T-4124-79
Rocois Construction Inc. (Plaintiff)
v.
Quebec Ready Mix Inc., and Levis Ready Mix
Inc., Pierre Viger, and Dominion Ready Mix Inc.,
Jean Desjardins, Marc Crépin, and Verreault
Frontenac Ready Mix Inc., Claude Ferland,
Michel Bérubé, Pierre Legault, and Pilote Ready
Mix Inc., Gaston Pilote (Defendants)
and
Attorney General of Canada and Attorney-Gener
al of Quebec (Intervenors)
Trial Division, Marceau J.—Quebec City, October
29; Ottawa, December 4, 1979.
Jurisdiction — Combines Investigation Act — Civil action
for compensation initiated independently of criminal proceed
ings, pursuant to s. 31.1, after alleged breach of Act by
defendants — Whether or not this recourse reserved exclusive
ly to the provincial jurisdiction — Whether or not provisions
cannot be dissociated from the legislation, and therefore valid
ly adopted by Parliament — Combines Investigation Act,
R.S.C. 1970, c. C-23, ss. 31.1(1)(a),(3), 32(1) — The British
North America Act, 1867, 30 & 31 Vict., c. 3 (U.K.) IR.S.C.
1970, Appendix III, ss. 91(2),(27), 92(13),(16).
In its action based on section 31.1 of the Combines Investi
gation Act, plaintiff claims damages which, it contends, result
ed from an agreement which defendants concluded among
themselves in breach of that Act. The Court agreed to make a
preliminary ruling on two points of law: (1) the constitutional
ity of paragraph 31.1(1)(a) and subsection 31.1(3) of the
Combines Investigation Act and (2) the jurisdiction of the
Federal Court to hear the claim of the plaintiff-respondent. The
provisions under attack give any person who may have suffered
injury as the result of a commission of an act proscribed by
Part V the right to himself institute, independently of any
criminal proceedings, an action in the Federal Court for com
pensation. Defendants contend that the sanction and regulation
of a recourse of this kind are reserved to the exclusive legisla
tive authority of the provinces. Plaintiff maintains, however,
that these are enactments which cannot be dissociated from the
legislation of which they are an integral part, and as such are
validly adopted by Parliament in the exercise of its legislative
authority.
Held, paragraph 31.1(1)(a) and subsection 31.1(3) of the
Combines Investigation Act are ultra vires the power of Parlia
ment. It is not possible to support the legislation in question by
the immediate or ancillary power of Parliament to legislate
respecting the criminal law. The power of Parliament to legis
late on the criminal law does not include regulating the purely
civil effects of acts prohibited on behalf of society, outside the
criminal process. Competition does not constitute a subject of
specific and independent legislation in the same way as the
subjects listed in sections 91 and 92, or even in the same way as
companies incorporated for non-provincial purposes. A general
statute on competition, going beyond the prevention and penali-
zation of restrictive practices and proscribed acts of unfair
competition, could be of national concern, but since it is not a
question of a national emergency, however, in the present state
of the Constitution, that does not suffice to enable Parliament
to adopt it alone. It is not possible to regard the Combines
Investigation Act as a general statute on competition, adopted
pursuant to Parliament's powers regarding trade and commerce
or its power to legislate for the peace, order and good govern
ment of Canada. The provisions in question are not related in a
truly ancillary manner to a general law regarding competition.
The sanction of civil actions in damages benefiting the victim of
a criminal act of unfair competition is not necessarily inherent.
in general legislation designed to preserve competition; at most
it can be seen as properly ancillary because it is necessary to
make the statute more completely effective.
R. v. Zelensky [1978] 2 S.C.R. 940, distinguished. Refer
ence concerning the Anti-Inflation Act [1976] 2 S.C.R-
373, distinguished. In re the Validity of the Combines
Investigation Act and Section 498 of the Criminal Code
[1929] S.C.R. 409, followed. Ross v. The Registrar of
Motor Vehicles [1975] 1 S.C.R. 5, followed. MacDonald
v. Vapor Canada Ltd. [1977] 2 S.C.R. 134, followed.
Proprietary Articles Trade Association v. Attorney-Gen
eral for Canada [1931] A.C. 310, considered. British
Columbia Lightweight Aggregate Ltd. v. Canada Cement
LaFarge Ltd. (unreported), considered. Philco Products,
Ltd. v. Thermionics, Ltd. [1940] S.C.R. 501, considered.
Ex parte Island Records Ltd [1978] 3 All E.R. 824,
considered.
ACTION.
COUNSEL:
Pierre Gaudreau and Jean Morand for
plaintiff.
Louis Crête for intervenor Attorney-General
of Quebec.
Jacques Duellet for intervenor Attorney Gen
eral of Canada.
Hubert Walters and Henri-Louis Fortin for
defendants Quebec Ready Mix Inc. et al.
Gérald Tremblay and J. P. Belhumeur for
defendants Dominion Ready Mix Inc. et al.
SOLICITORS:
Bélanger, Gagnon, Gaudreau & Ass., Quebec
City, for plaintiff.
Boissonneault, Roy, Poulin, Montreal, for
intervenor Attorney-General of Quebec.
Deputy Attorney General of Canada for inter-
venor Attorney General of Canada.
Létourneau & Stein, Quebec City, for defend
ants Quebec Ready Mix Inc. et al.
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for Dominion Ready Mix Inc. et al.
The following is the English version of the
reasons for judgment rendered by
MARCEAU J.: The Court, by order dated Sep-
tember 24, 1979, agreed to make a preliminary
ruling on two points of law raised by the action at
bar. In its action, plaintiff is claiming damages,
which it contends resulted from an agreement
which defendants concluded among themselves in
breach of prohibitions contained in the Combines
Investigation Act, and it bases its action on section
31.1 of that Act. By the terms of the order of
September 24, made by consent of counsel for all
the parties—including representatives of the
Attorney General of Canada and the Attorney-
General of Quebec, who were present at the hear
ing and were at that time formally authorized to
intervene—these two points, which must be deter
mined before the case can go forward, concern:
1. the constitutionality of paragraph 31.1(1) (a)
and subsection 31.1(3) of the Combines Investi
gation Act, R.S.C. 1970, c. C-23, as amended;
and
2. the jurisdiction of the Federal Court to hear
the claim of plaintiff-respondent.
The Court can only dispose finally of the pro
ceedings brought before it on the basis of its lack
of jurisdiction—which is what defendants are ulti
mately seeking—and this is why the two questions
were formulated separately. In fact, however, it is
clear that the response to the second question will
necessarily result from the response given to the
first. That is because this Court has only the
jurisdiction conferred on it by an Act of Parlia
ment, adopted within the limits of its authority (as
the Supreme Court recently noted again in Mac-
Donald v. Vapor Canada Limited % and it is not
disputed that the only Act from which its jurisdic
tion to hear the action at bar may be derived is
I [1977] 2 S.C.R. 134.
that referred to in the first question.
