Council of Natural Medicine College of Canada v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia

Council of Natural Medicine College of Canada v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia
Court (s) Database
Federal Court Decisions
Date
2013-03-19
Neutral citation
2013 FC 287
File numbers
T-427-09
Decision Content
Federal Court
Cour fédérale
Date: 20130319
Docket: T-427-09
Citation: 2013 FC 287
Ottawa, Ontario, March 19, 2013
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
COUNCIL OF NATURAL MEDICINE COLLEGE OF CANADA
Applicant
and
COLLEGE OF TRADITIONAL CHINESE MEDICINE PRACTITIONERS AND ACUPUNCTURISTS OF BRITISH COLUMBIA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
TABLE OF CONTENTS
Overview........................................................................................................................................... 1
Parties................................................................................................................................................ 2
The Council..................................................................................................................................... 2
The College..................................................................................................................................... 5
Previous Litigation.......................................................................................................................... 7
Background....................................................................................................................................... 9
Provincial Legislation..................................................................................................................... 9
Federal Legislation......................................................................................................................... 10
Public Authority................................................................................................................................ 12
Adoption and Use............................................................................................................................. 15
The Division of Powers..................................................................................................................... 17
Overview........................................................................................................................................ 17
Basic Principles of Constitutional Analysis.................................................................................... 19
No Evidence to Support Impairment.............................................................................................. 22
Incidental Effects........................................................................................................................... 23
Inter-jurisdictional Immunity.......................................................................................................... 25
Ancillary Powers............................................................................................................................. 29
Conclusion on Federalism............................................................................................................... 30
Freedom of Expression...................................................................................................................... 33
Minimal Impairment....................................................................................................................... 34
Bill of Rights....................................................................................................................................... 36
JUDGMENT..................................................................................................................................... 39
ANNEX A: Trade-marks Act, RSC 1985, c T-13............................................................................. 40
ANNEX B: The Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c 3............................................. 43
ANNEX C: The Canadian Bill of Rights, SC 1960, c 44.................................................................. 44
ANNEX D: Health Professions Act, RSBC 1996, Ch 183............................................................... 45
ANNEX E: Traditional Chinese Medicine Practitioners and Acupuncturists Regulations
(BC Reg 29012008)........................................................................................................................... 50
Overview
[1] The Registrar of Trade-marks is required by legislation to give public notice of adoption and use of an official mark once an organization establishes that it is a public authority that has, prior to the time of application, adopted and used the proposed mark. In this case, the Registrar gave public notice that the College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia had adopted and used 16 official marks, under subparagraph 9(1)(n)(iii) of the Trade-marks Act, RSC 1985, c T-13 (the Trade-marks Act) (Annex A).
[2] The applicant, the Council of Natural Medicine College of Canada, brings this application for judicial review to set aside the Registrar’s decision.
[3] Decisions of the Registrar are reviewed on a standard of reasonableness unless new evidence is adduced which would have materially affected the decision: See You In – Canadian Athletes Fund Corporation v Canadian Olympic Committee, 2007 FC 406, aff’d 2008 FCA 124. In this case, there was fresh evidence and so the standard is correctness.
[4] I conclude that the Registrar committed no reviewable error. The Registrar correctly determined, consistent with the governing criteria, that the respondent College is a public authority that had adopted and used the official marks: Ontario Association of Architects v Association of Architectural Technologists of Ontario, 2002 FCA 218 at para 34.
[5] The applicant Council also challenges the vires of subparagraph 9(1)(n)(iii), both as beyond the legislative competence of Parliament in its application to the medical arts, and as an unjustifiable restriction of freedom of expression under subsection 2(b) of the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982) (Charter). Arguments with respect to constitutionality, whether under the Constitution Act, 1867 (Annex B) or the Charter are also measured against a standard of correctness. These arguments also fail and the application is dismissed.
[6] The Attorney General of British Columbia (AGBC) appeared in response to a Notice of Constitutional Question served by the applicant.
