A-803-81
Registrar of Trade Marks (Appellant) (Respond-
ent)
v.
Canadian Olympic Association (Respondent)
(Appellant)
Court of Appeal, Heald, Urie JJ. and Kelly D.J.—
Toronto, May 18; Ottawa, July 6, 1982.
Trade marks — Appeal from decision of Trial Division
reversing decision of Registrar refusing request by respondent
that public notice be given of its use of certain marks for
purposes of s. 9(1)(n)(iii) of the Act — S. 9(1)(n)(iii) prohibits
use, by any person, of marks adopted and used by public
authorities in Canada as official marks for wares or services
— Appellant contending that, although respondent is well
recognized as performing activities which are for benefit of
public in response to generally recognized needs and not for
profit, respondent is not a `public authority" within meaning
of section — Proper test for determining whether respondent is
a "public authority" — Appeal dismissed — Trade Marks
Act, R.S.C. 1970, c. T-10, s. 9(1).
The respondent is a non-profit corporation recognized by the
International Olympic Committee as having exclusive jurisdic
tion over matters relating to Canada's participation in the
Olympic and Pan American Games. Its activities are carried
out for public benefit in response to generally recognized needs
and not for profit. Its constitution provides that, on surrender of
its charter, its assets are to be disposed of by the government in
co-operation with the International Olympic Committee; it
receives substantial funding from the federal government, and
it maintains a close working relationship with the Directorate
of Fitness and Amateur Sport and Sport Canada. It is not,
however, an agency of the government. The appellant refused
the respondent's request that it give notice of certain of the
respondent's marks for the purpose of ensuring their protection
under subparagraph 9(1)(n)(iii) of the Trade Marks Act on the
grounds that the respondent was not a "public authority"
within the meaning of that provision because it failed to fulfil
three criteria; namely, that it owe a duty to the public, that
there be a significant degree of public control over its activities
and, finally, that its profits be earned for public benefit. The
Trial Division reversed the Registrar's decision holding that the
respondent was a "public authority" within the meaning of that
term in the Act.
Held, the appeal should be dismissed. The test postulated by
the appellant as being appropriate to the determination of
whether a body is a "public authority" is not supported by the
case law. Whether a body has a public duty, is subject to
significant public control or directs its profits toward public
benefit are merely three factors, amongst others, which may be
taken into account in the determination of this question which
must be based primarily on a characterization of the nature of
the functions performed by the body within the particular
statutory context under consideration. It is clear that the
respondent's activities are beneficial to the public and while its
public obligations are self-assumed this is not inconsistent with
the nature of the public obligations borne by other bodies
specifically named in subsection 9(1) of the Act. As regards the
degree of public control exercised over the respondent, it is
noted that the statute authorizing its incorporation imposes at
least the same degree of control as that imposed on any other
body incorporated as a non-profit association the objects of
which are of a national, patriotic or sporting character. Fur
ther, taken together, the facts that the respondent enjoys
substantial financial support from the government; that on
surrender of its charter its assets are to be disposed of by the
government in co-operation with the International Olympic
Committee, and that it works closely with government agencies
and has demonstrated its willingness to co-operate with the
government by complying with its request that Canada's teams
be withdrawn from Olympic competition in 1980, indicate that
there is a sufficient degree of control exercised by government
in the respondent's activities to warrant its characterization as
a "public authority" within the meaning of subparagraph
9(1)(n)(iii).
CASES JUDICIALLY CONSIDERED
CONSIDERED:
Littlewood v. George Wimpey and Co., Ltd. et al., [1953]
1 All E.R. 583 (Q.E.D.); Cloudfoam Ltd. et al. v.
Toronto Harbour Commissioners, [1969] 2 O.R. 194
(C.A.); Smith et al. v. Hydro-Electric Power Commis
sion of Ontario (1976), 14 O.R. (2d) 502 (Div. Ct.);
Coderre et al. v. Ethier et al. (1978), 19 O.R. (2d) 503
(H.C.J.); Dombrowski v. Board of Governors of Dalhou-
sie University and College et al. (1974), 55 D.L.R. (3d)
268 (N.S. S.C.); Firestone Tire and Rubber Co. (S.S.)
