T-358-75
Manitoba Fisheries Limited and Harry Gordon
Marder and Sophia Marder (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Collier J.—Winnipeg, November 8,
9 and 10; Vancouver, December 22, 1976.
Action for declaratory judgment that plaintiff entitled to
compensation for property taken and to fair market value of
business acquired by Crown — Acquisition of goodwill render
ing plant and equipment valueless Whether legislation
intended to deprive plaintiff of goodwill and business — Offers
of compensation refused — Whether deprivation of property
unlawful under Canadian Bill of Rights Freshwater Fish
Marketing Act, R.S.C. 1970, c. F-13, ss. 21, 23 and 25 —
Canadian Bill of Rights, S.C. 1960, c. 44, paras. 1(a) and 2(e).
Plaintiff company seeks a declaration that it is entitled to
compensation for the loss of its business and goodwill, which
were acquired by the defendant under the Freshwater Fish
Marketing Act. It alleges that as a result of losing its goodwill
and business, the assets of the business were rendered valueless.
Even if the legislation provides for licensing, or regulations
permit individuals to carry on their business, no such licences
have been issued or regulations made, with the result that its
business has effectively been taken away and this in a manner
that contravenes the Canadian Bill of Rights.
Held, the action is dismissed. Although the plaintiff company
lost its business and goodwill, this was not the intention of the
legislation. Paragraph 25(2)(c) of the Act envisages the com
pensation of persons whose plant or equipment are made redun
dant, which suggests that there is no intent to acquire such
physical assets and that "due process" has been provided for in
accordance with the requirements of the Canadian Bill of
Rights. An agreement between the Government of Canada and
the Government of Manitoba was entered into pursuant to
section 25 in which the Province undertook to make arrange
ments for compensation and compensation was twice offered to
the plaintiff and was refused.
Ulster Transport Authority v. James Brown and Sons Ltd.
[1953] N.1. 79; Belfast Corporation v. O.D. Cars Ltd.
[1960] A.C. 490 and MacAlpine v. Turk (1954) 12
W.W.R. (N.S.) 499, applied.
ACTION.
COUNSEL:
K. M. Arenson, D'Arcy C. H. McCaffrey.
Q.C., and J. S. Lamont for plaintiff.
L. P. Chambers and S. M. Lyman for
defendant.
SOLICITORS:
Arenson & Company, Winnipeg, for
plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
COLLIER J.: The plaintiff company seeks a dec
laration that it is entitled to compensation for
property taken.' It alleges its business and good
will were statutorily acquired by the defendant by
reason of the Freshwater Fish Marketing Act 2 . A
further declaration is sought that the
... Plaintiff is entitled to the fair market value of the said
business as a going concern as at the 1st day of May 1969....
Most of the relevant and salient facts were
admitted or agreed.
In 1920 at Oak Point, Manitoba, one Bercovitch
started a freshwater fish business. In 1926 or 1927
he incorporated the plaintiff company (under a
different name) and moved the headquarters of the
operation to Winnipeg. Bercovitch died in 1948.
The business passed to his widow and former
employees. The witness Marder married the widow
in 1951. Shortly after, the operation of the plain
tiff occupied him full-time. His sister, his brother
and his wife all worked in the business until May
1969.
The company, from its early days and at the
relevant period here, bought fish from fishermen
at various lakes in Manitoba. Those fishermen, the
initial producers (if I can use that term), were not
employees. But, over the years, the plaintiff and
other similar fish marketers, in order to obtain
their production, financed them. The fish were
' There are pending other actions where other companies
which had carried on freshwater fish businesses in Manitoba
are plaintiffs claiming similar relief against the defendant:
Main Fisheries Ltd. v. The Queen (T-1417-75); Canadian
Fish Producers Ltd. v. The Queen (T-1419-75); Bodner Fish
Distributors Ltd. v. The Queen (T-1420-75); and Keystone
Fisheries Ltd. v. The Queen (T-1731-75).
