T-2289-84
Pacific Salmon Industries Inc., Cheena B.C. Tra
ders Limited, H & K Sales Ltd., Seaborn Enter
prises Ltd. and O.K. Gift Shop Ltd. (Plaintiffs)
v.
The Queen, the Attorney General of Canada, the
Minister of Transport and Chern S. Heed
(Defendants)
Trial Division, Strayer J.—Vancouver, November
1 and 5, 1984.
Transportation — Regulation of commercial activities at
Vancouver International Airport Judicial review — Motion
seeking interim declarations, injunction and prohibition
Plaintiffs delivering goods to tourist groups at airport —
Avoiding provincial sales tax airport manager warning
plaintiffs to stop conducting business without proper licensing
from Transport Canada — Business necessitating written
authorization of Minister Whether plaintiffs' activities
business within meaning of Government Airport Concession
Operations Regulations s. 7 (GAcoR) Whether s. 7 author
ized by Department of Transport Act Declaration unavail
able on motion unless defendants consent — No authority for
giving declarations on interim basis Plaintiffs contending
defendants acting unlawfully as s. 7 not prohibiting delivery
Injunction cannot issue against Crown but open against gov
ernment officials acting beyond lawful authority — Plaintiffs
having adequate remedy in damages if injunction now refused
but right established at trial — Undertaking to pay damages
to defendants due to granting of injunction inadequate —
Balance of convenience in favour of denying injunction —
Prohibition available but, unless defect patent, Court has
discretion — Affidavit evidence insufficient to warrant grant
ing of prohibition — Department of Transport Act, R.S.C.
1970, c. T-15 Crown Liability Act, R.S.C. 1970, c. C-38
Government Airport Concession Operations Regulations, 1979,
SOR/79-373, s. 7 Aeronautics Act, R.S.C. 1970, c. A-3.
Judicial review Equitable remedies — Injunctions —
Interim and permanent injunctions sought restraining The
Queen and government officials from interfering with delivery
of goods to airport Whether business being conducted at
airport American Cyanamid test applied — Plaintiffs
raising point of substance — Adequacy of damages Plain
tiffs' undertaking to pay damages inadequate — Passenger
circulation obstructed by plaintiffs' activities — Inconve
nienced passengers not compensable pursuant to undertaking
Losses to concessionaires — Balance of convenience —
Other reasons for exercising discretion against granting
injunction.
Judicial review — Prerogative writs Transportation —
Prohibition — Implementation of Government Airport
Concession Operations Regulations, s. 7 as to delivery of goods
to airport — Prohibition or certiorari available as to validity
of delegated legislation if ground alleged appropriate for
adjudication — Court having discretion if defect not patent —
Alternative remedies — Government Airport Concession Oper
ations Regulations, 1979, SOR/79-373, s. 7.
Jurisdiction — Federal Court — Trial Division — The
Queen, Attorney-General, Transport Minister and airport
manager sued for damages over implementation of Regulation
governing commercial undertakings at airports Court
cannot entertain damages claim against individual defendants
Not struck out as Crown potentially vicariously liable for
servants' acts — Injunction available against government offi
cials if acting outside authority.
Practice — Joinder of parties — R. 1716 application by
concessionaire Jet Set Sam Services Inc. to be added as party
defendant claiming losses suffered through activities of plain
tiffs — Court having no jurisdiction over applicant as no such
action could be brought against it for relief sought — No new
viewpoint submitted, applicant not added as intervenor —
Federal Court Rules, C.R.C., c. 663, R. 1716.
The plaintiffs are businesses in Vancouver that sell to tourist
groups in transit at the Vancouver International Airport. Prod
ucts are sold through the plaintiffs' stores then delivered to
these groups at the airport in order to avoid provincial sales tax.
Although they sell various products, their main item is smoked
salmon. Sales of the smoked salmon are arranged through tour
guides also responsible for collecting money from the buyers. In
July 1984, the plaintiffs received letters from the airport's
general manager advising them that they were contravening
section 7 of the Government Airport Concession Operations
Regulations (GAc0R) forbidding the conducting of business in
an airport without proper licensing from Transport Canada and
to cease their activities immediately. Following these events the
plaintiffs commenced an action seeking a declaration that they
are not in breach of section 7 of the Regulations and that the
section is invalid as not being authorized by the Transport Act.
