Heald,
J:—This
is
an
application
by
Notice
of
Motion
in
which
the
applicants
ask
for
a
writ
of
prohibition,
a
writ
of
mandamus,
an
injunction
and
a
writ
of
certiorari
against
the
respondents,
the
Minister
of
National
Revenue
and
the
Deputy
Minister
of
National
Revenue
for
Customs
and
Excise.
The
other
two
respondents,
at
their
own
request,
were
added
as
respondents
for
all
purposes
under
the
Rules
by
the
Order
of
my
brother
Gibson,
J
dated
July
16,
1975.
Details
of
the
relief
asked
for
in
the
Notice
of
Motion
read
as
follows:
1.
Issuing
a
writ
of
prohibition,
or
giving
relief
in
the
nature
of
prohibition,
directed
against
the
respondents
to
prohibit
them
from
excluding
from
the
length
of
cigarettes,
as
defined
in
section
2
of
the
Excise
Act,
as
amended
by
RSC
1970,
(1st
Supp)
c
15,
s
3,
that
portion
of
said
length
being
the
length
of
the
filter
or
tip,
for
the
purposes
of
calculating
the
number
of
cigarettes
upon
which
duties
are
to
be
imposed,
levied
and
collected
according
to
section
202
of
the
Excise
Act,
RSC
1970,
c
E-12
and
the
schedule,
Part
IV,
sections
2
and
3,
as
amended
SC
1974-75,
c
24,
s
25;
2.
Issuing
a
writ
of
mandamus,
or
giving
relief
in
the
nature
of
mandamus,
directed
aaginst
the
respondents,
to
require
them
to
include
in
the
length
of
cigarettes,
as
defined
in
section
2
of
the
Excise
Act,
as
amended
by
RSC
1970,
(1st
Supp)
c
15,
s
3,
that
portion
of
said
length
being
the
length
of
the
filter
or
tip,
for
the
purposes
of
calculating
the
number
of
cigarettes
upon
which
duties
are
to
be
imposed,
levied
and
collected
according
to
section
202
of
the
Excise
Act,
RSC
1970,
c
E-12
and
the
Schedule,
Part
IV,
sections
2
and
3,
as
amended
SC
1974-75,
c
24,
s
25;
3.
Issuing
an
injunction,
or
giving
relief
in
the
nature
of
an
injunction,
directed
against
the
respondents
to
restrain
them
from
excluding
from
the
length
of
cigarettes
as
defined
in
section
2
of
the
Excise
Act,
as
amended
by
RSC
1970,
(1st
Supp.)
c
15,
s
3,
that
portion
of
said
length
being
the
length
of
the
filter
or
tip,
for
the
purposes
of
calculating
the
number
of
cigarettes
upon
which
duties
are
to
be
imposed,
levied
and
collected
according
to
section
202
of
the
Excise
Act,
RSC
1970,
c
E-12
and
the
Schedule,
Part
IV,
section
2
and
3,
as
amended
SC
1974-75,
c
24,
s
25;
4.
Issuing
a
writ
of
certiorari,
or
granting
relief
in
the
nature
of
certorari,
directed
against
the
respondents
to
quash
any
decision
or
purported
decision
by
them,
excluding
from
the
length
of
cigarettes,
as
defined
in
section
2
of
the
Excise
Act,
as
amended
by
RSC
1970,
(1st
Supp.)
c
15,
s
3,
that
portion
of
said
length
being
the
length
of
the
filter
or
tip,
for
the
purposes
of
calculating
the
number
of
cigarettes
upon
which
duties
are
to
be
imposed,
levied
and
collected
according
to
section
202
of
the
Excise
Act,
RSC
1970,
c
E-12
and
the
Schedule,
Part
IV,
section
2
and
3,
as
amended
SC
1974-75,
c
24,
s
25;
or
At
the
outset
of
the
hearing,
counsel
for
the
respondents
made
a
preliminary
objection
to
the
Court’s
jurisdiction
to
grant
the
relief
asked
for.
I
heard
extensive
argument
from
counsel
for
all
the
parties
on
the
question
of
jurisdiction
and
at
the
conclusion
of
said
argument,
I
reserved
my
decision
thereon.
Under
section
202
of
the
Excise
Act,
RSC
1970,
c
E-12,
an
excise
duty
is
imposed
in
respect
of
cigars
and
tobacco
manufactured
within
Canada.
Section
6
of
said
Act
defines
both
“cigarette”
and
“manufactured
tobacco”.