Parties
The Council
[7] The applicant Council (as opposed to the respondent College) was incorporated by Dr. Sky Willow as a non-profit company under federal legislation on December 4, 2002. It is a private corporation, despite its name. The Council creates educational programs in traditional Chinese medicine (TCM) and acupuncture. Affiliated private schools teach these programs under license from the Council. At present, the Council has one affiliated school in Toronto, Ontario. The facts underlying this application relate to the Shanghai TCM College in Burnaby, British Columbia, now closed.
[8] The Council entered into a trade-mark licence agreement with graduates from its programs, licensing the use of various trade-marks previously held by, or for which registration had been filed, by the Council such as D.T.C.N. (Doctor of Traditional Chinese Medicine):
(1) D.T.C.M. (Doctor of Traditional Chinese Medicine) (registered 2005, expunged 2012)
(2) Registered D.T.C.M. (registered 2006, abandoned 2010
(3) Dr. TCM (filed for registration, abandoned
(4) D.P.C.M. (Doctorate of Philosophy in Chinese Medicine) (registered mark in 2005 and 2007, expunged 2012)
(5) Registered D.P.C.M. (filed 2006, abandoned 2012)
(6) R. TCM. P (Registered TCM Practitioner) (filed for registration, abandoned 2007)
[9] The promotional literature used by the Council to recruit students into its program described that it was offering, upon completion of the training, the right to use a trade-mark. An advertisement for a 2007 information session in Toronto read, in part:
Information Session on Licence System for Doctor of Traditional Chinese Medicine and Alternative Medicine Therapist of federally registered CNMCC
We invite you to attend the following information session on the trade mark-licenses of the Council of Natural Medicine College of Canada (CNMCC) of the Government of Canada Holistic Medicine Dispensary (H.M.D.), Natural Medicine Database Practitioners (N.M.D.P.) and Natural Health Doctor (N.H.D.)
…
Contents of Information Session:
* Presentation on the licence system for the administration of medicine for the Alternative Medicine Therapist and Doctor of Traditional Chinese Medicine of the federally registered Council of Natural Medicine College of Canada (CNMCC)
…
* Information on how to join the federally registered Council of Natural Medicine College of Canada (CNMCC) and introduction on the roles of the members for the improvement of health care.
[10] A 2008 advertisement provided:
Canada International College of T.C.M. authorized for educating programs to obtain the Council of Natural Medicine College of Canada (CNMCC) Trade Mark-Licence® approved by Government of Canada is now accepting candidates who wish to take lectures prepared for CNMCC Trade Mark-License® exams as follows. We invite many to participate and obtain a Trade Mark-License® for Alternative Medicine Therapist, Naturopathic Physician, Doctor of Traditional Chinese Medicine and Registered Acupuncturist.
[11] And, to same effect, the Council’s website provided:
The Council of Natural Medicine College of Canada (CNMCC) is the owner of all rights and titles in and to the trade-marks referred to on this website. Any unauthorized use of these trade-marks shall be subject to prosecution under the Trade-marks Act.
[12] In an August 2006 letter to the City of Vancouver business licensing department, the Council held out to the City that it was “responsible for reviewing and approving accreditation for educational programs through out Canada.” At the same time, the CNMCC website included a “Scope of Practices” heading, which stated that CNMCC members were entitled to practice acupuncture and TCM.
[13] There is, of course, a vast legal distinction between the right to use a trade-mark and the right to practice a regulated trade or profession. The promotional literature, through the close juxtaposition and interlineation of the language “federally licensed”, “federally registered” and “Government of Canada” between the name of the Council and its trade-marks, obfuscated otherwise legally discrete domains. As will be described, individuals enrolled in the Council’s program and paid tuition only to find that, upon graduation, they had no right to practice acupuncture and TCM in British Columbia.
The College
[14] The respondent College was established in 1999 under the Health Professions Act, RSBC 1996, c 183 (Health Professions Act) (Annex D) and the Traditional Chinese Medicine Practitioners and Acupuncturists Regulation, BC Reg 290/2008 (Annex E) to regulate and govern the practice of TCM and acupuncture in British Columbia.
