Gershman Produce Co. v. Motor Transport Board (Man.), (1984) 32 Man.R.(2d) 308 (QB)

• Judge: Kroft, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: November 21, 1984
• Jurisdiction: Manitoba
• Citations: (1984), 32 Man.R.(2d) 308 (QB);1984 CanLII 2999 (MB QB);14 DLR (4th) 722;[1985] 2 WWR 63;10 Admin LR 253;15 CRR 68;31 MVR 67;32 Man R (2d) 308

Gershman v. Motor Transport Bd. (1984), 32 Man.R.(2d) 308 (QB)

MLB headnote and full text

Gershman Produce Co. Ltd. v. Motor Transport Board (Man.)

(Suit No. 226/84)

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

Manitoba Court of Queen's Bench

Kroft, J.

November 21, 1984.

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 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 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, 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.

Carriers - Topic 1427

Provincial legislation - Application of legislation - Manitoba Highway Traffic Act Post-Charter - The Manitoba Court of Queen's Bench held 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 - The court held, however, that the unrestricted right of the Motor Transport Board under the Act to demand production of documents violated the search and seizure provisions of s. 8 of the Charter - See paragraphs 1 to 58.

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 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 Queen's Bench disagreed and held that the regulatory scheme to which carriers were subject did not violate s. 7 - See paragraphs 31 to 35.

Civil Rights - Topic 725

Liberty - Charter of Rights and Freedoms - Liberty defined - The Manitoba Court of Queen's Bench held that a carrier's public vehicle certificate was a privilege rather than a right - The court, however, stated that if it was wrong, and that holding a certificate was in fact a right, then the right was not one which fell within the meaning of liberty in s. 7 of the Charter - See paragraphs 18 to 30.

Civil Rights - Topic 725

Liberty - Charter of Rights and Freedoms - Liberty defined - The Canadian Charter of Rights and Freedoms provided that "everyone has the right to life, liberty and security of the person" - The Manitoba Court of Queen's Bench discussed the scope of the word "liberty" as used in s. 7 - The court held that s. 7 should not be restricted to matters pertaining solely to arbitrary arrest or imprisonment, but that there was no intent within the words of s. 7 to protect so-called "commercial" or "economic" rights - See paragraphs 20 to 30.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Under s. 25(1)(n) of the Highway Traffic Act and s. 27 of the Public Utilities Board Act, the Manitoba Motor Transport Board had unrestricted power to require the production of documents - The Manitoba Court of Queen's Bench held that the right of the board or its appointee to require unrestricted production was a power of seizure within the contemplation of s. 8 of the Canadian Charter of Rights and Freedoms - The court also held that the compulsory production authorized by the above mentioned sections was inconsistent with s. 8 of the Charter and therefore of no force and effect - See paragraphs 36 to 56.

Civil Rights - Topic 8305

Canadian Charter of Rights and Freedoms - Application of - Persons protected - Everyone - The Canadian Charter of Rights and Freedoms provided that "everyone has the right to life, liberty and security of the person" - The Manitoba Court of Queen's Bench held that the word "everyone" as used in s. 7 included all entities, human or otherwise and, in particular, a corporation - See paragraphs 10 to 14.

Civil Rights - Topic 8469

Canadian Charter of Rights and Freedoms - Interpretation - United States experience - The Manitoba Court of Queen's Bench compared s. 7 of the Canadian Charter of Rights and Freedoms with the Fourteenth Amendment to the United States Constitution - See paragraph 24.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - Life, liberty and security of person - 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 action should not be taken - The Manitoba Court of Queen's Bench held that no deprivation of the right to life, liberty or security of the person resulted from or was threatened by s. 273(1) - See paragraphs 9 to 30.

Words and Phrases

Everyone - The Manitoba Court of Queen's Bench held that the word "everyone" as used in s. 7 of the Canadian Charter of Rights and Freedoms included a corporation - See paragraphs 10 to 14.

Words and Phrases

Liberty - The Manitoba Court of Queen's Bench discussed the scope of the word "liberty" as used in s. 7 of the Canadian Charter of Rights and Freedoms - See paragraphs 20 to 30.

Cases Noticed:

Southam Inc. v. Hunter (1985), 55 N.R. 241; 55 A.R. 291, folld [para. 12].

R. v. Belton, [1983] 2 W.W.R. 472; 19 Man.R.(2d) 132 (Man. C.A.), refd to. [para. 13].

R. v. Altseimer (1982), 38 O.R.(2d) 783 (C.A.), refd to. [para. 13].

Balderstone v. R. et al. (1982), 19 Man.R.(2d) 321 (Q.B.), folld. [para. 14].

R.L. Crain Inc. et al. v. Couture et al. (1984), 30 Sask.R. 191, folld. [para. 14].

R. v. Rowland (1985), 56 A.R. 10; 4 C.R.D. 125.40-42 (Alta. Q.B.), dist. [para. 16].

Operation Dismantle Inc. v. Canada, [1983] 1 F.C. 745; 49 N.R. 363, refd to. [para. 20].

Northland Fisheries Ltd. v. Motor Transport Board et al. (1979), 2 Man.R.(2d) 15 (C.A.), revd. in part 13 Man.R.(2d) 132 (C.A.), refd to. [para. 29].

Purolator Courier Limited v. Motor Transport Board of Manitoba (1980), 3 Man.R.(2d) 107 (C.A.), refd to. [para. 29].

Motor Transport Board of Manitoba v. Purolator Courier Limited, [1981] 2 S.C.R. 364; 38 N.R. 465 (S.C.C.), refd to. [para. 29].

Bakery & Confectionary Worker's International Union of America, Local 389 v. Manitoba Human Rights Commission et al., [1973] 5 W.W.R. 388 (Man. C.A.), refd to. [para. 29].

Re W.D. Latimer Co. Ltd. et al. and Bray et al. (1974), 52 D.L.R.(3d) 161 (Ont. C.A.), refd to. [para. 29].

Reich v. Alberta College of Physicians and Surgeons et al. (1984), 53 A.R. 325; 31 Alta. L.R.(2d) 205 (Q.B.), consd. [para. 39].

Alberta Human Rights Commission v. Alberta Blue Cross Plan, [1983] 6 W.W.R. 758; 48 A.R. 192; 1 D.L.R.(4th) 301 (Alta. C.A.), consd. [para. 39].

Ziegler v. Hunter (1983), 39 C.P.C. 234 (F.C.A.), reported sub nom. Director of Investigation and Research and Chairman of the Restrictive Trade Practices Commission v. Ziegler et al. (1984), 51 N.R. 1, consd. [para. 39].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 7 [para. 10]; sect. 8 [para. 37].

Highway Traffic Act, R.S.M. 1970, c. H-60; C.C.S.M., c. H-60, sect. 25(1)(n) [para. 36]; sect. 255(1), sect. 273(1), sect. 290 [para. 7].

Public Utilities Board Act, R.S.M. 1970, c. P-280; C.C.S.M., c. P-280, sect. 27 [paras. 8, 36].

United States Constitution, Fifth Amendment [para. 21]; Fourteenth Amendment [paras. 21, 24].

Authors and Works Noticed:

European Convention on Human Rights and Fundamental Freedoms, Article 5 [para. 20].

United Nations International Covenant on Civil and Political Rights, Article 9 [para. 20].

Counsel:

K.A. Filkow, Q.C., for Gershman Produce Co. Ltd.;

W.G. McFetridge, for the Motor Transport Board.

This application was heard before Kroft, J., of the Manitoba Court of Queen's Bench, who delivered the following decision on November 21, 1984: