Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General), (1993) 160 N.R. 161 (SCC)

• Judge: Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 21, 1993
• Jurisdiction: Canada (Federal)
• Citations: (1993), 160 N.R. 161 (SCC)

Magder Furs Ltd. v. Ont. (A.G.) (1993), 160 N.R. 161 (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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Hy and Zel's Inc. et al. (appellants) v. Attorney General for Ontario (respondent)

(22556)

Paul Magder Furs Limited et al. (appellants) v. Attorney General for Ontario (respondent)

(22559)

Indexed As: Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General)

Supreme Court of Canada

Lamer, C.J.C., La Forest,

L'Heureux-Dubé, Sopinka, Gonthier,

Cory, McLachlin, Iacobucci

and Major, JJ.

October 21, 1993.

Summary:

A retail business refused to close on holi­days defined under s. 1(1)(a) of the Retail Business Holidays Act. A trial court granted an interim order under s. 8 of the Act, which required the business to close on certain holidays. The business and 30 employees applied for a declaration that the Act vio­lated the Charter of Rights and Freedoms and that the employees had a right to work on holidays. The business continued to violate the order and appealed the interim order.

The Ontario Court of Appeal, in a judg­ment reported 52 O.A.C. 151, quashed the appeal where the business was in contempt of the appealed order. The business con­tinued to violate the interim order and was found by a trial court to be in contempt. The business appealed the contempt finding.

The Ontario Court of Appeal adjourned the appeal sine die until the business purged the contempt and undertook to abide by the order.

The Ontario Court of Appeal, in a judg­ment reported 57 O.A.C. 145, subsequently ruled that the notice of appeal did not stay the imposition of fines under the contempt order. The business' application to bring the s. 8 application back on for hearing was dismissed due to the continuing contempt of the interim order. Another retail business and its employees, in response to s. 8 appli­cation, also brought a civil application for declaratory relief respecting the constitu­tionality of the Act. Both applications for declarations were dismissed on the ground that the Act was already determined to be constitutional by the Court of Appeal in Peel (Regional Municipality) v. Atlantic & Pacific Co. of Canada Ltd. (1991), 44 O.A.C. 179. Leave to appeal from that decision was granted by the Supreme Court of Canada. Both retail businesses appealed the dismissal of their applications.

The Ontario Court of Appeal dismissed both appeals on the ground of its previous ruling as to the constitutionality of the Act. Both businesses and their employees appealed. An issue arose as to whether the businesses and employees had public interest standing to challenge the constitutionality of the Act by way of civil application for declaratory relief.

The Supreme Court of Canada, L'Heureux-Dubé and McLachlin, JJ., dis­senting, dismissed the appeal on the ground that the businesses and employees lacked public interest standing. They failed to show that there were no other reasonable and effective means of bringing the matter before the court.

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues - [See Practice - Topic 219 ].

Practice - Topic 219

Persons who can sue and be sued - Indi­viduals and corporations - Status or stand­ing - Validity or interpretation of legisla­tion - Two retail businesses and employees brought civil applications for declaratory relief challenging the constitu­tionality of the Retail Business Holidays Act - Both businesses faced a number of outstanding charges under the Act in the lower courts, but were not presently de­fending charges - The Supreme Court of Canada held that the businesses and employees lacked standing - There was a serious issue as to the Act's validity and the businesses and employees were directly affected (liable to prosecution), but they failed to establish that there was no other reasonable and effective way to bring the issue before the court - The court stated that it was not an appropriate case to determine the extent to which Smith v. Ontario (Attorney General), [1924] S.C.R. 331 (standing on basis of exceptional prejudice) survived in view of the more liberal view respecting public interest standing - See paragraphs 11 to 22.

Practice - Topic 221

Persons who can sue and be sued - Indi­viduals and corporations - Status or stand­ing - Public interest standing - Require­ments of - The Supreme Court of Canada stated that "in order that the court may exercise its discretion to grant standing in a civil case, where, as in the present case, the party does not claim a breach of its own rights under the Charter but those of others, (1) there must be a serious issue as to the Act's validity, (2) the appellants must be directly affected by the Act or have a genuine interest in its validity, and (3) there must be no other reasonable and effective way to bring the Act's validity before the court." - See paragraph 13.

Cases Noticed:

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 30 C.C.C.(3d) 385; 55 C.R.(3d) 193; 35 D.L.R.(4th) 1; 28 C.R.R. 1, refd to. [paras. 1, 39].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

Ontario (Attorney General) v. Magder (Paul) Furs Ltd. (1989), 71 O.R.(2d) 513 (H.C.), refd to. [para. 4].

Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General) (1991), 52 O.A.C. 151; 6 O.R.(3d) 188 (C.A.), leave to appeal refused [1992] 2 S.C.R. ix; 137 N.R. 76, refd to. [para. 5].

Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General) (1992), 57 O.A.C. 145; 10 O.R.(3d) 46 (C.A.), refd to. [para. 5].

Ontario (Attorney General) v. Magder (Paul) Furs Ltd. (1991), 5 O.R.(3d) 560 (Gen. Div.), refd to. [para. 6].

Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1991), 44 O.A.C. 179; 2 O.R.(3d) 65 (C.A.), reving. 73 O.R.(2d) 289 (H.C.), leave to appeal granted [1991] 3 S.C.R. x; 137 N.R. 387, refd to. [paras. 8, 25].

Oshawa Group Ltd. et al. v. Ontario (At­torney General) - see Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd.

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [paras. 12, 54].

Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138; 1 N.R. 225; 43 D.L.R.(3d) 1, refd to. [paras. 12, 47].

McNeil v. Nova Scotia Board of Censors, [1976] 2 S.C.R. 265; 5 N.R. 43; 12 N.S.R.(2d) 85; 6 A.P.R. 85; 32 C.R.N.S. 376; 55 D.L.R.(3d) 632, refd to. [paras. 12, 47].

Borowski v. Minister of Justice of Canada et al., [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420; 130 D.L.R.(3d) 588; [1982] 1 W.W.R. 97; 24 C.P.C. 62; 24 C.R.(3d) 352; 64 C.C.C.(2d) 97, refd to. [paras. 12, 47].

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338; 33 D.L.R.(4th) 321, refd to. [paras. 12, 58].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [paras. 20, 31].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [paras. 20, 31].

Smith v. Ontario (Attorney General), [1924] S.C.R. 331, refd to. [paras. 21, 43].

R. v. Big M Drug Mart, [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; [1985] 3 W.W.R. 481; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,023; 13 C.R.R. 64, refd to. [para. 34].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577; 25 C.P.R.(3d) 417, refd to. [para. 36].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161; 67 C.C.C.(3d) 193; 8 C.R.(4th) 145, refd to. [para. 36].

MacIlreith v. Hart (1907), 39 S.C.R. 657, refd to. [para. 50].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 2(a) [para. 10]; sect. 7 [para. 36]; sect. 15 [para. 10].

Constitution Act, 1982, sect. 52 [para. 72].

Retail Business Holidays Act, R.S.O. 1980, c. 453, sect. 1(1)(a) [para. 1]; sect. 2, sect. 7(1), sect. 7(3) [para. 15]; sect. 8 [para. 2].

Authors and Works Noticed:

British Columbia, Law Reform Commis­sion, Report on Civil Litigation in the Public Interest (1980), generally [para. 69].

British Columbia, Law Reform Commis­sion, Report on Standing, generally [para. 44].

Cromwell, Thomas A., Locus Standi (1986), pp. 69 [para. 59]; 82 [para. 59]; 90 [para. 47]; 191 [para. 44].

Hogg, Peter W., Constitutional Law of Canada (3rd Ed. 1992), pp. 1263 [paras. 32, 44]; 1265 [para. 48]; 1273, 1274 [paras. 73, 75].

Ontario, Law Reform Commission, Report on Standing (1989), generally [para. 69].

Scott, Kenneth E., Standing in the Supreme Court - A Functional Analysis (1973), 86 Harv. Law Rev. 645, gen­erally [para. 32].

Strayer, Barry L., The Canadian Constitu­tion and the Courts (3rd Ed. 1988), pp. 187, 188 [para. 60].

Counsel:

Timothy S.B. Danson and Julian N. Fal­coner, for the appellants;

Elizabeth C. Goldberg and Hart Schwartz, for the respondent.

Solicitors of Record:

Danson, Recht & Freedman, Toronto, Ontario, for the appellants;

Attorney General for Ontario, Toronto, Ontario, for the respondent.

These appeals were heard on February 25, 1993, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

On October 21, 1993, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Major, J. (Lamer, C.J.C., La Forest, Sopinka, Gonthier, Cory and Iacobucci, JJ., concurring) - see paragraphs 1 to 22;

L'Heureux-Dubé, J., (McLachlin, J., concurring), dissenting - see para­graphs 23 to 100.