Hy and Zel's Inc. v. Ontario (Attorney General); Paul Magder Furs Ltd. v. Ontario (Attorney General)

Hy and Zel's Inc. v. Ontario (Attorney General); Paul Magder Furs Ltd. v. Ontario (Attorney General)
Collection
Supreme Court Judgments
Date
1993-10-21
Report
[1993] 3 SCR 675
Case number
22556, 22559
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Action
Notes
SCC Case Information: 22556, 22559
Decision Content
Hy and Zel's Inc. v. Ontario (Attorney General); Paul Magder Furs Ltd. v. Ontario (Attorney General), [1993] 3 S.C.R. 675
Hy and Zel's Inc., et al. Appellants
v.
The Attorney General for Ontario Respondent
and between
Paul Magder Furs Limited, et al. Appellants
v.
The Attorney General for Ontario Respondent
Indexed as: Hy and Zel's Inc. v. Ontario (Attorney General); Paul Magder Furs Ltd. v. Ontario (Attorney General)
File Nos.: 22556, 22559.
1993: February 25; 1993: October 21.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Practice -- Standing -- Act defining holiday and restricting shopping on those defined holidays -- Corporate Charter challenge alleging infringement of freedom of religion following convictions for breach of Act -- Declaration sought that Act unconstitutional -- Application stayed pending decision in similar case but brought on following finding of constitutionality -- Constitutional questions querying whether freedom of religion infringed and, if so, whether infringement justified -- Whether corporations had standing to seek declaration of unconstitutionality -- Retail Business Holidays Act, R.S.O. 1980, c. 453, ss. 1(1)(a), 2(2), 8(1), (2).
The Retail Business Holidays Act restricts holiday shopping and defines "holiday". The Act has been defied by many retailers, notwithstanding a finding of constitutional validity, and each amendment subsequent to this finding has been seen as dealing a fatal blow to its constitutionality.
The Attorney General for Ontario applied under s. 8 of the Retail Business Holidays Act for an order requiring Paul Magder Furs Ltd. and two other retailers to close on the following Sunday (Christmas Eve), Christmas Day, and Boxing Day. In response, Paul Magder Furs Ltd., together with some 30 employees not named in the s. 8 application, brought a civil application in the High Court against the Attorney General (the "Magder application") requesting declarations that s. 2(2) of the Act was unconstitutional and that the employee applicants had a right to work on the holidays stated in the Act. The Magder application requested a hearing at the same time as the s. 8 application and relied on the material filed in the Attorney General's s. 8 application. An interim s. 8 order requiring Paul Magder Furs Ltd. to close on holidays as defined in the Act was granted given that firm's deliberate and persistent breaches of the Act. The Ontario Court of Appeal quashed an appeal of the interim order on jurisdictional grounds and at adjourned sine die an appeal from a finding of contempt which was made when the firm remained open in violation of the interim order. That court later ruled that the notice of appeal did not stay the imposition of fines under the contempt order and refused Paul Magder Furs Ltd.'s application to bring the s. 8 application back on for hearing because of its continuing contempt of court.
The Regional Municipality of Halton brought a s. 8 application against Hy & Zel's Inc. The Attorney General later intervened and took over the action. In response to the s. 8 application, the principals of Hy & Zel's Inc. brought a civil application requesting, among other things, a declaration that s. 2(2) of the Act was invalid. Hy and Zel's Inc. subsequently brought a new application against the Attorney General, with over 100 of its employees, seeking declarations that s. 2(2) of the Act was unconstitutional, that the Act was unconstitutional and that the employee applicants have a right to work on holidays. This application relied on material filed in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada, plus some additional affidavit evidence.
The applications of both firms were stayed until a judgment was rendered in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada. This case involved a similar s. 8 application and applications for declaratory relief. Both the Magder and the Hy & Zel applications were set for hearing following the Court of Appeal's finding the Act to be constitutional in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada. The constitutional questions here queried whether the Retail Business Holidays Act infringed religious freedom guaranteed by s. 2 (a) of the Canadian Charter of Rights and Freedoms or equality rights guaranteed by s. 15 , and if so, whether the infringements were justified under s. 1 .
