T-183-88
Antrim Yards Ltd., Bakerview Forest Products
Inc., Brink Forest Products Inc., Byrnexco Inc.,
English Bay Cedar Products Ltd., Faulkener
Wood Specialties Ltd., Greenwood Forest Prod
ucts (1983) Ltd., Hollcan Millworks Ltd., Marks
Lumber Limited, Midland Wood Products Ltd.,
Naimark Lumber Ltd., Northwest Pre-Cut Inc.,
Okanagan Lumber Services Ltd., Pacific Pallet
Ltd., Portbec Forest Products Ltd., Prince George
Precut Limited, Quadra Wood Products Ltd.,
Ridge Forest Products Inc., Sauder Industries
Limited, Shera Wood Products Inc., Spruceland
Millworks B.C. Ltd., Spruceland Millworks Ltd.,
Still Creek Forest Products Ltd., Summerland
Forest Products, Tyee Timber Products Ltd.,
Moga Timber Mill Ltd., Peter F. Beulah, John
Brink, Trevor Russell Buddo, George Burns,
Harry Earnest Erskine, Vernon D. Friesen, Jean
Patricia Fujikawa, Levi Giesbrecht, John
Gorman, Morris Grondin, Raymond Harms, Ian
C. Hudson, William LaCoste, William Arthur
McInnes, Erik Madsen, Fred Marks, Barry Nai-
mark, Peter Redeker, William L. Sauder, Ben
Sawatzky, Peter Sheremeta, David M. Sweeney,
Robert F. West and Balwinder Brar (Plaintiffs)
v.
Her Majesty the Queen (Defendant)
INDEXED AS: ANTRIM YARDS LTD. V. CANADA (T.D.)
Trial Division, Strayer J.—Vancouver, March 26;
Ottawa, April 29, 1991.
Constitutional law — Charter of Rights — Equality rights
— Softwood Lumber Products Charge Exemption Order
exempting from 15% export charge only those companies
already exempted by U.S.A. — Corporate plaintiffs not pro
tected under Charter s. 15 which applies only to natural
persons — Distinctions created by Exemption Order not con
trary to s. 15 — S. 15 prohibiting only discrimination on
enumerated or analogous grounds — Prohibited discrimina
tion involving distinctions based on personal characteristics not
readily changed — Plaintiffs not prejudicially affected by
membership in group of companies not exempted from duty as
group not existing before alleged discrimination — Adoption
of distinctions of timeliness of applications and economic
grounds used by American authorities to deny exemption not
"so grossly unfair" or "devoid of any rational relationship to
legitimate state purpose" as to offend against principle of
equality before and under law — None of indicia of discrimi-
nation for identifying analogous grounds (stereotyping, his
torical disadvantage, political isolation) present.
Practice — Parties — Standing — Application for declara
tion of invalidity of Softwood Lumber Products Export
Charge Exemption Order as contrary to Charter, s. 15 and for
recovery of export charges already paid — Requirements of
standing vary according to remedy — Corporate and individu
al plaintiffs granted standing to seek declaration of invalidity
— Application of criteria in Minister of Justice of Canada et
al. v. Borowski — Plaintiff corporations granted standing re:
claim for damages or recovery of money, but individual plain
tiffs denied standing with respect thereto — Only party suffer
ing loss can claim recovery of money or damages.
Construction of statutes — Charter of Rights, s. 15 —
Whether equality rights of natural persons only guaranteed
More precise meaning of "individual" preferred to potentially
broader "personne" in French version as consistent with pro
hibited forms of discrimination involving personal characteris
tics.
This was an application for a declaration that the Softwood
Lumber Products Export Charge Exemption Order was invalid
as inconsistent with Charter, section 15. The plaintiffs also
sought an order discharging the corporate plaintiffs from liabil
ity for unpaid export charges under the Softwood Lumber
Products Export Charge Act, special damages for such export
charges as had already been paid, and general damages for loss
of sales.
American competitors, asserting that the Canadian lumber
industry was unfairly subsidized by government programs,
petitioned the United States Department of Commerce to
impose a 27% countervailing duty on imported softwood
lumber. On June 30, 1986 the Department of Commerce
advised that Canadian exporters had until July 11 to apply for
an exclusion from the countervailing duty order. Some of the
plaintiffs were not notified that they could make such applica
tion. Others, who had been certified by the Canadian Govern
ment as entitled to exclusions, were not approved for exclusion
by the Department of Commerce. When it became apparent
that a countervailing duty of at least 15% would be imposed, an
agreement was reached that a 15% export charge would be
imposed by the Government of Canada on softwood lumber
products exported to the U.S.A. in return for a withdrawal of
the petition. It was agreed that only companies already granted
an exclusion by the Department of Commerce would be
exempted from this charge. Shortly after the agreement was
signed the Softwood Lumber Products Export Charge Act,
which permitted the Governor in Council to "exempt any
person from the requirement to pay such a charge", was
introduced. The Governor in Council then adopted the Soft
wood Lumber Products Export Charge Exemption Order
which exempted the twenty companies and two of their associ
ates already excluded by the U.S.A. from its countervailing
duty. The companies not excluded had to pay the Canadian
export charge throughout 1987.
Charter, section 15 guarantees the right of "[e]very individu
al" to equal protection and benefit of the law. The defendant
argued that the corporate plaintiffs had no standing because
they were not entitled to protection under subsection 15(1),
which only guarantees the rights of individuals. Relying on the
principle in Foss v. Harbottle that only a corporation may sue
for a wrong done to it, the defendant further argued that the
individual plaintiffs had no standing because any alleged loss
they had suffered resulted from injury to the corporations and
not to them. The plaintiffs argued that the use of "personne" in
the French version of section 15 was broad enough to include
corporations.
The plaintiffs submitted that it was "discrimination" to deny
the plaintiff companies an exemption under Canadian law
based on the denial of an exclusion from the foreign counter-
vailing duty pursuant to American law, either because they had
been late applying for an exclusion or because their application
had been refused. The issues were (1) whether the plaintiffs
had standing to bring this action; (2) whether Charter, subsec
tion 15(1) applies to corporations; (3) whether Charter, subsec
tion 15(1) prohibits the type of distinctions made in the Soft
wood Lumber Products Export Charge Exemption Order; and
(4) whether the remedies sought were appropriate.
Held, the action should be dismissed.
(1) As the requirements for standing vary from one remedy
to another, it was necessary to look at each remedy separately.
The corporate and individual plaintiffs had standing to seek
the declaration of invalidity. On the one hand, the defendant
argued that the plaintiffs could not assert a "public interest"
standing because they were seeking relief from taxes, i.e.
because they had a particular interest in setting aside the
Exemption Order. On the other hand, it was argued that the
validity of the Exemption Order could not be attacked by the
plaintiffs because the parties directly affected, the corporate
plaintiffs, had no right to invoke the Charter, and the individu
al plaintiffs who alleged indirect prejudice had no right to
complain of damage to the corporation. In respect of standing
to seek declarations, one had to distinguish between the estab
lishment of standing to bring the action and the ultimate proof
of violation of a substantive right of the plaintiff. Where there
is a justiciable issue, standing may be based on "the right of the
citizenry to constitutional behaviour by Parliament" and equal
ly by the Governor in Council. There was a justiciable issue.