What is put into question here is thus the consti
tutionality of two subsections of a section of the
Combines Investigation Act—two subsections
merely, but containing provisions which stand by
themselves and which are the only ones on which
the action is based. This will easily be seen from a
reading of the whole of the section:
31.1 (1) Any person who has suffered loss or damage as a
result of
(a) conduct that is contrary to any provision of Part V, or
(b) the failure of any person to comply with an order of the
Commission or a court under this Act,
may, in any court of competent jurisdiction, sue for and recover
from the person who engaged in the conduct or failed to comply
with the order an amount equal to the loss or damage proved to
have been suffered by him, together with any additional
amount that the court may allow not exceeding the full cost to
him of any investigation in connection with the matter and of
proceedings under this section.
(2) In any action under subsection (1) against a person, the
record of proceedings in any court in which that person was
convicted of an offence under Part V or convicted of or
punished for failure to comply with an order of the Commission
or a court under this Act is, in the absence of any evidence to
the contrary, proof that the person against whom the action is
brought engaged in conduct that was contrary to a provision of
Part V or failed to comply with an order of the Commission or
a court under this Act, as the case may be, and any evidence
given in those proceedings as to the effect of such acts or
omissions on the person bringing the action is evidence thereof
in the action.
•
•
(3) For the purposes of any action under subsection (1), the
Federal Court of Canada is a court of competent jurisdiction.
(4) No action may be brought under subsection (1),
(a) in the case of an action based on conduct that is contrary
to any provision of Part V, after two years from
(i) a day on which the conduct was engaged in, or
(ii) the day on which any criminal proceedings relating
thereto were finally disposed of,
whichever is the later; and
(b) in the case of an action based on the failure of any
person to comply with an order of the Commission or a court,
after two years from
(i) a day on which the order of the Commission or court
was violated, or
(ii) the day on which any criminal proceedings relating
thereto were finally disposed of,
whichever is the later.
The section speaks of "conduct that is contrary
to any provision of Part V". Part V is titled
"Offences in Relation to Competition". It brings
together, in two sections containing several subsec
tions, a long series of provisions classifying as
criminal, and as such subject to penalty, particular
acts or conduct which are defined and circum
scribed with precision; reference is made to con
spiracy or combination to unduly lessen competi
tion; bid-rigging; conspiracy relating to
professional sport; the creation of monopolies; dis
criminatory sales; misleading advertising; double
ticketing; pyramid selling; referral selling; selling
at bargain prices without having enough items to
sell; selling above the advertised price; and certain
practices found in promotional contests. For pur
poses of illustration, we may read the first of these
provisions, which deals specifically with acts of the
kind with which defendants in the action at bar are
charged:
32. (1) Every one who conspires, combines, agrees or
arranges with another person
(a) to limit unduly the facilities for transporting, producing,
manufacturing, supplying, storing or dealing in any product,
(b) to prevent, limit or lessen, unduly, the manufacture or
production of a product, or to enhance unreasonably the
price thereof,
(c) to prevent, or lessen, unduly, competition in the produc
tion, manufacture, purchase, barter, sale, storage, rental,
transportation or supply of a product, or in the price of
insurance upon persons or property, or
(d) to restrain or injure competition unduly,
is guilty of an indictable offence and is liable to imprisonment
for five years or a fine of one million dollars or to both.
We are thus dealing with enactments which
present no problems of understanding: they give
any person who may have suffered injury as a
result of the commission of an act proscribed by
Part V the right to himself institute, independently
of any criminal proceedings, an action for compen
sation against the perpetrator or perpetrators of
the act, which action will be subject to a number
of specific rules and may be brought in the Federal
Court. However, while the provisions are very
clear in themselves, the constitutional problem
which they raise at first glance is no less so. This
may readily be seen from a cursory review of the
respective contentions of the parties. Defendants,
who are joined by the Attorney-General of
Quebec, contend that the sanction and regulation
of a recourse of this kind have no place in a federal
statute; these are matters which, under the consti
tution, are reserved to the exclusive legislative
authority of the provinces. The plaintiff and the
Attorney General of Canada dispute that: they
maintain that these are enactments which cannot
be dissociated from the legislation of which they
are an integral part, and as such they are validly
adopted by Parliament in the exercise of the legis
lative authority conferred on it by the constitution
al Act. Several extracts from sections 91 and 92 of
The British North America Act, 1867, R.S.C.
1970, Appendix II, No. 5, where legislative powers
are distributed between the two levels of govern
ment, may be and are in fact referred to:
91. It shall be lawful for the Queen, by and with the Advice
and Consent of the Senate and House of Commons, to make
Laws for the Peace, Order, and good Government of Canada,
in relation to all Matters not coming within the Classes of
Subjects by this Act assigned exclusively to the Legislatures of
the Provinces; and for greater Certainty, but not so as to
restrict the Generality of the foregoing Terms of this Section, it
is hereby declared that (notwithstanding anything in this Act)
the exclusive Legislative Authority of the Parliament of
Canada extends to all Matters coming within the Classes of
Subjects next herein-after enumerated; that is to say,-
2. The Regulation of Trade and Commerce.
27. The Criminal Law, except the Constitution of Courts of
Criminal Jurisdiction, but including the Procedure in Crimi
nal Matters.
And any Matter coming within any of the Classes of Subjects
enumerated in this Section shall not be deemed to come within
the Class of Matters of a local or private Nature comprised in
the Enumeration of the Classes of Subjects by this Act assigned
exclusively to the Legislatures of the Provinces.
92. In each Province the Legislature may exclusively make
Laws in relation to Matters coming within the Classes of
Subjects next herein-after enumerated; that is to say,-
13. Property and Civil Rights in the Province.
16. Generally all Matters of a merely local or private Nature
in the Province.
The constitutional question raised by these
provisions is thus apparent, but before considering
it directly it will be most convenient to indicate the
scope of the problem, and in particular to see the
various points its solution must take into account,
by examining more closely the arguments of the
parties.
This section 31.1, from which the two provisions
in question are taken, is new law. It formed part of
the amendments made by Parliament in December
1975 to the Combines Investigation Act, S.C.
1974-75-76, c. 76. The Act itself, however, is, as it
is well known, far from new and it has had,
judicially speaking, a very turbulent history which
it will be as well to keep clearly in mind. I shall
recall here very broadly its main points, and subse
quently return to the more significant of them if
necessary.
Parliament has long been concerned about prac
tices likely to distort the laws of the marketplace
by restraining competition. In 1889 it prohibited
the best known of such practices by a number of
provisions, which three years later were incorpo
rated into the Criminal Code; and in 1910 it
adopted the first The Combines Investigation Act,
S.C. 1910, c. 9, by which it gave an ad hoc body
invested with powers of injunction the duty of
undertaking investigations to uncover prohibited
practices and report on them to the Minister. No
challenge was made in the courts to the criminal
provisions of 1889 or to the 1910 Act.
In 1919, after the war, with the necessities of
life in somewhat short supply, much more vigorous
action was undertaken. Two statutes were adopted.
One of them (9-10 George V, c. 37 [S.C. 1919, c.
