guilty of an offence under this
Act, any officer, director or agent of the corporation who
directed, authorized, assented to, acquiesced in, or participated
in the commission of the offence is a party to and guilty of the
offence and is liable on conviction to the punishment provided
for the offence whether or not the corporation has been prose
cuted or convicted.
Regulations [Weights and Measures Regula
tions, C.R.C., c. 1605 (as am. by SOR/79-390, s. 3
and SOR/81-495, s. 2)] passed pursuant to such
Act included:
RETAILING OF INDIVIDUALLY MEASURED FOODS AND SCALE
CONVERSION
338. (1) Subject to subsection (2) and section 340, in each
area described in column I of an item of the table to section
341, on and after the date set out in column II of that item,
only metric units of measurement shall be used for advertising
a commodity for retail trade in terms of price per unit of
measurement.
(2) In each area described in column I of an item of the table
to section 341, on and after the date set out in column II of that
item and before December 31, 1983, a Canadian unit of
measurement may be used for advertising a commodity for
retail trade in terms of price per unit of measurement if the
equivalent price per metric unit of measurement is shown in a
manner more prominent than the Canadian unit.
339. Subject to section 340, in each area described in column
I of an item of the table to section 341, on and after the date set
out in column III of that item, no device shall be used in the
retail trade of a commodity unless it is capable of weighing or
measuring in terms of metric units of measurement.
340. No metric unit of measurement of mass or weight or
any multiple or subdivision thereof shall be used for offering,
advertising or displaying a commodity for retail trade in terms
of price per unit of measurement other than the unit or
subdivision thereof set out in the following expressions:
(a) price per kilogram; or
(b) price per one hundred grams.
The plaintiffs' premises in the City of Toronto
was in the area named in such Regulations as one
in which only metric units of measurement could
be used for advertising such a commodity for retail
trade in terms of price per unit of measurement
and in which no device could be used in the retail
trade of a commodity unless it was capable of
weighing or measuring in terms of metric units of
measurement.
In this action the plaintiffs' claim relief
described as follows:
5. The plaintiffs therefore claim as follows:
(a) a declaration that Regulation 338 passed pursuant to The
Weights and Measures Act, Statutes of Canada, 1971, c. 36
as amended pursuant to s. 9(4) of the Statute Law (Metric
Conversion) Amendment Act, 1976, Statutes of Canada, C.
55 is ultra vires and that Regulations 338, 339 and 341 are
unconstitutional as contrary to the guarantee of freedom of
expression contained in the Canadian Charter of Rights and
Freedoms;
The defendant has now moved for an order
declaring that the plaintiffs lack standing to obtain
the relief claimed or that this Court in its discre
tion decline to accept jurisdiction to entertain the
plaintiffs' claim and, if granted, an order dismiss
ing this action with costs.
It is clear that the plaintiffs are carrying on
their retail sale of measured foods and scale con
version contrary to such Regulations but to this
date neither of them have been prosecuted for so
doing nor has any request or attempt been made to
have them comply with such Regulations.
In support of his contention that the plaintiffs
have no standing to entitle them to the relief
claimed, the defendant relies on the case of Smith
v. The Attorney General of Ontario, [1924] S.C.R.
331; 42 C.C.C. 215. In this case the plaintiff
sought a declaration of the Court to the effect that
certain provisions in section 152 of Part IV of the
Canada Temperance Act [R.S.C. 1906, c. 152 (as
am. by S.C. 1919-20, c. 8)] respecting the sale of
alcoholic liquors for beverage purposes were ultra
vires. The plaintiff had not been prosecuted, nor
was he in danger of prosecution under the Act, as
he had merely written to several dealers in Mon-
treal requesting them to supply him in Toronto
with such liquors. They refused to do so on the
ground that doing so would be illegal under such
Act. It was held in the Supreme Court of Canada
that in such a case the plaintiff must establish a
special interest in having the question decided or
that he is in jeopardy by reason of the wrongful
enforcement of the law. The action was dismissed.