The plaintiff need not show a substantive legal injury to himself
to have standing to sue, provided the criteria for standing for a
declaration of invalidity set out by the Supreme Court of
Canada in Minister of Justice of Canada et al. v. Borowski are
met. Applying those criteria: (1) The possible infringement of
the Charter by the Exemption Order was a serious issue. (2)
The plaintiff companies were directly affected by the law by
being obliged to pay the export charge when certain of their
competitors did not have to pay it. They should not be refused
standing on the ground that they will not be able to make out
their constitutional claim. They have a "genuine interest" as
Canadian entrepreneurs in the validity of the law. A corpora
tion which can demonstrate its own financial loss flowing from
an unconstitutional law has an "interest" in seeking a declara
tion of invalidity. The individual plaintiffs, as officers and
shareholders of companies which have lost money pursuant to a
law, also have a "genuine interest" in attacking the validity of
that law. They were also "directly affected" by the loss of
salary and dividends. (3) The only other means to bring the
matter before the courts would be actions by the defendant to
enforce taxes due or prosecutions of the corporate or individual
plaintiffs under the Act for failure to pay. The plaintiffs did not
have to wait until they are sued or prosecuted to impugn the
statute under which such enforcement measures might be
taken.
Only the plaintiff corporations had standing with respect to
the claim for damages or recovery of money because they were
seeking the recovery of money paid and losses suffered by them
as a result of the Exemption Order. An action for recovery of
money or damages can only be brought by the party who
actually suffered the loss.
(2) The word "individual" in the English version of section
15 guarantees equality rights to natural persons only, according
to its normal meaning and several decisions of the Federal
Court of Appeal. The more precise meaning of "individual" in
the English version of section 15 is more consistent with the
forms of discrimination — involving personal characteristics
prohibited by subsection 15(1) than is the potentially broader
language of the French version.
(3) The distinctions created by the Exemption Order were
not contrary to the guarantees of subsection 15(1). Although
unfavourable treatment of an economic nature, even of a tax
nature, can form the basis for a claim under subsection 15(1),
the grounds for making this unfavourable distinction must
amount to "discrimination" within section 15. There must be
an unfavourable distinction on one of the enumerated or analo
gous grounds. "Discrimination" involves distinctions based on
"personal characteristics" which individuals cannot readily
change.
The plaintiffs were not prejudicially affected because of their
membership in a group i.e. those companies not entitled to
exemption from the U.S. countervailing duty. For a person to
be prejudicially treated due to association with a group, the
group must have existed before the act of alleged discrimina
tion.
The plaintiffs also argued that there could be unconstitution
al discrimination going beyond the grounds enumerated in
subsection 15(1). The adoption by Canadian authorities of the
distinctions of timeliness of applications and economic grounds
used by American authorities was not "so grossly unfair" or
"devoid of any rational relationship to a legitimate state pur
pose" as to offend against the principle of equality before and
under the law and to merit intervention under subsection 15(1).
Those who filed late were partially responsible for their
applications being out of time. The plaintiffs' argument that
the Canadian Government should not have entered into the
agreement could not be accepted since the second guessing of
policy decisions is beyond the "institutional competence of the
courts". Although the prohibited grounds of discrimination
may not necessarily be limited to those enumerated in subsec
tion 15(1) or those analogous thereto, such possibilities have
been narrowed in ways relevant to the present case. Of the
indicia of discrimination for the purpose of identifying analo
gous grounds i.e. stereotyping, historical disadvantage, or politi
cal isolation, none were present in the group represented by the
plaintiffs.
(4) There were several difficulties with the remedies as
sought. A declaration that the Exemption Order was invalid
would not exempt the plaintiffs from payment of the export
charge under the Act. The results would be that the companies
exempted by the Order would have to pay the export charge
and that an order that the corporate plaintiffs be discharged
from all liability for unpaid export charges could not be grant
ed. The claim for "special damages" already paid could not
succeed if the Exemption Order were simply declared invalid.
To recover the charges paid, it would have to be proven that the
payments had been made under coercion resulting in the unjust
enrichment of the defendant.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 1, 15.
Softwood Lumber Products Export Charge Act, S.C.
1987, c. 15, s. 15.
Softwood Lumber Products Export Charge Exemption
Order, SOR/87-480 (as am. by SOR/88-67).
CASES JUDICIALLY CONSIDERED
APPLIED:
Thorson v. Attorney General of Canada et al., [1975] 1
S.C.R. 138; (1974), 43 D.L.R. (3d) 1; 1 N.R. 225;
Minister of Justice of Canada et al. v. Borowski, [1981]
2 S.C.R. 575; (1981), 130 D.L.R. (3d) 588; [1982] 1
W.W.R. 97; 12 Sask. R. 420; 64 C.C.C. (2d) 97; 24
C.P.C. 62; 24 C.R. (3d) 352; 39 N.R. 331; Canadian
Council of Churches v. Canada, [1990] 2 F.C. 534;
(1990), 106 N.R. 61 (C.A.); Foss v. Harbottle (1843), 67
E.R. 189 (Ch.); Edmonton Journal v. Alberta (Attorney
General), [1989] 2 S.C.R. 1326; (1989), 103 A.R. 321;
64 D.L.R. (4th) 577; [1990] 1 W.W.R. 577; 71 Alta.
L.R. (2d) 273; 45 C.R.R. 1; 102 N.R. 321; Association
des détaillants en alimentation du Québec c. Ferme
Carnaval Inc., [1986] R.J.Q. 2513; [1987] D.L.Q. 42
(C.S.); Andrews v. Law Society of British Columbia,
[1989] 1 S.C.R. 143; (1989), 56 D.L.R. (4th) 1; [1989] 2
W.W.R. 289; 34 B.C.L.R. (2d) 273; 36 C.R.R. 193; 91
N.R. 255; R. v. Turpin, [1989] 1 S.C.R. 1296; (1989), 48
C.C.C. (3d) 8; 69 C.R. (3d) 97; 96 N.R. 115.
CONSIDERED:
Reference Re Workers' Compensation Act, 1983 (Nfld.),
[1989] 1 S.C.R. 922; (1989), 76 Nfld. & P.E.I.R. 181; 56
D.L.R. (4th) 765; 235 A.P.R. 181; 96 N.R. 227.
