Thorson v. Attorney General of Canada, (1974) 1 N.R. 225 (SCC)

• Judge: Laskin and Dickson, JJ.
• Court: Supreme Court of Canada
• Case Date: Tuesday January 22, 1974
• Jurisdiction: Canada (Federal)
• Citations: (1974), 1 N.R. 225 (SCC);[1974] ACS no 45;[1974] SCJ No 45 (QL);1 NR 225;1974 CanLII 6 (SCC);[1975] 1 SCR 138;43 DLR (3d) 1

Thorson v. Can. (A.G.) (1974), 1 N.R. 225 (SCC)

MLB headnote and full text

Thorson v. Attorney General of Canada

Indexed As: Thorson v. Attorney General of Canada

Supreme Court of Canada

Fauteux, C.J.C., Abbott, Martland,

Judson, Ritchie, Spence, Pigeon,

Laskin and Dickson, JJ.

January 22, 1974.

Summary:

This case arose out of a class action by a taxpayer for a declaration that the Canada Official Languages Act and the Appropriation Acts providing money to implement it were unconstitutional. The Attorney General for Canada opposed the plaintiff's action and claimed that the plaintiff had no status or standing to maintain the action because the plaintiff had not suffered any special damage. The trial court found that the plaintiff had no status to maintain the action and accordingly dismissed the action - see [1972] 1 O.R. 86. On appeal to the Ontario Court of Appeal the appeal was dismissed and the trial court judgment was affirmed - see [1972] 2 O.R. 370.

On appeal to the Supreme Court of Canada the appeal was allowed, the judgments of the Ontario Supreme Court were set aside and the plaintiff was declared to have the status to commence the action and that the action should be determined on its merits. Judson, J., dissenting, would have dismissed the appeal and would have held that the plaintiff had no status to maintain the action.

The Supreme Court of Canada stated that the status of a taxpayer to maintain a class action to question legislation is a matter for the discretion of the court and relevant to that discretion is the nature of the legislation under attack - see paragraph 6. The Supreme Court of Canada stated that the standing of a taxpayer who challenges the constitutionality of Federal legislation is a matter particularly appropriate for the exercise of judicial discretion and central to that discretion is the justiciability of the issues sought to be raised - see paragraph 28.

Practice - Topic 207

Persons who can sue and be sued - Capacity or standing - Class action by an individual respecting the validity of Federal legislation - A taxpayer commenced a class action for a declaration that the Canada Official Languages Act was unconstitutional - The Attorney General for Canada claimed that the plaintiff had no status to maintain the action because the plaintiff had suffered no special damage - The Supreme Court of Canada held that the plaintiff had the standing and capacity to commence the action and that the action should be determined on its merits.

Cases Noticed:

MacIlreith v. Hart (1907), 39 S.C.R. 657, folld. [paras. 2, 17]; dist. [para. 39].

Smith v. Attorney General of Ontario, [1924] S.C.R. 331, not folld. [para. 2]; folld. [para. 36].

Dyson v. The Attorney General, [1911] 1 K.B. 410, folld. [para. 3]; dist. [para. 38].

Attorney General v. Independent Broadcasting Authority, ex parte McWhirter, [1973] 1 All E.R. 689, refd to. [para. 5].

London County Council v. Attorney General, [1902] A.C. 165, folld. [para. 5].

Wallasey Local Board v. Gracey (1887), 36 Ch.D. 593, folld. [para. 10].

Tottenham Urban District Council v. Williamson & Sons Ltd., [1896] 2 Q.B. 353, folld. [para. 10].

Boyce v. Paddington Borough Council, [1903] 1 Ch. 109, folld. [para. 10].

Electrical Development Co. of Ontario v. Attorney General of Ontario, [1919] A.C. 687, folld. [para. 13].

B.C. Power Corp. Ltd. v. B.C. Electric Co. Ltd., [1962] S.C.R. 642, folld. [para. 13].

Attorney General of Victoria v. The Commonwealth (1946), 71 C.L.R. 237, folld. [para. 15].

Massachusetts v. Mellon (1923), 262 U.S. 447, folld. [para. 15].

Reference re Subsections (1), (3) and (4) of s. 11 of the Official Languages Act, s. 23C of the New Brunswick Evidence Act and s. 14 of the New Brunswick Official Languages Act (1972), 5 N.B.R.(2d) 653, refd to. [para. 16].

Paterson v. Bowes (1853), 4 Gr. 170, folld. [para. 18]; dist. [para. 39].

Crampton v. Zabriskie (1897), 101 U.S. 601, folld. [para. 18].

Bromley v. Smith (1826), 1 Sim. 8; 57 E.R. 482, folld. [para. 18].

Prescott v. Birmingham, [1955] Ch. 210, refd to. [para. 18].

Bradbury v. Enfield, [1967] 1 W.L.R. 1311, refd to. [para. 18].

Holden v. Bolton (1887), 3 T.L.R. 676, refd to. [para. 18].

Collins v. Lower Hutt City Corporation, [1961] N.Z.L.R. 250, refd to. [para. 18].

Bradford v. Municipality of Brisbane, [1901] Queensland L.J. 44, folld. [para. 22].

Frothingham v. Mellon (1923), 262 U.S. 447, refd to. [para. 25].

Everson v. Board of Education (1947), 330 U.S. 1, folld. [para. 26].

Flast v. Cohen (1968), 392 U.S. 83, folld. [para. 26].

Doremus v. Board of Education (1952), 342 U.S. 429, folld. [para. 26].

Sierra Club v. Morton (1972), 405 U.S. 727, refd to. [para. 27].

Anderson v. Commonwealth (1932), 47 C.L.R. 50, folld. [para. 28].

R. v. Barker (1762), 3 Burr. 1295, folld. [para. 29].

Counsel:

J.T. Thorson, Q.C., for the appellant;

J.J. Robinette, Q.C. and T.B. Smith, Q.C., for the respondents.

MARTLAND, RITCHIE, SPENCE, PIGEON, and DICKSON, JJ. concurred with LASKIN, J.

FAUTEUX, C.J.C., and ABBOTT, J., concurred with JUDSON, J.