[15] As a professional self-governing body, the College grants registration to applicants who satisfy the criteria set out in its by-laws, including university pre-requisite courses, successful completion of an approved educational program involving clinical training, and registration exams. Registrants are then permitted to use certain reserved titles and abbreviations: R. Ac. (Registered Acupuncturist); R.TCM.H. (Herbalist); R.TCM.P. (Registered TCM Practitioner); and Dr. TCM (Doctor of Traditional Chinese Medicine). These titles are prescribed, designated and reserved under British Columbia law.
[16] In British Columbia only the College may authorize individuals to practice TCM and acupuncture. Despite this, the Council’s promotional literature implied a right to practice, and certain graduates subsequently represented themselves as having a “federal licence” to practice TCM and acupuncture. The Council also represented itself to prospective students as a professional regulatory body whose members were entitled to practice TCM and acupuncture under a “federally registered license”. There is, of course, no federal license to practice medicine, TCM or otherwise.
[17] In 2005, the Council demanded that the College cease and desist from using the phrase “Doctor of Traditional Chinese Medicine”, alleging infringement of its registered trade-mark. This demand, of course, ignored the College’s powers and obligations, as mandated by statute and regulation, including the fact that the titles were reserved and prescribed under provincial law.
[18] In response to the Council’s continued use of the trade-marks, the College decided to adopt official marks. It began to use the marks in April 2007, and on February 18, 2009, the Registrar published public notice of the College’s adoption and use of the following official marks, which are the subject of this judicial review:
(1) D.T.C.M. (DOCTOR OF TRADITIONAL CHINESE MEDICINE)
(official mark 918 354)
(2) REGISTERED D.T.C.M. (official mark 918 355)
(3) D.T.C.M.
(4) DR. TCM (official mark 918 357)
(5) D.P.C.M. (DOCTORATE OF PHILOSOPHY IN TRADITIONAL CHINESE MEDICINE)*
(6) TRADITIONAL CHINESE MEDICINE*
(7) DOCTOR OF TRADITIONAL CHINESE MEDICINE
(8) REGISTERED D.P.C.M.*
(9) ACUPUNCTURIST*
(10) REGISTERED ACUPUNCTURIST
(11) R. AC. (REGISTERED ACUPUNCTURIST) (official mark 918 364)
(12) R. TCM. P.
(13) R. TCM. P. (REGISTERED TCM PRACTITIONER) (official mark 918 366)
(14) R. TCM. H.
(15) R. TCM. H. (REGISTERED TCM HERBALIST)
(16) R. AC.
* Subsequently withdrawn.
Previous Litigation
[19] In September 2009, the College also obtained, in this Court, summary judgment and a permanent injunction restraining the Council from adopting, using or licensing the use of the protected titles and abbreviations in association with educational training, certification and registration, the operation of a TCM or acupuncture clinic, or the practice of TCM and acupuncture: College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia v Council of Natural Medicine College of Canada, 2009 FC 1110 [CTCMPA of BC v CNMCC].
[20] The Court enjoined the use of the titles and abbreviations that implied a professional designation or degree, or governmental approval. Justice O’Keefe found that the Council’s marks were clearly descriptive or deceptively misdescriptive and therefore not registrable under paragraph 12(1)(b). Justice O’Keefe also found that the marks were not distinctive as required under paragraph 18(1)(b). A declaration was issued declaring the registrations invalid pursuant to paragraphs 18(1)(a), (b) and subsection 18(1) of the Trade-marks Act. An Order was issued expunging the registrations.
[21] Justice O’Keefe found that the Council’s trade-marks had been historically used to describe doctors of TCM and acupuncturists and that these services and historical marks have had a commercial usage. Therefore, the above-mentioned marks were also prohibited under section 10 of the Trade-marks Act.