Furthermore, they seek an injunction restraining the defend
ants from prosecuting them and hindering the delivery of their
products. A writ of prohibition is also sought to prevent the
enforcing of section 7 against the plaintiffs with respect to the
delivery of their goods. The plaintiffs limited their request to
restraining the defendants from interfering in the "delivery" of
their products maintaining that "delivery" does not fall within
the scope of section 7. They also seek damages. The plaintiffs
then brought a motion seeking interim relief with respect to the
declarations, injunction and prohibition.
Held, the application is dismissed with costs.
At the outset, an application was made by Jet Set Sam
Services Inc. to be added as a defendant pursuant to Rule 1716
of the Federal Court Rules. Jet Set Sam Services Inc., an
authorized concessionaire selling smoked salmon at the airport,
maintains that the plaintiffs' businesses are causing it substan
tial harm and loss of revenue. It wishes to support the validity
of the Regulations and their application to the plaintiffs. In
light of the case law on the subject, the application cannot be
allowed. An action of this nature could not be brought against
Jet Set Sam Services Inc. for any of the relief sought by the
plaintiffs. The applicant could not be a defendant over which
the Court would have jurisdiction.
As a preliminary matter, it was also decided that the plain
tiffs could not seek the declarations requested. The consent of
the defendants must be secured in order to proceed by way of
motion. Furthermore, there exists no authority for giving decla
rations on an interim basis.
While an injunction cannot be granted directly against the
Crown, it is available to restrain government officials acting or
threatening to act beyond their authority. It is alleged that the
defendants are acting unlawfully in applying section 7 of the
GACOR to the plaintiffs as delivery is not prohibited by the
section. In determining the advisibility of granting an injunc
tion one must consider if damages would be an adequate
remedy if the injunction did not issue at this time, but plain
tiffs' rights were later established at trial. Offering an under
taking to cover potential damages resulting from issuance of
the injunction is unsatisfactory. It is unlikely that damages
could compensate the travelling public for being inconvenienced
or the authorized concessionaires for their lost revenue.
On the balance of convenience, granting of the injunction
should be refused. The defendants' duty to provide a safe and
uncongested terminal for the travelling public outweighs the
interests of the plaintiffs to use public property for private gain.
Furthermore, the true nature of the activities of the plaintiffs
has not been established. As long as that issue is not settled, the
question of application of section 7 to the plaintiffs remains
purely hypothetical. The Court is compelled to exercise its
discretion and refuse the injunction.
As to the request for a writ of prohibition preventing the
application of section 7 to the plaintiffs, the Court must
exercise discretion where the defect invoked is not patent.
Although prohibition is available, the affidavit evidence pre
sented is insufficient to warrant granting of the order at this
time.
CASES JUDICIALLY CONSIDERED
APPLIED:
American Cyanamid Co. v. Ethicon Ltd., [1975] A.C.
396 (H.L.); Le groupe des éleveurs de volailles de l'est
de l'Ontario v. Canadian Chicken Marketing Agency,
[1985] 1 F.C. 280.
REFERRED TO:
Dene Nation v. The Queen, [1983] 1 F.C. 146 (T.D.);
Waterside Cargo Co-operative v. National Harbours
Board (1979), 107 D.L.R. (3d) 576 (F.C.T.D.); Alda
Enterprises Ltd. v. R., [ 1978] 2 F.C. 106 (T.D.); Alberta
Government Telephones v. Canadian Radio-television
and Telecommunications Commission, [1983] 2 F.C.
839; 76 C.P.R. (2d) 268 (C.A.); Sankey v. Minister of
Transport, [1979] 1 F.C. 134 (T.D.); Pacific Western
Airlines Ltd. v. R., [1980] 1 F.C. 86; (1979), 105 D.L.R.
(3d) 44 (C.A.); Conseil des Ports Nationaux v. Langelier
et al., [1969] S.C.R. 60; (1968), 2 D.L.R. (3d) 81; Lodge
v. Minister of Employment and Immigration, [1979] 1
F.C. 775; 94 D.L.R. (3d) 326 (C.A.); Canadian Pacific
Air Lines, Ltd. v. R., [1979] 1 F.C. 39; (1978), 87 D.L.R.
(3d) 511 (C.A.).
COUNSEL:
C. J. O'Connor for plaintiffs.
G. C. Carruthers for defendants.
P. G. Plant for Jet Set Sam Services Inc.
SOLICITORS:
Ladner Downs, Vancouver, for plaintiffs.