Held (L'Heureux‑Dubé and McLachlin JJ. dissenting): The appeals should be dismissed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: In order for the Court to exercise its discretion to grant standing in a civil case, where the party does not claim a breach of its own Charter rights but those of others, a serious issue must be raised as to the Act's validity, the appellants must be directly affected by the Act or have a genuine interest in its validity, and no other reasonable and effective way can exist for bringing the Act's validity before the court.
A serious issue was raised here. It was assumed for purposes of this appeal only that the numerous amendments enacted in the years since the Act was upheld in R. v. Edwards Books and Art Ltd. have sufficiently altered the Act that the Act's validity was no longer a foregone conclusion.
The Act had a direct effect on the appellants. While the Act affects all Ontarians by limiting shopping on defined holidays, only retailers and retail employees were subject to prosecution for its violation.
Other reasonable and effective ways to bring the issue before the court existed. Since both applications presented almost no original evidence in support of their claim, and relied on evidence filed in the Attorney General's s. 8 application (the Magder application) or in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (the Hy and Zel application), a more reasonable and effective matter of bringing this matter before the court may exist. The nature of the Act did not assist the appellants. The Act did not discourage challenges and so create a situation where no party directly affected could reasonably be expected to challenge the legislation. The party seeking to challenge the Act must show that there is no other reasonable and effective means of bringing the matter before the court.
Appellants did not have standing on the basis that their own religious rights have been violated. Even if it is assumed that corporations can have religious rights, there was no evidence or allegation that appellants' rights were violated. Charter decisions cannot be made in a factual vacuum. In the absence of facts specific to the appellants, both the Court's ability to ensure that it hears from those most directly affected and that Charter issues are decided in a proper factual context are compromised.
This was not a proper case for deciding the extent to which the test for standing in Smith v. Attorney General of Ontario survived the more liberal views relating to public interest standing. No evidence was presented as to how appellants suffered exceptional prejudice under the earlier test.
Per L'Heureux‑Dubé and McLachlin JJ. (dissenting): Given the procedural history of this appeal, the understanding of the appellants that this litigation was to proceed as a test case and, in particular, its effect on the large number of outstanding charges presently facing the appellants in the lower courts which raise the same constitutional issue, this is an appropriate case for this Court to exercise its discretion to grant the appellants standing. This conclusion is buttressed by a consideration of both the special and continuing effect of the Act on the appellants in this litigation, the goals of efficiency in the administration of justice and the costs to society and the parties involved of further litigation on the same issue as well as the general rationale underlying the rules of standing. Recognition of the practical and financial impediments to challenging this legislation that would face the appellant employees without the assistance of the corporate appellants militates in favour of granting standing to those appellants.
Standing and the entitlement to the relief sought must be differentiated. Standing is a threshold question involving the recognition of entitlement to come before the court and it must remain, both conceptually and factually, distinct from the court's rulings after hearing the appeal.
R. v. Big M Drug Mart Ltd. did not decide the question of standing here. Its ratio of this case is the positive right of a corporation to rely on the Charter rights of others in defence to a criminal charge. The Court did not consider whether corporations have rights under s. 2 (a) because it would be irrelevant since no one could be convicted under an unconstitutional law. Neither R. v. Big M Drug Mart Ltd. nor Irwin Toy v. Quebec (Attorney General) suggests that the Court's rulings on the Charter rights of corporations affects their standing to challenge a perceived infringement of their constitutional right.
