Kraft Canada Inc. v. Euro Excellence Inc., (2007) 365 N.R. 332 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: July 26, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 365 N.R. 332 (SCC);2007 SCC 37

Kraft Can. Inc. v. Euro Excellence Inc. (2007), 365 N.R. 332 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2007] N.R. TBEd. JL.006

Euro-Excellence Inc. (appellant) v. Kraft Canada Inc., Kraft Foods Schweiz AG and Kraft Foods Belgium SA (respondents) and Retail Council of Canada and Alliance of Manufacturers & Exporters Canada (intervenors)

(31327; 2007 SCC 37; 2007 CSC 37)

Indexed As: Kraft Canada Inc. v. Euro Excellence Inc.

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

July 26, 2007.

Summary:

Kraft Canada was granted an exclusive copyright licence by its European parent companies respecting Toblerone and Côte d'Or chocolate bars. The parent companies owned copyrights respecting the artwork on the wrappers of the chocolate bars. Euro-Excellence imported into Canada and sold genuine Toblerone and Côte d'Or chocolate bars from another European source with the same wrappers as used by Kraft Canada. Kraft Canada and its parent companies (Kraft) sued Euro-Excellence, alleging secondary infringement contrary to s. 27(2)(e) of the Copyright Act and sought injunctive relief and damages.

The Federal Court, in a decision reported at 252 F.T.R. 50, allowed the application. The court imposed an injunction requiring Euro-Excellence to render the product non-infringing and awarded damages to Kraft in the amount of $300,000. Euro-Excellence appealed. Kraft cross-appealed, seeking a variation of the wording of the injunction.

The Federal Court of Appeal, in a decision reported 346 N.R. 104, dismissed the appeal on the issue of infringement. The court allowed the appeal on the issue of damages and remitted the matter to the trial judge to clarify the parties' submissions and redetermine the profits derived from the infringement. The court dismissed the cross-appeal. Euro-Excellence appealed.

The Supreme Court of Canada, Abella and McLachlin, C.J.C., dissenting allowed the appeal. Rothstein, J. (Binnie, Deschamps and Fish, JJ., concurring), held that this case turned on a straightforward application of s. 27(2)(e) of the Copyright Act (i.e., the secondary infringement provision). The Kraft companies had not established a case of secondary infringement as there was no hypothetical primary infringement which was one of the requirements of s. 27(2)(e). Rothstein, J., stated that to establish a claim of secondary infringement against Euro-Excellence, Kraft Canada would have to show that the Kraft parent companies would have infringed copyright if they had made the labels in Canada instead of Europe. Under the exclusive licence agreements, the Kraft parent companies were not permitted to produce or reproduce the copyrighted works in Canada, and if they did so, Kraft Canada's only remedy would lie in breach of contract. As owners of the Canadian copyright in the Toblerone and Côte d'Or logos, the Kraft parent companies could not infringe their own copyright. Although Kraft Canada, as an exclusive licensee, had a property interest in the copyright that enabled it to sue third parties for infringement, the Kraft parent companies retained a residual ownership interest in the copyright, which prevented Kraft Canada from suing them for infringement. The Canadian Copyright Act did not extend protection against parallel importation to exclusive licensees. Bastarache, J., concurring in the result (LeBel and Charron, JJ., concurring), held that Rothstein, J., was wrong in his conclusion that hypothetical infringement was not made because of his analysis on the licensing issue. However, Bastarache, J., stated that the purpose of s. 27(2) was determinative and that the merely incidental presence of the copyright works on the wrappers of the chocolate bars did not bring the bars within the protections offered by the Copyright Act. Abella, J., dissenting (McLachlin, C.J.C., concurring), held that Kraft Canada, as an exclusive licensee of a copyright, could pursue remedies under the Copyright Act when the copyrighted work was displayed on the label of a product imported in circumstances envisioned by s. 27(2). Bastarache, J., although finding it not necessary to deal with the licensing issue, agreed with Abella., J.'s, analysis on the licensing matter.