Deputy Attorney General of Canada for
defendants.
Russell & DuMoulin, Vancouver, for Jet Set
Sam Services Inc.
The following are the reasons for order ren
dered in English by
STRAYER J.: The plaintiffs are all businesses in
Vancouver which engage, in a large way, in sales
of products to tourist groups. Most of these groups
consist of Japanese tourists. Many of them only
stop at Vancouver in transit to other parts of
Canada or to Japan. All of the plaintiffs except the
O.K. Gift Shop Ltd. sell principally smoked
salmon to members of these groups. O.K. Gift
Shop, which has stores in Vancouver, sells Canadi-
an products such as furs, woollens, souvenirs, etc.
For the most part, the smoked salmon sales are
arranged with the plaintiffs through the tour
guides who also look after collecting from mem
bers of their groups and paying the plaintiffs. With
respect to O.K. Gift Shop Ltd., tourists usually
select items at their stores but arrange for delivery
at the airport in order to obtain exemption from
paying provincial sales tax. With respect to all of
the plaintiffs they deliver the goods, whose pur
chase has been prearranged, to the airport where
they are turned over to the tour groups and
checked in as baggage with the carrier which is
taking them to Japan.
On July 11, 1984, Mr. Chern S. Heed, the
general manager at the airport, sent the following
letter to each of the plaintiffs and to other persons
engaged in similar activities at the airport:
It has come to our attention that a number of operators are
conducting business at the Vancouver International Airport
Terminal building without benefit of a valid Transport Canada
license. This activity is in conflict with our licensed operators
and in violation of the Government Airport Concession Opera
tions Regulations and, in particular, Section 7 thereof which
provides:
"7. Subject to Section 8, except as authorized in writing by the
Minister, no person shall
(a) conduct any business or undertaking commercial or
otherwise, at an airport;
(b) advertise or solicit at an airport on his own behalf or on
behalf of any person; or
(b) [sic] fix, install or place anything at an airport for the
purpose of any business or undertaking."
Operators conducting such unauthorized business at the Van-
couver International Airport are advised to cease and desist
these activities or action will be taken to prevent the continued
breach of the Regulations.
The plaintiffs commenced this action to obtain a
declaration that they are not in breach of section 7
[Government Airport Concession Operations
Regulations, 1979, SOR/79-373] because by
"delivering products to the airport, they are not
`carrying on business at the airport' ". They seek a
declaration that section 7 is invalid because not
authorized by the Department of Transport Act
[R.S.C. 1970, c. T-15]. They further seek an
interim and permanent injunction restraining the
defendants from interfering with the plaintiffs'
"delivering pre-purchased products to the airport"
and restraining the defendants from prosecuting
the plaintiffs "for the delivery of pre-purchased
products to the airport" pursuant to section 7.
They further seek a writ of prohibition to prevent
the defendants from implementing section 7
against the plaintiffs with respect to "the delivery
of pre-purchased products to the airport". They
also seek damages in this action.
The plaintiffs then brought this motion seeking
declarations, an injunction, and prohibition, along
the same lines as described above except that they
are only asking for an interim injunction and not a
permanent injunction at this time.
At the outset, I heard an application from Jet
Set Sam Services Inc. to be added as a party
defendant pursuant to Rule 1716 of the Federal
Court Rules, [C.R.C., c. 663]. Jet Set Sam Ser
vices Inc. is a concessionaire at the airport pursu
ant to an agreement with Her Majesty. It is the
only concessionaire at the airport that sells smoked
salmon. For this privilege and the spaces which it
occupies, it pays very substantial rents. It claims to
have suffered a loss of business through the activi
ties of the plaintiffs at the airport in delivering
pre-purchased smoked salmon there to tour
groups. It therefore wishes to support the validity
of the Regulations and their application to the
plaintiffs in such a way as to restrict their activi
ties at the airport. I dismissed this application on
the authority of Dene Nation v. The Queen, [1983]
1 F.C. 146 (T.D.), Waterside Cargo Co-operative
v. National Harbours Board (1979), 107 D.L.R.
(3d) 576 (F.C.T.D.); and Alda Enterprises Ltd. v.