The "exceptional prejudice" rule articulated in Smith v. Attorney General of Ontario, required a plaintiff challenging a law of general application to establish that the legislation had a greater impact on the plaintiff than on the public at large and that the plaintiff had an interest affecting his or her personal, proprietary or pecuniary rights. The Attorney General, as a corollary, was assumed to act as the guardian of the public interest. The trilogy of Thorson v. Attorney General of Canada, Nova Scotia Board of Censors v. McNeil, and Minister of Justice of Canada v. Borowski greatly broadened access to the courts and removed the categorical barriers to standing. The courts increasingly look beneath the rules governing standing and consider whether the legislation would be immunized from attack and whether it could be attacked by private litigants removing the need for public interest standing.
The rules regarding public interest standing, which were advanced in the trilogy to liberalize access to the courts, do not govern litigants falling squarely within the rule in Smith. Litigants are still entitled to standing as long as they are able to establish that they are "exceptionally prejudiced" by the legislation's effect on their private rights. The general rule in Smith also applies to litigants seeking declarations under the Charter . Standing must also be available to parties facing criminal or quasi‑criminal procedures to challenge the constitutionality of the legislation. The appellants here fall squarely into the category of "public interest litigants" but they are better described as persons who experience "exceptional prejudice" under the Act.
A flexible approach allowing courts to respond to a spectrum of concerns affecting both the parties and the administration of justice should prevail over a strict, no‑exception approach. Citizens have an interest in the constitutionally sound behaviour on the part of the legislatures and where the constitutionality of legislation is at issue, the primary focus is on the law itself, and not on the position of the parties. In resolving standing, the Court should take a purposive and functional rather than categorical approach and resort the concerns, which underlie the restrictions on standing such as the multiplicity of suits and judicial economy, should be considered.
A challenge to the constitutionality of a law (assuming that it involves no remedy other than a finding of invalidity) must be governed by the same rules of standing and procedure, regardless of whether the challenge is based on federal or Charter grounds. Corporations, because they may not invoke Charter rights, face obstacles in bringing a Charter challenge that do not exist in division of power challenges. There is no reason in principle, however, to adhere rigidly to a rule which automatically bars challenges to legislation directly affecting a corporate plaintiff simply on the ground that the impugned aspect of the legislation does not directly affect it. As the constitutionality of the law may be raised in defence, the question should be whether the plaintiff has sufficient interest in the outcome of a constitutional challenge. The overriding concern is whether governments have respected the limits of their constitutional authority. Technical barriers to standing based on such grounds as the mode of proceeding chosen cannot be sustained on the level of principle.
The ability of other litigants to bring the issue before the courts should not operate as an automatic and inflexible bar to the court's discretion to grant standing. Consideration should be given in assessing the benefits of proceeding with the constitutional challenge and the prejudice to the appellants in refusing standing late in the proceedings, particularly where the party seeking standing is already before the courts.
The question of the application of s. 15 rights to corporations or to the legislation challenged in this case has not yet been addressed by the Court. As the appellants are the appropriate parties to raise a s. 15 argument in this context and leave was granted by this Court on the issue, no basis for denying standing existed.
The appellants can rely on the record of other parties raising identical legal issues in what are essentially identical circumstances. The nature of the evidence is not generally an issue that bears on the question of standing. Particularly in constitutional cases, background evidence of a general nature may be relevant to set the context of the issue quite apart from the position of the specific parties. More importantly, it would unquestionably be prejudicial to the appellants to have been permitted to rely on this record all along, only to be told at this stage that they will be denied standing for this reason.
The appellant retail employees should not be denied standing for want of evidence to establish standing. Deciding the appeal in a factual vacuum is not an issue at this stage. A court's concern at this stage of the proceedings is whether there is enough material to assess the "nature of the interest" which the plaintiff is asserting. This does not necessarily entail an examination of the evidence. The only effective way for the retail employees to bring an issue before the court, given the expense, may be to join the application with an application brought by others. The employees are affected by the Act's provisions even if they are unlikely to be charged under the Act and their rights under the Act as guaranteed by ss. 2 (a) and 15 of the Charter remain an open question.
Cases Cited
By Major J.