Ld. v. Singapore Harbour Board, [1952] A.C. 452.
COUNSEL:
B. Evernden for appellant (respondent).
D. F. Sim, Q.C. and K. D. McKay for
respondent (appellant).
SOLICITORS:
Deputy Attorney General of Canada for
appellant (respondent).
Donald F. Sim, Q. C., Toronto, for respondent
(appellant).
The following are the reasons for judgment
rendered in English by
URIE J.: This appeal is from a judgment of the
Trial Division [[1982] 2 F.C. 274] which allowed
the appeal of the respondent from a decision of the
appellant refusing the request by the respondent,
made pursuant to subparagraph 9(1)(n)(iii) of the
Trade Marks Act, R.S.C. 1970, c. T-10 ("the
Act"), to give public notice of the adoption and
use by it of certain marks. The relevant facts
follow.
By letters patent issued in January 1952, under
Part II of The Companies Act, 1934, S.C. 1934,
c. 33, the Canadian Olympic Association ("the
COA") was incorporated as a non-profit corpora
tion. It was a successor to the Canadian Olympic
Committee which was founded in 1904 for the
purpose of enabling Canadian participation in the
Olympic Games and in the Pan American Games.
Supplementary Letters Patent issued on May 11,
1968, varied the Letters Patent by deleting the
objects granted by the original Letters Patent and
substituting therefor the following:
(a) to arouse and maintain the interest of the people of
Canada in, and to obtain their support of, creditable and
sportsmanlike participation and representation of Canada in
the Olympic Games and the Pan American Games;
(b) to develop and protect the Olympic movement and
amateur sport in Canada;
(c) to stimulate the interest of the people, particularly of the
youth in Canada, in healthful physical, moral and cultural
education through sportsmanlike participation in competi
tions in accordance with amateur rules;
(d) to exercise exclusive jurisdiction, either directly or
through its constituent members or committees, over all
matters pertaining to the participation of Canada in the
Olympic Games and in the Pan American Games, including
the representation of Canada in such Games, and over the
organization of the Olympic Games and the Pan American
Games when celebrated in Canada, and in furtherance there
of to comply with and enforce all the rules and regulations of
the International Olympic Committee;
(e) to select and obtain for Canada the most competent
amateur representation possible in the competitions and
events of the Olympic Games and of the Pan American
Games;
(f) to provide financial assistance, if requested, to such of its
member organizations as shall from time to time incur
expenses beyond revenue received in the development and
selection of competitors for the Olympic Games or the Pan
American Games;
(g) to seek and accept donations, gifts, legacies and devices
in furtherance of its corporate objects.
The right of any nation to participate in the
Olympic Games is controlled by the International
Olympic Committee ("the I.O.C.") which deter
mines the organization which will oversee the
Olympic participation by each of the more than
140 countries throughout the world. The COA is
the national Olympic committee for Canada rec
ognized by the I.O.C. and, as such, it exercises
control over all matters pertaining to the Olympic
movement in Canada. Its constitution provides
that should the COA surrender its charter, its
assets are to be disposed of by the Government of
Canada in co-operation with the I.O.C. but it
should also be observed that the I.O.C. prohibits
any national Olympic committee from being an
agency of government.
In an affidavit filed in the proceedings in the
Trial Division by the COA, its president, Richard
W. Pound, deposed as follows in respect of the
recognition of the COA by the Federal Govern
ment:
5. The I.O.C. requires that the national Olympic committees of
each nation exercise control over all matters pertaining to the
Olympic movement in their respective countries. Canada and
the I.O.C. have, for many years, recognized and continue to
recognize the authority of the COA as the national Olympic
committee in Canada; participation by Canada in the Olympic
Games would not be possible without its recognition and exist
ence. This is expressly recognized by the Canadian government
in the current objects of the COA as set out in Paragraph 3(b)
of Exhibit "A". The I.O.C. also requires that each national
Olympic committee not be an agency of government.