37]) created a Board of Commerce with wide
powers of inquiry and compulsion, responsible for
supervising compliance with the provisions of the
other (9-10 George V, c. 45 [S.C. 1919, c. 45]),
which as its title stated dealt with the "Investiga-
tion and Restraint of Combines, Monopolies,
Trusts, and Mergers and the withholding and
enhancement of the price of commodities." The
Board was empowered to order or prohibit any act
required to be done or prohibited by either of the
two statutes, and any failure to comply with its
orders was severely penalized. It was specifically
required to restrain and prohibit the formation and
operation of combines, but its primary concern was
to ensure the supply of goods constituting the
"necessaries of life" such as articles of food, cloth
ing and fuel. The statute provided that no person
should accumulate or withhold from sale unrea
sonable quantities of such "necessaries of life",
and the Board was empowered to make the neces
sary orders to ensure that no individual, whether
trader or private person, should hold such goods in
excessive quantities, engage in any practice cal
culated to raise their cost, or make unfair profits
thereon.. Both Acts gave rise to doubts as to their
constitutionality immediately they were promul
gated, and in fact in 1921 the Privy Council stated
that they constituted a trenching on the powers of
the provinces which was not authorized either by
the initial wording of section 91 of the B.N.A. Act,
by subsection (2) (regulation of trade and com
merce) or by subsection (27) (criminal law) (In re
the Board of Commerce Act, 1919 and the Fair
Prices Act, 1919 [1922] 1 A.C. 191).
In 1923 Parliament made another attempt. It
adopted another Act, on the model of the 1919
statutes but less comprehensive. This new The
Combines Investigation Act, S.C. 1923, c. 9, was
careful to limit the powers of the Board essentially
to those of investigation and reporting, while of
course maintaining the nomenclature of the pro
scribed acts and the penalties associated with
them. In view of the fate of the 1919 statutes, the
new statute was certainly not immune to chal
lenge, and in 1929 the government itself thought it
proper to determine. its validity in the courts. It
was upheld by the Privy Council: as adopted, it
constituted a valid exercise of the powers of Parlia
ment respecting the criminal law (91.27) (Pro-
prietary Articles Trade Association v. Attorney-
General for Canada 2 ). This statute is still the basis
of the present law.
In 1935, by an Act amending the 1923 Act
(25-26 George V, c. 54 [S.C. 1935, c. 54]) and
another creating a federal Trade and Industry
Commission (The Dominion Trade and Industry
Commission Act, 1935, S.C. 1935, c. 59), Parlia
ment made a new body responsible for monitoring
unfair trade practices, empowering it inter alfa to
hear and investigate complaints, make recommen
dations and institute proceedings. The new statutes
were validated by the Privy Council on the same
basis as the 1923 Act (Attorney-General for
Ontario v. Attorney-General for Canada 3 ). In the
same year, 1935, Parliament inserted in the
Criminal Code a provision (section 498A) prohib
iting price discrimination, and this was held intra
vires both by the Supreme Court in Reference Re
Section 498A of the Criminal Code 4 , and by the
Privy Council in Attorney-General for British
Columbia v. Attorney-General for Canadas.
In 1951 retail price maintenance was added to
the list of proscribed acts, and in the following
year superior courts of criminal jurisdiction were
given power to make orders of prohibition and
orders dissolving mergers against persons convict
ed of proscribed acts, in addition to sentences. In
both cases, the Supreme Court held that these
provisions were valid, again because they were
associated with the criminal law (Regina v. Camp-
bell and The Goodyear Tire and Rubber Company
of Canada Limited v. The Queen 6 ).
Finally, there was the last stage: the Act of
December 15, 1975. This was a comprehensive
revision. The result was a Combines Investigation
Act, S.C. 1974-75-76, c. 76, profoundly altered
along the lines suggested by the Interim Report on
Competition Policy submitted to the Government
by the Economic Council of Canada in 1969,
indicating its belief in an economic system in
2 [1931] A.C. 310.
3 [1937] A.C. 405.
4 [1936] S.C.R. 363.
5 [1937] A.C. 368.
6 (1966) 58 D.L.R. (2d) 673 and [1956] S.C.R. 303.
which the production and distribution of goods and
services would be left to the operation of market
forces in a genuine context of free competition '.
The courts may now issue interim injunctions
against anyone whose actions are judicially ques
tionable; the acts proscribed cover services as well
as goods, and the list of them has been consider
ably extended; new rules of procedure are appli
cable; and finally, to come to the matter which
concerns us, as we have seen, a civil remedy has
been created, together with its related procedure,
in favour of anyone who sustains injury as the
result of behaviour contrary to any prohibitive
provision of Part V or of an order made under the
Act.
That several of the new provisions sooner or
later give rise to a new round of constitutional
challenges will surprise none. The members of the
Economic Council were the first to anticipate it. s
However, the same reservations do not apply to all
the debatable provisions, and it should be clearly
borne in mind that only those relating to the civil
action resulting from the commission of a pro
scribed act are in question here. The remainder of
the Act, with all the new provisions, constitutes for
this Court a valid body of legislation to which the
disputed provisions are attached, or in which they
are inserted. These last words, actually, were sug
gested to me by the arguments made before the
Court, the essential points of which I have already,
indicated. I shall now return to them.
If we examine these provisions of the Combines
Investigation Act, sanctioning the possibility of an
action in damages, on their own, it is clear that
there can only be one conclusion: they are intended
7 However, not all the suggestions made by the Council are
contained in the amendments of the 1975 Act to the Combines
Investigation Act: a decision was evidently made to proceed in
two stages, and the second is yet to come.
a Cf the work by Michael Flavell, Canadian Competition
Law: A Business Guide, 1979, published by McGraw-Hill
Ryerson Ltd. See also the article by Peter W. Hogg and
Warran Grover, "The Constitutionality of the Competition
Bill" (1975-76) 1 Canadian Business Law Journal 197, and
S. G. M. Grange, The Constitutionality of Federal Intervention
in the Marketplace—The Competition Case, Montreal, C. D.
Howe Research Institute, 1975.
to apply to a subject covered by subsections (13)
and (16) of section 92 of the B.N.A. Act. A
remedy to compensate for an injury sustained is a
civil right, of a local or private nature. However, it
is clear that the question of constitutionality
cannot be resolved merely from such an observa
tion. Parliament obviously has jurisdiction over
civil rights directly implicated in areas over which
it is competent: the words "property and civil
rights" in subsection 92(13) and "matters of a
private nature" in subsection 92(16) can only be
interpreted by taking into account the fields of
jurisdiction covered by section 91. This is required
both by simple common sense and by the last
paragraph of section 91. As is well known, it has
always been recognized that Parliament can even
trench on a field of provincial jurisdiction, when
such trenching is necessary to give effect to legisla
tion on a subject within its jurisdiction. These rules
for interpreting the sections of the Constitution
relating to the distribution of powers between the
two levels of government are very clearly delineat
ed in this oft-cited passage from the reasons of
Lord Tomlin in the fisheries case (Attorney-Gen
eral for Canada v. Attorney-General for British
Columbia [1930] A.C. 111, at 118):
Questions of conflict between the jurisdiction of the Parlia
ment of the Dominion and provincial jurisdiction have fre
quently come before their Lordships' Board, and as the result of
the decisions of the Board the following propositions may be
stated:—
(1) The legislation of the Parliament of the Dominion, so
long as it strictly relates to subjects of legislation expressly
enumerated in s. 91, is of paramount authority, even though it
trenches upon matters assigned to the provincial legislatures by
s. 92: see Tennant v. Union Bank of Canada [1894] A.C. 31.