Referred to: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1991), 2 O.R. (3d) 65 (C.A.), reversing (1990), 73 O.R. (2d) 289 (H.C.), leave to appeal granted sub nom. Oshawa Group Ltd. v. Attorney General of Ontario, [1991] 3 S.C.R. x.; Ontario (Attorney-General) v. Paul Magder Furs Ltd. (1989), 71 O.R. (2d) 513; Ontario (Attorney General) v. Paul Magder Furs Ltd. (1991), 6 O.R. (3d) 188, leave to appeal refused, [1992] 2 S.C.R. ix; Ontario (Attorney General) v. Paul Magder Furs Ltd. (1992), 10 O.R. (3d) 46; Ontario (Attorney General) v. Paul Magder Furs Ltd. (1991), 5 O.R. (3d) 560, with supplementary reasons delivered July 16, 1992; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; Thorson v. Attorney General of Canada,[1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; MacKay v. Manitoba, [1989] 2 S.C.R. 357; Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; Smith v. Attorney General of Ontario, [1924] S.C.R. 331.
By L'Heureux‑Dubé J. (dissenting)
Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1991), 2 O.R. (3d) 65, reversing (1990), 73 O.R. (2d) 289, (leave to appeal granted sub nom. Oshawa Group Ltd. v. Attorney General of Ontario, [1991] 3 S.C.R. x); MacKay v. Manitoba, [1989] 2 S.C.R. 357; Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Smith v. Attorney General of Ontario, [1924] S.C.R. 331; Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575; MacIlreith v. Hart (1908), 39 S.C.R. 657; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607.
Statutes and Regulations Cited
Retail Business Holidays Act, R.S.O. 1980, c. 453, ss. 1(1)(a) [am. S.O. 1989, c. 3. s. 1], 2(1) [am. ibid., s. 2 ], (2), 7(1) [am. ibid., s. 7], (2) [am. ibid., s. 7].
Authors Cited
British Columbia. Law Reform Commission. Report on Civil Litigation in the Public Interest. LRC 46. Vancouver: 1980.
Cromwell, Thomas A. Locus Standi: A Commentary on the Law of Standing in Canada. Toronto: Carswell, 1986.
Hogg, Peter W. Constitutional Law of Canada, 3rd ed. Toronto: Carswell, 1992.
Ontario. Law Reform Commission. Report on the Law of Standing. Toronto: Ministry of the Attorney General, 1989.
Scott, Kenneth E. "Standing in the Supreme Court -‑ A Functional Analysis" (1973), 86 Harv. L. Rev. 645.
Strayer, Barry L. The Canadian Constitution and the Courts, 3rd ed. Toronto: Butterworths, 1988.
APPEAL (Hy and Zel's Inc. et al. v. Attorney General for Ontario, S.C.C., File No. 22556) from a judgment of the Ontario Court of Appeal dismissing an appeal from a judgment of Potts J. dismissing an application for declaratory relief. Appeal dismissed, L'Heureux-Dubé and McLachlin JJ. dissenting.
APPEAL (Paul Magder Furs Ltd. et al. v. Attorney General for Ontario, S.C.C., File No. 22559) from a judgment of the Ontario Court of Appeal dismissing an appeal from a judgment of Potts J. dismissing an application for declaratory relief. Appeal dismissed, L'Heureux-Dubé and McLachlin JJ. dissenting.
Timothy S. B. Danson and Julian N. Falconer, for the appellants.
Elizabeth C. Goldberg and Hart Schwartz, for the respondent.
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ. was delivered by
Major J. --
I. Facts
The Retail Business Holidays Act, R.S.O. 1980, c. 453, (the "Act") restricts holiday shopping. Section 1(1)(a) of the Act defines "holiday" as
1. -- (1) . . .
(a) . . .
(i) New Year's Day,
(ii) Good Friday,
(iii) Victoria Day,
(iv) Canada Day,
(v) Labour Day,
(vi) Thanksgiving Day,
(vii) Christmas Day,
(viii) the 26th day of December,
(ix) Sunday, and
(x)any other public holiday declared by proclamation of the Lieutenant Governor to be a holiday for the purposes of this Act; . . .