Those
definitions
read
as
follows:
“cigarette”
means
every
description
of
cigarette
and
any
roll
or
tubular
construction
intended
for
smoking
that
is
not
a
cigar;
and
where
any
cigarette
exceeds
four
inches
in
length,
each
three
inches
or
fraction
thereof
shall
be
deemed
to
be
a
separate
cigarette;
“manufactured
tobacco”
means
every
article
made
by
a
tobacco
manufacturer
from
raw
leaf
tobacco
by
any
process
whatever,
except
cigars;
and
includes
cigarettes
and
snuff;
The
principal
issue
in
this
motion
is
whether
a
cigarette
which
has
a
length
of
less
than
four
inches
when
a
filter
fabricated
of
a
material
other
than
of
tobacco
is
excluded
from
the
measurement
of
its
length,
[and]
has
a
length
of
more
than
four
inches
when
such
filter
is
in-
eluded
in
the
measurement
of
its
length,
is,
by
virtue
of
the
concluding
words
of
the
definition
of
“cigarette”
(supra),
to
be
treated
as
two
cigarettes
for
the
purpose
of
computing
the
excise
duty
levied
under
section
202
of
the
Act.
The
determination
of
this
issue
affects
not
only
cigarettes
manufactured
in
Canada
but
also
cigarettes
imported
into
Canada
by
virtue
of
paragraph
21(1)(d)
of
the
Customs
Tariff
Act,
RSC
1970,
c
C-41,
which
provides
for
an
additional
customs
duty
on
cigarettes
imported
into
Canada
of
an
amount
equal
to
the
amount
that
would
have
been
imposed
under
the
Excise
Act
had
the
cigarettes
been
manufactured
in
Canada.
The
evidence
establishes
that
prior
to
June
of
1975
there
were
no
cigarettes
on
the
market
in
Canada
having
an
overall
length
of
more
than
four
inches
including
the
filter;
that
since
June
of
this
year
the
respondents
Benson
&
Hedges
(Canada)
Limited
and
Macdonald
Tobacco
Inc
have
introduced
to
the
Canadian
market
cigarettes
having
an
overall
length
of
more
than
four
inches
including
the
filter
but
less
than
four
inches
if
the
filter
is
excluded.
Apparently
officials
of
the
Ministry
of
National
Revenue
were
requested
to
review
the
question
as
to
whether
or
not
the
filter
should
be
included
in.
measuring
cigarette
length
having
regard
to
the
definitions
of
“cigarette”
and
‘‘manufactured
tobacco”
as
contained
in
section
6
of
the
Act.
Said
officials,
after
considering
the
problem,
and
after
obtaining
legal
advice,
concluded
“that
the
Excise
Act
should
be
administered
and
the
duty
payable
thereunder
should
be
calculated
on
the
basis
that
a
unit
in
which
the
portion
containing
tobacco
was
less
than
four
inches
would
be
considered
as
one
cigarette,
notwithstanding
that
its
total
length,
when
the
filter
was
taken
into
account
would
exceed
four
inches”.
(See
Affidavit
of
Howard
Perrigo,
Assistant
Deputy
Minister,
Excise,
Department
of
National
Revenue,
Customs
&
Excise,
paragraph
7.)
It
is
this
conclusion
of
which
the
applicants
complain
and
in
respect
of
which
they
seek
the
relief
as
above
set
out.
After
a
consideration
of
the
arguments
advanced
by
all
counsel,
I
have
concluded
that
the
Trial
Division
of
this
Court
does
not
have
jurisdiction
to
grant
the
relief
asked
for
in
the
Notice
of
Motion.
A
ground
of
objection
to
the
Court’s
jurisdiction,
which
is,
in
my
view,
fatal
to
the
applicants’
motion,
is
that
they
have
not
established
a
status
or
locus
standi
entitling
them
to
bring
the
present
motion.
In
order
to
establish
such
status,
they
would
have
to
show
that
they
are
aggrieved
parties
and
that
they
have
a
proprietary
interest
in
the
actions
of
the
Minister
and
his
officials.*
On
the
facts
here
present,
the
applicants’
legal
rights
remain
unimpaired
and
have
not
been
infringed
in
any
way.
The
evidence
is
that
neither
of
the
applicants
produce
or
market
a
cigarette
more
than
four
inches
in
length
so
that
a
change
by
the
Minister’s
officials
in
the
method
of
measurement
of
cigarettes
cannot
affect
them
in
any
way.
Nor
is
there
any
evidence
before
me
that
the
applicants
contemplate
producing
or
marketing
such
a
product.
What
the
applicants
are
submitting
is
that
by
proposing
to
allow
their
competitors
(Benson
&
Hedges
(Canada)
Limited
and
Macdonald
Tobacco
Inc)
to
pay
excise
tax
on
the
basis
of
the
new
products
being
considered
one
cigarette
instead
of
two
(the
practical
effect
of
the
new
method
of
measurement
of
cigarette
length)
said
competitors
are
being
given
a
competitive
advantage.