(2) The general power of legislation conferred upon the
Parliament of the Dominion by s. 91 of the Act in supplement
of the power to legislate upon the subjects expressly enumerat
ed must be strictly confined to such matters as are unquestion
ably of national interest and importance, and must not trench
on any of the subjects enumerated in s. 92 as within the scope
of provincial legislation, unless these matters have attained
such dimensions as to affect the body politic of the Dominion:
see Attorney-General for Ontario v. Attorney-General for the
Dominion [1896] A.C. 348.
(3) It is within the competence of the Dominion Parliament
to provide for matters which, though otherwise within the
legislative competence of the provincial legislature, are neces
sarily incidental to effective legislation by the Parliament of the
Dominion upon a subject of legislation expressly enumerated in
s. 91:, see Attorney-General of Ontario v. Attorney-General for
the Dominion [1894] A.C. 189; and Attorney-General for
Ontario v. Attorney-General for the Dominion [1896] A.C.
348.
(4) There can be a domain in which provincial and Domin
ion legislation may overlap, in which case neither legislation
will be ultra vires if the field is clear, but if the field is not clear
and the two legislations meet the Dominion legislation must
prevail: see Grand Trunk Ry. of Canada v. Attorney-General
of Canada [ 1907] A.C. 65.
It is again on the basis of this quotation that, in
the recent case of The Queen v. Zelensky 9 , Pigeon
J. defined the theory of the ancillary power in his
reasons for judgment, adding that instead of the
expression "necessarily incidental" (nécessaire-
ment accessoire) in paragraph 3, "truly ancillary"
(vraiment accessoire) or "properly ancillary"
(proprement accessoire) could be used, as it has
been in subsequent decisions, but the phrases in
question were in any case to be regarded as
synonymous.
Naturally, no one is here questioning these basic
assumptions; they are accepted by everyone at the
outset. The opposing arguments before the Court
are concerned with their specific application and
the conclusions that must be drawn from them.
Defendants and the Attorney-General of
Quebec relied solely on the content of the disputed
provisions. They maintained that these provisions
speak for themselves, and there is no basis for
considering them other than by themselves. The
rules which they lay down are manifestly ultra
vires the powers of Parliament, since they relate to
none of the fields specifically mentioned in section
91 of the B.N.A. Act and deal strictly with a
matter of a local nature, involving a civil right,
which section 92 places under the exclusive au
thority of the provinces.
As we have seen, plaintiff and the Attorney
General of Canada object to the sections in ques
tion being viewed in isolation from their context.
They contend that the rules which they contain
may concern a question of civil rights, but they are
rules which are related directly or at least in a
manner that is "properly ancillary" to the area of
federal jurisdiction regulated by the Act contain
ing them. This can readily be determined, in their
9 [1978] 2 S.C.R. 940, at 983 et seq.
view, whether the Combines Investigation Act is
regarded strictly as a criminal law statute within
the meaning of subsection 91(13) of the B.N.A.
Act, or whether it is more properly regarded as a
more general statute relating to competition, regu
lating trade and commerce (the 91(2) power) or
intended to promote peace, order and good govern
ment in the country (the residuary power of the
initial paragraph).
The Court must examine the last two proposi
tions, on which the entire argument of the propo
nents of constitutionality rests, for if neither of
them can be verified then the conclusion of the
opponents must be adopted, namely that, in view
of the subject-matter dealt with, the provisions in
question were in fact ultra vires the powers of
Parliament.
I
The first proposition, then, is that the disputed
provisions are constitutionally valid as being
associated with criminal legislation adopted pursu
ant to the powers conferred on Parliament regard
ing the criminal law. In their argument, plaintiff
and the Attorney General of Canada even make
this their fundamental proposition, since their
approach to defining the purpose of the Act overall
is the one which comes most readily to mind and
which is based in the case law itself.
It will be recalled, in effect, that the first The
Combines Investigation Act was viewed as a crimi
nal law statute, and that the changes or additions
subsequently made to it were always accepted in
the same context. In upholding the 1923 Act, in
Proprietary Articles Trade Association (cited
above), Lord Atkin explained (at page 314) that:
A comparison of the legislation now in question with the two
acts considered in the Board of Commerce Case [1922] 1 A.C.
191 shows that all the features which were held to be objection
able have been omitted. There is moreover an essential distinc
tion. The former legislation was held invalid as an interference
with matters assigned to the Provincial legislatures sought to be
brought within the Dominion powers by ancillary provisions
imposing penalties. Here the primary intention and effect is to
make certain acts, when they are to the public detriment,
offences; the provisions as to investigations being reasonably
necessary for carrying out that primary intention. If any of
those provisions are not directly within s. 91, head 27, they
nevertheless are valid as being ancillary provisions to carry out
the scheme of legislation ....
Further on, at pages 323-324, he stated:
In their Lordships' opinion s. 498 of the Criminal Code and
the greater part of the provisions of the Combines Investigation
Act fall within the power of the Dominion Parliament to
legislate as to matters falling within the class of subjects, "the
criminal law including the procedure in criminal matters" (s.
91, head 27). The substance of the Act is by s. 2 to define, and
by s. 32 to make criminal, combines which the legislature in the
public interest intends to prohibit. The definition is wide,-and
may cover activities which have not hitherto been considered to
be criminal. But only those combines are affected "which have
operated or are likely to operate to the detriment or against the
interest of the public, whether consumers, producers, or oth
ers"; and if Parliament genuinely determines that commercial
activities which can be so described are to be suppressed in the
public interest, their Lordships see no reason why Parliament
should not make them crimes. "Criminal law" means "the
criminal law in its widest sense": Attorney-General for Ontario
v. Hamilton Street Ry. Co. [1903] A.C. 524. It certainly is not
confined to what was criminal by the law of England or of any
Province in 1867. The power must extend to legislation to make
new crimes. Criminal law connotes only the quality of such acts
or omissions as are prohibited under appropriate penal provi
sions by authority of the State. The criminal quality of an act
cannot be discerned by intuition; nor can it be discovered by
reference to any standard but one: Is the act prohibited with
penal consequences? Morality and criminality are far from
co-extensive; nor is the sphere of criminality necessarily part of
a more extensive field covered by morality—unless the moral
code necessarily disapproves all acts prohibited by the State, in
which case the argument moves in a circle. It appears to their
Lordships to be of little value to seek to confine crimes to a
category of acts which by their very nature belong to the
domain of "criminal jurisprudence"; for the domain of criminal
jurisprudence can only be ascertained by examining what acts
at any particular period are declared by the State to be crimes,
and the only common nature they will be found to possess is
that they are prohibited by the State and that those who
commit them are punished.
The approach suggested by the first proposition
of the proponents of constitutionality is thus made
apparent. The Act is undoubtedly largely con
cerned with the criminal law. However, if in
accordance with this approach it is regarded strict
ly as such, can the disputed provisions be con
sidered to relate thereto necessarily or in a manner
that is "properly ancillary"? In my opinion, they
cannot.