Since the Act was first proclaimed in 1975, numerous retailers have defied its provisions despite this Court's ruling in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 (Edwards Books), that the Act was constitutionally valid. Each subsequent amendment has been viewed by retailers as a fatal blow to the Act's constitutionality.
Paul Magder Furs Ltd. has worn a wide path to the courthouse over the past ten years. The present trek began in late December 1989. The Attorney General for Ontario applied under s. 8 of the Act for an order requiring Paul Magder Furs Ltd. and two other retailers to close on the following Sunday (Christmas Eve), Christmas Day, and Boxing Day ("the s. 8 application"). Section 8 states:
8.__(1) Upon the application of counsel for the Attorney General or of a municipality to the Supreme Court, the court may order that a retail business establishment close on a holiday to ensure compliance with this Act or a by-law or regulation under this Act.
(2) An order under subsection (1) is in addition to any other penalty that may be imposed and may be made whether or not proceedings have been commenced in the Provincial Offences Court for a contravention of section 2 or of a by-law or regulation under this Act.
In response, Paul Magder Furs Ltd., together with some 30 employees not named in the s. 8 application, brought a civil application in the Ontario High Court of Justice against the Attorney General and the Toronto police (the "Magder application") requesting the following relief:
a. an interim and final order enjoining the Toronto police from enforcing the Act against the applicants until the applicants had challenged the constitutional validity of the Act
b. an interim and final order enjoining Metropolitan Toronto from taking steps against the applicants pursuant to the Act
c. a declaration that s. 2(2) of the Act is unconstitutional
d. a declaration that the employee applicants have a right to work on the holidays stated in the Act
The Magder application requested hearing at the same time as the s. 8 application and relied on the material filed in the s. 8 application. Paragraphs (a) and (b) were later abandoned.
As the s. 8 application had been brought on only 24 hours notice, Farley J. granted the retailers' request for an adjournment. Farley J. also adjourned the Magder application. Both matters were stayed pending the High Court of Justice's hearing of Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada, a case involving a similar s. 8 application and retailers' applications for declaratory relief. However, based on the evidence of "deliberate and persistent breaches of the Act by Magder", that "penalties for prior convictions have had no effect as a deterrent" and of "an intention on the part of Magder to continue with the breaches", Farley J. granted an interim s. 8 order requiring Paul Magder Furs Ltd. to close on holidays as defined in the Act. See Ontario (Attorney-General) v. Paul Magder Furs Ltd. (1989), 71 O.R. (2d) 513 (H.C.), at pp. 520 and 524. Paul Magder Furs Ltd. appealed the interim order. The Ontario Court of Appeal quashed the appeal of the interim order on jurisdictional grounds on October 22, 1991.
Paul Magder Furs Ltd. remained open in violation of the interim order. On February 23, 1990, Chilcott J. found Paul Magder Furs Ltd. in contempt of court. Paul Magder Furs Ltd. appealed the finding of contempt. The Court of Appeal adjourned the appeal sine die until Paul Magder Furs Ltd. purged its contempt and undertook to abide by the order. See Ontario (Attorney General) v. Paul Magder Furs Ltd. (1991), 6 O.R. (3d) 188 (C.A.), leave to appeal refused [1992] 2 S.C.R. ix. The Court of Appeal later ruled that the notice of appeal did not stay the imposition of fines under the contempt order. See (1992), 10 O.R. (3d) 46 (C.A.).
In October, 1991, Paul Magder Furs Ltd. applied to bring the s. 8 application back on for hearing. Somers J. refused the application due to Paul Magder Furs Ltd.'s continuing contempt of the interim order. See Ontario (Attorney General) v. Paul Magder Furs Ltd. (1991), 5 O.R. (3d) 560 (Gen. Div.), supplementary reasons delivered July 16, 1992.