2 R.S.C. 1970, c. F-13. I shall, in these reasons, refer to the
Act as "the Act", "the statute", or "the legislation". It was
enacted February 27, 1969.
then processed in various ways and sold. The
largest volume (approximately 85 to 90%) was
sold to customers in the United States. The fresh
water fish marketing business was a very competi
tive one, particularly in the United States. I am
satisfied, from the evidence of Mr. Marder, Mr.
Lazarenko and Mr. Page, that the plaintiff com
pany and others like it had, even in that highly
competitive field, over the years, built up individu
al clienteles. Bercovitch and his company enjoyed
a good reputation. That reputation, on the evi
dence, continued after Marder assumed command.
The plaintiff, for understandable financial reasons,
had from 1963 to 1969, cut back, somewhat, its
operations. Nevertheless, it still retained a com
petitive position and individual custom of its own.
The defendant contended that, on the evidence,
the plaintiff company, as of May 1, 1969, had (in
fact or in law) no "goodwill". Its financial returns
for the fiscal years ending March 31, 1964 to
March 31, 1969, from an accounting valuation
point of view, it was argued, indicated there was
no measurable economic goodwill in the company;
even if the defendant had, in law, "taken" the
plaintiff's business, there was, on the facts, no
compensable goodwill; therefore the plaintiff had
no cause of action.
I do not accept the contention that the plaintiff
had, as of May 1, 1969, no goodwill. The Crown
relied primarily on the evidence of Mr. Shields, a
chartered accountant. He had examined the plain
tiffs financial statements from 1964 to 1969. He
was requested by the defendant to calculate, from
an accountant's point of view, the "measurable"
amount, if any, "... of goodwill which had an
economic value to Manitoba Fisheries Ltd.
immediately prior to ... May 1969." He said:
... goodwill in a business enterprise is ignored in an accounting
sense except when it [the enterprise] is purchased and the
amount determined at a particular point in time. [My italics.]
Measurable goodwill arises where a prospective purchaser
pays more for the net assets of an enterprise than the fair value
of the underlying assets.
He went on to illustrate and apply an accepted
accounting mathematical formula, postulating a
hypothetical sale. He concluded there was no mea
surable goodwill.
In cross-examination however, he agreed that
businessmen purchasers do not necessarily use an
accountancy technique. He candidly agreed that a
practical businessman, with market experience,
might well have concluded there was, in fact,
goodwill in a business sense and pay for it, though
an accountant, using his techniques, might advise
there was, mathematically, no goodwill, or even
negative goodwill.
The defendant, on this aspect of the case, relied
as well on a number of court decisions dealing with
the meaning of goodwill and how, in individual
cases, it may be calculated 3 . The cases cited arose
under the Income Tax Act. They were essentially
concerned with how "goodwill" should be treated,
in the particular circumstances, for tax purposes.
Goodwill, in my view, must be here looked at in
the commercial sense. That includes the approach
of the practical businessman and not merely the
mathematical dollar-and-cent approach of the
chartered accountant. I rely on the following com
ments of Lord MacDermott L.C.J. in Ulster
Transport Authority v. James Brown and Sons
Ltd. ' :
"Goodwill" is a word sometimes used to indicate a ready
formed connection of customers whose custom is of value
because it is likely to continue. But in its commercial sense the
word may connote much more than this. It is, as Lord Mac-
naghten observed in Inland Revenue Commissioners v. Muller
& Co.'s Margarine Ltd. [1901] A.C. 217, 224, "the attractive
force which brings in custom," and it may reside, not only in
trade connections, but in many other quarters, such as particu
lar premises, long experience in some specialised sphere, or the
good repute associated with a name or mark. It is something
generated by effort that adds to the value of the business.
3 Losey v. M.N.R. 57 DTC 1097; Dominion Dairies Ltd. v.
M.N.R. [1966] Ex.C.R. 397; Butler v. M.N.R. [1967] 1
Ex.C.R. 425; Herb Payne Transport Ltd. v. M.N.R. [1964]
Ex.C.R. 1. The classical cases on the subject of goodwill are
reviewed in MacAlpine v. Turk (1954) 12 W.W.R. (N.S.) 499
by McPherson C.J.M. at pp. 502-503.