[22] Finally, Justice O’Keefe found that the Council had misled the public so that individuals would believe that it was a federal regulatory body, responsible for the practice of TCM, rather than the mere owner of a trade-mark. Justice O’Keefe cited examples of individuals who used the trade-mark in advertising their professional services. Additionally, he found that the Council’s advertisements suggested it was a federal regulatory body, which authorized the practice of TCM and not simply a holder of certain trade-marks.
[23] The Council’s appeal from this judgment has been discontinued.
[24] The Council now seeks an order declaring the Registrar’s public notice of the above-listed official marks invalid. To this end, it contends that:
(1) The College is not a public authority;
(2) The College did not adopt or use the official marks;
(3) Subparagraph 9(1)(n)(iii), paragraph 12(1)(e) and section 11 of the Trade-marks Act must be read down to ensure their constitutionality. Specifically, the Council contends that the provisions trench upon subsection 92(13) of the Constitution Act, 1867 and are ultra vires as they offend the freedom of expression protection in section 2(b) of the Charter; and
(4) Subparagraph 9(1)(n)(iii) offends subsection 2(e) of the Bill of Rights.
[25] Insofar as the applicant Council seeks declarations of constitutional invalidity, I find subparagraph 9(1)(n)(iii) to be a valid exercise of Parliament’s authority to legislate in respect of trade and commerce, that the legislation is a justifiable infringement of freedom of expression as protected by section 2(b) of the Charter, and that subsection 2(e) of the Canadian Bill of Rights, SC 1960, c 44 (Bill of Rights) (Annex C) has no application in the context of the Registrar’s decision to grant an official mark.
Background
Provincial Legislation
[26] Under the Health Professions Act and associated regulations, British Columbia has established a comprehensive scheme for the regulation of all medical arts and health care providers in the province. Broadly read, it establishes self-governing colleges in defined areas of healthcare and grants to practitioners governance over their respective professions. The legislation requires the colleges to establish standards for all aspects of the practice of their profession including training, accreditation, ethics, public complaints, and discipline. The regulations also authorize the reservation of professional titles and govern their use and abbreviations as determined by the colleges and their respective by-laws. It is the Government of British Columbia, however, which enacts the regulations necessary to give the scheme legal effect.
[27] The legislature of British Columbia has therefore defined and controlled the use of professional titles in designated health care professions and restricted their use to members of colleges with the required accreditation. The Traditional Chinese Medicine Practitioners and Acupuncturists Regulation applies specifically in this case. By virtue of this Regulation, the titles “acupuncturist,” “traditional Chinese medicine practitioner,” “doctor of traditional Chinese medicine” and others are reserved for the exclusive use of members of the College.
[28] The Health Professions Act enables the Minister of Health to exercise on-going control and supervision over the policy and operational decisions of the colleges. For example, under section 17, the Minister must appoint board members; no less than one-third and no more than those elected by the College must be government appointed.
[29] Additionally, under section 18.1 the Minister may, if it is considered “necessary in the public interest,” inquire into the colleges’ activities and issue directives. This power is very broad; the inquiry may be into “any aspect” of the practice or governance of the profession. The Minister may also require the Board to perform its duties in a certain manner, to adopt any standard or restraint.
[30] The Minister also supervises the colleges’ bylaw making authority. Under section 19, the Minister may disallow, amend, repeal and enact bylaws. The extent of the use of this authority will be discussed later in the review of the evidence.
