T-7823-82
Webster Industries Limited (Plaintiff)
v.
The Queen as represented by the Ministry of
Consumer and Corporate Affairs, Lawson Hunter,
Douglas Fraser, K. G. Decker, Gary O'Connor,
Charles Lemay (Defendants)
Trial Division, Jerome A.C.J.—Ottawa, October
13 and 15, 1982.
Judicial review — Equitable remedies — Injunctions —
Consumer protection — Action for damages and injunction
preventing defendants from releasing, to public, information
relating to plaintiff's product based on tests carried out on
instruction of Minister — Information indicating that plain
tiffs product ineffective for removing creosote from wood-
burning chimneys and potentially dangerous — Plaintiff con
tends Minister acting contrary to or beyond statutory author
ity under s. 6(2) of the Act — Action dismissed — S. 6(2) is
unambiguous and on its plain meaning authorizes Minister to
cause tests to be performed on consumer products and to make
such reports as he considers appropriate and in interest of
consuming public — Further, Minister acting as servant of
Crown not of legislature in performance of specific duty
imposed on him, for benefit of public, by s. 6(2) — Therefore,
mandatory order in nature of injunction cannot be ordered
against him — Department of Consumer and Corporate
Affairs Act, R.S.C. 1970, c. C-27, s. 6(2).
CASE JUDICIALLY CONSIDERED
APPLIED:
Grand Council of the Crees (of Quebec), et al. v. The
Queen, et al., [1982] 1 F.C. 599 (C.A.).
COUNSEL:
R. Marks for plaintiff.
B. Finlay and W. Burnham for defendants.
SOLICITORS:
Vincent, Choquette, Dagenais & Marks,
Ottawa, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
JEROME A.C.J.: The plaintiff in this action car
ries on business in Canada as well as in a number
of other countries and enjoys substantial sales of a
product named "Safe-T-Flue", a chemical combi-
nation designed to prevent accumulation of creo
sote in the chimneys of wood-burning stoves. At
issue is an intended release to the public, by the
Ministry of Consumer and Corporate Affairs, of
information based upon tests of a number of such
products. The plaintiff questions the quality of the
testing and considers the proposed release to be
libellous. It therefore seeks damages and an order
of the Court to restrain the Minister of Consumer
and Corporate Affairs from disclosing the infor
mation to the public.
The style of cause raises a number of procedural
problems since no action lies against the Ministry,
and since the defendants Hunter, Fraser and
Decker are all employees of the Department of
Consumer and Corporate Affairs for whom the
Minister is responsible. The parties agreed, for the
purposes of this motion, to correct the problems
through an application on behalf of the plaintiff to
amend the style of cause by replacing the words
"as represented by the Ministry of Consumer and
Corporate Affairs, Lawson Hunter, Douglas
Fraser, K. G. Decker" with the words "The Minis
ter of Consumer and Corporate Affairs". No
objection having been taken by counsel for the
Crown, it is hereby ordered that the style of cause
be amended accordingly.
The facts are set out in two affidavits sworn
October 1, 1982, by Gerald Webster, an officer of
the plaintiff company. Exhibit "A" to one affidavit
is the report which gives rise to the lawsuit and
Exhibit "A" to the other affidavit is a collection of
reports and opinions based on testing carried out
by employees and officers of the plaintiff com
pany. In 1981, the Department of Consumer and
Corporate Affairs having indicated a desire to
conduct independent research tests on the plain
tiff's product line, preliminary discussions were
held with the defendant Gary O'Connor about
having the tests done by Algonquin College in
Ottawa. The tests did not proceed at the College,
but in due course were carried out, at the request
of the Department of Consumer and Corporate
Affairs, by the Rural Centre for Appropriate
Technology. These tests and the report to the
Minister were under the direction of the defendant
Lemay. In September 1982, the Minister proposed
to issue the following release to the public:
The Federal Department of Consumer and Corporate Affairs
would like to caution Canadians who use solid fuel burning
devices such as wood stoves and fireplaces to be aware of the
need to clean and maintain their chimneys.
The warning comes as a result of tests conducted by the
department on four chimney cleaning products which it found
may not perform to consumers' expectations.
The products tested were powdered chimney cleaners which are
designed to be added to the fire in order to rid chimneys of
creosote build-up caused by the burning of wood or coal. If not
properly removed from chimneys, creosote can pose a signifi
cant chimney fire risk.