4 [1953] N.I. 79 at 109-110.
When the make-up of a well-established, profitable enterprise
providing a special service (such as the respondents' furniture
removing service) is examined I think it well-nigh impossible to
disentangle the business that has been built up from its good
will or to give the latter a single or precise meaning. I therefore
approach the question under consideration on the basis that
here the relevant loss is really a loss of goodwill in the commer
cial sense and as described by Lord Macnaghten in Muller &
Co.'s case.
The evidence satisfies me there was goodwill, in
the legal and business sense, attaching to the
plaintiff's operation. The economic or pecuniary
value, for purposes of damages or compensation,
may ultimately be small. The parties, in this case,
stipulated the amount of compensation would be
agreed on by the parties or, failing accord, deter
mined by a judge of this Court. On that basis, the
plaintiff did not call any evidence to calculate or
establish a dollar-and-cent value.
I turn now to the alleged "taking" by the
defendant of the plaintiffs business.
Sometime prior to 1969, an inquiry into the
freshwater fish business in certain of the provinces
and territories had been carried out. A report
(referred to as the Mclvor report) was released in
1964-65. The report is not in evidence. I do not,
therefore, know what, if any, the precise problems
were in the freshwater fishing industry in Alberta,
Saskatchewan, Manitoba, Ontario and the North
west Territories. Nor do I know what the recom
mendations were. In any event, at the request' of
the four provinces and territories mentioned, the
Freshwater Fish Marketing Act, earlier referred
to, was passed.
The plaintiff asserts the legal and practical
effect of this legislation, and the manner in which
the powers conferred in the Act have been carried
out or withheld, was to take from the plaintiff its
goodwill and invest it in a government corporation
without payment of compensation. It is further
asserted the tangible assets, because the goodwill
was taken, were rendered commercially valueless;
again no compensation has been paid.
5 See Ex. 18.
The plaintiff concedes that in order to found its
claim for compensation it must establish a statu
tory right 6 . Reliance, however, is placed on the
principles stated by Lord Atkinson in Attorney-
General v. De Keyser's Royal Hotel, Ltd.':
The recognized rule for the construction of statutes is that,
unless the words of the statute clearly so demand, a statute is
not to be construed so as to take away the property of a subject
without compensation.
and by Wilson J.A. of the British Columbia Court
of Appeal in B.C. Power Corp. Ltd. v. Attorney-
General of British Columbia 8 :
But I do cite these general statements from Maxwell on
Interpretation of Statutes, 11th ed., pp. 275-7:
Statutes which encroach on the rights of the subject,
whether as regards person or property, are similarly subject
to a strict construction in the sense before explained. It is a
recognized rule that they should be interpreted, if possible, so
as to respect such rights .... Proprietary rights should not be
held to be taken away by Parliament without provision for
compensation unless the legislature has so provided in clear
terms. It is presumed, where the objects of the Act do not
obviously imply such an intention, that the legislature does
not desire to confiscate the property or to encroach upon the
right of persons, and it is therefore expected that, if such be
its intention, it will manifest it plainly if not in express words
at least by clear implication and beyond reasonable doubt. It
is a proper rule of construction not to construe an Act of
Parliament as interfering with or injuring persons' rights
without compensation, unless one is obliged so to construe it.
Lord Radcliffe in Belfast Corporation v. O.D.
Cars Ltd. 9 set out the approach to be adopted in
6 Sisters of Charity of Rockingham v. The King [1922] 2
A.C. 315 at 322 (P.C.); The King v. Thomas Lawson do Sons
Ltd. [1948] Ex.C.R. 44 at 57.
[1920] A.C. 508 at 542.
8 (1962) 34 D.L.R. (2d) 25 at page 44.