Here are provisions which were adopted to
govern a purely civil action, benefiting only private
parties and between private parties, the instituting
of which remains completely independent of any
criminal process. They are certainly not criminal
provisions in themselves, and they cannot become
so merely because the action to which they relate
is one which may result from the commission of
acts that have been declared to be criminal: the
civil effects resulting from the commission of an
act remain civil effects whether the act is prohib
ited as criminal or not. To conclude otherwise
would be to deprive the concept of criminal law as
opposed to civil law of any specific meaning. Any
static, narrow or rigid concept of the criminal law
has long been rejected in interpreting sections 91
and 92 of the B.N.A. Act (Attorney-General for
Ontario v. The Hamilton Street Railway
Company 10 ). It was readily admitted also that the
field of criminal law covered not only the defini
tion of and the providing of penalties for conduct
considered detrimental to society, but its preven
tion as well (The Goodyear Tire and Rubber
Company of Canada Limited v. The Queen").
However, so far as I know it has never been
thought that the power of Parliament to legislate
on the criminal law could include that of regulat
ing the purely civil effects of acts prohibited on
behalf of society, outside the criminal process. This
was clearly indicated by Duff J. in In re the
Validity of the Combines Investigation Act and
Section 498 of the Criminal Code 12 :
The words of head 27 read in their widest sense would enable
Parliament to take notice of conduct in any field of human
activity, by prohibiting acts of a given description and declaring
such acts to be criminal and punishable as such. But it is
obvious that the constitutional autonomy of the provinces
would disappear, if it were open to the Dominion to employ its
powers under head 27 for the purpose of controlling by such
means the conduct of persons charged with responsibility for
the working of provincial institutions. It is quite clear also that
the same result would follow, if it were competent to Parlia
ment, by the use of those powers, to prescribe and indirectly to
enforce rules of conduct, to which the provincial legislatures
had not given their sanction, in spheres exclusively allotted to
provincial control. This has been fully elaborated in the series
of cases just mentioned.
10 [1903] A.C. 524.
'' [1956] S.C.R. 303.
12 [1929] S.C.R. 409, at p. 412.
And, this was repeated by Laskin C.J. in Mac-
Donald v. Vapor Canada Limited":
This last mentioned basis of validity deserves no more than a
brief statement of reasons for rejecting it. Assuming that s. 7(e)
(as, indeed, the other subparagraphs of s. 7) proscribe anti
social business practices, and are thus enforceable under the
general criminal sanction of s. 115 of the Criminal Code
respecting disobedience of a federal statute, the attempt to
mount the civil remedy of s. 53 of the Trade Marks Act on the
back of the Criminal Code proves too much, certainly in this
case. The principle which would arise from such a result would
provide an easy passage to valid federal legislation to provide
and govern civil relief in respect of numerous sections of the
Criminal Code and would, in the light of the wide scope of the
federal criminal law power, debilitate provincial legislative
authority and, the jurisdiction - of provincial Courts so as to
transform our constitutional arrangements on legislative power
beyond recognition. It is surely unnecessary to go into detail on
such an extravagant posture. This Court's judgment in Good-
year Tire and Rubber Co. of Canada Ltd. v. The Queen
([1956] S.C.R. 303), upholding the validity of federal legisla
tion authorizing the issue of prohibitory order in connection
with a conviction of a combines offence, illustrates the preven
tive side of the federal criminal law power to make a conviction
effective. It introduced a supporting sanction in connection with
the prosecution of an offence. It does not, in any way, give any
encouragement to federal legislation which, in a situation
unrelated to any criminal proceedings, would authorize
independent civil proceedings for damages and an injunction.
Thus, Pigeon J. could state clearly and finally in
Ross v. The Registrar of Motor Vehicles 14 :
It should now be taken as settled that civil consequences of a
criminal act are not to be considered as "punishment" so as to
bring the matter within the exclusive jurisdiction of Parliament.
It is true that, in The Queen v. Zelensky, 15 the
Supreme Court recently upheld section 653 of the
Criminal Code, according to which a judge-who
sentences someone convicted of a crime against
property is authorized to include in the sentence an
order for satisfaction or compensation in the vic
tim's favour. However, the Chief Justice, writing
for the majority (Pigeon and Beetz JJ. dissenting)
was careful to ensure that the decision rested on
the notion that the order authorized could in that
instance correspond to a form of penalty for a
crime, as it was an integral part of the sentencing
process. That reasoning can hardly be applied
13 [1977] 2 S.C.R. 134, at pp. 145-146.
'4 [1975] 1 S.C.R. 5, at 13.
15 [1978] 2 S.C.R. 940.
here. The paragraph 31.1(1)(a) remedy is
independent of any criminal proceeding; it in no
way implicates the Crown; and it is governed by
special rules different from those of criminal
procedure: in my view any attempt to liken it to a
new means of constraint or criminal penalty would
be improper.
In short, I do not feel it is possible to support the
legislation in question by the immediate or ancil
lary power of Parliament to legislate respecting the
criminal law.
II
The second proposition of the proponents of
constitutionality is that the disputed provisions are
valid in so far as they are related to legislation
which is wider in scope than purely criminal legis
lation, that is, a statute on competition, adopted
pursuant to the power conferred on Parliament
regarding trade and commerce or the power
regarding peace, order and good government. This
is a more complex proposition than the one which I
have just disposed of.
The first ascribed to the Act itself a meaning
which the courts had always recognized it as
having, so that the only question which arose was
as to the possible connection of the provisions in
question. The proposition which must now be con
sidered, on the contrary, suggests an approach
which is definitely not self-evident. Such an
approach may undoubtedly be suggested, and it
acquires some legitimacy from the fact that Lord
Atkin was careful to emphasize, at the conclusion
of his judgment upholding the 1923 Act in Pro
prietary Articles Trade Association 1 b, that while
the Privy Council did not think it necessary to
consider the possibility of basing the validity of the
Act on the powers of Parliament over trade and
commerce, it should not be inferred therefrom that
such a possibility must be dismissed. But, before
dealing with provisions relating to a general stat
ute on competition, the question must be answered
as to whether it is possible to attribute such scope
to the Combines Investigation Act, having regard
to the powers under which it was allegedly adopt
16 [193J] A.C. 310, at 326.
ed. The legislation cannot be given a scope that
would remove it from the limits within which
Parliament was able to legislate.
In my opinion, the present state of the authori
ties on the interpretation that must be given to
subsection (2) and to the initial wording of section
91 does not provide any basis for concluding that
the power to make laws on trade and commerce, or
to legislate for the peace, order and good govern
ment of Canada, can enable Parliament to adopt
general legislation on competition that will apply
to local commerce as well as to interprovincial or
international commerce.
