Gershman Produce Co. v. Motor Transport Board (Man.), (1985) 36 Man.R.(2d) 81 (CA)

• Judge: Monnin, C.J.M., Matas, O'Sullivan, Huband and Philp, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: April 04, 1985
• Jurisdiction: Manitoba
• Citations: (1985), 36 Man.R.(2d) 81 (CA);1985 CanLII 127 (MB CA);22 DLR (4th) 520;[1986] 1 WWR 303;16 Admin LR 1;17 CRR 132;36 Man R (2d) 81;37 MVR 96

Gershman Produce v. Motor Trans. (1985), 36 Man.R.(2d) 81 (CA)

MLB headnote and full text

Gershman Produce Company Ltd. v. Motor Transport Board

(Suit No. 519/84)

Indexed As: Gershman Produce Co. v. Motor Transport Board (Man.)

Manitoba Court of Appeal

Monnin, C.J.M., Matas, O'Sullivan, Huband and Philp, JJ.A.

September 23, 1985.

Summary:

A carrier, who was the holder of a Manitoba public service vehicle certificate, on several occasions failed to observe or comply with the terms of its certificate.

The Manitoba Motor Transport Board gave notice to the carrier under s. 273(1) of the Highway Traffic Act to show cause why the board should not revoke, alter or amend the carrier's certificate. The board also demanded that the carrier produce all its accounting records for an eleven month period. The carrier applied for an order (1) declaring that s. 273(1) was inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms and therefore of no force and effect, (2) that the board be prohibited from proceeding on the ground that the board's procedures or conduct violated s. 7 of the Charter, and (3) that the board's demand for production of documents was invalid as being contrary to s. 8 of the Charter.

The Manitoba Court of Queen's Bench, in a decision reported in 32 Man.R.(2d) 308, held that s. 273(1) and the show cause procedure were not contrary to s. 7 of the Charter and therefore dismissed the application respecting points (1) and (2) above. The court held, however, that s. 25(1)(n) of the Highway Traffic Act and 27(2)(c) of the Public Utilities Board Act, giving the board unrestricted power to demand production of documents, was contrary to s. 8 of the Charter and held that the board's demand for production was invalid. The carrier appealed respecting points (1) and (2) and the board cross-appealed the finding on point (3).

The Manitoba Court of Appeal dismissed the carrier's appeal, but allowed the board's cross-appeal, holding that the production requirements of the legislation were not contrary to s. 8 of the Charter.

Carriers - Topic 1427

Provincial legislation - Application of legislation - Manitoba Highway Traffic Act - Post-Charter - The Manitoba Court of Appeal affirmed that the show cause procedure under s. 273(1) of the Highway Traffic Act did not violate the right to life, liberty and security of the person as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms.

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - The Highway Traffic Act, s. 273(1), allowed the Motor Transport Board to revoke, alter or amend a carrier's vehicle certificate after granting the certificate holder an opportunity to show cause why such an action should not be taken - A carrier complained that, because the hearings involved an adjudication by the same body as investigated and prosecuted the carriers for violations of the Act, its rights under s. 7 of the Charter were denied without regard to the principles of fundamental justice - The Manitoba Court of Appeal affirmed that the regulatory scheme to which the carriers were subject did not violate s. 7 - See paragraph 31.

Civil Rights - Topic 725

Liberty - Charter of Rights and Freedoms - Liberty - Defined - The Canadian Charter of Rights and Freedoms, s. 7, provided that "everyone has the right to life, liberty and security of the person" - A judge of the Manitoba Court of Appeal stated that there was no intent within the words of s. 7 to protect so-called "commercial" or "economic" rights - See paragraph 30.

Civil Rights - Topic 725

Liberty - Charter of Rights and Freedoms - Liberty - Defined - A judge of the Manitoba Court of Appeal stated that a carrier's public vehicle certificate was a privilege rather than a right and as a privilege could not be enforced under the Charter (see paragraph 30) - Another judge stated that if such a certificate was a right it did not fall within the meaning of liberty in s. 7 of the Charter (see paragraph 44) - The three other judges on the panel considered that it was unnecessary to characterize the carrier's interest in the certificate as either a right or a privilege - See paragraphs 76, 85.

Civil Rights - Topic 1641

Property - Search and seizure - General - A judge of the Manitoba Court of Appeal stated that the clauses of the Charter relating to search and seizure are designed "to protect citizens from unauthorized and unlawful interference in their homes and other places wherein they have a reasonable expectation of privacy. They do not, in my opinion, create substantive rights of privacy or of property. They do not protect evidence from disclosure. They have nothing to do with evidentiary privilege." - See paragraphs 79 and 80.

Civil Rights - Topic 1644

Property - Search and seizure - Seizure - Defined - The Manitoba Court of Appeal held that a required or forced production during an administrative inquiry is not a seizure within the meaning of s. 8 of the Charter (the right to be secure against unreasonable search and seizure) - See paragraphs 13 to 28, 44 to 65, 76 to 81.