9 [1960] A.C. 490 at 523 (H.L.(N.I.)). In the summary of
argument on behalf of the respondent, reported at p. 509, the
following appears:
Parliament will not be presumed to intend to take away
property without compensation. This will influence the courts
in their interpretation of Acts of Parliament to the point that
they will refuse to credit the legislature with such an inten
tion unless the words used are clear and unassailable; though
if Parliament expresses such an intention clearly, the courts
must, of course, give effect to it.
That seems to me to be a succinct summary of the authorities.
considering whether a particular piece of legisla
tion contemplates a "taking without compensa
tion":
On the one hand, there would be the general principle, accepted
by the legislature and scrupulously defended by the courts, that
the title to property or the enjoyment of its possession was not
to be compulsorily acquired from a subject unless full compen
sation was afforded in its place. Acquisition of title or posses
sion was "taking." Aspects of this principle are found in the
rules of statutory interpretation devised by the courts, which
required the presence of the most explicit words before an
acquisition could be held to be sanctioned by an Act of
Parliament without full compensation being provided, or
imported an intention to give compensation and machinery for
assessing it into any Act of Parliament that did not positively
exclude it. This vigilance to see that the subject's rights to
property were protected, so far as was consistent with the
requirements of expropriation of what was previously enjoyed
in specie, was regarded as an important guarantee of individual
liberty. It would be a mistake to look on it as representing any
conflict between the legislature and the courts. The principle
was, generally speaking, common to both.
In the present case it seems to me there are two
questions to determine, and in the following order:
(1) Was the intention and effect of the legisla
tion to "take" the business and goodwill of the
plaintiff and of others like it?
(2) If so, was there a clear legislative intent to
take without compensation?
It is necessary to consider the Act in some
detail. At the outset it established a corporation,
the Freshwater Fish Marketing Corporation,
having a board of directors 10 . There is one director
for each participating province, plus four others"
The Corporation is an agent of Her Majesty in
right of Canada (the federal Crown). Any prop
erty acquired by the Corporation becomes the
property of the federal Crown. The Corporation
was established
... for the purpose of marketing and trading in fish, fish
products and fish by-products in and out of Canada....
For that purpose it was given certain other statu
tory powers. 12
10 See s. 3.
11 For "participating province" see s. 2 and s. 25.
12 See paras. 7(a) to (i). An advisory Committee advises the
Corporation (s. 18 and s. 19).
I turn to Part III of the legislation. By section
23 the Corporation:
... has the exclusive right to market and trade in fish in
interprovincial and export trade and shall exercise that right,
either by itself or by its agents, with the object of
(a) marketing fish in an orderly manner;
(b) increasing returns to fishermen; and
(c) promoting international markets for, and increasing
interprovincial and export trade in, fish.
The exclusive right is confined to species of fish
(set out in a Schedule) fished for commercial
purposes in a participating province. 13
Section 21(1) provides:
21. (1) Except in accordance with the terms and conditions
set forth in any licence that may be issued by the Corporation
in that behalf, no person other than the Corporation or an
agent of the Corporation shall
(a) export fish from Canada;
(b) send, convey or carry fish from a participating province
to another participating province or to any other province;
(c) in a participating province, receive fish for conveyance or
carriage to a destination outside the province; or
(d) sell or buy, or agree to sell or buy fish situated in a
participating province for delivery in another participating
province or any other province, or outside Canada.
My last reference is to section 25. It authorizes
Canada to enter into agreements with Alberta,
Saskatchewan, Manitoba, Ontario or the North
west Territories 14 providing for, inter alia:
25. (2) .. .
(c) the undertaking by the province of arrangements for the
payment, to the owner of any plant or equipment used in
storing, processing or otherwise preparing fish for market, of
compensation for any such plant or equipment that will or
may be rendered redundant by reason of any operations
authorized to be carried out by the Corporation under this
Part.....
After consideration of the whole statute, I have
concluded the legislation does not purport to take
any property from anyone in the participating
provinces, with or without compensation.
13 See s. 20.
14 Section 22 of the Act permits Canada, by regulation, to
exempt from the provisions of Part III any area or region in a
participating province, or any transaction, person, or class of
transactions or persons.
