Overview
[1]
The
Registrar of Trade-marks is required by legislation to give public notice of adoption
and use of an official mark once an organization establishes that it is
a public authority that has, prior to the time of application, adopted and
used the proposed mark. In this case, the Registrar gave public notice that
the College of Traditional Chinese Medicine Practitioners and Acupuncturists
of British Columbia had adopted and used 16 official marks, under subparagraph
9(1)(n)(iii) of the Trade-marks Act, RSC 1985, c T-13 (the
Trade-marks Act) (Annex A).
[2]
The
applicant, the Council of Natural Medicine College of Canada, brings this
application for judicial review to set aside the Registrar’s decision.
[3]
Decisions
of the Registrar are reviewed on a standard of reasonableness unless new
evidence is adduced which would have materially affected the decision: See
You In – Canadian Athletes Fund Corporation v Canadian Olympic Committee,
2007 FC 406, aff’d 2008 FCA 124. In this case, there was fresh evidence and so
the standard is correctness.
[4]
I
conclude that the Registrar committed no reviewable error. The Registrar
correctly determined, consistent with the governing criteria, that the respondent
College is a public authority that had adopted and used the official marks: Ontario Association
of Architects v Association of Architectural Technologists of Ontario, 2002
FCA 218 at para 34.
[5]
The
applicant Council also challenges the vires of subparagraph
9(1)(n)(iii), both as beyond the legislative competence of Parliament in its
application to the medical arts, and as an unjustifiable restriction of freedom
of expression under subsection 2(b) of the Canadian Charter
of Rights and Freedoms (Part I of the Constitution Act,
1982) (Charter). Arguments with respect to constitutionality,
whether under the Constitution Act, 1867 (Annex B) or the Charter
are also measured against a standard of correctness. These arguments also fail
and the application is dismissed.
[6]
The
Attorney General of British Columbia (AGBC) appeared in response to a Notice of
Constitutional Question served by the applicant.
Parties
The Council
[7]
The
applicant Council (as opposed to the respondent College) was incorporated by
Dr. Sky Willow as a non-profit company under federal legislation on December 4,
2002. It is a private corporation, despite its name. The Council creates
educational programs in traditional Chinese medicine (TCM) and acupuncture. Affiliated
private schools teach these programs under license from the Council. At
present, the Council has one affiliated school in Toronto, Ontario. The facts
underlying this application relate to the Shanghai TCM College in Burnaby, British Columbia, now closed.
[8]
The
Council entered into a trade-mark licence agreement with graduates from its
programs, licensing the use of various trade-marks previously held by, or
for which registration had been filed, by the Council such as D.T.C.N. (Doctor
of Traditional Chinese Medicine):
(1)
D.T.C.M.
(Doctor of Traditional Chinese Medicine) (registered 2005, expunged 2012)
(2)
Registered
D.T.C.M. (registered 2006, abandoned 2010
(3)
Dr.
TCM (filed for registration, abandoned
(4)
D.P.C.M.
(Doctorate of Philosophy in Chinese Medicine) (registered mark in 2005 and
2007, expunged 2012)
(5)
Registered
D.P.C.M. (filed 2006, abandoned 2012)
(6)
R.
TCM. P (Registered TCM Practitioner) (filed for registration, abandoned 2007)
[9]
The
promotional literature used by the Council to recruit students into its program
described that it was offering, upon completion of the training, the right to
use a trade-mark. An advertisement for a 2007 information session in Toronto read, in part:
Information Session on Licence
System for Doctor of Traditional Chinese Medicine and Alternative Medicine
Therapist of federally registered CNMCC
We invite you to attend the following information session on the trade
mark-licenses of the Council of Natural Medicine College of Canada (CNMCC) of
the Government of Canada Holistic Medicine Dispensary (H.M.D.), Natural Medicine
Database Practitioners (N.M.D.P.) and Natural Health Doctor (N.H.D.)
…
Contents of Information Session:
* Presentation on the licence
system for the administration of medicine for the Alternative Medicine
Therapist and Doctor of Traditional Chinese Medicine of the federally
registered Council of Natural Medicine College of Canada (CNMCC)
…
* Information on how to join the
federally registered Council of Natural Medicine College of Canada (CNMCC)
and introduction on the roles of the members for the improvement of health
care.
[10]
A
2008 advertisement provided:
Canada International College of
T.C.M. authorized for educating programs to obtain the Council of Natural
Medicine College of Canada (CNMCC) Trade Mark-Licence® approved by Government
of Canada is now accepting candidates who wish to take lectures prepared for
CNMCC Trade Mark-License® exams as follows. We invite many to participate and
obtain a Trade Mark-License® for Alternative Medicine Therapist, Naturopathic
Physician, Doctor of Traditional Chinese Medicine and Registered Acupuncturist.
[11]
And,
to same effect, the Council’s website provided:
The Council of Natural Medicine
College of Canada (CNMCC) is the owner of all rights and titles in and to the
trade-marks referred to on this website. Any unauthorized use of these
trade-marks shall be subject to prosecution under the Trade-marks Act.
[12]
In
an August 2006 letter to the City of Vancouver business licensing department,
the Council held out to the City that it was “responsible for reviewing and
approving accreditation for educational programs through out Canada.” At the same time, the CNMCC website included a “Scope of Practices” heading,
which stated that CNMCC members were entitled to practice acupuncture and TCM.
[13]
There
is, of course, a vast legal distinction between the right to use a trade-mark
and the right to practice a regulated trade or profession. The promotional
literature, through the close juxtaposition and interlineation of the language “federally
licensed”, “federally registered” and “Government of Canada” between the name
of the Council and its trade-marks, obfuscated otherwise legally discrete
domains. As will be described, individuals enrolled in the Council’s program and
paid tuition only to find that, upon graduation, they had no right to practice acupuncture
and TCM in British Columbia.
The College
[14]
The
respondent College was established in 1999 under the Health Professions Act,
RSBC 1996, c 183 (Health Professions Act) (Annex D) and the
Traditional Chinese Medicine Practitioners and Acupuncturists Regulation,
BC Reg 290/2008 (Annex E) to regulate and govern the practice of TCM and
acupuncture in British Columbia.
[15]
As
a professional self-governing body, the College grants registration to
applicants who satisfy the criteria set out in its by-laws, including
university pre-requisite courses, successful completion of an approved
educational program involving clinical training, and registration exams. Registrants
are then permitted to use certain reserved titles and abbreviations: R. Ac.
(Registered Acupuncturist); R.TCM.H. (Herbalist); R.TCM.P. (Registered TCM
Practitioner); and Dr. TCM (Doctor of Traditional Chinese Medicine). These titles
are prescribed, designated and reserved under British Columbia law.
[16]
In
British Columbia only the College may authorize individuals to practice TCM
and acupuncture. Despite this, the Council’s promotional literature implied a
right to practice, and certain graduates subsequently represented themselves as
having a “federal licence” to practice TCM and acupuncture. The Council also
represented itself to prospective students as a professional regulatory body
whose members were entitled to practice TCM and acupuncture under a “federally
registered license”. There is, of course, no federal license to practice
medicine, TCM or otherwise.
[17]
In
2005, the Council demanded that the College cease and desist from using the
phrase “Doctor of Traditional Chinese Medicine”, alleging infringement of
its registered trade-mark. This demand, of course, ignored the College’s
powers and obligations, as mandated by statute and regulation, including the
fact that the titles were reserved and prescribed under provincial law.
[18]
In
response to the Council’s continued use of the trade-marks, the College decided
to adopt official marks. It began to use the marks in April 2007, and on
February 18, 2009, the Registrar published public notice of the College’s
adoption and use of the following official marks, which are the subject of this
judicial review:
(1)
D.T.C.M.