Copyright - Topic 3

General - Copyright Act - Interpretation - The Supreme Court of Canada per Rothstein, J. (Binnie, Deschamps and Fish, JJ., concurring), in a case that involved the interpretation of the Copyright Act, expressed concerns about the approach to statutory interpretation adopted in a judgment by Bastarache, J., concurring in the result - Rothstein, J., noted that the Supreme Court had repeatedly adopted Driedger's approach to statutory interpretation (i.e., the "modern" or "purposive" approach) - Rothstein, J., opined that Bastarache, J.'s approach, which was concurred in by LeBel and Charron, JJ., departed from that doctrine and took an approach that involved introducing a concept of legitimate interests by reading words into the legislation that were at odds with Parliament's intent - See paragraphs 1 to 13 - Bastarache, J., disagreed, stating that he was simply applying the rules of statutory interpretation consistently to determine legislative intent and had to, in doing so, give proper attention to the legislative context by looking at the provisions under scrutiny, the Copyright Act in general and other legislative provisions that applied to related concepts - See paragraph 75.

Copyright - Topic 3

General - Copyright Act - Interpretation - The Supreme Court of Canada, per Rothstein, J. (Binnie, Deschamps and Fish, JJ., concurring), in determining whether exclusive licensees had the right to sue the owner-licensor for copyright infringement, looked at the copyright regimes in the United States, where exclusive licensees had the right to sue the owner-licensor for infringement, and in the United Kingdom where by contrast exclusive licensees could not sue the owner-licensor for infringement - See paragraphs 42 to 48.

Copyright - Topic 5

General - Concurrent trademark and copyright protection - The Supreme Court of Canada, per Rothstein, J. (Binnie, Deschamps and Fish, JJ., concurring), stated that "... s. 64(3)(b) of the Copyright Act permits a single work to be the subject of both copyright and trademark protection. In other words, Parliament has authorized an overlap between copyright and trademark. I do not doubt the wisdom of LeBel J.'s general statement, at para. 37 of Kirkbi [AG v. Ritvik Holdings Inc.], that it is important to bear in mind the 'basic and necessary distinctions between different forms of intellectual property and their legal and economic functions'. However, this guiding principle must be qualified by the proviso: except where Parliament provides otherwise. Parliament has authorized concurrent copyright and trademark protection for labels. Until it provides otherwise, the courts are bound to conclude that a logo on a chocolate bar wrapper can receive concurrent trademark and copyright protection" - See paragraph 13.

Copyright - Topic 2207

Transfer of copyright - General - Nature of assignees' interest - The Supreme Court of Canada per Rothstein, J. (Binnie, Deschamps and Fish, JJ., concurring), stated that "under the [Copyright] Act, the nature of the assignee's interest in the copyright is clear. Section 13(5) states expressly that assignees of copyright are, with the exception of moral rights, on equal footing with the original copyright owner ... The assignee of an interest in copyright is a copyright owner, and thus enjoys rights against the world, including the right to sue the assignor for infringement. This is because the assignor is no longer the owner of the copyright with respect to the right assigned. This is further reflected by the fact that, under s. 36(2), the assignee is not required to join the assignor as co-plaintiff in an action for copyright infringement. In light of these provisions, I have no difficulty in concluding that an assignee, as a holder of a full property interest in copyright, can sue the assignor for copyright infringement" - See paragraph 29.

Copyright - Topic 3006

Licences - General - Nature of exclusive licensees' interest (incl. status of licensees) - The Supreme Court of Canada per Rothstein, J. (Binnie, Deschamps and Fish, JJ., concurring), stated that "a contextual reading of the Copyright Act reveals that Parliament has preserved the traditional distinction between assignees and licensees with some modification. Under the present Act, there is a distinction between 'assignee', 'licensee' and 'exclusive licensee'. An assignee possesses full ownership rights in the copyright with respect to the rights assigned. A non-exclusive licensee has no property rights in the copyright, and enjoys only contractual rights vis-à-vis the owner-licensor. As a result, it cannot sue for infringement. An exclusive licensee, on the other hand, has a limited property interest in the copyright ... this limited property interest enables the exclusive licensee to sue third parties for infringement but precludes the exclusive licensee from suing the owner-licensor for infringement" - See paragraph 28.