A. Of all the subsections contained in sections
91 and 92 of the B.N.A. Act, subsection (2) of
section 91 is undoubtedly the one which has been
considered by the Supreme Court and the Privy
Council at the greatest length. Nevertheless, it is
perhaps the one whose exact meaning is still the
least well defined. This is understandable. It
became apparent from the outset that the words
"regulation of trade and commerce", clear though
they may be, could not be taken in their full
meaning without divesting the powers of the prov
inces over property, civil rights and local matters
of a large part of their content, and thus warping
the entire balance of the Constitution. Having
made this assumption, however, the courts have
always been careful subsequently, as recommend
ed by the Privy Council in The Citizens Insurance
Company of Canada v. Parsons," to avoid
attempting to give the provision a narrower or
wider definition than was necessary for decision of
the particular cases submitted for consideration.
This voluminous series of authorities has often
been reviewed. In his reasons in Reference re The
Farm Products Marketing Act 18 , Locke J.
analyzed them at length, and Laskin C.J. recently
did likewise in disposing of MacDonald v. Vapor
Canada Limited (cited above). For the present
purposes, I need only review the general outline.
17 (1881-82) 7 App. Cas. 96.
18 [1957] S.C.R. 198, at 228 et seq.
The power of Parliament to legislate on trade
and commerce appeared at one stage to have been
reduced to an insignificant quantity as the result of
an observation by Lord Haldane in Toronto Elec
tric Commissioners v. Snider 19 :
It is, in their Lordships' opinion, now clear that, excepting so
far as the power can be invoked in aid of capacity conferred
independently under other words in s. 91, the power to regulate
trade and commerce cannot be relied on as enabling the
Dominion Parliament to regulate civil rights in the Provinces.
In fact, the position which appeared to result from
this assertion was later regarded as going too far
and subsequent decisions gradually moved away
from it. However, they did so with considerable
reservations. This may be seen in the findings of
Duff C.J., in Reference re the Natural Products
Marketing Act, 1934 20 :
It would appear to result from these decisions that the
regulation of trade and commerce does not comprise, in the
sense in which it is used in section 91, the regulation of
particular trades or occupations or of a particular kind of
business such as the insurance business in the provinces, or the
regulation of trade in particular commodities or classes of
commodities in so far as it is local in the provincial sense; while,
on the other hand, it does embrace the regulation of external
trade and the regulation of inter-provincial trade and such
ancillary legislation as may be necessarily incidental to the
exercise of such powers.
And below (page 412):
Parliament cannot acquire jurisdiction to deal in the sweeping
way in which these enactments operate with such local and
provincial matters by legislating at the same time respecting
external and interprovincial trade and committing the regula
tion of external and interprovincial trade and the regulation of
trade which is exclusively local and of traders and producers
engaged in trade which is exclusively local to the same
authority. 21
The same reservations may be seen in the observa
tions of Laskin C.J. in MacDonald v. Vapor
Canada Limited (cited above), although the Chief
Justice appeared there willing to return to the
position taken by the Privy Council in Parsons
(cited above), before Lord Haldane made his as
19 [1925] A.C. 396, at 410.
20 [1936] S.C.R. 398, at 410.
21 This judgment was subsequently approved by the Privy
Council and the Supreme Court in Attorney-General for Brit-
ish Columbia v. Attorney-General for Canada, at p. 387, and
Reference re The Farm Products Marketing Act [ 1957] S.C.R.
198, at 209.
sertion, in which Sir Montague Smith had stated
[at page 113]:
Construing therefore the words "regulation of trade and
commerce" by the various aids to their interpretation above
suggested, they would include political arrangements in regard
to trade requiring the sanction of parliament, regulation of
trade in matters of inter-provincial concern, and it may be that
they would include general regulation of trade affecting the
whole dominion. Their Lordships abstain on the present occa
sion from any attempt to define the limits of the authority of
the dominion parliament in this direction.
All of this undoubtedly remains very vague,
especially when one returns to the point of depar
ture. However, from this progression of opinion
itself and the reactions underlying it emerges a
general proposition which in my view is beyond
question. If it must be assumed that in addition to
its exclusive jurisdiction over interprovincial and
international trade, Parliament has, pursuant to
subsection (2) of section 91, power to legislate on
matters which are properly ancillary to interpro-
vincial and international trade, and even possibly
on matters of general regulation affecting Canada
as a whole, great care must be taken that the
exercise of this power does not in any way permit
an encroachment on the powers of the provinces
over local commerce.
It is because a general statute on competition as
such, that is a statute regulating competition
beyond the detection, prevention and penalization
of disapproved and proscribed acts, may make
such an encroachment possible that I do not think
that it can be based on the power of Parliament
over trade and commerce. As the prime mover in
our system of production and exchange of goods
and services, competition depends on so many
factors and takes on so many aspects that it may
give rise to legislation as far-reaching as it is
diversified. To admit that, as such, it is covered by
Parliament's power pursuant to subsection (2) of
section 91, would be to open the door to a potential
trenching on the powers of the provinces which, in
my view, the courts have definitively rejected,
despite their persistent hesitation.
B. The residuary power of Parliament has also
given rise to a vast body of case law, which is at
times difficult to comprehend. However, the recent
decision of the Supreme Court in the Reference
concerning the Anti-Inflation Act 22 , has shed light
on the subject which, I think, now permits a better
understanding.
It has always been readily admitted that the
initial wording of section 91 could not be interpret
ed as authorizing Parliament to invade fields of
provincial jurisdiction solely on the pretext that
standardization of the law throughout the country
appeared desirable. Beyond this fundamental pos
tulate, however, two views have emerged. Some
have concluded that the residuary power could
justify federal legislative intervention once the
problem which it was attempting to solve had
acquired a national dimension. Others felt, how
ever, that apart from legislation dealing with a
distinct and specific subject not related to any of
the subjects listed in section 92 (for example, the
incorporation of companies for non-provincial pur
poses, 23 aeronautics, 24 radio, 25 and the national
capita1 26 ), the residuary power could not support
invasion of a field reserved to the provinces except
in the case of an emergency situation affecting the
country as a whole. The first view, which gave rise
to the so-called "national dimension" theory, could
find support in some cases, the best known being
those of Russell v. The Queen 27 and Attorney-
General for Ontario v. Canada Temperance
Federation 25 . But it was the second that was sup
ported by the great majority of decided cases.
In the Reference concerning the Anti-Inflation
Act the Supreme Court had to rule directly on the
respective validity of these opposing views. It was
then argued in effect that the disputed statute was
22 [1976] 2 S.C.R. 373.
23 The Citizens Insurance Company of Canada v. Parsons
(1881-82) 7 App. Cas. 96.
24 In re the Regulation and Control of Aeronautics in
Canada [1932] A.C. 54 and Johannesson v. Rural Municipali
ty of West St. Paul [1952] I S.C.R. 292.
25 In re Regulation and Control of Radio Communication in
Canada [1932] A.C. 304.
26 Munro v. National Capital Commission [1966] S.C.R.
663.
27 (1881-82) 7 App. Cas. 829.