(DOCTOR OF TRADITIONAL CHINESE MEDICINE)
(official mark 918 354)
(2)
REGISTERED
D.T.C.M. (official mark 918 355)
(3)
D.T.C.M.
(4)
DR.
TCM (official mark 918 357)
(5)
D.P.C.M.
(DOCTORATE OF PHILOSOPHY IN TRADITIONAL CHINESE MEDICINE)*
(6)
TRADITIONAL
CHINESE MEDICINE*
(7)
DOCTOR
OF TRADITIONAL CHINESE MEDICINE
(8)
REGISTERED
D.P.C.M.*
(9)
ACUPUNCTURIST*
(10)
REGISTERED
ACUPUNCTURIST
(11)
R.
AC. (REGISTERED ACUPUNCTURIST) (official mark 918 364)
(12)
R.
TCM. P.
(13)
R.
TCM. P. (REGISTERED TCM PRACTITIONER) (official mark 918 366)
(14)
R.
TCM. H.
(15)
R.
TCM. H. (REGISTERED TCM HERBALIST)
(16)
R.
AC.
*
Subsequently withdrawn.
Previous Litigation
[19]
In
September 2009, the College also obtained, in this Court, summary judgment and a
permanent injunction restraining the Council from adopting, using or licensing
the use of the protected titles and abbreviations in association with
educational training, certification and registration, the operation of a TCM or
acupuncture clinic, or the practice of TCM and acupuncture: College of
Traditional Chinese Medicine Practitioners and Acupuncturists of British
Columbia v Council of Natural Medicine College of Canada, 2009 FC 1110 [CTCMPA
of BC v CNMCC].
[20]
The
Court enjoined the use of the titles and abbreviations that implied a
professional designation or degree, or governmental approval. Justice O’Keefe
found that the Council’s marks were clearly descriptive or deceptively
misdescriptive and therefore not registrable under paragraph 12(1)(b). Justice
O’Keefe also found that the marks were not distinctive as required under
paragraph 18(1)(b). A declaration was issued declaring the registrations
invalid pursuant to paragraphs 18(1)(a), (b) and subsection 18(1) of the Trade-marks
Act. An Order was issued expunging the registrations.
[21]
Justice
O’Keefe found that the Council’s trade-marks had been historically used to
describe doctors of TCM and acupuncturists and that these services and
historical marks have had a commercial usage. Therefore, the above-mentioned
marks were also prohibited under section 10 of the Trade-marks Act.
[22]
Finally,
Justice O’Keefe found that the Council had misled the public so that
individuals would believe that it was a federal regulatory body, responsible
for the practice of TCM, rather than the mere owner of a trade-mark.
Justice O’Keefe cited examples of individuals who used the trade-mark in
advertising their professional services. Additionally, he found that the
Council’s advertisements suggested it was a federal regulatory body, which
authorized the practice of TCM and not simply a holder of certain trade-marks.
[23]
The
Council’s appeal from this judgment has been discontinued.
[24]
The
Council now seeks an order declaring the Registrar’s public notice of the
above-listed official marks invalid. To this end, it contends that:
(1)
The
College is not a public authority;
(2)
The
College did not adopt or use the official marks;
(3)
Subparagraph
9(1)(n)(iii), paragraph 12(1)(e) and section 11 of the Trade-marks Act must
be read down to ensure their constitutionality. Specifically, the Council contends
that the provisions trench upon subsection 92(13) of the Constitution Act,
1867 and are ultra vires as they offend the freedom of expression
protection in section 2(b) of the Charter; and
(4)
Subparagraph
9(1)(n)(iii) offends subsection 2(e) of the Bill of Rights.
[25]
Insofar
as the applicant Council seeks declarations of constitutional invalidity, I
find subparagraph 9(1)(n)(iii) to be a valid exercise of Parliament’s authority
to legislate in respect of trade and commerce, that the legislation is a
justifiable infringement of freedom of expression as protected by section 2(b)
of the Charter, and that subsection 2(e) of the Canadian Bill of
Rights, SC 1960, c 44 (Bill of Rights) (Annex C) has no application
in the context of the Registrar’s decision to grant an official mark.
Background
Provincial
Legislation
[26]
Under
the Health Professions Act and associated
regulations,
British
Columbia
has established a comprehensive scheme for the regulation of all medical arts
and health care providers in the province. Broadly read, it establishes
self-governing colleges in defined areas of healthcare and grants to
practitioners governance over their respective professions. The legislation
requires the colleges to establish standards for all aspects of the practice of
their profession including training, accreditation, ethics, public complaints,
and discipline. The regulations also authorize the reservation of professional
titles and govern their use and abbreviations as determined by the colleges and
their respective by-laws. It is the Government of British Columbia, however,
which enacts the regulations necessary to give the scheme legal effect.
[27]
The legislature of British Columbia has therefore defined and
controlled the use of professional titles in designated health care professions
and restricted their use to members of colleges with the required
accreditation. The Traditional Chinese Medicine Practitioners and
Acupuncturists Regulation applies specifically in this case. By virtue of this
Regulation, the titles “acupuncturist,” “traditional Chinese medicine
practitioner,” “doctor of traditional Chinese medicine” and others are reserved
for the exclusive use of members of the College.
[28]
The Health Professions Act enables the Minister of Health to
exercise on-going control and supervision over the policy and operational decisions
of the colleges. For example, under section 17, the Minister must appoint
board members; no less than one-third and no more than those elected by the
College must be government appointed.
[29]
Additionally,
under section 18.1 the Minister may, if it is considered “necessary in the
public interest,” inquire into the colleges’ activities and issue directives. This
power is very broad; the inquiry may be into “any aspect” of the practice or
governance of the profession. The Minister may also require the Board to
perform its duties in a certain manner, to adopt any standard or restraint.
[30]
The
Minister also supervises the colleges’ bylaw making authority. Under section
19, the Minister may disallow, amend, repeal and enact bylaws. The extent of
the use of this authority will be discussed later in the review of the
evidence.
Federal
Legislation
[31]
The Trade-marks Act, subparagraph
9(1)(n)(iii) grants public authorities in Canada exclusive use of their
“official marks”:
|
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
[…]
(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;
|
9. (1) Nul ne peut adopter à l’égard d’une entreprise, comme
marque de commerce ou autrement, une marque composée de ce qui suit, ou dont
la ressemblance est telle qu’on pourrait vraisemblablement la confondre avec
ce qui suit :
[…]
n) tout insigne, écusson, marque ou emblème :
[…]
(iii) adopté et employé par une autorité publique au Canada
comme marque officielle pour des marchandises ou services, à l’égard duquel
le registraire, sur la demande de Sa Majesté ou de l’université ou autorité
publique, selon le cas, a donné un avis public d’adoption et emploi;
|
[32]
This provision grants protection to a public authority that adopts
and uses an official mark. The public authority gains exclusive use of a mark
that, unlike a trade-mark, is not tied to specific wares or services. All
others are prohibited from adopting a mark that so nearly resembles as likely
to be mistaken for it in connection with a business. It is not necessary for the
public authority to demonstrate the distinctiveness of a proposed official mark
or any secondary meaning, and there is no requirement that public notice be
given of a request to the Registrar: Canadian Jewish
Congress v Chosen People Ministries, Inc, 2002 FCT 613 at paras 22-24.
[33]
Section 11 and paragraph 12(1)(e) enforce the exclusivity of the
official marks granted under section 9:
|
11. No person shall use in connection with a business, as a
trade-mark or otherwise, any mark adopted contrary to section 9 or 10 of this
Act or section 13 or 14 of the Unfair Competition Act, chapter 274 of the
Revised Statutes of Canada, 1952.