The litigation involving Hy & Zel's Inc. is similar but less complex. The Regional Municipality of Halton brought a s. 8 application against Hy & Zel's Inc. in early December 1989. The Attorney General later intervened and took over the action. In response to the s. 8 application, the principals of Hy & Zel's Inc. brought a civil application requesting, among other things, a declaration that s. 2(2) of the Act was invalid. Presumably these matters stand adjourned. Then on June 24, 1991, Hy and Zel's Inc. and over 100 of its employees brought a new application against the Attorney General (the "Hy & Zel's application"). The Hy & Zel's application sought the following relief:
a.a declaration that s. 2(2) of the Act is unconstitutional
b.a declaration that the Act is unconstitutional
c.a declaration that the employee applicants have a right to work on holidays
The Hy & Zel's application relied on material filed in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada, plus some additional affidavit evidence.
Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada, was heard by the High Court of Justice and the Court of Appeal. The Court of Appeal found the Act to be constitutional: (1991), 2 O.R. (3d) 65 (C.A.), reversing (1990), 73 O.R. (2d) 289 (H.C.), leave to appeal granted sub nom. Oshawa Group Ltd. v. Attorney General of Ontario, [1991] 3 S.C.R. x. The Magder application was set for hearing on June 26, 1991. The Hy & Zel's application requested hearing on the same day.
Potts J. dismissed both the Magder and the Hy & Zel's applications with the following endorsement:
I am advised that counsel for the applicants was also counsel for A & P and a number of its employees in an application which was ultimately heard and determined by the Ontario Court of Appeal in Peel v. Great Atlantic & Pacific Co. of Canada Ltd., 2 O.R. (3d) Part 2, pg. 65. Mr. Danson has advised that the Hy and Zel's Inc. employee application is indistinguishable from the A & P employee application (No. 920/90) dismissed by the Ontario Court of Appeal, supra. For the reasons given by that Court, this application is also dismissed, without costs.
The Court of Appeal allowed the appeals to be expedited and dismissed them on July 15, 1991, on the basis of Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada.
II. Issues
The constitutional questions set in this appeal are:
1.Does the Retail Business Holidays Act, R.S.O. 1980, c. 453, as am. by S.O. 1989, c. 3, infringe or deny the rights and freedoms guaranteed by ss. 2 (a) and/or 15 of the Canadian Charter of Rights and Freedoms ?
2.To the extent that the Retail Business Holidays Act, R.S.O. 1980, c. 453, as am. by S.O. 1989, c. 3, infringes or denies the rights and freedoms guaranteed by ss. 2 (a) and/or 15 of the Canadian Charter of Rights and Freedoms , are the infringements or denials demonstrably justified in a free and democratic society within the meaning of s. 1 of the Canadian Charter of Rights and Freedoms ?
III. Analysis
The appellants have brought civil applications for declaratory relief. A party's ability to attack a legislation's constitutional validity on Charter grounds is more difficult to establish in a civil suit than in a criminal prosecution. The appellants bear the burden to establish their standing to raise Charter issues.
This Court recently reviewed the discretion to grant standing in Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236. After outlining the development and rationale behind public interest standing, Cory J. warned against its abuse and against expanding its availability at pp. 252-53:
The increasing recognition of the importance of public rights in our society confirms the need to extend the right to standing from the private law tradition which limited party status to those who possessed a private interest. In addition some extension of standing beyond the traditional parties accords with the provisions of the Constitution Act, 1982 . However, I would stress that the recognition of the need to grant public interest standing in some circumstances does not amount to a blanket approval to grant standing to all who wish to litigate an issue. It is essential that a balance be struck between ensuring access to the courts and preserving judicial resources. It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by a [sic] well-meaning organizations pursuing their own particular cases certain in the knowledge that their cause is all important. It would be detrimental, if not devastating, to our system of justice and unfair to private litigants.
The whole purpose of granting status is to prevent the immunization of legislation or public acts from any challenge. The granting of public interest standing is not required when, on a balance of probabilities, it can be shown that the measure will be subject to attack by a private litigant. The principles for granting public standing set forth by this Court need not and should not be expanded. The decision whether to grant status is a discretionary one with all that designation implies. Thus undeserving applications may be refused. Nonetheless, when exercising the discretion the applicable principles should be interpreted in a liberal and generous manner.