Such
a
position
is
not,
in
my
view,
sufficient
to
give
these
applicants
the
necessary
status
to
make
this
application.
I
agree
with
the
statement
of
counsel
for
the
Attorney
General
that
“Administrative
law
remedies
ought
not
to
be
used
as
part
of
the
weapons
in
the
struggle
in
the
market-place
between
contending
competitors
for
clientele
of
the
smoking
public”.
A
case
with
facts
somewhat
similar
to
the
case
at
bar
is
the
case
of
Regina
v
Commissioners
of
Customs
and
Excise,
[1970]
1
WLR
54.
In
that
case,
the
statute
imposed
an
excise
duty
on
off-course
betting
premises,
payable
by
an
annual
sum
or
two
half-yearly
instalments.
As
a
result
of
difficulties
encountered
by
bookmakers
in
paying
the
duty,
representations
were
made
to
the
Treasury
officials
as
a
result
of
which,
the
Commissioners
of
Customs
&
Excise
stated
in
press
notices
that
officials
were
authorized
to
issue
licenses
on
receipt
of
one
month’s
duty
and
eleven
post-dated
cheques.
This
new
procedure
was
widely
adopted
by
bookmakers.
However,
two
bookmakers
who
had
complied
with
the
Act
by
paying
the
tax
in
two
instalments,
applied
for
mandamus
requiring
the
Commissioners
to
enforce
the
provisions
of
the
Act
on
the
ground
that
because
of
the
arrangement
authorized
by
the
Minister
the
number
of
their
competitors
was
greater
than
it
otherwise
would
have
been,
and
that
the
terms
of
the
statute
were
not
being
complied
with
regarding
the
payment
of
duty.
The
Court
refused
the
application
holding
that,
although
there
was
no
statutory
authority
for
the
Minister’s
action,
yet,
since
the
applicants
were
not
seeking
to
enforce
a
specific
right
or
duty
owed
to
them,
nor
had
they
any
interest
over
and
above
that
of
the
community,
and
the
ulterior
motive
of
putting
people
out
of
business
was
not
such
an
interest,
they
had
not
shown
a
degree
of
interest
sufficient
to
support
their
applications.
Lord
Parker,
CJ
said
at
page
455
of
the
judgment:
Accordingly,
so
far
as
I
am
concerned,
the
only
and
real
point
as
I
see
it
in
this
case
is
whether
it
can
be
said
that
the
applicants
have
the
necessary
interest.
In
regard
to
mandamus,
this
has
always
been
dealt
with
on
a
very
strict
basis,
and
in
Reg.
v
Lewisham
Union
Guardians,
[1897]
1
QB
498,
it
was
stated
by
Wright
J,
who
was
an
authority
on
these
matters,
at
p
500:
“Certainly,
so
long
as
I
have
had
anything
to
do
with
applications
for
a
mandamus
I
have
always
understood
that
the
applicant,
in
order
to
entitle
himself
to
a
mandamus,
must
first
of
all
show
that
he
has
a
legal
specific
right
to
ask
for
the
interference
of
the
court.”
Quite
clearly
the
applicants
have
no
such
specific
right
as
individuals.
They
are
not
complaining
that
a
licence
was
not
issued
to
them.
They
are
not
complaining
that
they
were
not
offered
the
same
terms
as
other
bookmakers
in
regard
to
monthly
payments.
They
are
not
seeking
to
enforce
any
specific
right
or,
put
another
way,
any
specific
duty
owed
to
them.
Applicants’
counsel
urged
upon
me
in
this
regard,
the
City
of
Halifax
case*
and
the
Thorson
case.f
Both
of
these
cases
are,
in
my
view,
clearly
distinguishable
from
the
case
at
bar.
The
City
of
Halifax
case
(supra)
involved
a
rezoning
of
property
owned
by
a
third
party
from
residential
to
commercial
in
order
to
enable
said
third
party
to
construct
a
1/-storey
hotel
thereon.
The
appellant
owned
adiacent
residential
property
and
a
hotel
situated
diagonally
across
from
the
lands
owned
by
the
third
party.
The
appellant
in
that
case
was
held
entitled
to
bring
an
action
because
its
interests
were
materially
affected
by
the
application
to
rezone.
In
the
case
at
bar,
the
applicants’
legal
rights
and
proprietary
interests
are
not
affected
in
any
way.
The
Thorson
case
(supra)
is
likewise
distinguishable.
The
question
for
determination
in
that
case
was
whether
a
person
who
seeks
to
challenge
the
constitutional
validity
of
an
Act
of
Parliament
has
standing
as
a
taxpayer
to
bring
such
an
action,
said
question
being
answered
in
the
affirmative
by
a
majority
of
the
Court.