REFERRED TOE
Rogers v. Bank of Montreal, [1985] 5 W.W.R. 193;
(1985), 64 B.C.L.R. (2d) 63; 30 B.L.R. 41 (B.C.S.C.);
affd [1987] 2 W.W.R. 364; (1986), 9 B.C.L.R. (2d) 190
(B.C.C.A.); McCauley v. B.C. (1989), 39 B.C.L.R. (2d)
223 (C.A.); Operation Dismantle Inc. et al. v. The Queen
et al., [1985] 1 S.C.R. 441; (1985), 18 D.L.R. (4th) 481;
12 Admin. L.R. 16; 13 C.R.R. 287; 59 N.R. 1; Irwin Toy
Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927;
(1989), 58 D.L.R. (4th) 577; 25 C.P.R. (3d) 417; 94
N.R. 167; National Anti-Poverty Organization v.
Canada (Attorney General), [1989] 3 F.C. 684; (1989),
60 D.L.R. (4th) 712; 26 C.P.R. (3d) 440; 28 F.T.R. 160;
99 N.R. 181 (C.A.); New Brunswick Broadcasting Co.,
Limited v. Canadian Radio-television and Telecom
munication Commission, [1984] 2 F.C. 410; (1984), 13
D.L.R. (4th) 77; 2 C.P.R. (3d) 433; 12 C.R.R. 249; 55
N.R. 143 (C.A.); Canada (Attorney General) v. Central
Cartage Co., [1990] 2 F.C. 641; (1990), 71 D.L.R. (4th)
253; 109 N.R. 357 (C.A.); Re Aluminum Co. of Canada,
Ltd. and The Queen in right of Ontario; Dofasco Inc.,
Intervenor (1986), 55 O.R. (2d) 522; 29 D.L.R. (4th)
583; 19 Admin. L.R. 192; 1 C.E.L.R. (N.S.)1; 25 C.R.R.
50; 16 O.A.C. 14 (Div. Ct.); Milk Bd. v. Clearview Dairy
Farm Inc., [1987] 4 W.W.R. 279; (1987), 12 B.C.L.R.
(2d) 116 (B.C.C.A.); United States v. Carolene Products
Co., 304 U.S. 144 (S.C., 1938); Jacobs (George Porky)
Enterprises Ltd. v. City of Regina, [1964] S.C.R. 326;
(1964), 44 D.L.R. (2d) 179; 47 W.W.R. 305; Eadie v.
Township of Brantford, [1967] S.C.R. 573; (1967), 63
D.L.R. (2d) 561; Hydro Electric Commission of Nepean
v. Ontario Hydro, [1982] 1 S.C.R. 347; (1982), 132
D.L.R. (3d) 193; 16 B.L.R. 215; 41 N.R. 1.
AUTHORS CITED
Ely, John Hart Democracy and Distrust, Cambridge,
Mass.: Harvard Univ. Press, 1980.
COUNSEL:
Bryan Williams, Q.C. and Meredith A. Quar-
termain for plaintiffs.
Harry J. Wruck and Mary A. Humphries for
defendant.
SOLICITORS:
Swinton & Company, Vancouver, for plain
tiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
STRAYER J.:
Relief Requested
The plaintiffs seek a declaration that the Soft
wood Lumber Products Export Charge Exemp
tion Order,' made under the Softwood Lumber
Products Export Charge Act, 2 was invalid as
being inconsistent with subsection 15(1) of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C.,
1985, Appendix II, No. 44]]. They also seek an
order that the corporate plaintiffs be discharged
from all liability to the defendant for any unpaid
export charge under the said Act, special damages
for such amounts of export charge as have already
been paid by the corporate plaintiffs to the defend
ant, and "general damages".
1 SOR/87-480 of July 30, 1987, as amended by SOR/88-67
of December 31, 1987.
2 S.C. 1987, c. 15.
Before the trial the parties had filed an agreed
statement of facts, and some witnesses and docu
ments were produced at the trial. At the opening
of the trial it was explained that the parties had
agreed that I should decide the issues on the basis
of the evidence which would be produced concern
ing Antrim Yards Ltd. ("Antrim") and Prince
George Precut Limited ("PGP"), two of the corpo
rate plaintiffs, and on the evidence concerning
William LaCoste and William McInnes, major
shareholders of Antrim and PGP respectively,
being two of the individual plaintiffs. The parties
accepted that my decision in respect of these par
ties would be applied to the other plaintiffs.
It was also agreed that I would not need to
determine the quantum of damages, if any, such
matter being left presumably for a reference to be
ordered in the judgment if necessary.
Facts
The corporate plaintiffs in question were at all
relevant times secondary manufacturers of soft
wood lumber products in Canada and exporters of
such products to the United States. As I under
stand it, a "secondary manufacturer" is one who
does not directly cut trees in the forest, but who
takes rough cut lumber and processes it into pre
cise dimension material, cuts or finishes wood
parts to the specification of certain end users, or
"upgrades" lower quality cuts obtained from pri
mary producers by selective trimming and piecing.
According to the agreed statement of facts, on
May 19, 1986 the Coalition for Fair Lumber
Imports, an American group representing soft
wood lumber associations and forest product com
panies in the United States, filed a petition with
the United States Department of Commerce alleg
ing that the Canadian lumber industry was unfair
ly subsidized by certain federal and provincial
programs. It asked that a 27% countervailing duty
be placed on certain softwood lumber products
imported into the United States from Canada. On
or about June 11, 1986, the Department of Com-
merce commenced an investigation in response to
the petition.
The defendant, represented by the Government
of Canada, became aware of this petition on the
day it was filed. The Canadian Forest Industries
Council which represents eighteen member asso
ciations (which in turn represent most primary
lumber producers in Canada and some secondary
lumber producers) also became aware of it at an
early date. It advised its members as early as June
3 of the investigation and informed them that they
could request an exclusion from a countervailing
duty order. According to the agreed statement of
facts, it was not until June 30, 1986 that the
Department of Commerce officially informed the
Government of Canada that requests for exclusion
would be considered and that the deadline for
submitting such requests was July 11, 1986. Any
Canadian company wishing to request an exclusion
was required to inform the Department of Com
merce by that date. Thereafter to complete their
applications such companies would have to answer
a questionnaire and the Government of Canada
was then required to certify with respect to each
company whether it benefited from any such "sub-
sidy" program. Even for those companies so bene
fiting, if the Government of Canada certified that
their benefits were "de minimis" they would still
be eligible for an exclusion. The questionnaires
and certifications had to be completed by October
16, 1986.
At the outset, according to the evidence, the
Government of Canada in consultation with pro
vincial governments decided to rely on the Canadi-
an Forest Industries Council to inform its member
associations who would in turn inform their mem
bers. This was thought to be the best means of
making the Canadian softwood manufacturing
industry aware of the possibility and means for
obtaining an exclusion from any possible counter-
vailing duty. Typical of various of the plaintiff
companies, Antrim was not a member of any
association affiliated with the Canadian Forest
Industries Council and therefore received no notice
concerning applications for exclusions. PGP was a
member of the British Columbia Council of Forest
Industries, a member association of the Canadian
Forest Industries Council, and thus did receive
notification. By July 11, 1986, fifty-nine Canadian
companies had applied to the Department of Com
merce in Washington for exclusions. PGP was one
of these. Antrim, being unaware of the need or
possibility to apply for an exclusion, did not do so
before July 11. By October 16, the Government of
Canada had certified forty-seven of the fifty-nine
timely applicants as being entitled to exclusions.