R., [1978] 2 F.C. 106 (T.D.). Using the test
enunciated in those cases, it appeared to me that
Jet Set Sam Services Inc. could not, in the present
action, be a defendant party over which this Court
would have jurisdiction. Using that test it is hard
to see how, if the other defendants were removed,
such an action could be brought in this Court
against Jet Set Sam Services Inc. for any of the
relief being sought herein. I also noted that while
it might be at least arguable that Jet Set Sam
Services Inc. could, in theory, be added as an
intervenor (see Alberta Government Telephones v.
Canadian Radio-television and Telecommunica-
tions Commission, [1983] 2 F.C. 839; 76 C.P.R.
(2d) 268 (C.A.)), I would have doubts about this
as a matter of law and, as a matter of discretion
which I would in any event have to exercise, I
would not be inclined to add it as an intervenor
since I could not see how it would bring to the case
a point of view different from that of the existing
defendants.
I also decided, as a preliminary matter, that the
plaintiffs could not seek on this motion the decla
rations which they requested. I so held on the basis
that, at least without the consent of the defendant,
declarations cannot be sought by way of motion:
see my decision Le groupe des éleveurs de volailles
de l'est de l'Ontario v. Canadian Chicken Market
ing Agency, [ 1985] 1 F.C. 280 and the authorities
referred to therein at pages 288-289. Further, the
request appears to be for interim declarations and
there is no authority for giving declarations on an
interim basis: see, for example, Sankey v. Minister
of Transport, [1979] 1 F.C. 134 (T.D.). Therefore
the only matters in issue are the requests of the
plaintiffs for the interim injunctions restraining
the defendants from interfering with or prosecut
ing the plaintiffs with respect to "delivering pre-
purchased products to the airport" or "the delivery
of pre-purchased products to the airport"; and the
request for prohibition to prevent the defendants
from implementing section 7 of the Regulations
"with respect to the delivery of pre-purchased
products to the airport".
It will be noted that the plaintiffs have carefully
limited their requests to restraining the defendants
from taking action against the "delivery" of the
products to the airport. In effect they say that this
is all they have been doing, but if they have been
doing more than delivery they would be prepared
to restrict their activities just to that. They further
say that mere delivery does not come within sec
tion 7 of the Regulations which provides that no
person shall, except as authorized in writing by the
Minister, "conduct any business or undertaking,
commercial or otherwise, at an airport". While
counsel was unable to cite any judicial authority
on the meaning of the words "conduct any busi
ness" he argued that it was comparable to "carry-
ing on business", a phrase which has been fre
quently interpreted. Authority was cited to me to
demonstrate that mere delivery by a retailer of
pre-purchased goods to his customer does not by
itself constitute "carrying on business".
Counsel for the defendants contends that the
airport manager, Chern S. Heed, is not a proper
defendant because as a private individual he is not
sueable for damages in the Federal Court where
liability does not arise under a federal statute. He
further contends that because section 7 says that
no one without permission shall "conduct any busi
ness or undertaking, commercial or otherwise, at
an airport" [emphasis added], the activities of the
plaintiffs are prohibited as undertakings, whether
commercial or otherwise, being carried on on air
port property. Further, he introduced some evi
dence to suggest that, in some cases at least, one or
more of the plaintiffs had collected money at the
airport from their customers and that there was
more involved than simply delivery.
Jurisdiction of the Court
It is contended by counsel for the defendants
that this Court cannot entertain a claim for dam
ages against the individual defendants. This
appears to be firmly established by the jurispru
dence. See Pacific Western Airlines Ltd. v. R.,
[1980] 1 F.C. 86; (1979), 105 D.L.R. (3d) 44
(C.A.). Just as in the Pacific Western case, in the
present case there is no "law of Canada" govern
ing or establishing liability of the individual
defendants for damages. This does not mean, how
ever, that they necessarily should be struck out of
the action or that the claim for damages should be
struck out at this time. It may well be possible in
the trial of the action to establish the vicarious
liability of the Crown for damages arising out of
the action of its servants, pursuant to the Crown
Liability Act, R.S.C. 1970, c. C-38. Therefore, I
need not consider that matter further in the
present context.
It is also contended by counsel for the defend
ants that an injunction cannot issue against any of
the defendants because injunctions are not avail
able against the Crown or servants of the Crown.
While it is clear that injunctions may not be issued
directly against the Crown, there is ample author
ity for the proposition that an injunction can be
issued against government officials where they are
acting, or threatening to act, beyond their lawful
authority: see e.g. Conseil des Ports Nationaux v.