12. (1) Subject to section 13, a trade-mark is registrable if it
is not
[…]
(e) a mark of which the adoption is prohibited by section 9 or
10;
|
11. Nul ne peut
employer relativement à une entreprise, comme marque de commerce ou
autrement, une marque adoptée contrairement à l’article 9 ou 10 de la
présente loi ou contrairement à l’article 13 ou 14 de la Loi sur la
concurrence déloyale, chapitre 274 des Statuts revisés du Canada de 1952.
12. (1)
Sous réserve de l’article 13, une marque de commerce est enregistrable sauf
dans l’un ou l’autre des cas suivants :
[…]
e) elle
est une marque dont l’article 9 ou 10 interdit l’adoption;
|
Public Authority
[34]
I
find that the Registrar correctly determined that the College is a public
authority for the purposes of the Trade-marks Act.
[35]
To
constitute a public authority, the organization must be under a significant
degree of public control and must exist for the public benefit: Ontario
Association of Architects at paras 51-52. The Council does not contest
that the College exists for the public benefit, but, I find nonetheless that
the College regulates the practices of TCM and acupuncture to promote public
confidence in the provision of medical services and public health and safety. Through
the College’s registration system, the public is able to identify who is
qualified to provide this type of healthcare service and is assured of a minimum
level of training and expertise. This is clearly in the public interest. The
first criterion of the test is satisfied.
[36]
In
Ontario Association of Architects, at paragraphs 60-62, the Federal
Court of Appeal identified the indicia of ongoing government supervision of a
self-regulatory professional body that would satisfy the public control test.
The Court noted that the mere fact that a body is statutory or that the objects
and powers may be amended unilaterally by the legislature does not constitute
“government control”. Rather, the following powers, exercisable by the
relevant minister or Lieutenant Governor in Council, constituted a significant
degree of governmental control:
(1)
The
power to review the activities of the body;
(2)
The
power to request that the body undertake necessary and desirable activities to
implement the intent of its enabling legislation;
(3)
The
power to advise the body on the implementation of the statutory scheme;
(4)
The
power to approve the exercise of the body’s regulation-marking; and
(5)
The
power to appoint members to the board and various committees.
[37]
The
Government of British Columbia, through the Minister of Health, exercises these
powers over the College. Section 18.1 of the Health Professions Act
enables the Minister to appoint a person to inquire into any aspect of the
administration or operation of the College. Section 18.2 permits the Minister
to issue directives, which may require the College to exercise certain powers
or perform certain duties. Subsection 19(3.1) allows the Minister to disallow
certain bylaws proposed by the College and subsection 19(6) allows the Minister
to create, amend or repeal bylaws if certain pre-conditions are met. Finally,
paragraphs 17(3)(b), 17(4)(a) and 17(4)(b) allow the Minister to appoint
between one-third and one-half of the board members.
[38]
The
indicia identified by the Court of Appeal are not exhaustive, nor is the presence
or absence of any one factor determinative. The analysis remains contextual and
in this case there are additional indicia of government control. The College
provides audited financial statements and an annual report to the Minister of
Health. Additionally, the College is a designated public body under the Freedom
of Information and Protection of Privacy Act, RSBC 1996, c 165. The College
is listed under Schedule 3 with the consequence that the public has a right of
access to records in its custody or under its control.
[39]
There
was evidence before this Court that through the vehicle of the by-laws, the
government exercised de facto, as well as de jure control over
the College. Mr. Arden Henley, a government appointee to the Board from 2005 –
2011, explained that the government played an active role in the College’s
day-to-day operations. In his evidence he gave examples in support:
[The College] inevitably ends up
with operational, as well as policy, discussions with the legislative branch of
government, who eventually must, by order of a council and other means, approve
any changes that the college makes.
[…]
….those discussions do not take
place in a limited and arcane way. Those discussions take place in a
regular ongoing and operational way. That’s how change is made, by agreement
[about the by-laws] with the government and ultimately by approval with the
government.
[40]
Before
leaving the issue of government control, the applicant Council points to the
fact that the College, in seeking to protect the official marks
under section 9, is acting inconsistently with the AGBC’s legal position,
as advanced in these proceedings on inter-jurisdictional immunity. The AGBC
says subparagraph 9(1)(n)(iii) must be read down and does not apply to matters
within the scope of subsection 92(13) of the Constitution Act, 1867,
such as the regulation of health professions. This divergence of positions on
the constitutional issue is said to be evidence that the province does not
“control” the College.
[41]
The
case law does not require that to be a public authority the authority agree
with all aspects of government policy, let alone in areas unrelated to their
mandate. Presumably the College thought it in the best interests of the
profession and the public to obtain the official marks in question, and, if
it was of that view, it was mandated to act accordingly.
[42]
Finally,
Ontario
Association of Architects does not assist the applicant in
establishing that the control test was not met. In that case, the objects of
the Ontario
Association of Architects were not in issue; rather, it was the
objects of the Association of Architectural Technologists of Ontario (the AATO)
that were under consideration. The ATTO monopoly was narrow and nothing
prevented non-members from being employed or practicing their trade. The
government of Ontario did not exercise the power of approving by-laws, ordering
inquiries or issuing directions to the ATTO, as in the case at bar. This case
does not assist the applicant in establishing that the control test was not
met.
Adoption and Use
[43]
The
Registrar correctly determined that the College had adopted and used the
official marks.
[44]
The
public authority must have adopted and used the official mark before the Registrar
gives public notice. The Registrar gave public notice on February 18, 2009.
This is the date before which adoption and use must be established.
[45]
Adoption
and use are not defined terms. They are broad in scope and, for the purpose of
section 9, a mark is adopted and used if it is displayed in association with
services, even if the mark is not distinctive or is clearly descriptive.
[46]
Two
principle requirements govern adoption and use. First, there must be some
degree of public display. Internal use alone is insufficient. Second, the
marks must be distinguished from the surrounding text. For example, it would
be insufficient for the College to merely use the words “traditional Chinese
medicine” within a phrase or sentence.
[47]
The
Council has emphasized that the College did not publish the official marks in
any of its printed materials. However, there is no requirement that the mark
be displayed in this particular way. This Court has previously found that
displaying the mark on a public website is sufficient: FileNet Corp v Canada (Registrar of Trade-marks), 2001 FCT 865 at para 65 (aff’d 2002 FCA 418). More
recently, in TSA Stores, Inc. v Registrar of Trade-marks, 2011 FC 273,
this Court reasoned that as the term “services” is not defined it should be
given a liberal interpretation.
[48]
The
facts of this case are similar to those in FileNet. The College adopted
and used the official marks by displaying them on its publicly accessible
website before the date of public notice. The marks were preceded by an
explanation that, “In addition to the titles listed above, the CTCMA has
adopted and uses the following marks: [sixteen marks listed]”. Each official
mark was hyperlinked to detailed information about the related services and vocation.
The marks were clearly identified and listed without any surrounding text. In
this way, the College signalled to the public the significance of each official
mark, while providing information and registration services to its members and
the public on the website.
[49]
As
in TSA Stores, the website provided a significant amount of information
relevant to the public, potential practitioners, and to practitioners. There
was evidence before the Registrar that the website was accessible to, and used
by, Canadians. The conclusion of the Registrar that the College adopted, used
and displayed its mark in association with its services is amply supported by
the evidence.
[50]
The
applicant argues that this display was contrived in order to support the
College’s application. In my view it is irrelevant whether the College
displayed the marks merely to support its application to the Registrar. The
question is whether the marks were adopted and used, not whether they were
adopted and used with a particular motive or in furtherance of a particular
objective. Indeed, the evidence indicates the College sought to carefully
ensure that it had complied with the statutory requirements of adoption and use
before submitting an application. The criteria of public display in
association with services satisfied.