As I see it, the intent or purpose was to set up a
corporation for the purpose of marketing or trad
ing in fish, with the object of orderly marketing,
increasing returns to fishermen, and promoting
markets and trade. To accomplish those objects,
the Corporation was given exclusive rights.
Licences can, however, be issued to others allowing
them to participate in the export of, and interpro-
vincial marketing and trading in, freshwater fish.
In my view, any person or company in a business
such as that carried on by the plaintiff could
continue in the business, provided a licence was
obtained from the Corporation, or if the federal
government, by regulation, excluded them from
the application of Part III of the statute. The
legislation envisages the granting of licences to
exporters and others. It is silent as to the circum
stances under which a particular person might be
issued a licence. It is true the licence-granting
power is permissive, or discretionary. Nevertheless,
it seems to me, when one examines the whole
scheme of the Act, there was no intention to take
or confiscate, for the Crown, any property. If that
is so, then the second question I have posed does
not arise.
The plaintiff contends, however, that one must
look beyond the black letter words of the legisla
tion. If the Corporation refuses to issue any
licences and the federal Crown refuses to exempt
any persons from the application of Part III, then
the practical result is the taking or confiscating of
the business of all private freshwater fish exporters
and dealers. The plaintiff says one cannot close
one's eyes to what actually happened. The Corpo
ration went into business on May 1, 1969. Part III,
with the prohibitions set out in section 21 (subject
to the granting of licences), came into effect at the
same time. No licences have ever been issued by
the Corporation. No persons have been exempted
from the application of Part III 15
The Corporation, from the outset, because there
was no other source of supply, obtained the trade
of the United States customers of the plaintiff and
its Manitoba competitors. Mr. Brooker, the sales
manager of the Corporation, frankly conceded that
15 In some manner, only a portion of western Ontario is
subject to Part III of the legislation.
to be the case. It is quite true the Corporation did
not purchase from the plaintiff and its competitors
any property, customers' lists or any other kind of
tangible, intangible or commercial rights. Because
all competition was effectively prohibited, the spe
cialty buyers in the United States looked to, after
May 1, 1969, only one producer, one exporter, and
one seller.
The plaintiff urges that the natural consequence
of this legislation and the exercise of the Corpora
tion's power has been to divert to the federal
Crown the business (or a substantial part of it)
which the plaintiff and others are no longer
allowed to transact.
Ulster Transport Authority v. James Brown and
Sons Ltd. 16 is relied upon as a strikingly relevant
authority. Northern Ireland had a constitutional
guarantee prohibiting Parliament from making
" ... a law so as either directly or indirectly to . . .
take any property without compensation." By
legislation enacted in 1935 there was a general
transfer, to a public authority, of various private
road transport undertakings. The statute provided
for payment of compensation to the former
owners. They, in turn, were forbidden, to compete
with the board. An exception was made in the case
of persons carrying on the business of moving and
storing furniture. The respondent James Brown
and Sons Ltd. had been in that / business since
1898. The legislation was, in 1948, carried further.
It transferred all the assets and powers of the
former road transport board to the Ulster Trans
port Authority (the appellant). At the same time
the exemption, which had allowed the respondent
and others to operate in competition with the
board in respect of furniture /moving, was effec
tively repealed. The Authority, as with the previ
ous board, could, however, consent (with the
approval of the ministry) to the use of motor
vehicles on public highways for the moving of
furniture. No consent, of course, was given to the
respondent. The respondent challenged the legisla
tion as violating the constitutional guarantee of
"taking property without compensation."
16 [1953] N.I. 79.
It succeeded. Lord MacDermott L.C.J., in
respect of the power of the Authority to give
consent, said this at pages 105-106:
And, in order to dispose of the point, I may add here that the
provision as to consent and approval has, in my opinion, no
material bearing on the matters raised by this appeal. If the
relevant prohibition would otherwise offend as being ultra vires
the Parliament of Northern Ireland, it is not to be redeemed by
a dispensing power committed to the unfettered discretion of a
Ministry or, a fortiori, of a trade competitor. In James v.