6. The I.O.C. will deal only with the COA in the staging and
participation by Canada of the Olympic Games at home and
abroad. In fact, a Canadian city wishing to host the Games
cannot make application to the I.O.C. without the approval and
endorsement of the COA. In the past, the COA has endorsed
and the Canadian government has supported bids by several
Canadian cities to host the Olympic Games including, inter
alia, Banff (1968 and 1972), Vancouver/Garibaldi (1976) and
Montreal (1972 and 1976). Exhibit "B" to this affidavit are
representative letters to the I.O.C. from the Government of
Canada endorsing the COA's approval of Canadian applicant
cities.
7. One such bid was accepted by the I.O.C. and resulted in the
1976 Games in Montreal. The letter by Prime Minister Pierre
Trudeau which forms part of Exhibit "B" expresses an under
taking to support those games and in fact through such pro
grams as the Olympic Lottery, Olympic Coins Program, Olym-
pic Stamp Program, Olympic Radio and Television
Organization, Department of Immigration and other govern
ment agencies provided that support. In fact, the Organizing
Committee of the Montreal Olympics ("COJO") was expressly
recognized by Federal statute in order to facilitate the organi
zation and completion of those Games and to enable COJO to
enforce and operate the above mentioned programs.
The COA, in collaboration with Federal and
Provincial governments, assisted in the "Game
Plan" program in 1973 for the training and de
velopment of Canadian athletes in preparation for
the 1976 Olympic Games at Montreal. As well it
meets regularly with representatives of the Fitness
and Amateur Sport Directorate of the Government
of Canada, Sport Canada, and various of that
body's members to assist in developing and pro
moting sports programs best suited to Canadian
needs. In 1980, the COA responded positively to
the request of the Federal Government that the
Canadian Olympic team not participate in the
Moscow Olympic Games. The Federal Govern
ment supports the COA financially by granting to
it funds to the extent of between 30 and 40 per
cent of the total of games missions costs.
On January 29, 1975 the appellant, at the
request of the COA, gave public notice in the
Trade Marks Journal under subparagraph
9(1)(n)(iii) of the Trade Marks Act, of the adop
tion of five official marks by the COA.
By letters dated October 18 and 20, 1979, the
COA requested public notice be given of certain
official marks pursuant to subparagraph
9(1)(n)(iii) of the Trade Marks Act and such
notice appeared in the Trade Marks Journal of
March 5, 1980.
The applications made by the COA for public
notice of the adoption of marks, which form the
subject matter of this appeal, were made on Octo-
ber 2, 3 and 5, 1979. It was not until September
22, 1980 that the COA was advised that its
request for public notice of adoption of the marks
referred to in those applications was refused,
although there had been some intermediate corre
spondence between the parties with respect there
to. It will be noted that while the subject applica
tions were made prior to the applications in the
immediately preceding paragraph, the refusal to
give public notice was subsequent to the publica
tion of those marks, publication for which was
applied for at a later date. It was from this refusal
that the appeal to the Trial Division was taken and
it is from the judgment of the Trial Division which
held that the COA is a "public authority" within
the meaning of subparagraph 9(1)(n)(iii) and is,
therefore, entitled to have public notice given of
the use and adoption of its marks, that this appeal
is brought.
Paragraph 9(1)(n) of the Act reads as follows:
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
(i) adopted or used by any of Her Majesty's Forces as
defined in the National Defence Act,
(ii) of any university, or
(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; ...