This included PGP which was certified as receiv
ing only de minimis benefits under the alleged
"subsidy" programs.
On October 16, 1986, the Department of Com
merce issued a preliminary determination finding
that subsidies to Canadian producers amounted to
15% of the value of the lumber produced and it
imposed a preliminary countervailing duty of 15%
on certain softwood lumber products exported to
the United States from Canada. Of the forty-seven
companies certified by the Government of Canada
as being entitled to exclusions, only twenty were
approved for exclusion by the Department of
Commerce.
A final determination as to the existence of a
subsidy was required to be made by the Depart
ment of Commerce by December 31, 1986. It was
not known by the Government of Canada with
complete certainty whether the final determination
would be the same as the preliminary determina
tion, whether there would be any significant coun-
tervailing duty and if so in what amount or wheth
er further exclusions would be granted beyond the
twenty already granted. The Government of
Canada, specifically the Department of External
Affairs and International Trade, prepared new
submissions in respect of companies whose timely
applications for exclusion had been turned down,
and also received and processed for certification
applications from other companies who had only
heard about the possibility of applying after the
July 11 deadline had passed. Antrim, as one of the
latter companies, had only heard of the possibility
of exclusions after October 16 when it learned that
twenty companies, including some of its competi
tors, had been excluded. Its application was pro
cessed by the Department of External Affairs and
International Trade. Notwithstanding the fact that
the U.S. Department of Commerce indicated on
December 4, 1986 that it would consider no new
applications for exemptions beyond those received
prior to July 11, the Government of Canada on
December 23 submitted seventy additional
applications with the proper certification, together
with eleven revised certifications for companies
which had filed a request before July 11 but had
been turned down in the decision announced on
October 16.
According to the agreed statement of facts,
however, as the dispute progressed it had become
increasingly apparent to the Government of
Canada that the Department of Commerce deter
mination would be unfavourable and that a coun-
tervailing duty of at least 15% would be imposed
and perhaps one as high as 27%. During this
period after October 16 discussions were also pro
ceeding at the political level. In answers obtained
by the plaintiffs on examination for discovery of
Donald Campbell, Assistant Deputy Minister
(United States), Department of External Affairs
and International Trade, and from documents pro
duced in connection therewith and put in as evi
dence by the plaintiffs, it appears that the then
Minister for International Trade, Honourable Pat
Carney, had discussions with Malcolm Baldridge,
the United States Secretary of Commerce. There
was also a meeting of Canada's first ministers in
Vancouver on November 21, 1986 where the
matter was discussed. An agreement was reached
in support of a proposal whereby, in return for a
withdrawal of the countervail proceeding before
the Department of Commerce in Washington, the
Canadian Government would take action (in the
words of the news release following that meeting)
... that will allow the provinces to retain the right to manage
their natural resources without foreign restrictions and that will
retain resource revenues in Canada.
By this time the Government of Canada had
already proposed to the Government of the United
States, on or about November 16, that the dispute
be settled by the imposition by the Government of
Canada of a 15% export charge on certain soft
wood lumber products exported from Canada to
the United States, in return for the withdrawal of
the countervailing duty petition to the Department
of Commerce. It is admitted that during these
negotiations the Government of Canada was aware
of the unequal treatment already accorded to
Canadian companies, as between those who had
successfully applied prior to July 11 for an exclu
sion and those companies such as Antrim and PGP
who in the opinion of the Government of Canada
were also entitled to exclusion but for whom there
seemed little prospect of exclusion in the process
then under way.
The agreement finally reached between the Gov
ernments of Canada and the United States was set
out in a memorandum of understanding which was
finalized on December 30, 1986. It provided for
the withdrawal of the countervail petition and for
the imposition by the Government of Canada of a
15% export charge on certain softwood lumber
products exported from Canada to the United
States on or after January 8, 1987. It was under
stood that the only companies which could be
exempted from this charge would be the twenty
already granted an exclusion by the Department of
Commerce to the countervailing duty, it having
been made clear (according to the agreed state
ment of facts) by the U.S. negotiators that there
would be no agreement if more than the existing
exclusions were insisted upon. Shortly after this
agreement was signed the Government of Canada
introduced in Parliament the Softwood Lumber
Products Export Charge Act which was eventually
adopted and proclaimed on July 20, 1987. Subsec
tion 15(1) of that Act provided, inter alia, that the
Governor in Council could "exempt any person
from the requirement to pay such a charge". On
July 30, 1987 the Governor in Council adopted the
Softwood Lumber Products Export Charge
Exemption Order ("Exemption Order") which
exempted twenty-two companies from the require
ment to pay the export charge imposed by the Act.
These twenty-two companies were the twenty com
panies already excluded by the U.S. from its coun-
tervailing duty plus two additional companies
agreed to be associated with two respective exclud
ed companies and to have been covered by the
U.S. exclusionary decision. Neither Antrim nor
PGP were, of course, exempted. Those companies
not exempted were obliged to pay the Canadian
export charge throughout 1987. By January 1,
1988 all company exclusions were ended as prov
inces replaced the export charge with other meas
ures to capture additional revenues for the prov
ince while avoiding any further countervail action.
During 1987 PGP paid only part of the export
charge owing by it: it remitted some $203,000 but
failed to pay the remainder owing, the claim of the
Government of Canada for the unpaid remainder
together with interest being, at the time of trial,
some $380,000. Antrim paid all of the export
charge due from it in 1987, some $205,000. As
noted earlier, these plaintiff companies seek the
return of any charge paid in 1987 and in the case
of PGP a discharge from liability for any unpaid
export charge.
The plaintiff companies also claim general dam
ages, and I understand from the tenor of argument
that these damages allegedly include losses said to
be suffered by the plaintiff companies through loss
of sales experienced as a result of certain of their
competitors being exempted from payment of the
export charge pursuant to the Exemption Order. It
was agreed that the quantum of damages was not
a matter for determination at trial but there was a
dispute between counsel as to whether the plain
tiffs needed to establish some loss in order to
enable the Court to make a finding of liability. It
was further disputed as to whether the plaintiffs
had in fact provided proof of any loss due to
certain of their competitors being exempted. How
ever, in examination for discovery answers entered
at trial Mr. Donald Campbell, representative of
the defendant, had admitted that the companies
included in the Exemption Order would have a
"competitive advantage" over the companies not
exempted from payment of the export charge.
There was also evidence on behalf of both Antrim
and PGP to the effect that they had lost sales as a
result of the export charge being imposed on them.