See also Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575; and Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607.
Following this Court's earlier decisions, 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.
Serious Issue of Validity
The validity of holiday shopping legislation has been challenged on many occasions. In Edwards Books, the Act was held to violate s. 2 (a) of the Charter but was a reasonable limit under s. 1 . The present action challenges amendments intended to eliminate the s. 2 (a) violation found. For the purposes of these reasons only, I am prepared to assume that the numerous amendments have sufficiently altered the Act in the seven years since Edwards Books so that the Act's validity is no longer a foregone conclusion.
Direct Affect or Genuine Interest
The appellants are either corporate retailers or retail employees. Section 2 of the Act targets both these groups making them liable to prosecution under s. 7.
2. -- (1) No person carrying on a retail business in a retail business establishment shall,
(a) sell or offer for sale goods or services therein by retail; or
(b) admit members of the public thereto,
on a holiday.
(2) No person employed by or acting on behalf of a person carrying on a retail business in a retail business establishment shall,
(a)sell or offer for sale any goods or services therein by retail; or
(b) admit members of the public thereto,
on a holiday.
. . .
7. -- (1) Every person who contravenes section 2 or a regulation under section 4 is guilty of an offence and on conviction is liable to a fine of not more than the greater of,
(a) $50,000; or
(b)the gross sales in the retail business establishment on the holiday on which the contravention occurred.
. . .
(3) Every person who coerces, requires or counsels another person to contravene section 2 , a regulation under section 4 or a by-law under subsection 4 (1) is guilty of an offence and on conviction is liable to a fine of not more that the greater of,
(a) $50,000; or
(b)the gross sales in the retail business establishment on the holiday in respect of which the offence under this subsection occurred.
While the Act affects all Ontarians by limiting their ability to make retail purchases on holidays, only retailers and retail employees are subject to prosecution for its violation. The Act clearly has a direct effect on the appellants.
Other Means of Bringing the Issue before the Court
The third criteria, that there be no other reasonable and effective way to bring the issue before the court, lies at the heart of the discretion to grant public interest standing. If there are other means to bring the matter before the court, scarce judicial resources may be put to better use. Yet the same test prevents the immunization of legislation from review as would have occurred in the Thorson and Borowski situations.
Courts are often called upon to determine standing as a preliminary point. Indeed, this Court decided Thorson, Nova Scotia Board of Censors, Finlay, and Canadian Council of Churches as preliminary matters. As stated by Le Dain J. in Finlay, at p. 617, a court's ability to consider standing at the outset "depends on the nature of the issues raised and on whether the court has sufficient material before it, in the way of allegations of fact, considerations of law, and argument, for a proper understanding at a preliminary stage of the nature of the interest asserted." Since the appellants' case has proceeded without trial, the situation is akin to determining standing as a preliminary point.
The appellants allege the Act violates both freedom of religion and equality rights but have presented almost no original evidence in support of their claim. The Magder application relies on the evidence filed in the Attorney General's s. 8 application. The s. 8 application was stayed and never brought on for trial. In any event, the s. 8 application did not involve any retail employees and would not provide evidence to establish their standing. The Hy & Zel's application relies on the evidence filed in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada, with a few additional affidavits. The very fact that the appellants rely on the Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada evidence suggests there may be a more reasonable and effective matter of bringing this matter before the court.
The nature of the Act does not assist the appellants in establishing standing. In Borowski, standing was first raised on appeal to this Court. However, the nature of the legislation in Borowski was such that no party directly affected could reasonably be expected to challenge the legislation. This made up for whatever evidentiary problems there may have been in raising standing so late in the day. In contrast to Borowski, the present Act does not discourage challenge. Nevertheless, a party seeking to challenge the Act must show there is no other reasonable and effective means of bringing the matter before the court. The appellants have failed on this point. Accordingly, Paul Magder Furs Ltd. and Hy & Zel's Inc. do not satisfy the third criterion for public interest standing to challenge the Act on the basis of a violation of s. 2 (a) of the Charter .