Federal Legislation
[31] The Trade-marks Act, subparagraph 9(1)(n)(iii) grants public authorities in Canada exclusive use of their “official marks”:
9 (1) No person shall adopt in connection with a business, as a trade-mark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for,
[…]
(n) any badge, crest, emblem or mark
[…]
(iii) adopted and used by any public authority, in Canada as an official mark for wares or services, in respect of which the Registrar has, at the request of Her Majesty or of the university or public authority, as the case may be, given public notice of its adoption and use;
9. (1) Nul ne peut adopter à l’égard d’une entreprise, comme marque de commerce ou autrement, une marque composée de ce qui suit, ou dont la ressemblance est telle qu’on pourrait vraisemblablement la confondre avec ce qui suit :
[…]
n) tout insigne, écusson, marque ou emblème :
[…]
(iii) adopté et employé par une autorité publique au Canada comme marque officielle pour des marchandises ou services, à l’égard duquel le registraire, sur la demande de Sa Majesté ou de l’université ou autorité publique, selon le cas, a donné un avis public d’adoption et emploi;
[32] This provision grants protection to a public authority that adopts and uses an official mark. The public authority gains exclusive use of a mark that, unlike a trade-mark, is not tied to specific wares or services. All others are prohibited from adopting a mark that so nearly resembles as likely to be mistaken for it in connection with a business. It is not necessary for the public authority to demonstrate the distinctiveness of a proposed official mark or any secondary meaning, and there is no requirement that public notice be given of a request to the Registrar: Canadian Jewish Congress v Chosen People Ministries, Inc, 2002 FCT 613 at paras 22-24.
[33] Section 11 and paragraph 12(1)(e) enforce the exclusivity of the official marks granted under section 9:
11. No person shall use in connection with a business, as a trade-mark or otherwise, any mark adopted contrary to section 9 or 10 of this Act or section 13 or 14 of the Unfair Competition Act, chapter 274 of the Revised Statutes of Canada, 1952.
12. (1) Subject to section 13, a trade-mark is registrable if it is not
[…]
(e) a mark of which the adoption is prohibited by section 9 or 10;
11. Nul ne peut employer relativement à une entreprise, comme marque de commerce ou autrement, une marque adoptée contrairement à l’article 9 ou 10 de la présente loi ou contrairement à l’article 13 ou 14 de la Loi sur la concurrence déloyale, chapitre 274 des Statuts revisés du Canada de 1952.
12. (1) Sous réserve de l’article 13, une marque de commerce est enregistrable sauf dans l’un ou l’autre des cas suivants :
[…]
e) elle est une marque dont l’article 9 ou 10 interdit l’adoption;
Public Authority
[34] I find that the Registrar correctly determined that the College is a public authority for the purposes of the Trade-marks Act.
[35] To constitute a public authority, the organization must be under a significant degree of public control and must exist for the public benefit: Ontario Association of Architects at paras 51-52. The Council does not contest that the College exists for the public benefit, but, I find nonetheless that the College regulates the practices of TCM and acupuncture to promote public confidence in the provision of medical services and public health and safety. Through the College’s registration system, the public is able to identify who is qualified to provide this type of healthcare service and is assured of a minimum level of training and expertise. This is clearly in the public interest. The first criterion of the test is satisfied.
[36] In Ontario Association of Architects, at paragraphs 60-62, the Federal Court of Appeal identified the indicia of ongoing government supervision of a self-regulatory professional body that would satisfy the public control test. The Court noted that the mere fact that a body is statutory or that the objects and powers may be amended unilaterally by the legislature does not constitute “government control”. Rather, the following powers, exercisable by the relevant minister or Lieutenant Governor in Council, constituted a significant degree of governmental control:
(1) The power to review the activities of the body;
(2) The power to request that the body undertake necessary and desirable activities to implement the intent of its enabling legislation;
(3) The power to advise the body on the implementation of the statutory scheme;
(4) The power to approve the exercise of the body’s regulation-marking; and
(5) The power to appoint members to the board and various committees.
[37] The Government of British Columbia, through the Minister of Health, exercises these powers over the College. Section 18.1 of the Health Professions Act enables the Minister to appoint a person to inquire into any aspect of the administration or operation of the College. Section 18.2 permits the Minister to issue directives, which may require the College to exercise certain powers or perform certain duties. Subsection 19(3.1) allows the Minister to disallow certain bylaws proposed by the College and subsection 19(6) allows the Minister to create, amend or repeal bylaws if certain pre-conditions are met. Finally, paragraphs 17(3)(b), 17(4)(a) and 17(4)(b) allow the Minister to appoint between one-third and one-half of the board members.
