Attorney General of Quebec v. Kellogg's Co. of Canada and Kellogg's of Canada Ltd., (1978) 19 N.R. 271 (SCC)

• Judge: Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 19, 1978
• Jurisdiction: Canada (Federal)
• Citations: (1978), 19 N.R. 271 (SCC);19 NR 271;83 DLR (3d) 314;1978 CanLII 185 (SCC);[1978] 2 SCR 211

Que. (A.G.) v. Kellogg's Co. of Can. (1978), 19 N.R. 271 (SCC)

MLB headnote and full text

Attorney General of the Province of Quebec v. Kellogg's Company of Canada and Kellogg's of Canada Limited

Indexed As: Attorney General of Quebec v. Kellogg's Co. of Canada and Kellogg's of Canada Ltd.

Supreme Court of Canada

Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré, JJ.

January 19, 1978.

Summary:

This case arose out of an action by the Province of Quebec for an injunction to restrain Kellogg's from placing certain advertising on television in Quebec. Regulations under the Quebec Consumer Protection Act, S.Q. 1976, c. 74, s. 102(o), prohibited the use of cartoons in advertising intended for children. Kellogg's placed cartoon advertising on television in Quebec. The advertising was produced in Ontario. The Province brought an action against Kellogg's for an injunction to restrain the advertising on television. Kellogg's pleaded that the legislation was ultra vires as an infringement upon the federal power over broadcasting and upon interprovincial trade, where the advertising originated in Ontario. The trial judge granted an injunction. The Quebec Court of Appeal reversed the trial judge and held that the legislation was ultra vires. The Province appealed.

The Supreme Court of Canada allowed the appeal and held that the legislation was intra vires the provincial power over property and civil rights in the province. The Supreme Court of Canada held that it did not matter that it incidentally affected broadcasting. See paragraphs 24, 27 to 44, 56, 59 to 76. The Supreme Court of Canada held that the legislation was not an infringement of the federal power over interprovincial trade. See paragraphs 24, 45 to 46, 56, 77 to 78.

Laskin, C.J.C., dissenting, Judson and Spence, JJ., concurring, in the Supreme Court of Canada, was of the opinion that the legislation was ultra vires as an infringement of the federal power over broadcasting. See paragraphs 1 to 18.

Constitutional Law - Topic 7292

Enumeration in s. 92 of British North America Act - British North America Act, s. 92(13) - Property and civil rights - Regulatory statutes - Advertising - Regulations under the Quebec Consumer Protection Act, S.Q. 1976, c. 74, s. 102(o), prohibited the use of cartoons in advertising intended for children - Kellogg's placed cartoon advertising on television in Quebec - The advertising was produced in Ontario - The Province brought an action against Kellogg's for an injunction to restrain the advertising on television - Kellogg's pleaded that the legislation was ultra vires as an infringement upon the federal power over broadcasting and upon interprovincial trade, where the advertising originated in Ontario - The Supreme Court of Canada held that the legislation was intra vires the provincial power over property and civil rights and that it did not matter that it incidentally affected broadcasting - See paragraphs 24, 27 to 44, 56, 59 to 76 - The Supreme Court of Canada held that the legislation was not an infringement of the federal power over interprovincial trade - See paragraphs 24, 45 to 46, 56, 77 to 78.

Cases Noticed:

McKay v. The Queen, [1965] S.C.R. 798, refd to. [paras. 3, 12].

Shannon v. Lower Mainland Dairy Products Board, [1938] A.C. 708, refd to. [paras. 5, 14].

Attorney-General of Ontario v. Attorney-General of Canada, [1894] A.C. 189, refd to. [paras. 6, 15].

Nykorak v. Attorney-General of Canada, [1962] S.C.R. 321, refd to. [paras. 6, 15].

John A. MacDonald and Railquip Enterprises Ltd. v. Vapor Canada Ltd. (1976), 7 N.R. 477; [1977] 2 S.C.R. 134, refd to. [paras. 6, 15].

Vapor Canada Ltd. et al. v. MacDonald et al. (1976), 7 N.R. 477; [1977] 2 S.C.R. 134, refd to. [paras. 6, 15].

In re Regulation and Control of Radio Communication in Canada, [1932] A.C. 304, dist. [paras. 28, 60].

Re C.F.R.B. and Attorney General for Canada (1974), 38 D.L.R.(3d) 335, dist. [paras. 29, 61].

Re Capital Cities Communications Inc. et al., 7 N.R. 18; [1975] F.C. 18, affd. 18 N.R. 181 (S.C.C.), dist. [paras. 30, 62].

Dionne et al. v. Public Service Board (Quebec) (1977), 18 N.R. 271, dist. [paras. 32, 64].

Commission du Salaire Minimum v. The Bell Telephone Company of Canada, [1966] S.C.R. 767, dist. [paras. 33, 65].

Attorney-General for Ontario v. Barfried Enterprises Ltd., [1963] S.C.R. 570, refd to. [paras. 37, 69].

Cowen v. Attorney General for British Columbia, [1941] S.C.R. 321, folld. [paras. 39, 71].

R. v. Telegram Publishing Co. Ltd. (1961), 25 D.L.R.(2d) 471, folld. [paras. 39, 71].

Benson & Hedges (Canada) Ltd. v. Attorney-General for British Columbia (1972), 27 D.L.R.(3d) 257, folld. [paras. 39, 71].

Canadian Indemnity Company v. AttorneyGeneral of British Columbia (1976), 11 N.R. 466; [1977] 2 S.C.R. 504, folld. [paras. 39, 71].

Carnation Company Ltd. v. The Quebec Agricultural Marketing Board, [1968] S.C.R. 238, folld. [paras. 41, 73].

Statutes Noticed:

British North America Act, 1867, sect. 91(2) [para. 45]; sect. 91(29) [paras. 28, 60]; sect. 92(13), sect. 92(16), sect. 93 [paras. 27, 61].

Broadcasting Act, R.S.C. 1970, c. B-11, sect. 16(1)(b) [paras. 48, 80].

Consumer Protection Act, S.Q. 1971, c. 74, sect. 102(o) [paras. 19, 51].

Counsel:

Raynold Langlois and Andre Tremblay, for the appellant;

Philippe Casgrain, Q.C., Pierre Fournier and Claude Laporte, for the respondents;

Paul Ollivier, Q.C., and Alice Desjardins, Q.C., for the Attorney General of Canada;

J.D. Hilton, Q.C., for the Attorney General of Ontario;

Stephen Grace, for the Attorney General of Nova Scotia;

W.G. Burke-Robertson, Q.C., for the Attorney General of British Columbia;

William Henkel, Q.C., for the Attorney General of Alberta;

Ken Lysyk, Q.C. and G.V. Peacock, for the Attorney General of Saskatchewan.

This case was heard on March 15 and 16, 1977, at Ottawa, Ontario, before LASKIN, C.J.C., MARTLAND, JUDSON, RITCHIE, SPENCE, PIGEON, DICKSON, BEETZ and de GRANDPRE, JJ., of the Supreme Court of Canada.

On January 19, 1978, the judgment of the Supreme Court of Canada, was delivered and the following opinions were filed:

LASKIN, C.J.C., dissenting - see paragraphs 1 to 9 (English language version), 10 to 18 (French language version);

MARTLAND, J. see paragraphs 19 to 50 (English language version), 51 to 82 (French language version)

RITCHIE, PIGEON, DICKSON, BEETZ and de GRANDPRE, JJ., concurred with MARTLAND, J.

JUDSON and SPENCE, JJ., concurred with LASKIN, C.J.C.