Nor do the appellants have standing on the basis that their own religious rights have been violated. Assuming that corporations can have religious rights, there is no evidence and it is not alleged that the appellants' rights have been violated. As this Court stated in MacKay v. Manitoba, [1989] 2 S.C.R. 357, at pp. 361-62:
Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues. A respondent cannot, by simply consenting to dispense with the factual background, require or expect a court to deal with an issue such as this in a factual void. Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel.
More recently in Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086, at p. 1093, this Court cautioned that "the failure of a diffuse challenge could prejudice subsequent challenges to the impugned rules by parties with specific and factually established complaints." This mirrors the Court's vigilance in ensuring that it hears the arguments of the parties most directly affected by a matter. In the absence of facts specific to the appellants, both the Court's ability to ensure that it hears from those most directly affected and that Charter issues are decided in a proper factual context are compromised.
My colleague Justice L'Heureux-Dubé is of the opinion that the appellants satisfy the test for standing set out in Smith v. Attorney General of Ontario, [1924] S.C.R. 331. In my opinion, this is not the proper case for deciding the extent to which Smith survives in view of the more liberal views relating to public interest standing. The appellants have not presented any evidence as to how they themselves have suffered exceptional prejudice under the Smith test.
In the absence of standing, the appeals are dismissed.
The reasons of L'Heureux-Dubé and McLachlin JJ. were delivered by
L'Heureux‑Dubé J. (dissenting) -- This case involves appeals by two corporate appellants, as well as a number of their retail employees, for a declaration as to the constitutionality of the Retail Business Holidays Act, R.S.O. 1980, c. 453 (the "Act"). More precisely, the Court is asked to answer the following constitutional questions:
1.Does the Retail Business Holidays Act, R.S.O. 1980, c. 453, as am. by S.O. 1989, c. 3, infringe or deny the rights and freedoms guaranteed by ss. 2 (a) and/or 15 of the Canadian Charter of Rights and Freedoms ?
2.To the extent that the Retail Business Holidays Act, R.S.O. 1980, c. 453, as am. by S.O. 1989, c. 3, infringes or denies the rights and freedoms guaranteed by ss. 2 (a) and/or 15 of the Canadian Charter of Rights and Freedoms , are the infringements or denials demonstrably justified in a free and democratic society within the meaning of s. 1 of the Charter ?
The appellants challenge those sections of the Act which require retail businesses to close on certain holidays.
The Act restricts retail shopping on certain holidays, including Sundays, which are designated in s. 1(1)(a). Section 2 of the Act provides that "[n]o person carrying on a retail business, . . . [or] employed by or acting on behalf of a person carrying on a retail business in a retail business establishment shall, (a) sell or offer for sale any goods or services therein by retail; or (b) admit members of the public thereto, on a holiday". Under s. 7, it is an offence punishable by fine to contravene the provisions of s. 2 . Section 8 of the Act allows the Attorney General or a municipality to apply to a court for a closing order to ensure compliance with the terms of the Act. Before this Court, the appellants argued that the Act violates ss. 2 (a) and 15 of the Canadian Charter of Rights and Freedoms and that neither violation is saved under s. 1 .
Proceedings
The corporate appellants in this case, Hy and Zel's Inc. and Paul Magder Furs Ltd., have been the subject of numerous charges laid under s. 7 of the Act. In addition, the Attorney General commenced closing applications under s. 8 of the Act for failure to observe the holidays as required by the Act. In response, the corporate appellants, who were at this point joined by a number of their employees, brought cross‑applications for declarations that the Act was unconstitutional. These applications were adjourned pending the decision of the High Court of Justice on a similar s. 8 application in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada which involved the identical legal issues. At the trial in Peel, the Act was found to be unconstitution