Langelier et al., [1969] S.C.R. 60; (1968), 2
D.L.R. (3d) 81; Sharpe, Injunctions and Specific
Performance (1983) at pages 167-171. I have used
the term "government officials" to avoid the
unedifying distinction which is frequently drawn
between "servants of the Crown" and "agents of
the legislature" where it is said the former is
immune from injunctions or any form of mandato
ry order, whereas the latter is not. The real distinc
tion, it appears to me, is based on the nature of the
functions which the government official happens to
be performing at any given time. If those functions
are lawfully authorized, then injunctions are not
available to prohibit their performance: see Lodge
v. Minister of Employment and Immigration,
[1979] 1 F.C. 775; 94 D.L.R. (3d) 326 (C.A.). If
on the other hand, they are not lawfully author
ized, they are susceptible to being enjoined. Fur
ther, if the function is authorized and non-discre
tionary, whereby a duty is owed to an identifiable
person, that person is entitled to seek a mandatory
order for its performance. In the present motion
for an interlocutory injunction, the essential alle
gation is that the defendants are acting without
lawful authority because section 7 of the Govern
ment Airport Concession Operations Regulations
(GAcoR) does not prohibit mere delivery at an
airport of pre-purchased goods. If that could be
established and other conditions were appropriate,
an interlocutory injunction would be available to
the plaintiffs against some or all of the individual
defendants, although not against Her Majesty.
I shall then deal with the particular remedies
sought.
Injunctions
This appears to be an appropriate case for using
the tests set out in American Cyanamid Co. v.
Ethicon Ltd., [1975] A.C. 396 (H.L.). There are
no special circumstances here for rendering that
approach inappropriate. Using the American
Cyanamid criteria I need not, at the outset, consid
er at length the strength of the plaintiffs' case.
Suffice it to say that I think the point raised by the
plaintiffs as to the proper interpretation of section
7 of the GACOR is one of substance and is not
frivolous or vexatious. This is not to say that I find
it compelling, but I need not for these purposes
weigh it further.
As to the adequacy of damages, I am inclined to
think that the plaintiffs will have an adequate
remedy in damages if they do not obtain an inter
locutory injunction but are able, at trial, to estab
lish the right which they allege to carry on delivery
activities at the airport. They may, of course, fail
in their claim for damages if it can be shown that
they have no such right, or if it can be shown that
they were barred from operations at the airport
because they were carrying on activities going
beyond the "delivery of pre-purchased products"
which they allege. The plaintiffs are prepared to
give an undertaking to pay any damages which
may ensue from the issue of the interlocutory
injunction, should it later be shown to have been
wrongly issued, but I am not satisfied that this
would adequately remedy any harm that might
flow from the issue of the injunction. One of the
primary interests which would be affected, were I
to issue the injunction, would be that of members
of the travelling public and those who lawfully
accompany them at the terminal. The affidavits
filed by the defendants indicate that substantial
obstructions at the terminal, both with respect to
circulation of passengers and of traffic, have been
caused by the activities of the plaintiffs. The safety
and convenience of lawful visitors and users of the
airport, while they are the responsibility of the
defendants, are not interests whose loss, for the
considerable period that would be involved until
final judgment, could or would be compensated by
damages collectible pursuant to the undertaking. I
should note that substantial monetary losses
during this period could also very well be suffered
by the various concessionaires with whom the
Crown has agreements involving use of airport
premises. The plaintiffs did agree that the under
taking could cover potential losses which the
Crown might suffer as a result of claims brought
against it by these concessionaires who are paying
very substantial rentals in return for the use of
space and the exclusive right to sell certain prod
ucts at the terminal. It is, at best, uncertain to
what extent such losses could be recovered by
them from the Crown and therefore the value of
the undertaking with respect to what could be very
real economic losses caused to concessionaires by
the interlocutory injunction is somewhat doubtful.
Therefore, I have concluded that if the plaintiffs
do indeed have a good cause of action, they can be
adequately compensated by damages whereas the
undertaking they are prepared to give would not
adequately remedy the injury that could flow from
the issue of an interlocutory injunction.
While the foregoing may be sufficient to deter
mine the matter, looking at the matter more
broadly it seems to me that on the balance of
convenience, the injunction should not be issued.