Division of Powers
Overview
[51]
The
Trade-marks Act is, in pith and substance, an exercise of the trade and
commerce power, under subsection 91(2) of the Constitution Act, 1867:
Kirkbi AG v Ritvik Holdings Inc., 2005 SCC 65, [2005] 3 S.C.R. 302. The Trade-marks
Act is directed to the regulation of trade, generally, and not to the
regulation of a particular business. This distinction is fundamental to its
constitutionality. It is also fundamental to understanding why the challenge
to the official marks provision of the Act fails.
[52]
The
Council and the AGBC do not contest the vires of the provisions as being
a valid exercise of the trade and commerce power; rather they contend that paragraph
9(1)(n), section 11 and paragraph 12(1)(e) should be read down to be
inapplicable to all matters assigned to the provinces under the Constitution
Act, 1867. This would include any matter falling under section
92(13) including the regulation of the medical arts and health care professions.
Put otherwise, the applicants contend that the sections are a valid exercise of
the federal power but they simply do not apply to the provinces.
[53]
Legislation
which is, in pith and substance, a valid exercise of a legislative or
Parliament’s authority is not “read down” simply because it may have an
incidental effect on a head of provincial legislative authority. Reading down,
as a remedy, is a device used by the courts where otherwise valid legislation
impairs or trenches upon the legislative responsibilities of the other
government.
[54]
Reading
down, if applied in the expansive manner as suggested by the applicant and the
AGBC, would amount to a fundamental re-working of the constitution in general and
the trade and commerce power, in particular. If given effect, the argument
would deny the doctrine of incidental effects. All legislation would be read
down or circumscribed so as to eliminate any effect on the provincial or
federal government. It would confine each head of power, whether federal or
provincial, to a hermetically sealed, watertight compartment with precisely
prescribed boundaries de-marking the scope of the power.
[55]
Reading down
would also resuscitate, through an interpretive doctrine, the
inter-jurisdictional immunity argument rejected by the Supreme Court of Canada
(SCC). As will be considered, the constitutional arguments also fail as they
have no evidentiary foundation. In sum, Sections 11, subparagraphs
9(1)(n)(iii) and paragraph 12(1)(e) are valid regardless of any incidental
effects on the province’s powers.
[56]
As
the arguments advanced seek to displace long-received principles guiding the
division of powers, it is useful to revisit, briefly, the basic principles.
Basic Principles
of Constitutional Analysis
[57]
The
analysis of any case involving the division of powers commences with a determination
of the pith and substance of the legislation. By examining both the purpose of
the impugned law and its effect, the courts characterize the principle object
of the impugned legislation. In Canadian Western Bank v Alberta, 2007
SCC 22, [2007] 2 S.C.R. 3 at paragraphs 27 – 37, the SCC provided a clear
framework governing the analysis of division of powers:
To determine the pith and
substance, two aspects of the law must be examined: the purpose of the enacting
body and the legal effect of the law (Reference re Firearms Act, at
para. 16). To assess the purpose, the courts may consider both intrinsic
evidence, such as the legislation’s preamble or purpose clauses, and extrinsic
evidence, such as Hansard or minutes of parliamentary debates. In so
doing, they must nevertheless seek to ascertain the true purpose of the
legislation, as opposed to its mere stated or apparent purpose (Attorney-General
for Ontario v. Reciprocal Insurers, [1924] A.C. 328 (P.C.), at
p. 337). Equally, the courts may take into account the effects of
the legislation. For example, in Attorney-General for Alberta v.
Attorney-General for Canada, [1939] A.C. 117 (“Alberta Banks”), the
Privy Council held a provincial statute levying a tax on banks to be invalid on
the basis that its effects on banks were so great that its true purpose could
not be (as the province argued) the raising of money by levying a tax (in which
case it would have been intra vires), but was rather the regulation of
banking (which rendered it ultra vires, and thus invalid).
The fundamental corollary to this
approach to constitutional analysis is that legislation whose pith and
substance falls within the jurisdiction of the legislature that enacted it may,
at least to a certain extent, affect matters beyond the legislature’s
jurisdiction without necessarily being unconstitutional. At this stage of
the analysis of constitutionality, the “dominant purpose” of the legislation is
still decisive. Its secondary objectives and effects have no impact on
its constitutionality: “merely incidental effects will not disturb the
constitutionality of an otherwise intra vires law” (Global Securities
Corp. v. British Columbia (Securities Commission), 2000 SCC 21 (CanLII),
[2000] 1 S.C.R. 494, 2000 SCC 21, at para. 23). By “incidental” is meant
effects that may be of significant practical importance but are collateral and
secondary to the mandate of the enacting legislature: see British
Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49 (CanLII),
[2005] 2 S.C.R. 473, 2005 SCC 49, at para. 28. Such incidental intrusions
into matters subject to the other level of government’s authority are proper
and to be expected: General Motors of Canada Ltd. v. City National
Leasing, 1989 CanLII 133 (SCC), [1989] 1 S.C.R. 641, at p. 670. In Bank
of Toronto v. Lambe (1887), 12 App. Cas. 575, by way of further example, and
in contrast to the Alberta Banks case already mentioned, the Privy
Council upheld the validity of legislation levying a tax on banks, holding that
the pith and substance of the legislation was indeed to generate revenue for
the province, and its essential purpose was therefore in relation to direct
taxation, not banks or banking. See P. W. Hogg, Constitutional Law of
Canada (loose-leaf ed.), vol. 1, at para. 15.5(a).
[…]
Also, some matters are by their
very nature impossible to categorize under a single head of power: they may
have both provincial and federal aspects. Thus the fact that a matter may for
one purpose and in one aspect fall within federal jurisdiction does not mean
that it cannot, for another purpose and in another aspect, fall within provincial
competence: Hodge v. The Queen (1883), 9 App. Cas. 117 (P.C.), at
p. 130; Bell Canada v. Quebec (Commission de la santé et de la
sécurité du travail), 1988 CanLII 81 (SCC), [1988] 1 S.C.R. 749 (“Bell Canada (1988)”), at p. 765. The double aspect doctrine, as it is
known, which applies in the course of a pith and substance analysis, ensures
that the policies of the elected legislators of both levels of government are
respected. A classic example is that of dangerous driving: Parliament may
make laws in relation to the “public order” aspect, and provincial legislatures
in relation to its “Property and Civil Rights in the Province” aspect (O’Grady
v. Sparling, 1960 CanLII 70 (SCC), [1960] S.C.R. 804). The double
aspect doctrine recognizes that both Parliament and the provincial legislatures
can adopt valid legislation on a single subject depending on the perspective
from which the legislation is considered, that is, depending on the various
“aspects” of the “matter” in question.
[58]
This
framework is dispositive of the constitutional issue raised in this case. Six
key principles that are particularly germane can be drawn from Canadian
Western Bank:
(1)
The
pith and substance of legislation can be discerned from both its purpose and
its effects.
(2)
Legislation
which in pith and substance falls within the jurisdiction of the legislature
that enacted it may, to a certain extent, affect matters beyond the
legislature’s jurisdiction without being unconstitutional.
(3)
The
“pith and substance” doctrine is founded on the recognition that it is in
practice impossible for a legislature to exercise its jurisdiction over a
matter effectively without incidentally affecting matters within the
jurisdiction of another level of government.
(4)
The
incidental effects will not disturb the constitutionality of an otherwise intra
vires law.
(5)
“Incidental”
effects may be of significant practical importance but are collateral and
secondary to the mandate of the enacting legislature.
(6)
The
“dominant purpose” of the legislation is still decisive. Its secondary
objectives and effects have no impact on its constitutionality.
(7)
Parliament
and the legislatures may both adopt valid legislation on a single subject
depending on the perspective from which the subject matter is viewed (the
double aspect doctrine). It is not necessary to resort to the double aspect
doctrine to determine the issue of constitutionality.
[59]
The
frame of analysis adopted by the applicant Council is also at odds with the now
long received guidance as to how the overlay between “exclusive” heads of
authority is to be considered.