While the evidence was seriously lacking in specif
ics it was not effectively refuted on cross-examina
tion or by any evidence adduced by the defendant.
I find that there was sufficient evidence of finan
cial prejudice to the plaintiffs at least to sustain a
claim for a declaration of invalidity (other criteria
being met) and probably to support a finding of
liability, albeit that on a reference to fix quantum
it would be necessary for the plaintiffs to establish
any actual damages suffered on a precise cause
and effect basis to be laid out in the terms of the
reference. For reasons which will become apparent
later, I do not believe that the plaintiffs' case
stands or falls on this issue.
The two individual plaintiffs whose situations
provide the "test case" for all the named individual
plaintiffs both testified. They are William Arthur
McInnes, President of PGP and William LaCoste,
a Vice-President of Antrim. Each testified that
because of his company's losses he suffered a
reduction in income. I believe this establishes a
sufficient prejudice to them to make out a prima
facie case of damages which could be particula
rized on a suitably instructed reference, were all
the necessary other elements of liability estab
lished. Again, for reasons which will become
apparent, I do not think all the individual plain
tiffs' claims can be dismissed out-of-hand simply
because of lack of specific evidence as to their
losses. There are more fundamental issues upon
which the case must turn.
Issues
The principal issues flowing from the pleadings
and argument appear to me to be:
(1) Do the corporate and individual plaintiffs
respectively have standing to bring this action?
(2) Does subsection 15(1) of the Canadian Chart
er of Rights and Freedoms protect corporations
against discrimination?
(3) Does subsection 15(1) of the Charter prohibit
the type of distinctions made in the Softwood
Lumber Products Export Charge Exemption
Order?
(4) If the distinctions under the Exemption Order
are prohibited by subsection 15 (1) of the Charter,
are they nevertheless justifiable under section 1 of
the Charter?
(5) Are the remedies sought by the plaintiffs
available and appropriate?
Conclusions
I shall deal with each of these issues in turn.
Standing
The essential argument of the defendant is that
the corporate plaintiffs have no standing because
corporations are not entitled to protection under
subsection 15(1) of the Charter, and the individual
plaintiffs have no standing because any alleged
loss they have suffered has been suffered due to
injury to the corporations and not to them. With
respect to the latter point, reliance is placed on the
principle in the case of Foss v. Harbottle 3 that
only a corporation may sue for a wrong done to it.
In matters of standing, it is necessary to look at
each remedy separately since the requirements of
standing vary from one to another. One of the
remedies being sought here is a declaration of
invalidity. It seems to me that the defendant goes
too far in asserting that none of the plaintiffs have
standing to seek a declaration of the constitutional
invalidity of the Exemption Order. On the one
hand the defendant argues that the plaintiffs
cannot assert a "public interest" standing because
they are after the recovery of, or relief from,
taxes—i.e. because they have a particular interest
in setting aside the Exemption Order. On the other
hand the defendant argues that the validity of the
Exemption Order cannot be attacked by either of
these parties because the parties directly affected,
the corporate plaintiffs, have no right to invoke the
constitutional norm in question, and the individual
plaintiffs who allege to be indirectly prejudiced by
the Exemption Order have no right to complain of
damage to the corporation.
In respect of standing to seek declarations, at
least, it is I believe necessary to distinguish be
tween the establishment of the standing of the
plaintiff to bring the action and the ultimate proof
of violation of a substantive right of the plaintiff.
As Laskin J. [as he then was] said in Thorson v.
Attorney General of Canada et al., where there is
a justiciable issue standing may be based on
... the right of the citizenry to constitutional behaviour by
Parliament ....
The same can equally be said of constitutional
behaviour by the Governor in Council acting under
Acts of Parliament. There is no dispute that there
3 (1843), 67 E.R. 189 (Ch.); followed in such Canadian cases
as Rogers v. Bank of Montreal, [1985] 5 W.W.R. 193
(B.C.S.C.); affd [1987] 2 W.W.R. 364 (B.C.C.A.); and
McCauley v. B.C. (1989), 39 B.C.L.R. (2d) 223 (C.A.).
4 [1975] 1 S.C.R. 138, at p. 163.
is a justiciable issue involved in this case. The
requirements for standing for a declaration of
invalidity of a law have been stated by the
Supreme Court to be that: there must be a serious
issue as to invalidity, the person seeking a declara
tion must show that he is affected directly by that
law or has a "genuine interest as a citizen" in its
validity, and that there is no other reasonable and
effective manner in which the issue may be
brought before the Court. 5 It is obvious from the
modern jurisprudence concerning "public interest"
standing to seek declarations of invalidity, and in
particular from the very case in which these cri
teria were authoritatively enunciated, the Borow-
ski case, that it is not essential that a plaintiff
seeking such a declaration be able to show a
substantive legal injury to himself in order to have
standing to sue. In relying on Charter jurispru
dence it is necessary to distinguish cases where
claims for declarations have failed not for want of
standing but because of an inability to establish a
substantive right or the denial thereof. 6 If a plain
tiff meets the three criteria referred to above he
may be recognized as having standing, even where
he cannot demonstrate that he is personally en
titled to the substantive constitutional right whose
denial he alleges.
In applying these three criteria to the present
case, it is not in dispute that there is a serious issue
to be considered as to the possible infringement of
the Charter by the Exemption Order. The second
5 Minister of Justice of Canada et al. v. Borowski, [1981] 2
S.C.R. 575, at p. 598.
6 See e.g. Operation Dismantle Inc. et al. v. The Queen et al.,
[1985] 1 S.C.R. 441; Irwin Toy Ltd. v. Quebec (Attorney
General), [1989] 1 S.C.R. 9' 7 with particular reference to the
unsuccessful claim based on section 7 of the Charter, at pp.
1002-1004; Edmonton Journal v. Alberta (Attorney General),
[1989] 2 S.C.R. 1326, at p. 1382 where La Forest J. writing
for three judges, expressly made this distinction and declined to
deal with the standing issue.
criterion, that the plaintiff either be affected
"directly" or that he have a "genuine interest as a
citizen" in the validity of the legislation, would
appear to me to be met here by both the corporate
and the individual plaintiffs. The plaintiff compa
nies allege that they have been directly affected by
the law in question by being obliged to pay the
export charge when certain of their competitors
did not have to pay it, and they allege the invalidi
ty of this law which has so affected them. They
should not be refused standing simply on the
grounds that they will not be able to make out
their constitutional claim: that might have been a
basis for applying to have the action struck out on
substantive grounds but is not a proper basis for
denying them standing at this point. Further, they
can be seen to have a "genuine interest" (I attach
no particular importance to the words "as a citi
zen" found in the Borowski decision) as Canadian
entrepreneurs in the validity of this law. The Fed
eral Court of Appeal in Canadian Council of
Churches v. Canada' recognized that a corpora
tion could have sufficient interest in the fairness of
treatment for refugees to seek declarations as to
the invalidity of amendments to the Immigration
Act, 1976 8 at least where there was "no other
reasonable and effective manner" in which such
issues might be brought before the Court—the
third criterion enunciated in Borowski for standing
to seek a declaration of invalidity. A fortiori a
corporation which can demonstrate its own finan
cial loss flowing from an unconstitutional law must
surely have an "interest" of some sort in seeking a
declaration of invalidity.