[38] The indicia identified by the Court of Appeal are not exhaustive, nor is the presence or absence of any one factor determinative. The analysis remains contextual and in this case there are additional indicia of government control. The College provides audited financial statements and an annual report to the Minister of Health. Additionally, the College is a designated public body under the Freedom of Information and Protection of Privacy Act, RSBC 1996, c 165. The College is listed under Schedule 3 with the consequence that the public has a right of access to records in its custody or under its control.
[39] There was evidence before this Court that through the vehicle of the by-laws, the government exercised de facto, as well as de jure control over the College. Mr. Arden Henley, a government appointee to the Board from 2005 – 2011, explained that the government played an active role in the College’s day-to-day operations. In his evidence he gave examples in support:
[The College] inevitably ends up with operational, as well as policy, discussions with the legislative branch of government, who eventually must, by order of a council and other means, approve any changes that the college makes.
[…]
….those discussions do not take place in a limited and arcane way. Those discussions take place in a regular ongoing and operational way. That’s how change is made, by agreement [about the by-laws] with the government and ultimately by approval with the government.
[40] Before leaving the issue of government control, the applicant Council points to the fact that the College, in seeking to protect the official marks under section 9, is acting inconsistently with the AGBC’s legal position, as advanced in these proceedings on inter-jurisdictional immunity. The AGBC says subparagraph 9(1)(n)(iii) must be read down and does not apply to matters within the scope of subsection 92(13) of the Constitution Act, 1867, such as the regulation of health professions. This divergence of positions on the constitutional issue is said to be evidence that the province does not “control” the College.
[41] The case law does not require that to be a public authority the authority agree with all aspects of government policy, let alone in areas unrelated to their mandate. Presumably the College thought it in the best interests of the profession and the public to obtain the official marks in question, and, if it was of that view, it was mandated to act accordingly.
[42] Finally, Ontario Association of Architects does not assist the applicant in establishing that the control test was not met. In that case, the objects of the Ontario Association of Architects were not in issue; rather, it was the objects of the Association of Architectural Technologists of Ontario (the AATO) that were under consideration. The ATTO monopoly was narrow and nothing prevented non-members from being employed or practicing their trade. The government of Ontario did not exercise the power of approving by-laws, ordering inquiries or issuing directions to the ATTO, as in the case at bar. This case does not assist the applicant in establishing that the control test was not met.
Adoption and Use
[43] The Registrar correctly determined that the College had adopted and used the official marks.
[44] The public authority must have adopted and used the official mark before the Registrar gives public notice. The Registrar gave public notice on February 18, 2009. This is the date before which adoption and use must be established.
[45] Adoption and use are not defined terms. They are broad in scope and, for the purpose of section 9, a mark is adopted and used if it is displayed in association with services, even if the mark is not distinctive or is clearly descriptive.
[46] Two principle requirements govern adoption and use. First, there must be some degree of public display. Internal use alone is insufficient. Second, the marks must be distinguished from the surrounding text. For example, it would be insufficient for the College to merely use the words “traditional Chinese medicine” within a phrase or sentence.
[47] The Council has emphasized that the College did not publish the official marks in any of its printed materials. However, there is no requirement that the mark be displayed in this particular way. This Court has previously found that displaying the mark on a public website is sufficient: FileNet Corp v Canada (Registrar of Trade-marks), 2001 FCT 865 at para 65 (aff’d 2002 FCA 418). More recently, in TSA Stores, Inc. v Registrar of Trade-marks, 2011 FC 273, this Court reasoned that as the term “services” is not defined it should be given a liberal interpretation.
[48] The facts of this case are similar to those in FileNet. The College adopted and used the official marks by displaying them on its publicly accessible website before the date of public notice. The marks were preceded by an explanation that, “In addition to the titles listed above, the CTCMA has adopted and uses the following marks: [sixteen marks listed]”. Each official mark was hyperlinked to detailed information about the related services and vocation. The marks were clearly identified and listed without any surrounding text. In this way, the College signalled to the public the significance of each official mark, while providing information and registration services to its members and the public on the website.