Cowan [1932] A.C. 542, 558 Lord Atkin said: "The Constitu
tion is not to be mocked by `substituting executive for legisla
tive interference' with freedom." This dictum was directed to a
different situation, but the underlying principle is the same.
The limits of legislative power can no more be evaded by
authorising someone to avert at his pleasure the consequence of
what transgresses in the statute itself than they can by leaving
the doing of what is forbidden to someone's discretion.
As to the intent or purpose of the particular
legislation, Lord MacDermott said, at page 111:
The next question is whether the effect of the relevant
prohibition is "to take" the property thus lost. This verb was
the subject of much argument, most of it referable to two
submissions advanced on behalf of the appellants as follows: (1)
"to take" means to acquire or take over and thus signifies a
transfer or passing of property from one to another, in contra
distinction to a taking away without acquisition, as by dissipa
tion or destruction; and (2) a mere prohibition is not a taking
whatever else "to take" may connote....
Then, at pages 112-113:
I am of the opinion that even on the argument of the appellants
the respondents' property would be taken contrary to section
5(1). I think it would be taken over and not just taken away,
and I think this would not only be the effect but would also be
in accordance with the intention of the impugned legislation.
Now if that is right—and I shall say why I think it is right in a
moment—then, although the Parliament of Northern Ireland
has said nothing in plain terms about the acquisition of any
part of any furniture remover's business, section 5 would
undoubtedly be contravened because it forbids a taking by
indirect as well as by direct means and therefore strikes at any
legislative device designed and sufficient to achieve acquisition
without compensation though not purporting to do so.
A colourable device of this nature ought not to be ascribed
readily to the Legislature, but when the nature of the relevant
legislation and of its consequences, as illustrated by the findings
in the case, are considered I can see no escape from the
conclusions I have mentioned. So far as the statute book is
concerned one has first a general acquisition of road motor
undertakings on payment of compensation for intangible as
well as tangible assets (as the Second Schedule to the Act of
1935 shows). But the undertakings of furniture removers and
storers are excepted and the owners are left free to ply their
trade. Then, with no further provision as to acquisition with
compensation, these owners are forbidden to carry on a sub
stantial part of their business. What is the reason for this
change? It cannot lie in the unforeseen consequence of some
inadvertent omission or unrecognised slip. The divergence be
tween section 15(4)(e)(iii) of the Act of 1935 and section
19(1)(d) of the Act of 1948 is unmistakably deliberate and
intentional. But what was the intention? Parliament must be
presumed to intend the necessary effect of its enactments, and
the answer to this question cannot overlook the fact that in this
specialised field—and here the facts are very different from
those of Benson's case [1940] N.I. 133—the natural conse
quence of the enforcement of the relevant prohibition would be
to divert to the appellants the business, or at least the substan
tial part of the business, which their erstwhile competitors were
no longer allowed to transact. The transfer might not be 100
per cent., but few people can manage more than small lifts for
themselves and it is hard to see where the bulk of the business
could legitimately go if it did not pass to the appellants. Nor
could the appellants well stand aloof from such business, if
there was no one else to do it, having regard to the nature of
their duty to provide for the needs of the public as imposed by
section 5 of the Act of 1948. I think, therefore, that the
legislation and the nature of its subject matter justify the
answer that the intention was to enable the appellants to
capture the prohibited business, and to do so without expense. I
can find no other intention which offers a more likely explana
tion of the provisions in question; and counsel for the appel
lants, when invited to suggest some other view which would fit
the circumstances as well or better were unable to advance an
alternative.
and again, at page 114:
In my opinion these findings show that the relevant prohibition
will have the effect which, according to the view I have
expressed, was intended and they therefore support that view.
In referring to finding (14) I do not, of course, mean to suggest
that the intention of the appellants necessarily reflects that of
the Legislature. The relevance of that finding, as I see it, lies in
this that it goes to show that the scheme of the challenged
legislation was such as to offer the appellants a ready and
practical means of acquiring the respondents' goodwill without
paying for it.