In her letter of refusal to give public notice of
the adoption or use of the marks in issue by the
COA, the appellant had this to say about the
meaning to be accorded to "public authority" in
subparagraph (iii) of paragraph 9(1)(n):
A public authority, as you know, is not defined under the
Trade Marks Act. Following a review, however, of all of the
cases and points cited in the original opinion issued by this
Office and raised in your submission dated June 10, 1980, I
have concluded that there are three basic criteria that a body
must meet in order to be considered a public authority:
1) there must be a duty owed to the public;
2) there must be a significant degree of public control;
3) profit must not be earned for private benefit, but for the
benefit of the public.
As was pointed out previously, while it is accepted that the
Canadian Olympic Association has publicly beneficial objects
as set out in its Letters Patent, these do not correspond to
public duties which could be enforced by the government or by
a member of the public. It is also possible that the Letters
Patent could be amended to render its objects less beneficial to
the public. Therefore, I do not consider that the Canadian
Olympic Association qualifies as a public authority in that
there is no evidence to show that it has a duty owed to the
public for which the public through the government could hold
it accountable. [Emphasis added.]
There is also no evidence in any of the information provided
that there is a significant degree of public control such that the
Canadian Olympic Association could be considered a public
authority. While it is not specified in any of the legislation what
form this public control could take, its existence must be
apparent and evident in the information provided. Its form
could be through government appointed directors and/or offi
cers, or direct government supervision of the activities or assets
of the body, or other means of control. There is no information
in the Letters Patent provided that such public control exists
with respect to the Canadian Olympic Association. The mere
fact that the Canadian Olympic Association was incorporated
as a not-for-profit corporation under Part II of the Companies
Act of 1934 does not provide the requisite degree of public
control. [Emphasis added.]
The memorandum of agreement referred to on page 3 of
your letter of June 10 wherein the Canadian Olympic Associa
tion was required to covenant that the corporation was not for
pecuniary gain and that any profits would be used to promote
its objects does not, in my opinion, demonstrate public control.
Rather, it goes to the third criterion, that the profit not be
earned for private benefit. This particular point is not in
dispute.
After reviewing all of the information available and the
authorities related to the issue of public authorities, I have
concluded that the Canadian Olympic Association cannot be
considered as a public authority under the provisions of the
Trade Marks Act and therefore have refused the request for
public notice to be given with respect to the marks indicated
above.
In the Trial Division, in the judgment which is
the subject of this appeal, it was held that [at page
278]:
The appellant's public character is manifest. What it does is
done, not for the profit of its members, but entirely for the
benefit of Canada and Canadians in response to generally-
recognized national needs. It is accepted, by the Canadian
community, as the entity having the exclusive right to do a
number of those things in and in relation to Canada and
Canadians. It has been accorded, by its incorporation, the
power necessary to do those things. By accepting the appellant's
self-proclaimed exclusive role, the Canadian community has
entrusted the appellant with functions to perform for the
public's benefit as effectively as if by legislative mandate.
In reaching the conclusion that the appellant is a public
authority within the contemplation of subparagraph
9(1)(n)(iii) of the Trade Marks Act, I do not regard the stated
objects in the Letters Patent as determining the issue except to
the extent that they are public, not private, objects. If it were
otherwise, the appellant would fail at that hurdle. What is
crucial is that the appellant does, in fact, pursue those objects;
that the Canadian community wants them pursued; that the
appellant is, in fact, the only entity exercising the power to
pursue them and is accepted by the community as exercising
that power as of right.
From the above it can be seen that the sole issue
in the appeal is whether or not the COA is a
"public authority" which is entitled to be accorded
the right to have its marks given public notice in
accordance with subparagraph 9(1)(n)(iii) of the
Act.
It was counsel for the appellant's contention
that, although the term "public authority" is not
defined in the Act, the jurisprudence discloses
that, in other contexts, a three-part test has been
established in order to determine whether a body
may be regarded as such:
(a) there must be a duty to the public;
(b) there must be a significant degree of govern
mental control; and
(c) any profit earned must be for the benefit of
the public and not for private benefit.