It would also appear that the individual plain
tiffs, as officers and shareholders of companies
which have allegedly lost money pursuant to a law,
have a "genuine interest" in attacking the validity
of that law. They can also be seen as "directly
affected" by that law, certainly much more so than
7 [1990] 2 F.C. 534 (C.A.), at pp. 546-547.
8 S.C. 1976-77, c. 52.
the individual plaintiff who sought the declaration
in the Borowski case. If the individual plaintiffs
could prove their damages, these would consist of
loss of salary and dividends which losses would be
direct effects of the law.
With respect to the third Borowski criterion as
to whether the validity of the Exemption Order
might be brought before the courts by other
means, it appears to me that the only other means
probable would be actions by the defendant to
enforce taxes due or prosecutions of the corporate
or individual plaintiffs under the Softwood
Lumber Products Export Charge Act for failure to
pay. I do not understand the jurisprudence on
standing to seek declarations of invalidity to
require plaintiffs to wait until they are sued or
prosecuted to impugn the statute under which such
charges might be laid.
In the exercise of my discretion I would there
fore grant standing to the corporate and individual
plaintiffs to seek the declaration of invalidity.
With respect to the claim for damages or recov
ery of money, I think it will suffice to say that the
plaintiff corporations have standing because what
they seek is the recovery of money paid by them
and losses allegedly suffered by them as a result of
the Exemption Order. I am unable to find any
basis for standing for the individual plaintiffs to
seek recovery of money paid out by their compa
nies or business losses suffered by their companies
alleged to be attributable to the impugned Order. I
believe the rule in Foss v. Harbottle 9 precludes
any action by them as a matter of law. Unlike an
action for a declaration, an action for recovery of
money or damages can only be brought by the
party who actually suffered the loss. It was the
corporations who were the taxpayers and who were
the competitors of those exempted by the Exemp
t Supra, note 3.
tion Order. I therefore find that the individual
plaintiffs lack standing to claim recovery of tax
monies paid or damages suffered pursuant to the
Exemption Order.
Application of Charter subsection 15(1) to
corporations
Subsection 15(1) of the Charter provides as
follows in both official languages:
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
The defendant takes the position that because this
subsection guarantees the rights of every
"individual" those rights are not guaranteed to
corporations. Therefore the plaintiff corporations
cannot be said to have suffered any denial of rights
under this subsection. The corporate plaintiffs con
tend, however, that the terminology in the French
version of subsection 15 (1) is broad enough to
include corporations. They point out that else
where in the Charter, for example in subsection
6(4), where the word "individuals" is used in
English the word "individus" is used in the French
version whereas in subsection 15(1) where the
English version employs the phrase
15. (1) Every individual is equal before and under the
law .... [Emphasis added.]
the French version provides that
15. (1) La loi ne fait acception de personne et s'applique
également à tous ... [Emphasis added.]
They say that the use of the term "personne"
which arguably could apply to corporate as well as
natural persons and the reference to the applica
tion of the law equally "Ã tous" which need not be
confined to human beings, the French version indi
cates an intention that the guarantees of subsec-
tion 15(1) should apply to corporations as well as
natural persons.
Certainly the normal understanding of the word
"individual" would confine its application to
human beings. I am bound by several decisions of
the Federal Court of Appeal which have so held in
respect of subsection 15(1). 10 Various provincial
courts have held to the same effect." This view
has also been endorsed by three judges of the
Supreme Court in Edmonton Journal v. Alberta
(Attorney General). 12 The corporate plaintiffs
submit, however, that in none of these cases was
the potentially broader language of the French
version considered. While this is so, I would
respectfully adopt the reasoning of Gonthier J.
while a judge of the Superior Court of Quebec in
the case of Association des détaillants en alimen-
tation du Québec c. Ferme Carnaval Inc. 13 where
he compared the two versions of subsection 15 (1)
and concluded that the guarantees therein did not
apply to corporations. He reasoned as follows:
[TRANSLATION] The phrase "ne fait acception de personne"
["Every individual is equal"] is not defined and does not
specify what type of person may be affected. The pronoun
"tous" ["Every individual"] is also not defined.
The English text, on the other hand, states:
[English text quoted]
The word used here, "individual" is precise and not open to
ambiguity. It excludes corporations.
The word "individual" is also consistent with the grounds of
discrimination listed in the section, dealing with attributes
which only an individual, a natural person, can have, such as
race, ethnic origin, colour, religion, sex, age or mental or
physical disability. Only a national origin could thus be
ascribed to a corporation. These same attributes are repeated in
10 National Anti-Poverty Organization v. Canada (Attorney
General), [1989] 3 F.C. 684 (C.A.); New Brunswick Broad
casting Co., Limited v. Canadian Radio-television and Tele
communication Commission, [1984] 2 F.C. 410 (C.A.);
Canadian Council of Churches v. Canada, supra, note 7;
Canada (Attorney General) v. Central Cartage Co., [1990] 2
F.C. 641 (C.A.).
" See e.g. Re Aluminum Co. of Canada, Ltd. and The
Queen in right of Ontario; Dofasco Inc., Intervenor (1986), 55
O.R. (2d) 522 (Div. Ct.); Milk Bd. v. Clearview Dairy Farm
Inc., [1987] 4 W.W.R. 279 (B.C.C.A.).
12 Supra, note 6. The other judges did not deal with this
point.
13 [1986] R.J.Q. 2513 (C.S.), at p. 2533.
subsection (2), where the French text used the word
"individus".
He thus favours the more precise meaning of
"individual" in the English version because it is
more consistent with the forms of discrimination—
involving personal characteristics—prohibited by
subsection 15(1).
I therefore conclude that the word "individual"
should be given its natural meaning in the English
version so as to guarantee equality rights in sub
section 15(1) to natural persons only and not to
corporations.
This means that the Exemption Order could
only be declared invalid if it were somehow
demonstrated to abridge the rights of natural per
sons under subsection 15(1) of the Charter.
Are the distinctions made by the Exemption Order
contrary to Charter subsection 15(1)?