Civil Rights - Topic 1644

Property - Search and seizure - Seizure - Defined - The Manitoba Court of Appeal rejected the sweeping statement made by the Alberta Court of Appeal in Alberta Human Rights Commission v. Alberta Blue Cross Plan (1983), 48 A.R. 192, that "a forced production of documents in a civil proceeding, ordering an administrative inquiry, is a seizure" - See paragraphs 13 to 19, 44 to 65, 81.

Civil Rights - Topic 1644

Property - Search and seizure - Seizure - Defined - The Public Utilities Board Act, s. 27(2)(c), gave the Manitoba Motor Transport Board unrestricted power to require the production of documents - The Manitoba Court of Appeal held that a demand for production under s. 27(2)(c) was not a forced production and not a seizure within the meaning of s. 8 of the Charter of Rights and Freedoms, but merely a demand for documents - Thus the court held that s. 27(2)(c) was not contrary to s. 8 of the Charter (right to be secure against unreasonable search and seizure) - See paragraphs 13 to 28, 44 to 65, 76 to 81, 85.

Civil Rights - Topic 8301

Canadian Charter of Rights and Freedom - Purpose of - A judge of the Manitoba Court of Appeal opined that "the purpose of the Charter of Rights is to preserve our common heritage of a free society in a democratic society under God, the rule of law, and the Queen, upon whose power the Constitution depends" - See paragraph 78.

Cases Noticed:

Gershman Produce Co. v. Motor Transport Board (Man.), [1985] 2 W.W.R. 63; 32 Man.R.(2d) 308, refd to. [para. 1].

Alberta Human Rights Commission v. Alberta Blue Cross Plan (1983), 48 A.R. 192; 1 D.L.R.(4th) 301 (Alta. C.A.), consd. [paras. 13, 43].

Reich v. College of Physicians and Surgeons of Alberta et al, (No. 2) (1984), 53 A.R. 325; 8 D.L.R.(4th) 696 (Alta. Q.B.), consd. [paras 13, 43].

Director of Investigation and Research and Chairman of the Restrictive Trade Practices Commission v. Ziegler et al. (1983), 51 N.R. 1; 8 D.L.R.(4th) 648 (F.C.A.), consd. [paras 13, 43].

Belgoma Transportation Ltd. v. Director of Employment Standards (1984), 6 O.A.C. 307; 47 O.R.(2d) 309 (Ont. Div. C.), consd. [paras. 13, 43].

Attorney-General for Ontario v. Bear Island Foundation et al. (1982), 138 D.L.R.(3d) 683 (Ont. H.C.), refd to. [para. 43].

Rolbin v. R. (1982), 2 C.R.R. 166 (Que. S.C.), refd to. [para. 43].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291 (S.C.C.), refd to. [para. 43].

Southam v. Hunter et al. (1983), 147 D.L.R.(3d) 420, refd to. [para. 50].

Oklahoma Press Publishing Co. v. Walling (1946), 327 U.S. 186; 66 S.Ct. 494; 90 L.Ed. 614 refd to. [para. 60].

Donovan v. Lone Steer, Inc. (1984), 104 S.Ct. 769, refd to. [para. 60].

Purolator Courier Ltd. v. Motor Transport Board of Manitoba, [1981] 2 S.C.R. 364; 29 Man.R.(2d) 81, reversing (1980), 3 Man.R.(2d) 107 (Man. C.A.), refd to. [para. 69].

Martineau v. Matsqui Disciplinary Board, [1980] 1 S.C.R. 602; 30 N.R. 119, refd to. [para. 69].

Re Watt and Registrar of Motor Vehicles (1957), 24 W.W.R.(N.S.) 371, refd to. [para. 72].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 7, sect. 8.

Highway Traffic Act, R.S.M. 1970, c. H-60; C.C.S.M., H-60, sect. 25(1)(n), sect. 273(1).

Public Utilities Board Act, R.S.M. 1970, c. P-280; C.C.S.M., c. P-280, sect. 27(2)(c).

Authors and Works Noticed:

Canadian Encyclopedic Digest (West.)(3rd Ed.), vol. 1, pp. 3 to 71 [para. 72].

Hogg, Constitutional Law of Canada (2nd Ed.), pp. 745, 746 [para. 44].

LaFave, Search and Seizure, Treatise on the Fourth Amendment (1978), para. 4.13 [para. 60].

Tarnopolsky and Beaudoin, Canadian Charter of Rights and Freedoms, p. 270 [para. 44].

Counsel:

J.E. Foran, Q.C., and B.A. Johnstone, for the Motor Transport Board;

K.A. Filkow, Q.C., and E.H. Schmidt, for Gershman Produce Co. Ltd.;

W.G. McFetridge, for the Attorney General.

This appeal was heard on April 4, 1985, before Monnin, C.J.M., Matas, O'Sullivan, Huband and Philp, JJ.A., of the Manitoba Court of Appeal. The decision of the Court of Appeal was delivered on September 23, 1985, and the following opinions were filed:

Monnin, C.J.M. - See paragraphs 1 to 33;

Matas, J.A. - See paragraphs 34 to 75;

O'Sullivan, J.A., (Philp, J.A., concurring) - See paragraphs 76 to 84;

Huband, J.A. - See paragraphs 85 to 87.