I should add, before going further, that I see no reason to
speculate upon the motives of the Legislature in enacting this
particular piece of legislation. Whatever in fact those motives
may have been, the intention of the Legislature, as gleaned
from its terms, is what must guide the court in this instance.
In my opinion, the Ulster Transport Authority
case is distinguishable. There, the clear purpose of
the 1948 legislation was, in one form or another, to
take over the furniture-moving business. No provi
sion was made for compensation and the legisla
tion therefore violated the constitutional
guarantee.
I am not persuaded there was, in the Freshwater
Fish Marketing Act, any attempt, indirectly or by
colorable means, to capture or take the existing
property, business or goodwill of the plaintiff and
others. The scheme was the setting up of an exclu
sive marketing corporation, subject to a licensing
system. Unfortunately, and to date, the Corpora
tion has, in its wisdom, decided not to issue any
licences. The practical effect has been to put the
plaintiff and others out of business. I sympathize. I
can only interpret the statute, and so apply the
law. I cannot alter it.
I have not overlooked paragraph 25(2)(c) of the
Act. It envisages a participating province, in this
case Manitoba, paying persons such as the plain
tiff compensation
... for any such plant or equipment that will or may be
rendered redundant by reason of any operations authorized to
be carried out by the Corporation....
In my view, that does not indicate an intent to
acquire the physical assets of the plaintiff or
others. The Corporation has set up its own plant.
If that undertaking and its physical facilities have
the effect of making, in the production of fish for
market, equipment or plant of the plaintiff super
fluous, then some kind of limited compensation is
contemplated. I note the paragraph does not
specifically provide that any persons affected are
indubitably entitled to compensation; the inference
seems to be there. There is, however, no intention,
inference, or suggestion the federal Crown should
be the direct source of such compensation. The
section merely authorizes the federal minister to
enter into agreements with participating provinces
for a number of things, including the undertaking
by the province of arrangements for compensation
payment.
An agreement has been entered into between
Canada and Manitoba (June 4, 1969). Section 5 of
that agreement provides:
The Province undertakes to make any arrangements neces
sary with the owner of any plant or equipment in the Province
of Manitoba used in storing, processing or otherwise preparing
fish for market, for compensation for any such plant or equip
ment that will or may be rendered redundant by reason of any
operations authorized to be carried out by the Corporation
under the Act.
Finally, the plaintiff relied on the Canadian Bill
of Rights 17 . Paragraph 1(a) provides:
1. It is hereby recognized and declared that in Canada there
have existed and shall continue to exist without discrimination
by reason of race, national origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely,
(a) the right of the individual to life, liberty, security of the
person and enjoyment of property, and the right not to be
deprived thereof except by due process of law;
Paragraph 2(e) reads:
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared, and in
particular, no law of Canada shall be construed or applied so as
to
(e) deprive a person of the right to a fair hearing in accord
ance with the principles of fundamental justice for the deter
mination of his rights and obligations;
Mr. Lamont made an elaborate and careful
argument in respect of the application of those
provisions. He contended the effect of the freshwa
ter fish legislation was to infringe the right of the
plaintiff not to be deprived of property except by
due process of law; the legislation appears to
authorize, from a practical point of view, the
Corporation to do just that; Parliament has not
expressly declared the legislation shall operate not
withstanding the Canadian Bill of Rights; there
fore the Court must construe the statute as not
depriving the plaintiff of its property, except after
due process; due process includes the right to
compensation.
I have already concluded the legislation, when
properly construed, does not purport to take, or
authorize the taking of, the property of anyone.
Nor, on a reasonable and fair interpretation, does
it purport to deprive anyone, or authorize a gov
ernment corporation to deprive anyone, of the
enjoyment of his property. In my opinion, that
interpretation is reasonably arrived at, without
resort to the principles set out in the Canadian Bill
of Rights.
The plaintiff's action must, unfortunately, be
dismissed.
17 R.S.C. 1970, App. III. I have underlined the particular
portions on which the plaintiff relies.