The discrimination alleged against the defend
ant is that "arbitrary and unfair" distinctions were
made between the twenty companies and their two
associates, on the one hand, exempted under the
Exemption Order from paying the export charge,
and the other companies exporting secondary soft
wood lumber products to the United States includ
ing the corporate plaintiffs. It is contended that,
notwithstanding the fact that the defendant knew
that the plaintiff companies had unfairly been
denied by U.S. authorities an exclusion from the
countervailing duty, through signing the memoran
dum of understanding and implementing it by the
Exemption Order the defendant perpetuated that
arbitrary and unfair distinction by making it part
of Canadian law. By this means the corporate and
individual plaintiffs allegedly were denied equal
protection and equal benefit of the law without
discrimination. In essence they are saying that it
was "discrimination" for the plaintiff companies to
be denied an exemption under Canadian law based
on the fact that they had, through either filing late
for an exclusion from the countervailing duty (in
the case of Antrim) or through a refusal on the
part of U.S. authorities to grant an exclusion
applied for in a timely fashion (in the case of
PGP), been denied an exclusion from the U.S.
countervailing duty pursuant to U.S. law.
I have no doubt that unfavourable treatment of
an economic nature, even of a tax nature, can form
the basis for a claim under subsection 15(1), pro
vided that the grounds for making this unfavour
able distinction amount to "discrimination". But
there are several Supreme Court of Canada deci
sions which have held that, for there to be "dis-
crimination" within the meaning of subsection
15(1), there must be an unfavourable distinction
made by or under the law on one of the grounds
enumerated in that subsection or on a ground
analogous thereto. 14 Counsel for the plaintiffs con
tends, however, that in the first of these cases,
Andrews v. Law Society of British Columbia, the
Supreme Court kept open the possibility of exten
sions beyond these grounds. In reviewing the judg
ments of McIntyre and Wilson JJ. writing for the
majority, it appears to me that while they both
wanted to avoid premature limitation of the mean
ing of "discrimination", they both essentially
viewed it as involving distinctions based on "per-
sonal characteristics" of a kind which individuals
cannot readily change. As McIntyre J. said:
I would say then that discrimination may be described as a
distinction, whether intentional or not but based on grounds
relating to personal characteristics of the individual or group,
which has the effect of imposing burdens, obligations, or disad
vantages on such individual or group not imposed upon others,
or which withholds or limits access to opportunities, benefits,
and advantages available to other members of society. Distinc
tions based on personal characteristics attributed to an
individual solely on the basis of association with a group will
rarely escape the charge of discrimination, while those based on
an individual's merits and capacities will rarely be so classed. 15
'4 Andrews v. Law Society of British Columbia, [1989] 1
S.C.R. 143; Reference Re Workers' Compensation Act, 1983
(Nfld.), [1989] 1 S.C.R. 922; R. v. Turpin, [1989] 1 S.C.R.
1296.
15 Andrews case, ibid., at pp. 174-175.
All judges of the Court participating in that deci
sion agreed with McIntyre J.'s analysis.
Some argument was made in the present case
that the plaintiffs were prejudicially affected
because of their membership in a "group", namely
the group of companies not entitled to exemption
from the U.S. countervailing duty. I have two
basic difficulties with this argument. First, I think
one must view with scepticism any claim to dis
crimination under subsection 15 (1) where a person
has been singled out for unfavourable treatment
simply on the basis of some act of omission or
commission on the part of that person. Second, I
think one must view with equally great scepticism
any allegation of discrimination of a person by
reason of membership in a group, where there was
no pre-existing identification of that group in fact
or in law prior to the allegedly discriminatory
action taken against it. That is, if the group is
defined solely by the common feature that all of its
members have suffered the same alleged discrimi
nation, it would normally not be considered the
kind of group referred to in the judgment of
McIntyre J. For a person to be prejudicially treat
ed due to association with a group, there must
have been a group which pre-existed the act of
alleged discrimination.
In the present case the plaintiffs were all treated
unfavourably under the Exemption Order simply
because they had, whether through their own fault
or otherwise, failed to satisfy U.S. authorities that
they should be excluded from the countervailing
duty. This unfavourable distinction, initially made
under U.S. law, was adopted by the Government
of Canada in passing the Exemption Order. Those
not exempted under Canadian law were selected
on the basis of their inability to satisfy U.S.
authorities and it was such identification of these
individual companies which produced a "group". I
am unable to find any basis for extending the
concept of discrimination enunciated in the judg
ment of McIntyre J., and approved by all the
judges participating in the Andrews decision, to
the present circumstances.
The plaintiffs also sought support in the sepa
rate judgment of La Forest J. in that case for
possible findings of unconstitutional discrimination
going beyond the enumerated grounds of subsec
tion 15(1) and grounds analogous thereto. La
Forest J. said:
... there may well be legislative or governmental differentia
tion between individuals or groups that is so grossly unfair to an
individual or group and so devoid of any rational relationship to
a legitimate state purpose as to offend against the principle of
equality before and under the law as to merit intervention
pursuant to s. 15. For these reasons I would think it better at
this stage of Charter development to leave the question open. ' 6
Again I am unable to characterize the present
circumstances as falling within this language as
being "so grossly unfair" or "devoid of any ration
al relationship to a legitimate state purpose". I am
not called upon to decide whether the memoran
dum of understanding between Canada and the
United States was the best arrangement Canada
could achieve in the interest of the softwood
lumber industry as a whole in Canada. But it
seems clear from the evidence that the limitation
of exemptions to the twenty companies and their
associates already exempted by U.S. authorities
was an integral part, a sine qua non, of that
agreement. It also appears that the plaintiff com
panies had not achieved an exclusion from the
countervailing duty and hence had failed to get an
exemption under Canadian law because they either
did not apply in time for the U.S. exclusion or
were unable to convince U.S. authorities that they
were not the beneficiaries of undue subsidies. I
agree with counsel for the plaintiffs that if U.S.
authorities had distinguished among Canadian
softwood manufacturers on some basis related to
race, sex, or other ground enumerated in subsec
tion 15(1) or analogous thereto, the Parliament
and Government of Canada would violate that
subsection if it were to give force to the same
distinction by Canadian law. But where U.S.
authorities had rejected certain applications
because they were untimely and others on econom
ic grounds applied pursuant to American law, I am
unable to say that the adoption of the same dis
tinctions by Canadian authorities is "grossly
unfair" or "devoid of any rational relationship to a
16 Ibid., at p. 194.
legitimate state purpose". It is arguable at least
that those who filed late applications due to igno
rance of U.S. requirements bear at least some of
the responsibility for their applications being out
of time. Perhaps the Government of Canada could
or should have done more by way of notifying
them rather than relying on the advice of provin
cial governments and communicating to the indus
try through the Canadian Forest Industries Coun
cil. But it could also be argued that Canadian
entrepreneurs who export to the United States, a
market which they themselves say is very impor
tant to them, should take some steps to ensure that
they are aware of U.S. import regulations affect
ing their products. They attach much blame to the
Government of Canada for its failure to inform
them, but initially this was legally a matter be
tween the U.S. Government and these Canadian
exporters, not between the two Governments. In
declining to find that the present circumstances fit
within the hypothetical category of "grossly
unfair" differentiations referred to by La Forest J.
in the Andrews judgment, I am very mindful of
another comment which he made in that judgment
immediately prior to the passage now relied on. He
said:
I am convinced that it was never intended in enacting s. 15
that it become a tool for the wholesale subjection to judicial
scrutiny of variegated legislative choices in no way infringing
on values fundamental to a free and democratic society. Like
my colleague, I am not prepared to accept that all legislative
classifications must be rationally supportable before the courts.