It should be noted that in testing the four products, Co-mate,
Save-on-Fuel, Kathite-H and Safe-T-Flue, conditions approx
imated those encountered during the normal use of solid fuel
burning devices. This work was carried out by an independent
laboratory.
In the tests, wood stoves were used. The wood was ignited using
newspaper and cedar kindling. Overall, an average of 182
kilograms of mixed hardwood was burned in each of eight
stoves during each product test, with the temperature of the
fires controlled so that flue gas temperatures did not exceed
350°C.
When the test results from experiments with the additives were
compared to those where no additives were used, no significant
differences were observed in creosote levels in chimneys.
The department acknowledges that factors such as the type of
wood used, the size of loads added to the fire and its operating
temperature can affect the deposition of creosote on chimneys.
Based on tests conducted, however, it would like to warn
Canadians who choose to use these chimney cleaner additives
that such products should not be considered a substitute for the
proper physical cleaning of chimneys and for a good chimney
maintenance program.
Further, it advises that any Canadian who uses a solid fuel
burning device should regularly inspect and clean their chim
ney. They should also seek professional advice on the frequency
and methods of cleaning, from either local fire services or a
qualified chimney sweep.
Upon learning of the Minister's intention, the
plaintiff brought this action and concurrently
made an application ex parte which resulted, on
October 1, 1982, in the following order of
Mahoney J.:
Temporary injunction to issue restraining the Defendant Minis
ter and the Defendants Hunter, Fraser and Decker, from
publishing the Report or any part thereof or opinion expressed
therein relating to the product "SAFE-T-BLUE", (sic) said report
being dated April, 1982, and authored by the Defendant
Lemay. This temporary injunction shall, unless extended by the
Court, expire at 6:00 p.m., E.D.T., Friday, October 8, 1982.
The present application is to continue the interim
injunction.
The Minister's authority is derived from the
Department of Consumer and Corporate Affairs
Act', and in particular in subsection 6(2):
6....
(2) For the purpose of carrying out his duties and functions
under this Act, the Minister may undertake research into
matters to which the powers, duties and functions of the
Minister extend, cooperate with any or all provinces or with
any department or agency of the Government of Canada or any
organization or person undertaking such research and publish
or cause to be published, or assist in the publication of, so much
of the results of any such research as the Minister deems
appropriate and in the public interest.
The plaintiff's submission as I understand it, is
as follows: that the Minister can be restrained
from acting in a manner which is contrary to or
beyond the authority given him by statute; that the
words in the last line of subsection 6(2) require the
Minister to limit publication to those matters
which are in the public interest; that for the pur
poses of this action, the public interest is to be
determined upon objective standards rather than
upon the opinion of the Minister; that the tests in
this case are defective and that release of informa
tion based upon them would be a libellous and
therefore unlawful act; that no unlawful act can be
in the public interest and therefore, the Minister
may be enjoined.
1 cannot accept the submission. The plain mean
ing of subsection 6(2) clothes the Minister with
authority to cause tests to be done upon consumer
products and to make such reports as the Minister
considers to be appropriate and as the Minister
considers to be in the interest of the consuming
public. There is no reason to doubt the intention of
Parliament that the Minister be empowered in this
way and the statutory language is unambiguous.
The matter falls squarely within the principle con
firmed by the Federal Court of Appeal in Grand
Council of the Crees (of Quebec), et al. v. The
Queen, et a1. 2 , where Pratte J. said at page 601:
' R.S.C. 1970, c. C-27.
2 [1982] 1 F.C. 599 (C.A.).
Contrary to what was argued by counsel for the appellants, the
Federal Court Act did not, in my view, repeal the traditional
rule, clearly stated in the decision of the Supreme Court of
Canada in The Minister of Finance of British Columbia v. The
King [1935] S.C.R. 278, that a mandatory order cannot be
issued against a Minister of the Crown when he is simply acting
as a servant of the Crown rather than as an agent of the
legislature for the performance of a specific duty imposed on
him by a statute for the benefit of some designated third
person.
In the case before me, the Minister was clearly
acting as a servant of the Crown in the perform
ance of a specific duty imposed upon him for the
benefit of the public by subsection 6(2) of the
statute and the Minister is therefore not subject to
an injunctive order of this Court. The application
is therefore dismissed with costs.
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.