However,
the
majority
decision
seems
to
be
restricted
so
as
to
not
apply
to
legislation
that
is
not
regulatory
in
nature
but
applies
to
legislation
that
is
declaratory
and
directory,
creating
no
offences
and
imposing
no
penalties.
Thus
the
Thorson
decision
clearly
does
not
apply
to
a
statute
like
the
Excise
Act
which
is
regulatory
in
nature
and
which
does
create
offences
and
impose
penalties.
I
have
the
further
view
that,
quite
apart
from
the
failure
of
the
applicants
to
establish
status,
the
Court
is
without
jurisdiction
to
deal
with
subject
motion
for
other
reasons.
There
is
ample
authcrity
for
the
proposition
that
when
a
Minister
of
the
Crown
is
performing
his
duties
as
a
servant
or
agent
of
the
Crown
and
where
Parliament
has
not
imposed
upon
the
Minister
a
specific
duty
towards
a
citizen,
the
remedy
for
failure
to
perform
the
duty
does
not
lie
with
the
courts.
The
courts
will
intervene
only
in
cases
where
the
legislation
imposes
upon
a
Minister
a
peremptory
duty
to
do
a
particular
act
which
entails
a
legal
duty
towards
an
individual.
In
such
a
case
the
Minister
is
not
accountable
to
the
Crown
but
to
the
individual
to
whom
the
legal
duty
is
owed.
}
In
the
case
at
bar,
by
section
4
of
the
Department
of
National
Revenue
Act,
RSC
1970,
c
N-15,
and
by
the
Schedule
to
said
Act,
the
Minister
of
National
Revenue
is
charged
with
responsibility
in
respect
of
the
collection
of
excise
duty.
Section
202
of
the
Excise
Act
provides
for
excise
tax
on
“manufactured
tobacco”
which,
by
the
definition
contained
in
section
6
of
the
Excise
Act
includes
cigarettes.
However,
I
see
nothing
in
either
statute
which
imposes
upon
the
Minister
any
duty
towards
any
particular
person
or
class
of
persons,
other
than
towards
the
Crown.
Applicants’
counsel
pointed
to
subsection
42(1)*
of
the
Excise
Act
as
imposing
an
obligation
to
collect
the
largest
amount
of
duty
possible.
However,
any
obligation
imposed
by
subsection
42(1)
is
an
obligation
towards
the
Crown,
and
not
towards
any
particular
person
or
class
of
persons.
My
other
comment
concerning
subsection
42(1)
is
that
when
taken
in
context,
it
clearly
refers
only
to
the
mechanical
act
of
calculating
and
computing
duty.
The
subsection
says
that
when
two
or
more
methods
for
determining
the
amount
of
duty
payable
as
provided
for,
the
method
yielding
the
greatest
amount
of
duty
shall
be
used.
What
we
have
in
the
case
at
bar
is
a
case
of
two
conflicting
interpretations
of
the
definition
of
“cigarettes”
as
contained
in
section
6
of
the
Act.
To
read
into
subsection
42(1)
of
the
Act
a
duty
imposed
on
the
Minister
and
his
officials
io
interpret
the
word
“cigarettes”
in
a
manner
which
will
result
in
the
collection
of
more
excise
tax
(and
by
implication
inviting
him
to
ignore
the
usual
ruies
and
aids
to
statutory
interpretation)
would,
in
my
view,
result
in
a
distortion
of
the
plain
meaning
of
said
subsection
42(1).
For
the
foregoing
reasons,
I
have
concluded
that
mandamus
will
not
lie
on
the
facts
here
present.
If
mandamus
does
not
lie,
it
is
even
clearer
that
the
remedy
of
injunction
is
not
available
to
the
applicants.
+
Turning
now
to
certiorari.
Certiorari
lies
only
to
quash
something
which
is
a
determination
or
a
decision.}:
In
the
case
at
bar,
the
interpretation
or
proposed
interpretation
by
the
Minister
and
his
officials
of
section
6
of
the
Excise
Act
is
nothing
more
than
his
personal
opinion
as
to
the
meaning
of
the
statute
and
is
thus
similar
to
the
“ruling”
discussed
by
Cameron,
J
in
Woon
v
MNR,
[1951]
Ex
CR
18
at
27;
[1950]
CTC
263
at
271;
4
DTC
871.8
Furthermore,
neither
certiorari
or
prohibition
will
lie
on
the
facts
of
the
present
case
since
the
Minister,
in
the
course
of
his
interpretation
of
a
provision
of
the
Excise
Act
is
not
a
person
“having
legal
authority
to
determine
questions
affecting
the
rights
of
subjects
and
having
the
duty
to
act
judicially”
(per
Lord
Atkin,
LJ
in
R
v
Electricity
Commisioners,
[1924]
1
KB
171).**
For
the
foregoing
reasons,
applicants’
motion
is
dismissed
with
costs.
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