The principal authority upon which the appel
lant relied to support these propositions is Little-
wood v. George Wimpey and Co., Ltd. et al. 1 That
case involved a determination as to whether or not
British Overseas Airways Corporation, one of the
defendants in the action for damages for personal
injuries suffered by one of its employees in the
course of his employment, was a public authority
within the scope of subsection 21(1) of the Limita
tion Act, 1939, 2 & 3 Geo. 6, c. 21. That subsec
tion read as follows:
21.—(1) No action shall be brought against any person for
any act done in pursuance, or execution, or intended execution
of any Act of Parliament, or of any public duty or authority, or
in respect of any neglect or default in the execution of any such
Act, duty or authority, unless it is commenced before the
expiration of one year from the date on which the cause of
action accrued:.. .
At pages 585-586 Parker J. pointed out that:
As regards the question whether the corporation is a public
authority, the matter is not easy because no court advisedly has
attempted, to lay down any test or definition of what is and
what is not a public authority. Certain things are clear. It is
clearly not enough that it is a body created by statute required
to do things for the public benefit, for example, a railway
company. Equally it is clear that a commercial company, albeit
set up by a statute, which is entitled to trade for the benefit of
its incorporators, is not a public authority: see in this connec
tion Swain v. Southern Ry. Co. ([1939] 2 All E.R. 794) and
A.-G. v. Margate Pier & Harbour Co. of Proprietors ([1900] 1
Ch. 749). At the same time the fact that a company is entitled
to make a profit for itself does not prevent it from being a
public authority. In Griffiths v. Smith LORD PORTER says
([19411 1 All E.R. 89):
"In the first place, though the word `person' is used, not
every person is protected. It is a `Public Authorities Protec
tion Act' and not a `Persons Protection Act', and, therefore,
the body to be protected must be a public authority."
' [1953] 1 All E.R. 583 (Q.B.D.).
He refers to Bradford Corpn. v. Myers ([1916] 1 A.C. 170)
and The Johannesburg ([1907] P. 65), and goes on (ibid.):
"What, then, is a public authority? As SIR GORELL
BARNES, P., says in The Johannesburg the phrase is not
confined to municipal corporations. There are many other
bodies which perform statutory duties and exercise public
functions, and examples of such bodies are given by him at p.
79. The distinction which he draws is between a body carry
ing out transactions for private profit and those working for
the benefit of the public. Profit they may undoubtedly make
for the public benefit ..."
He refers to The Ydun ([1899] P. 236) and Lyles v. Southend-
on-Sea Corpn. ([1905] 2 K.B. 1) and adds:
"but they must not be a trading corporation making profits
for their corporators (A.-G. v. Margate Pier & Harbour Co.
of Proprietors)."
It seems to me that there are a number of matters which I
must consider in determining whether the corporation is or is
not a public authority. I must consider the duties imposed as
opposed to the powers given. I must consider the degree, if any,
of public control, and I must consider to whose benefit any
profit earned is going to accrue.
It is from that passage that the appellant
obtained the three basic criteria to which she made
reference in the passage from her letter of Septem-
ber 22, 1980 referred to above. It perhaps should
be noted that Parker J. only stated the kinds of
considerations which must be in his mind in decid
ing whether the corporation in question was a
public authority. He did not say that a corporation
or other body must meet all three tests to be such
an authority, although it perhaps can be reason
ably inferred that this is what he meant. Nor did
he say that no other considerations could be taken
into account in interpreting the term in other
contexts. What is more important, it seems to me,
is that he did not attempt to define the term
"public authority", recognizing that its meaning
may vary according to the statutory context. The
authority for this proposition is found in Hals-
bury's Laws of England, 4th ed., Vol. 1, pp. 9 - 10,
para. 6 which reads in part:
6. Public bodies and public authorities. A public authority may
be described as a person or administrative body entrusted with
functions to perform for the benefit of the public and not for
private profit. Not every such person or body is expressly
defined as a public authority or body, and the meaning of a
public authority or body may vary according to the statutory
context.