25 [1946] A.C. 193.
justified under the general residuary power: first,
because inflation had attained proportions creating
a problem of "national dimension"; and second,
because in any case the problem was such that it
resulted in an emergency situation affecting the
entire country. The Act was in fact upheld, a
majority of the members of the Court (Beetz and
de Grandpré JJ. dissenting) acknowledging that it
had been adopted to deal with an emergency situa
tion; but five of the nine judges were careful, in
stating their opinions, to expressly reject the
theory of national dimension. Beetz J. wrote on his
own behalf and that of de Grandpré J., the most
elaborate reasons on the subject, taking great
pains to discuss all the earlier decisions of signifi
cance, but Ritchie J., delivering judgment for him
self and for Martland and Pigeon JJ., was no less
categorical when he observed (at page 437):
I do not consider that the validity of the Act rests upon the
constitutional doctrine exemplified in earlier decisions of the
Privy Council, to all of which the Chief Justice has made
reference, and generally known as the "national dimension" or
"national concern" doctrine. It is not difficult to envisage many
different circumstances which could give rise to national con
cern, but at least since the Japanese Canadians case, I take it
to be established that unless such concern is made manifest by
circumstances amounting to a national emergency, Parliament
is not endowed under the cloak of the "peace, order and good
government" clause with the authority to legislate in relation to
matters reserved to the Provinces under s. 92 of the British
North America Act. In this regard I am in full agreement with
the reasons for judgment prepared for delivery by my brother
Beetz which I have had the advantage of reading, and I have
little to add to what he has said.
I should also say, however, that I cannot find that the
authority of Parliament to pass legislation such as the present
Act stems from any of the enumerated classes of subjects
referred to in s. 91. The source of the federal power in relation
to the Anti-Inflation Act must, in my opinion, be found in the
"peace, order and good government" clause, and the aura of
federal authority to which that clause relates can in my view
only be extended so as to invade the provincial area when the
legislation is directed to coping with a genuine emergency in
the sense to which I have made reference.
It is true that Ritchie, Martland and Pigeon JJ.
did not base their findings on this opinion, and that
it can accordingly be argued that the point has not
been finally resolved. That may be the case for the
Supreme Court, but not for me.
In my opinion, competition, as the prime mover
in an economic system, does not constitute a sub-
ject of specific and independent legislation in the
same way as the subjects listed in sections 91 and
92, or even in the same way as companies incorpo
rated for non-provincial purposes, aeronautics,
radio or the national capital. It seems to me that it
can be said of competition and its promotion what
Beetz J., in discussing the Anti-Inflation Act, S.C.
1974-75-76, c. 75, said of inflation and its contain
ment (at pages 457 and 458):
In my view, the incorporation of companies for objects other
than provincial, the regulation and control of aeronautics and
of radio, the development, conservation and improvement of the
National Capital Region are clear instances of distinct subject
matters which do not fall within any of the enumerated heads
of s. 92 and which, by nature, are of national concern.
I fail to see how the authorities which so decide lend support
to the first submission. They had the effect of adding by
judicial process new matters or new classes of matters to the
federal list of powers. However, this was done only in cases
where a new matter was not an aggregate but had a degree of
unity that made it indivisible, an identity which made it distinct
from provincial matters and a sufficient consistence to retain
the bounds of form. The scale upon which these new matters
enabled Parliament to touch on provincial matters had also to
be taken into consideration before they were recognized as
federal matters: if an enumerated federal power designated in
broad terms such as the trade and commerce power had to be
construed so as not to embrace and smother provincial powers
(Parson's case) and destroy the equilibrium of the Constitution,
the Courts must be all the more careful not to add hitherto
unnamed powers of a diffuse nature to the list of federal
powers.
The "containment and reduction of inflation" does not pass
muster as a new subject matter. It is an aggregate of several
subjects some of which form a substantial part of provincial
jurisdiction. It is totally lacking in specificity. It is so pervasive
that it knows no bounds. Its recognition as a federal head of
power would render most provincial powers nugatory.
There is no doubt that the implementation of a
policy of production and exchange of goods based
on private enterprise and the free market concerns
the country as a whole, which in this regard can
only be seen as constituting a single economic unit;
and I readily admit that a general statute on
competition, going beyond the prevention and
penalization of restrictive practices and proscribed
acts of unfair competition, could be of national
concern. Unfortunately, however, since it is not a
question of a national emergency, I do not think
that in the present state of the Constitution that
suffices to enable Parliament to adopt it alone.
Thus, the approach suggested by the proponents
of constitutionality in their second proposition is
not admissible. It does not appear possible to
regard the Combines Investigation Act as a gener
al statute on competition, adopted by Parliament
pursuant to its power to make laws regarding trade
and commerce or its power to legislate for the
peace, order and good government of Canada. I
could stop there and dispose of the proposition
itself on this basis alone, but in order to fully
explain my thinking I shall undertake to go beyond
this point and to reason on the assumption that the
approach suggested is admissible.
The proposition is that the provisions in question
are related, if not directly then at least in a "truly
ancillary" manner, to a general law regarding
competition. That does not appear to me to be any
more persuasive.
The sanction of a civil action in damages bene
fiting the victim of a criminal act of unfair compe
tition does not seem to me to be necessarily inher
ent in general legislation designed to preserve
competition; at most it can be seen as properly
ancillary, because it is necessary to make the
statute more completely effective. And in fact, it is
on this basis that the argument regarding its con
nection was made. The existence of such an action,
it is argued, encourages individuals to monitor
compliance with the Act themselves and, by their
civil proceedings, penalize offences to which it may
give rise. The situation prevailing in the United
States is cited as a conclusive illustration in this
regard: there, apparently, following the Clayton
Act (1914), which undertook to extend the rights
of action in favour of individuals, the majority of
anti-trust actions are now private. 29
29 This is the observation made by B. C. McDonald in his
study "Private Actions and the Combines Investigation Act", in
chapter 8 of the publication by Butterworths, Competition
Policy, Fotoset by Howarth & Smith.
There is not likely to be any dispute that the
existence of a civil remedy is capable of lending
greater effectiveness to a statute designed to pre
vent harmful practices which are often difficult to
identify. However, to explain the adoption of the
provisions under dispute on the basis of this obser
vation, it has to be assumed that the remedy did
not already exist. Now, I do not think that was the
case.
There can be no doubt, in my opinion, that the
action already existed in Quebec law by virtue of
the general principle of liability recognized in
article 1053 of the Civil Code. (Cf. Beullac, La
responsabilité civile dans le droit de la province de
Québec, 1948, p. 12; Nadeau, Traité pratique de
la responsabilité civile délictuelle, 1971, p. 221; in
French law, Planiol & Ripert, Traité pratique de
droit civil français, 2nd ed., vol. 6, p. 15, No. 12.)
The carefully reasoned judgment recently handed
down by Nadeau J. in Philippe Beaubien & Cie
Ltée v. Canadian General Electric Company
Limited 30 is a notable illustration of this. (See also
Roy v. Blais 31 , Joyal v. Air Canada")
At common law, the situation definitely cannot
be stated in such a simple and decisive manner,
given the absence of a general principle of liability,
but it would not appear to lead to very different
results.
First, it should be noted that a very recent
decision of the Supreme Court of British
Columbia, accompanied by lengthy reasons by
Callahan J., recognized the existence of the civil
action at common law in a case where the facts
were similar to those relied on in the case at bar
(British Columbia Lightweight Aggregate Ltd. v.