[60]
The
“dominant tide” of constitutional analysis directs, as the SCC noted in Canadian
Western Bank, at paragraph 37, that:
[…] a court should favour, where
possible, the ordinary operation of statutes enacted by both levels of
government. In the absence of conflicting enactments of the other level
of government, the Court should avoid blocking the application of measures
which are taken to be enacted in furtherance of the public interest.
[61]
The
applicant Council’s arguments swim against this tide.
No Evidence to
Support Impairment
[62]
In
considering the incidental effects doctrine, the applicant Council and the AGBC
contend that paragraph 9(1)(n) constitutes a profound intrusion into provincial
responsibility, resulting in a chaotic interface between the official marks
provisions and the provinces’ authority to regulate matters under its
legislative responsibility under subsection 92(13). The Council further argues
that the impugned provisions would impair other provinces’ future ability to
regulate TCM practitioners and acupuncturists.
[63]
The
facts on the record do not indicate that the College has interfered with the
work of other provincial regulatory bodies. There is no evidence that
subparagraph 9(1)(n)(iii) and section 11 would constrain another province from
effectively regulating, as it saw fit, TCM. The argument is purely
speculative, and has no empirical foundation such that this question is best
left to another day, should the conflict ever arise. If it does, the matter
can, and should, be resolved with the appropriate factual context and
litigants.
[64]
As
I will further explain below, the facts of this case indicate that the
provincial and federal schemes exist in harmony. The College effectively
utilized the Trade-marks Act to obtain an injunction restraining the
Council from using its professional titles, showing that the Act can
complement, rather than undermine, provincial legislation.
[65]
In
concluding, therefore, on this observation, the constitutional challenge fails
at the evidentiary threshold. There is, apart from bare assertions,
simply no evidence of impairment of provincial competence to regulate, no
evidence of conflict or chaos or impermissible overlap; rather the
constitutional conflict is premised on hypothetical scenarios. I will turn to
this point in the discussion of the doctrine of incidental effects and
inter-jurisdictional immunity.
Incidental
Effects
[66]
Assuming
that there is an effect on provincial jurisdiction under subsection 92(13), this
does not mean that the legislation is to be read down. Incidental
effects on provincial jurisdiction or overlap have never been the indicia of constitutional
over-reach, and, in a complex federation it is inevitable that there will be
some incidental effects. The SCC has emphasized that “both governments
should be permitted to legislate for their own valid purposes in these areas of
overlap”: Canada (Attorney General) v PHS Community Services Society,
2011 SCC 44, [2011] 3 S.C.R. 134 at para 62. The Chief Justice of Canada
made the point clearly in Quebec (Attorney General) v Lacombe, 2010 SCC
38, [2010] 2 S.C.R. 453 at paragraph 36:
The incidental effects rule, by
contrast, applies when a provision, in pith and substance, lies within the
competence of the enacting body but touches on a subject assigned to the other
level of government. It holds that such a provision will not be invalid
merely because it has an incidental effect on a legislative competence that
falls beyond the jurisdiction of its enacting body. Mere incidental
effects will not warrant the invocation of ancillary powers.
[67]
Particularly
relevant in the context of the arguments advanced in this Court is the
observation in PHS at paragraph 51 where the Court said:
This argument appears to confuse
the constitutional validity of a law with the applicability of a valid
law. When determining whether a law is valid under the division of
powers, the Court looks to the dominant purpose of the law. The fact that
the law at issue in this case has the incidental effect of regulating
provincial health institutions does not mean that it is constitutionally
invalid. A valid federal law may have incidental impacts on provincial
matters: Canadian Western Bank v. Alberta, 2007 SCC 22 (CanLII), 2007
SCC 22, [2007] 2 S.C.R. 3, at para. 28; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21 (CanLII), 2000 SCC 21, [2000] 1
S.C.R. 494, at para. 23. It is therefore untenable to argue, as I
understand Quebec to do, that a valid federal law becomes invalid if it affects
a provincial subject, in this case health.
[68]
There
is no evidence that supports the assertion that provincial capacity to regulate
professions is affected by the granting of official marks in areas that are
also regulated under provincial law. Indeed, to the extent that there is
evidence on this issue, it does not support the confusion and chaos on which
the applicant Council and the AGBC predicate their arguments. To the contrary,
the evidence points in the opposite direction; both national or provincial
self-governing authorities have obtained paragraph 9(1)(n) protection for
various professions. Despite the fact that the Canadian Medical Association
holds a mark on “Doctor”, the Royal College of Dental Surgeons of Ontario on
“Doctor of Dentistry”, the Canadian
Federation of Chiropractic Regulatory Boards on “Doctor of Chiropractic” and
the
Canadian Nurses Association on “Registered Nurse”, all professions are fully
regulated in British Columbia, and there is no evidence of official marks being
an impediment to the scope or the effectiveness of that regulation. Indeed,
the AGBC did not contend otherwise.
[69]
For
reasons that may relate to the historical development of self-governing bodies
in various professions, national or provincial self-governing medical bodies
have sought to protect titles or designations. There is no evidence that, in
consequence of these grants of official marks under section 9, any province has
been unable to properly regulate the professions. All Attorney Generals were
served with a Notice of Constitutional Question, yet none appeared to advance
evidence of regulatory paralysis.
Inter-jurisdictional
Immunity
[70]
The
genesis of the inter-jurisdictional immunity doctrine lies in the principle
that the powers reserved to Parliament under section 91 and to the legislatures
under section 92 are reserved “exclusively”. Again, drawing from Canadian
Western Bank at paragraph 34:
[…] The notion of exclusivity and
the reciprocal notion of non-encroachment by one level of legislature on the
field of exclusive competence of the other gave rise to Lord Atkin’s famous
“watertight compartments” metaphor, where he wrote of Canadian federalism that
“[w]hile the ship of state now sails on larger ventures and into foreign waters
she still retains the watertight compartments which are an essential part of
her original structure” (Attorney-General for Canada v. Attorney-General for
Ontario, [1937] A.C. 326 (P.C.), at p. 354). Its modern application
expresses a continuing concern about risk of erosion of provincial as well as
federal competences (Bell Canada (1988), at p. 766). At the
same time, the doctrine of interjurisdictional immunity seeks to avoid, when
possible, situations of concurrency of powers (Laskin C.J., in Natural
Parents v. Superintendent of Child Welfare, 1975 CanLII 143 (SCC),
[1976] 2 S.C.R. 751, at p. 764).
[71]
Inter-jurisdictional
immunity applies to protect the "basic, minimum and unassailable content”
of each head of power that must be protected from impairment by the other level
of government: PHS at para 58; Bell Canada v Quebec (Commission de la
santé et de la sécurité du travail), [1988] 1 S.C.R. 749 at
p 839. Legislation may be read down on the basis of inter-jurisdictional
immunity.
[72]
If
the doctrine of inter-jurisdictional immunity were to be triggered by mere
incidental effect or overlap, the Trade-marks Act would be completely
inapplicable to all provincially regulated professions and a vast array of
other businesses that are unquestionably within provincially-regulated
responsibility.
[73]
The
test is that set out in PHS, namely has the basic, unassailable core of
provincial responsibility been impaired. The official marks provision of the Trade-mark
Act and the provincial authority to regulate the professions have
co-existed since the inception of the Trade-marks Act. The evidence
before the Court was that self-governing professions, national or provincial,
have moved to ensure that professional designations do not become articles of
commerce. As noted, the Canadian Medical Association, the Royal College of
Dental Surgeons of Ontario and the Canadian Nurses Association have obtained
official mark designations for their professions, thereby protecting their
titles from commercial exploitation. Thus, rather than being a source
of confusion and chaos, the two heads of legislative power overlap and
reinforce, rather than erode, respective legislative competence.
