Judgments

Decision Information

Decision Content

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.