In Thorson v. Attorney General of Canada et
al., [1975] 1 S.C.R. 138, the plaintiff suing as a
taxpayer in a class action, claimed that the Offi
cial Languages Act, S.C. 1968-69, c. 54 and
Appropriation Acts providing money to implement
it, were unconstitutional. The defendants submit
ted the plaintiff had no standing to bring the
action. The Court held it was only a directive
statute and so there was no chance of anyone being
prosecuted under its terms. The Attorney General
was unwilling to institute proceedings to test its
validity and the Government refused to direct a
reference for that purpose. The Court held a ques
tion of alleged excess of legislative power is a
justiciable one, and it is open to the Court, in the
exercise of its discretionary powers, to allow a
taxpayer to have such a question adjudicated in a
class action. It was held the right of citizenry to
constitutional behaviour will support standing and
the action was allowed to proceed.
In Nova Scotia Board of Censors v. McNeil,
[1976] 2 S.C.R. 265 McNeil, who was a resident
and taxpayer in the Province of Nova Scotia,
brought application for a declaration that certain
sections of the Theatres and Amusements Act
[R.S.N.S. 1967, c. 304] and certain regulations
passed thereunder were ultra vires. The question
of the plaintiff's standing to bring the action was
raised as a defence. Prior thereto the plaintiff had
appealed to the Lieutenant-Governor in Council
under provisions contained in such Act but it was
held in that attempt that he had no such right of
appeal. He then requested the Attorney General of
the Province to have the constitutionality of the
Act tested in the Court but that request was
rejected by such official. It was held the plaintiff
had done all he could do to have the matter solved
before bringing such action and a serious and
substantial constitutional issue had been raised by
him. It involved a determination as to what mem
bers of the public might view in theatres. The
Court held that, as there was no other practical
way to obtain judicial review of the matter, it was
justified in exercising its discretion to recognize
standing to the plaintiff. The most recent case in
our Courts on the question is Minister of Justice
of Canada et al. v. Borowski, [1981] 2 S.C.R. 575.
The plaintiff therein sought a declaration that
subsections 251(4),(5) and (6) of the Criminal
Code [R.S.C. 1970, c. C-34] permitting procure
ment of miscarriage in certain circumstances were
invalid and inoperative in that they abridged the
right to human life contrary to the Canadian Bill
of Rights, [R.S.C. 1970, Appendix III]. The said
subsections provide exemption from criminal lia
bility and by reason thereof it would be difficult to
find a person directly affected or exceptionally
prejudiced by it who would have cause to attack
the legislation. It was held by a majority of the
Court that to establish status as a plaintiff in a suit
seeking a declaration that legislation is invalid, if
there is serious doubt as to its validity, a person
need only show that he is affected by it directly or
that he has a genuine interest as a citizen in the
validity of the legislation and that there is no other
reasonable and effective manner in which the issue
may be brought before the Court. The plaintiff
had been a crusader in such cause for many years
and, while a Minister in the Manitoba Cabinet,
had canvassed the Federal Government to repeal
or to impugn the validity of such sections of the
Criminal Code.
At page 598, Martland J. delivering the judg
ment of the Court stated:
I interpret these cases as deciding that to establish status as a
plaintiff in a suit seeking a declaration that legislation is
invalid, if there is a serious issue as to its invalidity, a person
need only to show that he is affected by it directly or that he
has a genuine interest as a citizen in the validity of the
legislation and that there is no other reasonable and effective
manner in which the issue may be brought before the Court. In
my opinion, the respondent has met this test and should be
permitted to proceed with his action.
The motion, if allowed, would terminate the
action and deprive the plaintiffs of the right to be
heard on the validity of the Regulations. Such an
order should be granted only in the clearest case.
The plaintiffs have a vital interest in such question
as it affects the manner in which they must carry
on their business. I am not convinced that they
have no standing to be heard. There must also be
many other businessmen in the same position. In
my opinion the issue should be decided at the trial
of the action when relevant evidence may be
adduced and all issues in the case decided at the
same time. See Nova Scotia Board of Censors v.
McNeil (supra) at page 267.
The motion should therefore be dismissed with
costs reserved to the Trial Judge.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.