[74]
The
College, using both the official marks provision and the national jurisdiction
of the Federal Court, moved to remove the College's professional designation
and reserved titles from being articles of commerce or trade. Neither
the injunction nor the official marks interfered in any way with the province’s
ability to regulate. At the level of the practice of traditional
medicine, the province enjoined the unauthorized practices of those who were
graduates of the Council’s school. No one argues that as licensed users of a
federal trade-mark they had a right to practice TCM and acupuncture or that the
province’s regulatory competence was displaced. The province investigated Shanghai TCM College and shut it down under the Private Career Training Institutions
Act [SBC 2003] c 79, because it refused to comply with an order that
it refund tuition fees.
[75]
In
sum, the evidence points in the opposite direction from that contended by the
Council, away from regulatory chaos and towards the type of incidental effects
and necessary overlap essential in a complex federation, precisely as
contemplated by the SCC in PHS. In that decision, at paragraphs 62-64,
the SCC instructs that overlap is not the test of constitutionality and that to
draw prescribed lines around legislative authority runs the risk that
activities will fall into a grey zone, a hiatus between federal and provincial
jurisdictions:
This caution reflects three
related concerns. First, the doctrine of interjurisdictional immunity is
in tension with the dominant approach that permits concurrent federal and
provincial legislation with respect to a matter, provided the legislation is
directed at a legitimate federal or provincial aspect, as the case may
be. This model of federalism recognizes that in practice there is
significant overlap between the federal and provincial areas of jurisdiction,
and provides that both governments should be permitted to legislate for their
own valid purposes in these areas of overlap.
Second, the doctrine is in
tension with the emergent practice of cooperative federalism, which
increasingly features interlocking federal and provincial legislative
schemes. In the spirit of cooperative federalism, courts “should avoid
blocking the application of measures which are taken to be enacted in
furtherance of the public interest”: Canadian Western Bank, at para. 37.
Where possible, courts should allow both levels of government to jointly
regulate areas that fall within their jurisdiction: Canadian Western Bank,
at para. 37.
Third, the doctrine of
interjurisdictional immunity may overshoot the federal or provincial power in
which it is grounded and create legislative “no go” zones where neither level
of government regulates. Since it is not necessary for the government
benefiting from the immunity to actually regulate in the field in question,
extension of the doctrine of interjurisdictional immunity risks creating “legal
vacuums”: Canadian Western Bank, at para. 44.
[76]
The
argument here is, in effect, a mirror or clone of the argument advanced in
PHS. In PHS, the Court rejected the argument that the Controlled
Drugs and Substances Act, SC 1996, c 19, an otherwise valid exercise of
federal power, had to be read down when it affected provincial regulation over
health. The Court affirmed that the “dominant approach” is to permit
concurrent federal and provincial legislation provided both laws are valid: Canadian
Western Bank.
[77]
The
inter-jurisdictional immunity argument advanced by the Council and the AGBC has
been unequivocally rejected by the SCC. To quote the SCC’s analysis in PHS
at paragraph 68; “Overlapping federal jurisdiction and the sheer size and
diversity of provincial health power render daunting the task of drawing a
bright line around a protected provincial core of health where federal
legislation may not tread.”
[78]
To
conclude, the applicant seeks to resuscitate the otherwise clear legal position
on interjurisdictional immunity by elevating “reading down” to a substantive
constitutional principle, rather than applying it as a remedy consequent to a
finding of impairment.
[79]
The
Court will not, on the basis of the evidence before it, draw a bright line. To
do so would be contrary to the direction of the SCC in PHS, to deny the
doctrine of incidental effects, and more fundamentally, significantly alter the
scope of the trade and commerce power, precluding as it would the registration
of any official mark in areas of the economy that are regulated under subsection
92(13).
Ancillary
Powers
[80]
The
Council further contends that the official marks provisions cannot be justified
on the basis of the ancillary powers doctrine. There is a distinction between
the ancillary powers doctrine and the incidental effects doctrine. This
distinction is substantive and has a long antecedence in the division of powers
jurisprudence, but is blurred in the applicant’s argument. In Lacombe, at
paragraphs 35-36, the SCC explained:
The ancillary powers doctrine
permits one level of government to trench on the jurisdiction of the other in
order to enact a comprehensive regulatory scheme. In pith and substance,
provisions enacted pursuant to the ancillary powers doctrine fall outside the
enumerated powers of their enacting body: General Motors, at pp. 667‑70.
Consequently, the invocation of ancillary powers runs contrary to the notion
that Parliament and the legislatures have sole authority to legislate within
the jurisdiction allocated to them by the Constitution Act, 1867.
Because of this, the availability of ancillary powers is limited to situations
in which the intrusion on the powers of the other level of government is
justified by the important role that the extrajurisdictional provision plays in
a valid legislative scheme. The relation cannot be insubstantial: Nykorak
v. Attorney General of Canada, 1962 CanLII 38 (SCC), [1962] S.C.R. 331, at
p. 335; Gold Seal Ltd. v. Attorney-General for the Province of Alberta
1921 CanLII 25 (SCC), (1921), 62 S.C.R. 424, at p. 460; Global Securities,
at para. 23.
The ancillary powers doctrine is
not to be confused with the incidental effects rule. The ancillary powers
doctrine applies where, as here, a provision is, in pith and substance, outside
the competence of its enacting body. The potentially invalid provision
will be saved where it is an important part of a broader legislative scheme
that is within the competence of the enacting body.
[81]
There
is no need to resort to the ancillary powers doctrine, as the official marks
provision, as a valid exercise of the federal trade and commerce
power, is not contested. Neither the Council nor the College question its vires.
They simply say it overreaches and must be confined and read down so as to have
no impact on provincial jurisdiction.
[82]
Therefore,
the Council’s reliance on the ancillary powers doctrine is misplaced. Whether
an official marks regime is “sufficiently integrated” in the overall scheme of
the Trade-marks Act is not in issue. As Lacombe instructs, that
doctrine only applies when the impugned provision is, in pith and substance,
outside the enumerated powers of their enacting body. The official marks
provisions are directed to trade and commerce and are thus within federal
jurisdiction. This is not challenged by either the Council or the AGBC.
Conclusion
on Federalism
[83]
The
arguments advanced are reflective of a static view of federalism, with
discrete, never overlapping heads of power. As the SCC described in PHS,
the federation, as practical matter, does not work that way and neither does
the Constitution. To immunize provincial jurisdiction from any effect of a
valid exercise of the trade and commerce power would effectively nullify the
constitutional doctrine of incidental effects. The argument advanced also has
the potential to create legal vacuums, areas immune from any form of regulation
absent new legislation.
[84]
The
applicant’s argument also invites the Court to fall into the same error as made
by the Court in Canadian Council of Professional Engineers v
Lubrication Engineers, Inc. [1985] 1 FC 530. In that case, the Federal
Court concluded that professional designations should not be registered as
marks, the regulation of the professions being a matter of provincial
legislative responsibility. The Court concluded that:
… conflict is avoided
by interpreting the Trade Marks Act so as simply to require the registrar to
abstain from registering words, or expressions which include words, designating
the popular or official name of professions whose members are exclusively
entitled to the commercial or professional use of such names, designations or
titles in conformity with provincial and territorial laws.