Canada Cement LaFarge Ltd. 33 ). More important
ly, there is the principle stated by Duff J. in Philco
Products, Limited v. Thermionics, Limited 34 , in
the following laconic terms: "If B commits an
indictable offence and the direct consequence of
that indictable offence is that A suffers some
special harm different from that of the rest of His
3° [ 1976] C.S. 1459.
3' (1931) 50 Q.B. (Que.) 164.
32 [ 1976] C.S. 1211.
33 An as yet unreported decision of August 24, 1979.
34 [1940] S.C.R. 501 at p. 504.
Majesty's subjects, then, speaking generally, A has
a right of action against B". I would also take the
liberty of reproducing a lengthy citation from the
judgment of Lord Denning M.R. in a case before
the English Court of Appeal, Ex parte Island
Records Ltd, 35 which dealt specifically with the
possible civil remedy of the victim of a criminal
offence:
The result of Gouriet's case may be summarized thus: when
a statute creates a criminal offence, prescribing a penalty for
the breach of it, but not giving any civil remedy, the general
rule is that no private individual can bring an action to enforce
the criminal law, neither by way of an injunction nor by
damages. It must be left to the Attorney-General to bring an
action, either of his own motion or at the instance of a member
of the public who `relates' the facts to him.
But there is an exception to this rule in any case where the
criminal act is not only an offence against the public at large,
but also causes or threatens to cause special damage to a
private individual. If a private individual can show that he has a
private right which is being interfered with by the criminal act,
thus causing or threatening to cause him special damage over
and above the generality of the public, then he can come to the
court as a private individual and ask that his private right be
protected: see Gouriet's case by Lord Dilhorne, Lord Diplock,
Lord Edmund-Davies and Lord Fraser. The court can, in those
circumstances, grant an injunction to restrain the offender from
continuing or repeating his criminal act. It is no answer then
for the defendant to say: 'It is a crime which I am about to
commit. If an injunction is granted, I shall be in double
jeopardy if I break it, on the one hand for contempt of court in
the civil jurisdiction, and on the other hand for a penalty in the
criminal jurisdiction.' The reply to him is simple: 'All the more
reason why you should not break the law. You will then be in
no jeopardy. If you do break it, you will not be punished twice
over. Whichever court deals with you, it will take into consider
ation the punishment which has been, or can be, inflicted by the
other.'
The exception, depends, however, on the private individual
having a private right which he is entitled to have protected.
That was made clear long ago by Holt C.J. in the leading case
of Iveson v. Moore, when he was considering a public nuisance
by stopping up a highway leading to a colliery. It was a
criminal act, but it was held that the colliery owner could bring
an action against the offender if he could show special damage.
Holt C.J. said: `... actions upon the case for nuisances are
founded upon particular rights; but where there is not any
particular right, the plaintiff shall not have an action.'
The question, therefore, becomes this: has the plaintiff a
particular right which he is entitled to have protected? To this
the answer which runs through all the cases is: a man who is
35 [1978] 3 All E.R. 824 at pp. 829-830.
carrying on a lawful trade or calling has a right to be protected
from any unlawful interference with it: see Acrow (Automa-
tion) Ltd v. Rex Chainbelt Inc. It is a right which is in the
nature of a right of property. Such as a right to have the access
to your premises kept clear without being obstructed by nui
sance or smells (see Benjamin v. Storr), or a right to run a
ferry for profit across the river Mersey without being injured
by rail traffic contrary to the penal statute (see Chamberlain
v. Chester and Birkenhead Railway Co), or a right to prevent
spurious notes being circulated to the damage of the plaintiffs
interests (see Emperor of Austria v. Day and Kossuth), or a
right to prevent passing-off (see Levy v. Walker by James L.J.),
or a right to have your servants come unhindered to work, even
though it is only made unlawful by a penal statute (see
Springhead Spinning Co v Riley), or a right to have your
contractual relations maintained inviolate without interference
by others, unless there is just cause or excuse (see National
Phonograph Co Ltd v. Edison-Bell Consolidated Phonograph-
ic Co Ltd, Torquay Hotel Co Ltd v. Cousins and the recent
cricketers case of Greig v. Insole) or a right in a workman to
have his pay slip properly vouched, even though it is only made
unlawful by a penal statute (see Simmonds v. Newport Aber-
cam Black Vein Steam Coal Co, where a declaration was
granted).
In all these cases the unlawful interference may be a tort,
such as fraud or passing-off; or it may be a crime, such as a
public nuisance or a breach of a statute which imposes only
criminal penalties; but whatever be the nature of the unlawful
interference, the party concerned is entitled to come himself to
the courts of law and ask to be protected from the unlawful
interference. It is no answer for the defendant to say: `It is a
crime and so you cannot sue me.' It would be a sorry state of
the law if a man could excuse himself by such a plea, and thus
cause special damage with impunity. For the fact must be
faced: the criminal law is a broken reed in some of these cases;
at any rate in this particular case. The police have not the men
or the means to investigate the offence or to track down the
offenders or to prosecute them. Nor have they the will. Nor has
the Attorney-General. He has, we are told, refused his consent
to a relator action, presumably because no public rights are
involved. So perforce, if the law is to be obeyed, and justice be
done, the courts must allow a private individual himself to
bring an action against the offender in those cases where his
private rights and interests are specially affected by the breach.
This principle is.,capable of extension so as to apply not only
to rights of property or rights in the nature of it, but to other
rights or interests, such as the right of a man to his good name
and reputation (see Margaret, Duchess of Argyll v. Duke of
Argyll) and his right to the lawful transmission of his mail (see
my illustration in Gouriet's case).
I readily admit that the disputed provisions may
have clarified, beneficially regulated and even
possibly enlarged the civil action which the victim
of an act proscribed by the Combines Investigation
Act could already exercise in reliance on the prin
ciples of the civil or the common law alone. I do
not see however on what basis they may thereby be
regarded more favourably than those of section 7
of the Trade Marks Act, R.S.C. 1970, c. T-10
which MacDonald v. Vapor Canada Limited
(cited above) refused to validate, on the basis in
part of the conclusion of Laskin C.J. who, after
analyzing the provisions in question, found thus 36:
Overall, whether s. 7(e) be taken alone or, more properly, as
part of a limited scheme reflected by s. 7 as a whole, the net
result is that the Parliament of Canada has, by statute, either
overlaid or extended known civil causes of action, cognizable in
the provincial courts and reflecting issues falling within provin
cial legislative competence.
At the conclusion of this lengthy analysis, made
necessary by the significance and complexity of
the problem presented, I feel I am in a position to
answer the questions put to me.
To the first question, I would answer no. Para
graph 31.1(1)(a) and subsection 31.1(3) of the
Combines Investigation Act are not valid because
they are ultra vires the powers of Parliament.
Consequently, I would also answer no to the
second question. Subsection 31.1(3) being devoid
of effect, this Court lacks jurisdiction to hear the
claim made by the action instituted.
I do not dispose of the action itself and make no
ruling as to costs, since no request was submitted
in that regard.
36 [1977] 2 S.C.R. 134, at p. 156.
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.