[49] As in TSA Stores, the website provided a significant amount of information relevant to the public, potential practitioners, and to practitioners. There was evidence before the Registrar that the website was accessible to, and used by, Canadians. The conclusion of the Registrar that the College adopted, used and displayed its mark in association with its services is amply supported by the evidence.
[50] The applicant argues that this display was contrived in order to support the College’s application. In my view it is irrelevant whether the College displayed the marks merely to support its application to the Registrar. The question is whether the marks were adopted and used, not whether they were adopted and used with a particular motive or in furtherance of a particular objective. Indeed, the evidence indicates the College sought to carefully ensure that it had complied with the statutory requirements of adoption and use before submitting an application. The criteria of public display in association with services satisfied.
Division of Powers
Overview
[51] The Trade-marks Act is, in pith and substance, an exercise of the trade and commerce power, under subsection 91(2) of the Constitution Act, 1867: Kirkbi AG v Ritvik Holdings Inc., 2005 SCC 65, [2005] 3 SCR 302. The Trade-marks Act is directed to the regulation of trade, generally, and not to the regulation of a particular business. This distinction is fundamental to its constitutionality. It is also fundamental to understanding why the challenge to the official marks provision of the Act fails.
[52] The Council and the AGBC do not contest the vires of the provisions as being a valid exercise of the trade and commerce power; rather they contend that paragraph 9(1)(n), section 11 and paragraph 12(1)(e) should be read down to be inapplicable to all matters assigned to the provinces under the Constitution Act, 1867. This would include any matter falling under section 92(13) including the regulation of the medical arts and health care professions. Put otherwise, the applicants contend that the sections are a valid exercise of the federal power but they simply do not apply to the provinces.
[53] Legislation which is, in pith and substance, a valid exercise of a legislative or Parliament’s authority is not “read down” simply because it may have an incidental effect on a head of provincial legislative authority. Reading down, as a remedy, is a device used by the courts where otherwise valid legislation impairs or trenches upon the legislative responsibilities of the other government.
[54] Reading down, if applied in the expansive manner as suggested by the applicant and the AGBC, would amount to a fundamental re-working of the constitution in general and the trade and commerce power, in particular. If given effect, the argument would deny the doctrine of incidental effects. All legislation would be read down or circumscribed so as to eliminate any effect on the provincial or federal government. It would confine each head of power, whether federal or provincial, to a hermetically sealed, watertight compartment with precisely prescribed boundaries de-marking the scope of the power.
[55] Reading down would also resuscitate, through an interpretive doctrine, the inter-jurisdictional immunity argument rejected by the Supreme Court of Canada (SCC). As will be considered, the constitutional arguments also fail as they have no evidentiary foundation. In sum, Sections 11, subparagraphs 9(1)(n)(iii) and paragraph 12(1)(e) are valid regardless of any incidental effects on the province’s powers.
[56] As the arguments advanced seek to displace long-received principles guiding the division of powers, it is useful to revisit, briefly, the basic principles.
Basic Principles of Constitutional Analysis
[57] The analysis of any case involving the division of powers commences with a determination of the pith and substance of the legislation. By examining both the purpose of the impugned law and its effect, the courts characterize the principle object of the impugned legislation. In Canadian Western Bank v Alberta, 2007 SCC 22, [2007] 2 SCR 3 at paragraphs 27 – 37, the SCC provided a clear framework governing the analysis of division of powers:
To determine the pith and substance, two aspects of the law must be examined: the purpose of the enacting body and the legal effect of the law (Reference re Firearms Act, at para. 16). To assess the purpose, the courts may consider both intrinsic evidence, such as the legislation’s preamble or purpose clauses, and extrinsic evidence, such as Hansard or minutes of parliamentary debates. In so doing, they must nevertheless seek to ascertain the true purpose of the legislation, as opposed to its mere stated or apparent purpose (Attorney-General for Ontario v. Reciprocal Insurers, [1924] A.C. 328 (P.C.), at p. 337). Equally, the courts may take into account the effects of the legislation. For example, in Attorney-General for Alberta v. Attorney-General for Canada, [1939] A.C. 117 (“Alberta Banks”), the Privy Council held a provincial statute levying a tax on banks to be invalid on the basis that its effects on banks were so great that its true purpose could not be (as the province argued) the raising of money by levying a tax (in which case it would have been intra vires), but was rather the regulation of banking (which rendered it ultra vires, and thus invalid).