[85]
The
Court of Appeal upheld the decision on other grounds, but expressly disagreed
with the constitutional analysis adopted by the Federal Court. Hugessen JA
wrote:
We are all of the
view that much of what the learned trial judge said in his lengthy reasons for
judgment cannot be supported. In particular we disagree with his view of the
reach of paragraph 9(1)(d) of the Trade-marks Act; that text simply does not
have the effect, as the judge seemed to think, of importing into federal law
the various prohibitions against the use of certain professional designations
which are contained in the provincial statutes regulating those professions. [Canadian Council of
Professional Engineers v Lubrication Engineers, Inc. (CA) [1992] 2 FC 329]
[86]
Similarly,
and of equal resonance in the context of subparagraph 9(1)(n)(iii) is the
decision of the SCC in Life Underwriters Assn. of Canada v Provincial Assn.
of Quebec Life Underwriters [1992] 1 S.C.R. 449. In that case, the SCC
recognized the distinction between the regulation and practice of a
profession and the trade and commerce usages of a title or
designation. The SCC endorsed the reasoning of the Federal Court of Appeal per
Marceau JA in Life Underwriters Assn. of Canada v Provincial Assn. of Quebec
Life Underwriters (CA) [1990] 3 FC 500 at para 24:
I do not see why the
mere conferring of a title would, under the Constitution, be reserved
exclusively to the legislative power having authority to regulate the
profession to which the title could be somehow related. To be called
professional, it seems to me, a title, like a certificate, must be directly
linked to the exercise of the profession; it must have consequences as to the
right and ability of its holder to practice the profession. The conferring and
holding of a professional title in that sense may, of course, be part of the
regulation of the profession, but otherwise the conferring and holding of a
title is a neutral act, it seems to me, unconstrained by the division of
powers.
[87]
In
sum, professional titles generally cannot be registered as trade-marks, not
because regulation of the profession in question falls under subsection 92(13),
but because they are either descriptive or non-distinctive. In Ontario Dental Assistants Association v Canadian Dental Association, 2013 FC
266, Justice Michael Mason considered whether a valid certification mark can be
registered for a professional designation or acronym. I share his
observations, at paragraph 23, concerning the effect of the Life
Underwriters Assn of Canada v Provincial Assn of Quebec Life Underwriters, [1988]
FCJ 564, decision:
To the extent the case of Life
Underwriters Assn of Canada v Provincial Assn of Quebec Life Underwriters,
[1988] FCJ 564, and cases before the Opposition Board following that decision
are relied upon to suggest that a professional designation can never serve to
be a valid certification mark, I disagree. Nothing in the Act so limits the
ability of a professional designation to validly act, in use, as a
certification mark, provided such a designation meets the necessary criteria outlined
above with respect to lack of clear descriptiveness, distinctiveness, absence
of a likelihood of confusion, and proper use.
[88]
There
is nothing in the exercise of the power under subparagraph 9(1)(n)(iii) that is
linked or otherwise tied to the right or ability to practice the profession.
The province, under the Health Professions Act, has unimpeded
jurisdiction to regulate the practice of TCM and acupuncture. Rather than
conflicting with it, the Trade-marks Act complements and reinforces the
College’s authority by allowing it, through paragraph 9(1)(n), to prevent
professional designations from becoming articles of trade and commerce.
Freedom of Expression
[89]
The
impugned provisions infringe section 2(b) of the Charter, but are
justified under section 1 as reasonable limits prescribed by law that can be
demonstrably justified in a free and democratic society.
[90]
Commercial
expression, such as using a professional title in association with a TCM and
acupuncture practice, is protected expression within section 2(b). The use of
a professional title is expressive and aimed at conveying meaning, namely a
certain level of expertise and competence. The right to freedom of expression
is content-neutral and therefore it is engaged in these circumstances: Irwin
Toy Ltd. v Quebec (Attorney General), [1989] 1 S.C.R. 927.
[91]
At
the section 1 analysis, there is a pressing objective to the regimes’
limitation on freedom of expression. The purpose of section 9 is to prevent
confusion between government and private services. It prevents persons
from capitalizing upon, and potentially misusing, public symbols and marks: Techniquip
Ltd v Canadian Olympic Assn, [1999] FCJ No 1787 (FCA).
[92]
As
the College has argued, Canadians must have confidence that the marks of a
public authority are used by that authority and no other. The facts of this
case are illustrative. The licenses issued by the Council to a graduate read:
The above certification(s)
identify that the user of the certification(s) has fulfilled, both in theory
and in clinical practice, the required number of hours and has successfully
completed the competency exams. The certification indicates to the public that
the user of this certification has the abilities to deliver competent and
professional services in his/her area of expertise.
[93]
The Council
mislead some students into believing that it possessed regulatory authority
over the practice of TCM and acupuncture. It improperly used trade-marks
to imply a license to practice. There is effective recourse to prevent this
from happening at the trade or marketing level, as reflected in the order of
Justice O’Keefe.
[94]
The
College was entitled to respond by adopting various titles as official marks. In
this way, it was able to brand its role and mandate and educate the public as
to who was properly trained and authorized to practice TCM and acupuncture.
The public marks scheme reinforces, at the trade and commerce level, the
provincial regulatory objectives.
[95]
There
is, therefore, no serious debate on the question of whether subparagraph
9(1)(n)(iii) has a pressing and substantial objective. It is also apparent
that the means chosen are rationally connected to that objective.
Minimal Impairment
[96]
The
Council argues that the provisions do not satisfy the requirement of minimal
impairment. The Council argues that new practitioners and schools will be
prohibited from using the terms registered by the College, without its consent.
The Council also submits that there is no reason for the College to have this
power across Canada.
[97]
Chief
Justice McLachlin, in Alberta v Hutterian Brethren of Wilson Colony,
2009 SCC 37, [2009] 2 S.C.R. 567 at paragraph 53, recently explained the
requirement of minimal impairment:
The question at this stage of the
s. 1 proportionality analysis is whether the limit on the right is reasonably
tailored to the pressing and substantial goal put forward to justify the limit.
Another way of putting this question is to ask whether there are less harmful
means of achieving the legislative goal. In making this assessment, the courts
accord the legislature a measure of deference, particularly on complex social
issues where the legislature may be better positioned than the courts to choose
among a range of alternatives.
[98]
The
applicant places considerable importance on the effect the official mark
provision has on his economic interests. However, the frame of Charter
analysis is much broader than the consequences on a single individual, or in
this case, business. Chief Justice McLachlin has emphasized that courts are to
consider the impact of the infringement from the perspective of society
overall: “The question the court must answer is whether the Charter
infringement is justifiable in a free and democratic society, not whether a
more advantageous arrangement for a particular claimant could be envisioned”: Hutterian
Brethren at para 69.
[99]
Subparagraph
9(1)(n)(iii), when situated in the context of the legislative scheme of the Trade-marks
Act as a whole, has internal limitations which support the conclusion that,
to the extent it impairs freedom of expression, it does so minimally. Those
include:
(1)
It
is limited to a public authority.
(2)
The
public authority must “adopt and use” the mark, in contrast to the
Canadian Forces which need only adopt “or” use. In consequence, official marks
cannot simply be appropriated and sat on: Techniquip Ltd. v Canadian Olympic
Assn., [1999] FCJ No 1787 (FCA) at para 13.
(3)
Official
marks can be licensed with consent. A private owner of a mark cannot consent
to use without risk of losing control over time. Public authorities can consent
without fear of loss of right.
(4)
The
test is resemblance and confusion under subparagraph 9(1)(n)(iii) and section
6 of the Trade Marks Act: Techniquip Ltd. at para
5.
(5)
There
is no deeming provision. Use must be established.
(6)
The regime
is forward looking; the prohibition is against future adoption and use of the
official marks. There is no retrospective effect: Canadian Olympic Assn v
Konica Canada Inc., [1992] 1 FC 797 (FCA).
[100] The
legislature has not limited the types of marks that can be adopted. This
grants public authorities flexibility in conducting their work. The present
case demonstrates the desirability of this approach.
[101] Finally,
no other more nuanced official marks regime was identified which would meet the
same objective. Moreover, according the government the “measure of deference”
as required by the jurisprudence, I find that the impugned provisions are
reasonably tailored to meet the pressing and substantial objective and that
there is proportionality between the deleterious effects and salutary benefits.