Counsel for the appellant sought support for his
propositions from the judgments in Cloudfoam
Ltd. et al. v. Toronto Harbour Commissioners 2 ;
Smith et al. v. Hydro-Electric Power Commission
of Ontario 3 ; Coderre et al. v. Ethier et al. 4 and
Dombrowski v. Board of Governors of Dalhousie
University and College et al. 5
In Cloudfoam one of the issues was whether the
Toronto Harbour Commissioners were, within the
language of section 11 of the Ontario Public
Authorities Protection Act, R.S.O. 1960, c. 318, a
person against whom proceedings have been
instituted for an act done in pursuance of any
statutory public duty or other public duty or au
thority. If so they would have the protection of a
six-month limitation period for the institution of
any action against them. Section 11 is very similar
in its terms to subsection 21(1) of the English Act,
supra. Laskin J.A., as he then was, speaking for
the Court, made no mention in his judgment of the
Littlewood case, supra, so that it does not support
the appellant's contention that all three of the
so-called criteria must be present to find that a
body is a "public authority". At page 197 Laskin
J.A. had this to say:
The "public" character of the defendant is reflected not only in
its obligation to manage the port and harbour of Toronto for
the convenience of the public, but also in its subjection to
governmental control as evidenced by ss. 15(3), 21(2) and 31 of
the constituent statute of 1911. The effect of these provisions is
to bring the Toronto Harbour Commissioners under the super
vision and control of the Governor-in-Council so far as concerns
any attempted alienation or disposition of the land which the
Toronto Harbour Commissioners are administering, and so far
as concerns the effect or the force of any by-law which the
Commissioners are authorized to make under the statute, and
in respect of the accounts which they are required to keep
under the last of the sections mentioned.
We think that these provisions in relation to the authority
and powers of the Corporation under the Act sufficiently
reinforce its public character as to bring it within those words
of s. 11 which speak of a statutory or other public duty or
authority.
From that passage it can be seen that Laskin J.
found the obligation of the Commissioners to
manage the harbour for the convenience of the
public and the element of governmental control in
the disposition of its lands, supported the Court's
2 [1969] 2 O.R. 194 (C.A.).
3 (1976), 14 O.R. (2d) 502 (Div. Ct.).
4 (1978), 19 O.R. (2d) 503 (H.C.J.).
5 (1974), 55 D.L.R. (3d) 268 (N.S. S.C.).
conclusion that the Commissioners were entitled to
the protection of the Act as a public authority.
In the Smith case, it was necessary for the
Court to ascertain whether section 11 of the Public
Authorities Protection Act, R.S.O. 1970, c. 374,
was available to the defendant Commission. The
Ontario Divisional Court, after analyzing the
Commission's constituent statute followed the
Cloudfoam case and found that the obligation on
the Hydro-Electric Power Commission of Ontario
to provide electricity to Ontario and the degree to
which it was subject to governmental control was
greater than the degree of control exercised by the
government in respect of the Toronto Harbour
Commissioners. Again, no reference was made to
the Littlewood case.
In the Coderre case, Lerner J. also followed the
Cloudfoam judgment but referred, in addition, to
Firestone Tire and Rubber Co. (S.S.) Ld. v. Sin-
gapore Harbour Board 6 in which the defendant
was sued for failure to deliver part of a shipment
of tires received on behalf of the plaintiff. At page
464, Lord Tucker stated:
... I. It is essential to the protection afforded by the statute
that the act or default in question should be in the discharge of
a public duty or the exercise of a public authority. This
assumes that there are duties and authorities which are not
public.
On the basis of all of the foregoing judgments it
appears clear that while the protection provided by
statutes like the Ontario Public Authorities Pro
tection Act may not be available to a body such as
the COA that does not mean that it necessarily
follows that it is not a public authority for the
purpose of the Trade Marks Act. To ascertain if it
is, regard must be had to the term "public author
ity" in the context of that Act as well as the nature
of the functions it performs. That conclusion is in
accord with the definition of public authority given
in Halsbury, supra.