The fundamental corollary to this approach to constitutional analysis is that legislation whose pith and substance falls within the jurisdiction of the legislature that enacted it may, at least to a certain extent, affect matters beyond the legislature’s jurisdiction without necessarily being unconstitutional. At this stage of the analysis of constitutionality, the “dominant purpose” of the legislation is still decisive. Its secondary objectives and effects have no impact on its constitutionality: “merely incidental effects will not disturb the constitutionality of an otherwise intra vires law” (Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21 (CanLII), [2000] 1 S.C.R. 494, 2000 SCC 21, at para. 23). By “incidental” is meant effects that may be of significant practical importance but are collateral and secondary to the mandate of the enacting legislature: see British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49 (CanLII), [2005] 2 S.C.R. 473, 2005 SCC 49, at para. 28. Such incidental intrusions into matters subject to the other level of government’s authority are proper and to be expected: General Motors of Canada Ltd. v. City National Leasing, 1989 CanLII 133 (SCC), [1989] 1 S.C.R. 641, at p. 670. In Bank of Toronto v. Lambe (1887), 12 App. Cas. 575, by way of further example, and in contrast to the Alberta Banks case already mentioned, the Privy Council upheld the validity of legislation levying a tax on banks, holding that the pith and substance of the legislation was indeed to generate revenue for the province, and its essential purpose was therefore in relation to direct taxation, not banks or banking. See P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 1, at para. 15.5(a).
[…]
Also, some matters are by their very nature impossible to categorize under a single head of power: they may have both provincial and federal aspects. Thus the fact that a matter may for one purpose and in one aspect fall within federal jurisdiction does not mean that it cannot, for another purpose and in another aspect, fall within provincial competence: Hodge v. The Queen (1883), 9 App. Cas. 117 (P.C.), at p. 130; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), 1988 CanLII 81 (SCC), [1988] 1 S.C.R. 749 (“Bell Canada (1988)”), at p. 765. The double aspect doctrine, as it is known, which applies in the course of a pith and substance analysis, ensures that the policies of the elected legislators of both levels of government are respected. A classic example is that of dangerous driving: Parliament may make laws in relation to the “public order” aspect, and provincial legislatures in relation to its “Property and Civil Rights in the Province” aspect (O’Grady v. Sparling, 1960 CanLII 70 (SCC), [1960] S.C.R. 804). The double aspect doctrine recognizes that both Parliament and the provincial legislatures can adopt valid legislation on a single subject depending on the perspective from which the legislation is considered, that is, depending on the various “aspects” of the “matter” in question.
[58] This framework is dispositive of the constitutional issue raised in this case. Six key principles that are particularly germane can be drawn from Canadian Western Bank:
(1) The pith and substance of legislation can be discerned from both its purpose and its effects.
(2) Legislation which in pith and substance falls within the jurisdiction of the legislature that enacted it may, to a certain extent, affect matters beyond the legislature’s jurisdiction without being unconstitutional.
(3) The “pith and substance” doctrine is founded on the recognition that it is in practice impossible for a legislature to exercise its jurisdiction over a matter effectively without incidentally affecting matters within the jurisdiction of another level of government.
(4) The incidental effects will not disturb the constitutionality of an otherwise intra vires law.
(5) “Incidental” effects may be of significant practical importance but are collateral and secondary to the mandate of the enacting legis