Copyright - Topic 3006

Licences - General - Nature of exclusive licensees' interest (incl. status of licensees) - The Supreme Court of Canada per Rothstein, J. (Binnie, Deschamps and Fish, JJ., concurring), stated that "the status of copyright licensees is different [from assignees]. Parliament has manifested its intent to preserve a distinction between assignees and licensees. There is no provision analogous to s. 13(5) that purports to put licensees or exclusive licensees on equal footing with copyright owners. The Act does however elevate 'exclusive licensees' above mere licensees. Exclusive licensees are not licensees in the common law sense because exclusive licensees under the Act do have a limited proprietary interest in the copyright that has been licensed to them. The rights of exclusive licensees are set out in ss. 2.7, 13(4), 13(6) and 13(7) of the Act. These provisions do not state expressly whether or not an exclusive licensee can sue the licensor for infringement. However, by necessary implication, they enable exclusive licensees to sue third parties but not the owner-licensor for copyright infringement" - See paragraphs 30 and 31.

Copyright - Topic 3006

Licences - General - Nature of exclusive licensees' interest (incl. status of licensees) - The Supreme Court of Canada per Rothstein, J. (Binnie, Deschamps and Fish, JJ., concurring), stated that "... the exclusive licensee's property interest in the copyright is limited. An exclusive licence is not a complete assignment of copyright. The owner-licensor retains a residual ownership interest in the copyright. The owner-licensor's residual ownership interest precludes it from being liable for copyright infringement. An owner-licensor is liable to its exclusive licensee for breach of the licensing agreement but not for copyright infringement" - See paragraph 37.

Copyright - Topic 3006

Licences - General - Nature of exclusive licensees' interest (incl. status of licensees) - Section 2.7 of the Copyright Act stated that "for the purposes of this Act, an exclusive licence is an authorization to do any act that is subject to copyright to the exclusion of all others including the copyright owner, whether the authorization is granted by the owner or an exclusive licensee claiming under the owner" - The Supreme Court of Canada  per Rothstein, J. (Binnie, Deschamps and Fish, JJ., concurring), stated that "section 2.7 is a definitional section, which enshrines the common law definition of exclusive licence in the Copyright Act. Section 2.7 defines an exclusive licence as an authorization to do any act that is a right described in s. 3 to the exclusion of all others including the copyright owner (i.e., the right to produce and reproduce a work to the exclusion of all others including the copyright owner). But it says nothing about the consequences of violating that exclusive right. Those consequences and remedies for a violation of an exclusive licence are dealt with in other provisions of the Act, e.g. ss. 27(1) and 36(1). As discussed above, when the definitional and liability provisions are read in context, the necessary conclusion is that an exclusive licensee may sue third parties for infringement, but not the owner of the copyright who is liable only for breach of contract" - Rothstein, J., rejected a suggestion made in a concurring judgment by Bastarache, J. (LeBel and Charron, JJ., concurring), that he had read down the words of s. 2.7 in order to reach this conclusion - See paragraph 40.

Copyright - Topic 3006

Licences - General - Nature of exclusive licensees' interest (incl. status of licensees) - The Supreme Court of Canada per Rothstein, J. (Binnie, Deschamps and Fish, JJ., agreeing on this point), stated that "... A non-exclusive licensee has no property rights in the copyright, and enjoys only contractual rights vis-à-vis the owner-licensor. As a result, it cannot sue for infringement. An exclusive licensee, on the other hand, has a limited property interest in the copyright ... this limited property interest enables the exclusive licensee to sue third parties for infringement but precludes the exclusive licensee from suing the owner-licensor for infringement" - See paragraph 28 - Abella, J., dissenting (McLachlin, C.J.C., concurring), held that when a copyright owner granted an exclusive licence it had, to the extent of the duration, territorial scope, and terms of the licence temporarily granted that interest in the copyright to the exclusive licensee - A licence which gave the licensor "sole and exclusive rights", when read together with the Copyright Act, gave the exclusive licensee the right to invoke the Act for copyright infringement not only against third parties, but against the owner-licensor as well - See paragraphs 120 to 123 - Bastarache, J. (LeBel and Charron, JJ., concurring), in a judgment concurring in the result with Rothstein, J., although finding it unnecessary to deal with the licensing issue, agreed with Abella, J., on this matter - See paragraph 75.

Copyright - Topic 3006

Licences - General - Nature of exclusive licensees' interest (incl. status of licensees) - [See second Copyright - Topic 3 ].