The defendants, under the Aeronautics Act,
R.S.C. 1970, c. A-3, have the responsibility to the
public for the general management of the Vancou-
ver airport. It has been held by the Federal Court
of Appeal that this obligation creates a public duty
but does not give rise to an individual right of
action: see Canadian Pacific Air Lines, Ltd. v. R.,
[1979] 1 F.C. 39; (1978), 87 D.L.R. (3d) 511
(C.A.). On the material presented to me to date, I
am of the view that this public duty includes the
operation of airport terminals in the interests of
safety and convenience of the travelling public and
the minimization of costs to the taxpayer. The
latter can be furthered through provident arrange
ments with concessionaires. Set against these in
terests are the very particular interests of the
plaintiffs being asserted here to use public prop
erty gratuitously in furtherance of private gain.
The plaintiffs, by their own admissions, have no
authority from the Minister under section 7 of the
Regulations to carry on the activities they have
chosen to perform in the terminal at the Vancou-
ver airport. They have not demonstrated to me any
specific right that they have to carry on such
activities, nor is it obvious to me that they have
any implied authority to do so, given the general
purpose of an airport terminal which is to load and
unload passengers. There is certain evidence that
their activities, until they ceased them last summer
after receiving the warnings, could cause conges
tion and inconvenience to other users of the termi
nal. In these circumstances, I think the balance of
convenience is in favour of allowing the defendants
to continue their system of regulation on behalf of
the majority of travellers not in need of the plain
tiffs' services and requiring these five plaintiffs to
establish, if they can, after a full hearing, the
rights which they say they have to make deliveries
at the Vancouver terminal.
There are other reasons for the exercise of dis
cretion against the granting of the injunction. It is
by no means clear to me that the remedy being
sought here, namely an injunction to prevent inter
ference with "delivery", will really resolve the
question of whether the plaintiffs' actual activities
are prohibited by section 7 of the GACOR. It may
be, as indicated in some of the evidence filed by
the defendants, that what the plaintiffs are doing
goes beyond mere "delivery". In such case this
motion, and indeed the action itself, is dealing with
a hypothetical question which may not effectively
settle the issue of whether the plaintiffs can carry
on their activities at the Vancouver airport. A
prosecution brought against one or more of the
plaintiffs with respect to what they are actually
doing could more effectively settle that question,
and this is another reason for declining to decide a
hypothetical question on the basis of a few affida
vits on which there has been no cross-examination.
Further, there is no evidence to suggest that the
plaintiffs have ever requested permission from the
defendants, as contemplated by section 7, with
respect to the activities they are carrying on at the
airport. Had they done so, there is at least the
possibility that an arrangement satisfactory to
both sides could have been worked out. Their
failure to exhaust this avenue also militates against
exercising discretion in their favour.
Prohibition
As noted earlier, the plaintiffs request a writ of
prohibition to prohibit implementation by the
defendants of section 7 of the GACOR as against
the plaintiffs "with respect to the delivery of pre-
purchased products to the airport". The official
action to be prohibited would appear to be of an
administrative nature, involving presumably the
investigation of possible contraventions of section 7
and the prosecution of charges thereunder where
warranted.
The question was raised by the defendants as to
whether prohibition would lie with respect to such
functions. I am prepared to find that it would, on
the same basis that I held in Le groupe des
éleveurs de volailles de l'est de l'Ontario v.
Canadian Chicken Marketing Agency (supra, at
pages 314-315) that certiorari would lie with
respect to the validity of delegated legislation. The
availability of certiorari or prohibition in such
cases depends on there being a ground alleged
which is appropriate for adjudication. Such a
ground is alleged here because the contention is
that to apply section 7 to the plaintiffs would be
beyond the authority of the defendants since the
act of "delivery" of pre-purchased goods at the
airport is not within the scope of section 7.
The authorities are clear, however, that where a
defect is not patent, the Court has a discretion as
to whether to grant prohibition. One of the bases
for the exercise of that discretion is the existence
of alternative remedies. See generally de Smith's
Judicial Review of Administrative Action (4th
edition, 1980) at pages 416-428. For the reasons
stated above, I have serious doubts that this is the
best way of resolving the question of the legality of
what the plaintiffs are actually doing, on the basis
of the few affidavits upon which there has been no
cross-examination and on the basis that the only
issue is "delivery" which may not, in fact, repre
sent accurately what the plaintiffs are in fact
doing or need to do to carry on their business of
selling Canadian products to tour groups. I will
therefore dismiss this aspect of the motion as well.
ORDER
The application is dismissed with costs.
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