The learned Trial Judge here aptly observed [at
page 277] that:
I think it fair to say that the issue in the jurisprudence has been
the public nature of the authority rather than whether the
person or body has been an authority. It is otherwise here.
6 [1952] A.C. 452.
It is quite apparent from the record that the
COA's role as the only body authorized by the
I.O.C. to arrange for Canada's participation in
international Olympic competition, is beneficial to
the Canadian public and the appellant, indeed,
does not dispute this fact. Counsel says, however,
that there must be corresponding obligations or
duties which could be enforced by a member of the
public or by government or any agency thereof.
The character of the COA, thus, does not, in his
submission, fulfil criterion (a) or (b) of the three
fold test set out supra which was purportedly
propounded in the Littlewood case, supra. In my
opinion, the necessity for finding such obligations
or duties to the public is not necessarily determina-
tive of whether or not the public body is a "public
authority" as that term is used in the context of
the Act here under review.
Subsection 9(1) specifically extends its protec
tion to the Royal Canadian Mounted Police, pro
vincial governments and municipal corporations.
These are clearly "authorities" created by govern
ment for the purpose of discharging certain obliga
tions to the public. That same subsection includes
in its ambit of protection the portrait or signature
of any individual living or dead less than thirty
years, the Red Cross and the United Nations.
Doubtless the latter two perform many services
beneficial to the public, but since, in their origins,
they were self-propagated, any public obligation
enforceable against either of them is not as appar
ent as that of governmental agencies. And, of
course, the public obligation or duty owed by an
individual is non-existent unless it has been
imposed on him by competent legislation.
Paragraph 9(1) (n) itself illustrates the dichoto
my. Subparagraph (i) deals with the Armed
Forces which clearly have public obligations and
subparagraph (ii) protects universities (many of
which are private as opposed to public institutions)
the public obligations of which are not of the kind
envisaged by the propositions espoused by the
appellant, but more nearly resemble the self-
assumed obligations of the respondent. Thus, the
cogency of the appellant's argument that the "pub-
lic authority" referred to in subparagraph (iii)
must not only benefit the public by its activities
but have obligations or duties to the public, is, in
my view, materially weakened.
The only remaining issue, then, is whether there
must be a significant degree of governmental con
trol for a body to be found a "public authority"
and, if so, does a significant degree of control exist
in the case of the COA. From the authorities
earlier referred to it seems that one of the elements
the courts have examined in determining the
public character of a body is the degree of control
exercised by the appropriate government.
Firstly, it should be noted, that there is imposed
on the COA by the statute authorizing its incorpo
ration, at least the same degree of control as that
imposed on any other corporation incorporated as
a non-profit association the objects of which are,
inter alia, of a national, patriotic or sporting
character.
Secondly, it is provided that in the event that the
COA surrenders its charter, its assets are to be
disposed of by the Government of Canada in co
operation with the I.O.C.
Thirdly, the material on the record shows that a
substantial portion of the financing of the COA's
activities is derived from the Federal Government
with the control of the disposition thereof undoubt
edly being monitored by those representing the
government.
Fourthly, the example furnished during the
1980 Olympic Games when the Federal Govern
ment was able to prevail upon the COA not to
participate in those games is indicative of a rather
substantial degree of influence on the COA's
decision-making.
Fifthly, the close relationship between the COA,
the Directorate of Fitness and Amateur Sport and
Sport Canada in the development of athletes, in
the provision of training opportunities and facili
ties and in coaching is indicative of an element of
control.
For these reasons, I am of the opinion that there
is a sufficient degree of control exercised by the
government in the COA's activities to reinforce its
public character as a "public authority" within the
meaning of subparagraph 9(1) (n) (iii) of the Act.
Therefore, for these reasons, as well as those of
the learned Trial Judge, with which I agree, I
would dismiss the appeal without costs.
HEALD J.: I concur.
KELLY D.J.: I concur with the reasons and
conclusions of my brother Urie.
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.