Copyright - Topic 4412

Infringement of copyright - General principles - Secondary infringement - Kraft Canada was granted an exclusive copyright licence by its European parent companies respecting Toblerone and Côte d'Or chocolate bars - The parent companies owned copyrights respecting the artwork on the wrappers of the chocolate bars - Euro-Excellence imported into Canada and sold genuine Toblerone and Côte d'Or chocolate bars from another European source with the same wrappers as those used by Kraft Canada - Kraft Canada and its parent companies sued Euro-Excellence, alleging copyright infringement in the artwork of the wrappers (i.e., secondary infringement under s. 27(2)(e) of the Copyright Act by importing Kraft parent companies' copyrighted works into Canada) - The Supreme Court of Canada per Rothstein, J. (Binnie, Deschamps and Fish, JJ., concurring), held that there was no hypothetical primary infringement in this case, which was one of the requirements of s. 27(2)(e), and therefore Euro-Excellence could not have engaged in secondary infringement - See paragraphs 1 to 56.

Copyright - Topic 4412

Infringement of copyright - General principles - Secondary infringement - Kraft Canada was granted an exclusive copyright licence by its European parent companies respecting Toblerone and Côte d'Or chocolate bars - The parent companies owned copyrights respecting the artwork on the wrappers of the chocolate bars - Euro-Excellence imported into Canada and sold genuine Toblerone and Côte d'Or chocolate bars from another European source with the same wrappers as those used by Kraft Canada - Kraft Canada and its parent companies sued Euro-Excellence, alleging copyright infringement in the artwork of the wrappers (i.e., secondary infringement under s. 27(2)(e) of the Copyright Act by importing Kraft parent companies' copyrighted works into Canada) - The Supreme Court of Canada per Rothstein, J. (Binnie, Deschamps and Fish, JJ., concurring), stated that to establish a claim of secondary infringement against Euro-Excellence, Kraft Canada would have had to show that the Kraft parent companies would have infringed copyright if they had made the labels in Canada instead of Europe - Under the exclusive licence agreements, the Kraft parent companies were not permitted to produce or reproduce the copyrighted works in Canada, and if they did so, Kraft Canada's only remedy would lie in breach of contract - As owners of the Canadian copyright in the Toblerone and Côte d'Or logos, the Kraft parent companies could not infringe their own copyright - Although Kraft Canada, as an exclusive licensee, had a property interest in the copyright that enabled it to sue third parties for infringement, the Kraft parent companies retained a residual ownership interest in the copyright, which prevented Kraft Canada from suing them for infringement - Therefore, Kraft Canada failed to establish "hypothetical infringement", which was necessary to ground a claim against Euro-Excellence under s. 27(2)(e) - See paragraph 49.

Copyright - Topic 4412

Infringement of copyright - General principles - Secondary infringement - Section 27 of the Copyright Act prohibited secondary infringement and in particular, s. 27(2)(e) provided that "it is an infringement of copyright for any person to ... import ... a copy of a work ... that the person knows ... would infringe copyright if it had been made in Canada by the person who made it" - The Supreme Court of Canada per Rothstein, J. (Binnie, Deschamps and Fish, JJ., concurring), stated that "the Canadian Copyright Act does not extend protection against parallel importation to exclusive licensees. Section 27(2)(e) of the Copyright Act, read in context with the provisions discussed above, shows that an exclusive licensee cannot sue for secondary infringement where the licensor is the hypothetical infringer because the owner-licensor cannot infringe its own copyright and cannot be sued for copyright infringement. If Parliament decides that this result is problematic, it can amend the Copyright Act. In the meantime, this court must apply the Act that Parliament has given us" - See paragraph 50.

Copyright - Topic 4412

Infringement of copyright - General principles - Secondary infringement - Section 27(2) of the Copyright Act dealt with secondary infringement - Section 27(2)(e) provided that "it is an infringement of copyright for any person to ... import ... a copy of a work ... that the person knows ... would infringe copyright if it had been made in Canada by the person who made it" - The Supreme Court of Canada, per Rothstein, J. (Binnie, Deschamps and Fish, JJ., concurring), stated that "the apparent purpose of s. 27(2)(e) is to give Canadian copyright holders an added layer of protection where the Canadian copyright holder does not hold copyright in that work in foreign jurisdictions. Section 27(2)(e) protects Canadian copyright holders against 'parallel importation' by deeming an infringement of copyright even where the imported works did not infringe copyright laws in the country in which they were made. Without s. 27(2)(e), the foreign copyright holder who could manufacture the work more cheaply abroad could flood the Canadian market with the work, thereby rendering the Canadian copyright worthless. Section 27(2)(e) thus represents Parliament's intention to ensure that Canadian copyright holders receive their just rewards even where they do not hold copyright abroad ..." - See paragraph 21.