Much economic and social policy-making is simply beyond the
institutional competence of the courts: their role is to protect
against incursions on fundamental values, not to second guess
policy decisions."
17 Ibid.
Here the plaintiffs say that the Government of
Canada should not have entered into the memo
randum of understanding; that it should have left
it open to the plaintiffs to pursue such remedies as
they might have had under U.S. law whereby they
might have succeeded in defeating or reducing the
countervailing duty; or that if Canada was to enter
into a memorandum of understanding, such agree
ment should either have exempted all the corpo
rate plaintiffs from paying the export charge
which was to replace the countervailing duty, or it
should have provided that no Canadian companies
would be exempted (thus precluding an Exemption
Order). On the other hand it is apparent from
portions of the examination for discovery of the
defendant's witness as put in by the plaintiffs, and
from the agreed statement of facts, that the Gov
ernment of Canada considered it better to have an
agreement whose effect would be certain as com
pared to the uncertainty of the countervail pro
ceedings still pending at that time; that it was
better for the Canadian industry as a whole to
preserve at least the twenty exemptions which the
U.S. had granted; and that the overall result of the
agreement would be to keep within Canada reve
nues under the Softwood Lumber Products Export
Charge Act (estimated to be from $400 million to
$600 million per year) rather than to have similar
revenues collected by U.S. authorities under a
countervailing duty charged at the same rate.
Whatever the respective merits of these positions, I
believe their review by this Court to involve, in the
language of La Forest J., the second guessing of
policy decisions beyond the "institutional compe
tence of the courts".
Although the language of the judgments of both
Wilson J. and La Forest J. in the Andrews case
did, as the plaintiffs contend, leave open possibili
ties for extending prohibited grounds beyond those
enumerated in subsection 15(1) or those analogous
thereto, subsequent decisions of the Supreme
Court written by the same learned Judges have, I
believe, narrowed such possibilities in ways rele
vant to the present case. In the Andrews case
McIntyre J. had found that non-citizens were a
"discrete and insular minority"" and thus a group
subjected to discrimination on grounds analogous
to those enumerated in subsection 15(1). Wilson J.
in the same case elaborated on that concept, invok
ing the writings of J. H. Ely [Democracy and
Distrust, Cambridge, Mass.: Harvard Univ. Press,
1980] to the effect that such groups require pro
tection because elected officials have no direct
interest in protecting non-voters. She went on to
say that whether a group falls into an analogous
category is a determination
... which is not to be made only in the context of the law which
is subject to challenge but rather in the context of the place of
the group in the entire social, political and legal fabric of our
society. 19
Writing for the majority in the later Turpin case
she referred to certain indicia of discrimination,
for the purpose of identifying analogous grounds,
as including "stereotyping, historical disadvantage
or vulnerability to political and social preju
dice ...." She then went on to apply these tests to
the "group" of persons invoking subsection 15(1)
in that case, namely those charged outside of
Alberta with murder, and found that it had none
of these characteristics. 20
Similarly, in the present case I can see none of
these characteristics in the "group" said to be
represented by the plaintiffs. They have none of
the attributes of stereotyping, historical disadvan
tage, or political isolation. Indeed they had access
to the political process in Canada, having hired a
representative who appeared before the Parliamen
tary Committee considering the Softwood Lumber
Products Export Charge Act and met with the
Minister of International Trade. As the employers
of many Canadian voters, they could not simply be
ignored by elected officials.
" Ibid., at p. 183, employing the language of the U.S.
Supreme Court in United States v. Carolene Products Co., 304
U.S. 144 (1938), at pp. 152-153.
19 Ibid., at p. 152.
20 Supra, note 14, at pp. 1332-1333.
The decision of the Supreme Court in Reference
Re Workers' Compensation Act, 1983 (Nfld.) 21 is
another application of the Andrews decision as a
limitation on the scope of subsection 15(1). La
Forest J., who had suggested in the Andrews deci
sion that there might be some kinds of "grossly
unfair" differentiations which would still be pro
hibited by subsection 15 (1) even if they did not fall
within the enumerated grounds or those analogous
thereto, nevertheless in this Reference limited pro
hibited forms of discrimination to such grounds.
Writing for the Court, he rejected the proposition
that the limitation imposed on those covered by
the Act, to the compensation provided under that
Act in lieu of a right of action, was not a differen
tiation analogous to those listed in subsection
15(1). It can be observed that the "group" in
question there was defined by the very legislation
which was attacked as discriminatory, and was not
identified with any historical prejudice or stereoty
ping or political and social isolation.
I therefore conclude that the kind of distinctions
created by the Exemption Order and complained
of by the plaintiffs are not contrary to the guaran
tees of subsection 15(1) of the Charter.
Justification of the Exemption Order under
Charter section 1
Given my finding that there is no abridgment of
rights guaranteed by subsection 15(1), I need not
consider this issue.
Availability and appropriateness of remedies
sought
Although for the same reason I need not consid
er these issues, I wish to indicate that there are
several difficulties with the remedies as sought.
The plaintiffs seek a declaration that the
Exemption Order is invalid. Even if this were
granted, it would not prevent the plaintiffs from
being subject to payment of the export charge
under the Softwood Lumber Products Export
Charge Act. It would simply mean that the twenty
21 Supra, note 14.
companies and their two associates exempted by
the Exemption Order would become subject to
payment of the export charge.
This would in turn preclude an order, as
requested by the corporate plaintiffs, that they "be
discharged from all liability ... for any unpaid
export charge".
With respect to the claim for "special damages"
in the amount of any export charges already paid,
these too would be unavailable (even if properly
pleaded) if the Exemption Order were simply
declared invalid so that all softwood lumber
exporters to the United States were subject to the
export charge. But even if it had been successfully
pleaded that the whole export charge scheme,
including the Act, was invalid as discriminatory, it
would then be necessary to plead properly for the
recovery of charges paid pursuant to that scheme.
This would, I believe, involve alleging that the
payments had been made under coercion resulting
in an unjust enrichment of the defendant. 22 These
necessary elements have neither been pleaded nor
proven in the present case.
I specifically decline any comment on the
remedy of general damages although I have noted
earlier that the individual plaintiffs are not entitled
to damages in respect of what is alleged to be
business losses of the corporate plaintiffs.
Disposition
The action is therefore dismissed with costs.
22 See e.g. Jacobs (George Porky) Enterprises Ltd. v. City of
Regina, [1964] S.C.R. 326; Eadie v. Township of Brantford,
[1967] S.C.R. 573; and Hydro Electric Commission of Nepean
v. Ontario Hydro, [1982] 1 S.C.R. 347.
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