I cannot conclude without referring to certain
other matters put in evidence. In my opinion, they
do not make for a change in the legal result.
The plaintiff and its erstwhile competitors, all of
whom have, on a realistic view, been put out of
business, have endeavoured, short of litigation, to
obtain recompense. The Province of Manitoba ini
tially offered the plaintiff $1,250. This was for
plant and equipment pursuant to the "redundan-
cy" provision of paragraph 25(2)(c) of the
statute ' 8 . The first offer was $1,250. A second
offer, dated Sept. 8, 1972, was for $4,104. It was
based on a disposal allowance of 25 per cent of the
estimated depreciated value of the plaintiff's
equipment. Both were refused. No further offers
have been made.
On Jan. 24, 1974, Mr. Davis, then the federal
Minister of Fisheries, wrote the plaintiff and other
companies as follows:
Ottawa, Ontario
K1A 0H3
Jan. 24, 1974.
Northern Lakes Fisheries Company,
904-99 Wellington Crescent,
Winnipeg 9, Manitoba.
Gentlemen:
Your telex of December 18, 1973, to the Prime Minister, has
been forwarded to me for reply.
I share your disappointment at the unwillingness of the
Manitoba Government to provide additional compensation to
your firm and others who were put out of business as a result of
the establishment of the Freshwater Fish Marketing Corpora
tion. I disagree with you that we have broken our promise. I am
sure you know that the Freshwater Fish Marketing Act was
passed at the request of the provincial governments, and
although the Act provided for compensation for assets no
longer required in the industry, the responsibility for making
payments rests with the provinces. In a spirit of partnership, the
Government of Canada subsequently offered to reimburse the
provinces up to 50 percent of payments made.
18 The terms "redundant" and "redundancy" enjoy, these
days, popularity in usage. In paragraph 25(2)(c) I assume the
draftsman had in mind the situation where, by reason of the
Corporation's operations, other people's plant and equipment
became, in the storing, processing, and preparation process,
superfluous or unnecessary. In this case, however, the plaintiff's
whole operation became "redundant", in the sense of oblitera
tion. Redundant, at first blush, appears to be a somewhat
innocuous term; it can embrace devastating situations.
Although it was generally agreed that compensation was
with respect to assets, the Government is now prepared to
accept for purposes of compensation, that the assets could be
valued on the basis of an ongoing business; such payments have
already been made to the Alberta Government.
With respect to your request that we help you to bring this
matter before the Courts, I find it difficult to see how this
might be accomplished.
As you know, I have already written to the minister respon
sible in Manitoba asking him to review the level of compensa
tion and offering to share in the payment of any additional
compensation. This offer was refused.
Yours sincerely,
Jack Davis.
On the evidence before me the plaintiff and his
former competitors, to my mind, have been unfair
ly treated. They are taxpayers and citizens of both
Manitoba and Canada, entrapped in policy differ
ences between two levels of government 19 . They
have been economically erased. Redress, I hold,
cannot be had against the federal Crown. It seems
unlikely it can be had against the provincial
Crown. Any recompense, it appears, would be
purely ex gratia.
My comments are predicated on the evidence
put before me. There may be other facts, unknown
to me but known to governments and those in the
industry, which could well persuade me to recant
my criticisms.
Based only on what I heard in the court room, I
suggest the plaintiff ought to receive better treat
ment from its governments. This Court cannot
change the law. Its function is to interpret, (where
necessary), and apply it. I have endeavoured to do
that in this case. The law, as I see it, compels
rejection of the plaintiff's claim for compensation.
It does not follow that justice, in the true sense,
has been done.
The action is dismissed. The defendant is en
titled to costs.
19 In Alberta, by contrast, appropriate provincial legislation
was passed which in some ways complemented the federal
statute in respect of compensation for loss of plant and equip
ment. The provincial legislation expressly provided for compen
sation to be paid (goodwill was not included), and an appeal
from the award. See Quality Fish Producers Ltd. v. Minister of
Lands and Forests [I973] 4 W.W.R. 720 (App. Div., S.C.A.).
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.