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - [See first Copyright - Topic 3 ].

Words and Phrases

Grant of an interest - The Supreme Court of Canada discussed the meaning of this phrase as it appeared in ss. 13(4) and 13(7) of the Copyright Act, R.S.C. 1985, c. 42 - See paragraphs 34 to 36.

Cases Noticed:

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 2].

CCH Canadian Ltd. et al. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339; 317 N.R. 107; 2004 SCC 13, refd to. [paras. 2, 70, 113].

Théberge v. Galerie d'Art du Petit Champlain inc. et al., [2002] 2 S.C.R. 336; 285 N.R. 267; 2002 SCC 34, refd to. [paras. 3, 76, 112].

Bishop v. Stevens - see Bishop v. Télé- Métropole Inc.

Bishop v. Télé-Métropole Inc., [1990] 2 S.C.R. 467; 111 N.R. 376, refd to. [paras. 3, 113].

Blue Crest Music Inc. et al. v. Compo Co., [1980] 1 S.C.R. 357; 29 N.R. 296, refd to. [paras. 3, 113].

Kirkbi AG v. Ritvik Holdings Inc., [2005] 3 S.C.R. 302; 341 N.R. 234; 43 C.P.R.(4th) 385; 2005 SCC 65, refd to. [paras. 11, 82].

Dictionnaires Robert Canada S.C.C. and Editions France-Amérique (1984) ltée v. Librairie du Nomade Inc. and Sussman (1987), 11 F.T.R. 44 (T.D.), refd to. [para. 21].

A & M Records of Canada Ltd. v. Millbank Music (1984), 1 C.P.R.(3d) 354 (F.C.T.D.), refd to. [para. 21].

Fly by Nite Music Co. v. Record Wherehouse Ltd., [1975] F.C. 386 (T.D.), refd to. [para. 21].

Clarke, Irwin & Co. v. Cole (C.) & Co. (1960), 33 C.P.R. 173 (Ont. H.C.), refd to. [para. 21].

Thomas v. Sorrell (1673), Vaugh. 330; 124 E.R. 1098, refd to. [para. 27].

Robertson v. Thomson Corp. et al., [2006] 2 S.C.R. 363; 353 N.R. 104; 217 O.A.C. 332; 2006 SCC 43, refd to. [paras. 36, 55, 118].

Ritchie v. Sawmill Creek Golf & Country Club Ltd. et al., [2003] O.T.C. 736; 35 C.P.R.(4th) 163 (Sup. Ct.), refd to. [para. 36].

United States Naval Institute v. Charter Communications Inc. (1991), 936 F.2d 692 (2nd Cir.), refd to. [para. 43].

Architectronics Inc. v. Control Systems Inc. (1996), 935 F. Supp. 425 (S.D.N.Y.), refd to. [para. 43].

Griggs Group Ltd. v. Evans, [2004] F.S.R. 31; [2003] E.W.H.C. 2914 (Ch.), refd to. [para. 45].

R. & A. Bailey Co. v. Boccaccio Pty. Ltd. (1986), 84 F.L.R. 232 (S.C.N.S.W.), refd to. [para. 66].

Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers et al., [2004] 2 S.C.R. 427; 322 N.R. 306; 2004 SCC 45, refd to. [para. 81].

AstraZeneca Canada Inc. v. Canada (Minister of Health) et al., [2006] 2 S.C.R. 560; 354 N.R. 88; 2006 SCC 49, refd to. [para. 83].

British Leyland Motor Corp. v. Armstrong Patents Co., [1986] 1 All E.R. 850 (H.L.), refd to. [para. 95].

Houle v. Banque Nationale du Canada, [1990] 3 S.C.R. 122; 114 N.R. 161; 35 Q.A.C. 161, refd to. [para. 97].

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1, refd to. [para. 97].

Bouchet v. Kyriacopoulos (1964), 45 C.P.R. 265 (Ex. Ct.), refd to. [para. 117].

Éditions de la Table ronde s.a v. Cousture, [1995] Q.J. No. 1519 (S.C.), refd to. [para. 120].

Dynabec ltée v. Société d I'nformation R.D.G. Inc. (1985), 6 C.P.R.(3d) 322 (Que. C.A.), refd to. [para. 120].

Fonds Gabrielle Roy v. Éditions internationales Alain Stanké ltée, [1993] Q.J. no. 2525 (S.C.), refd to. [para. 122].

British Actors Film Co. v. Glover, [1918] 1 K.B. 299, refd to. [para. 122].

Statutes Noticed:

Copyright Act, R.S.C. 1985, c. C-42, sect. 2, sect. 2.7, sect. 3(1)(a), sect. 13(4), sect. 13(5), sect. 13(6), sect. 13(7), sect. 27(1), sect. 27(2), sect. 27(2)(e), sect. 64(2), sect. 64(3)(b) [Appendix].

Authors and Works Noticed:

Bently, L., and Sherman, B., Intellectual Property Law (2nd Ed. 2004), pp. 254, 255 [para. 45].

Côté, Pierre-André, Interpretation of Legislation in Canada (3rd Ed. 2000), pp. 342 ff. [para. 83].

Drassinower, Abraham, Taking User Rights Seriously, in Geist, Michael, In the Public Interest: The Future of Canadian Copyright Law (2005), pp. 462, 470 [para. 79].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 2].

Geist, Michael, In the Public Interest: The Future of Canadian Copyright Law (2005), pp. 462, 470 [para. 79].

Judge, Kathryn, Rethinking Copyright Misuse (2004), 57 Stan. L. Rev. 901, pp. 903, 904 [para. 98].

Laddie, Hugh, Prescott, Peter, and Vitoria, Mary, The Modern Law of Copyright and Designs (3rd Ed. 2000), vol. 1, p. 905 [para. 45].

McKeown, John S., Fox on Canadian Law of Copyright and Industrial Designs (4th Ed. 2003) (2007 Looseleaf Update, Release 1), pp. 19-24 [para. 116]; 19-25 [para. 119].

Megarry, Robert Edgar, A Manual of the Law of Real Property (8th Ed. 2002), p. 475 [para. 27].

Nimmer, Melville B., and Nimmer, David, Nimmer on Copyright (1981) (2002 Looseleaf Update, Release 59), vol. 3, pp. 12-58, 12-59 [para. 43].

Scassa, Teresa, Using Copyright Law to Prevent Parallel Importation: A Comment on Kraft Canada, Inc. v. Euro Exellence, Inc. (2006), 85 Can. Bar Rev. 409, p. 416 [para. 119].

Tamaro, Normand, The 2006 Annotated Copyright Act (2006), generally [para. 119].

Vaver, David, The Exclusive Licence in Copyright (1995), 9 I.P.J. 163, pp. 164, 165 [para. 26].

Ziff, Bruce H., Principles of Property Law (4th Ed. 2006), p. 270 [para. 27].

Counsel:

François Boscher and Pierre-Emmanuel Moyse, for the appellant;

Timothy M. Lowman and Kenneth D. McKay, for the respondents;

Howard P. Knopf and Elizabeth G. Elliott, for the intervenor, the Retail Council of Canada;

R. Scott Jolliffe and James H. Buchan, for the intervenor, the Alliance of Manufacturers & Exporters Canada.

Solicitors of Record:

François Boscher, Montreal, Quebec, for the appellant;

Sim, Lowman, Ashton & McKay, Toronto, Ontario, for the respondents;

Macera & Jarzyna, Ottawa, Ontario, for the intervenor, the Retail Council of Canada;

Gowling Lafleur Henderson, Toronto, Ontario, for the intervenor, the Alliance of Manufacturers & Exporters Canada.

This appeal was heard before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court of Canada was delivered in both official languages on July 26, 2007, and the following opinions were filed:

Rothstein, J. (Binnie and Deschamps, JJ., concurring) - see paragraphs 1 to 51;

Fish, J. - see paragraphs 52 to 56;

Bastarache, J. (LeBel and Charron, JJ., concurring) - see paragraphs 57 to 106;

Abella, J., dissenting (McLachlin,C.J.C, concurring) - see paragraphs 107 to 130.