Therefore, the limitation on freedom of expression is justified.
Bill of Rights
[102] Finally,
the Council argues that subsection 2(e) of the Bill of Rights entitles
it to a hearing prior to the issuance of public notice. This argument fails.
[103] Subsection
2(e) provides that:
|
[…] no law of Canada shall be construed or applied so as to
[…]
(e) deprive a person of the
right to a fair hearing in accordance with the principles of fundamental
justice for the determination of his rights and obligations;
|
[…] nulle loi du Canada ne doit
s’interpréter ni s’appliquer comme
[…]
e) privant une
personne du droit à une audition impartiale de sa cause, selon les principes
de justice fondamentale, pour la définition de ses droits et obligations;
|
[104] In Authorson
v Canada (Attorney General), [2003] 2 S.C.R. 40, 2003 SCC 39, the SCC held
that subsection 2(e), when situated in its context, applies only in proceedings
before a tribunal or body that determines individual rights and obligations.
The French version of subsection 2(e) reinforces this conclusion, referring as
it does to “une audition impartiale de sa cause”. The common understanding of
“une cause” is that of an “affaire, process qui se plaide”.
[105] The
registration process of a trade-mark includes examination, advertisement and
opposition proceedings. Parliament has not provided a hearing for official
marks, as it has in the case of other marks. There is no process for
adjudication inter partes before the Registrar. The absence of a
hearing is consistent with the characterization of the Registrar’s function as
non-adjudicative. The Court of Appeal held in FileNet at paragraphs
7-8:
It is now well established that
the Registrar has no discretion to refuse a request under section 9 to give
public notice of the adoption and use of an official mark, once the party
making the request establishes that the statutory criteria have been met: Ontario
Assn. of Architects (supra), Mihaljevic v. British
Columbia, (1988), 22 F.T.R. 59, 23 C.P.R. (3d) 80 (F.C.T.D.), affirmed,
(1990), 116 N.R. 218, 34 C.P.R. (3d) 54 (F.C.A.). One of the statutory criteria
is that the request for a public notice under section 9 must be made by Her
Majesty, a university or a public authority, depending on the circumstances.
Another is that the party making the request must adopt and use the official
mark.
In determining whether the
statutory criteria are met, the Registrar is entitled but not bound to rely on
the representations submitted with the request for publication. If the
Registrar decides to gives the public notice as requested, a person who seeks
judicial review of the Registrar's decision may adduce evidence that the
official mark was not adopted or used. In that event, the party that requested
the public notice has the burden of proving that the official mark was adopted
and used by the date of the public notice.
[106] Parliament
is free to prescribe the form of decision-making process to be followed,
whether adjudicative, administrative, investigatory, quasi-judicial or judicial.
It need not design a process that provides an obligation to inform the public
at large of a request under subparagraph 9(1)(n)(iii) or to create a forum in
which a neutral party invites submissions in response or to adjudicate between
competing interests: Ocean Port Hotel Ltd. v British Columbia (General
Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, 2001 SCC
52.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. The parties may make submissions on costs, either in writing within
20 days of the date of this decision, or upon request, orally on a date to be
fixed by the Judicial Administrator.
"Donald J.
Rennie"
ANNEX A
|
Trade-marks Act, RSC 1985, c T-13
|
Loi sur les marques de commerce
(L.R.C.
(1985), ch. T-13)
|
|
Section
2
|
Article 2
|
|
“person” includes any lawful trade union and any
lawful association engaged in trade or business or the promotion thereof, an
the administrative authority of any country, state, province, municipality or
other organized administrative area.
“use” in relation to a trade-mark, means any use
that by section 4 is deemed to be a use in association with wares or
services;
|
« personne » Sont
assimilés à une personne tout syndicat ouvrier légitime et toute association
légitime se livrant à un commerce ou à une entreprise, ou au développement de
ce commerce ou de cette entreprise, ainsi que l’autorité administrative de
tout pays ou État, de toute province, municipalité ou autre région
administrative organisée.
« emploi » ou « usage » À
l’égard d’une marque de commerce, tout emploi qui, selon l’article 4, est
réputé un emploi en liaison avec des marchandises ou services.
|
|
Section 3
|
Article 3
|
|
3. A trade-mark is deemed to have been adopted by
a person when that person or his predecessor in title commenced to use it in
Canada or to make it known in Canada or, if that person or his predecessor
had not previously so used it or make it known, when that person or his
predecessor filed an application for its registration in Canada.
|
3. Une
marque de commerce est réputée avoir été adoptée par une personne, lorsque
cette personne ou son prédécesseur en titre a commencé à l’employer au Canada
ou à l’y faire connaître, ou, si la personne ou le prédécesseur en question
ne l’avait pas antérieurement ainsi employée ou fait connaître, lorsque l’un
d’eux a produit une demande d’enregistrement de cette marque au Canada.
|
|
Section 4(1)
|
Article 4(1)
|
|
4(1) A trade-mark is deemed to be used in
association with wares if, at the time of the transfer of the property in or
possession of the wares, in the normal course of trade, it is marked on the
wares themselves or on the packages in which they are distributed or it is in
any other manner so associated with the wares that notice of the association
is then given to the person to whom the property or possession is
transferred.
(2) A trade-mark is
deemed to be used in association with services if it is used or displayed in
the performance or advertising of those services.
|
4. (1) Une marque de commerce
est réputée employée en liaison avec des marchandises si, lors du transfert
de la propriété ou de la possession de ces marchandises, dans la pratique
normale du commerce, elle est apposée sur les marchandises mêmes ou sur les
colis dans lesquels ces marchandises sont distribuées, ou si elle est, de
toute autre manière, liée aux marchandises à tel point qu’avis de liaison est
alors donné à la personne à qui la propriété ou possession est transférée.
|
|
Section 9(1)
|
Article 9(1)
|
|
9(1) No person shall
adopt in connection with a business, as a trademark or otherwise, a mark
consisting of, or so nearly resembling as to be likely to be mistaken for
…
(n) any badge,
crest, emblem or mark
…
(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.
|
9. (1) Nul ne peut adopter à
l’égard d’une entreprise, comme marque de commerce ou autrement, une marque
composée de ce qui suit, ou dont la ressemblance est telle qu’on pourrait
vraisemblablement la confondre avec ce qui suit :
…
n) tout
insigne, écusson, marque ou emblème :
…
(iii) adopté et
employé par une autorité publique au Canada comme marque officielle pour des
marchandises ou services,
à l’égard duquel le registraire, sur la demande de
Sa Majesté ou de l’université ou autorité publique, selon le cas, a donné un
avis public d’adoption et emploi;
|
|
Section 11
|
Article 11
|
|
11. No person shall use in connection with a
business as a trade-mark or otherwise, any mark adopted contrary to section 9
or 10 of this Act.
|
11. Nul ne peut employer
relativement à une entreprise, comme marque de commerce ou autrement, une
marque adoptée contrairement à l’article 9 ou 10 de la présente loi ou
contrairement à l’article 13 ou 14 de la Loi sur la concurrence déloyale,
chapitre 274 des Statuts revisés du Canada de 1952.
|
|
Section 12
|
Article 12
|
|
12 (1) Subject to
section 13, a trade-mark is registrable if it is not
…
(e) a mark of which
the adoption is prohibited by section 9 or 10;
|
12. (1) Sous réserve de
l’article 13, une marque de commerce est enregistrable sauf dans l’un ou
l’autre des cas suivants :
…
e) elle
est une marque dont l’article 9 ou 10 interdit l’adoption;
|
ANNEX B
|
The Constitution Act, 1867 (U.K.), 30 & 31 Victoria, c 3
|
Loi constitutionnelle de 1867, 30 &
31 Victoria, c 3
|
|
Section 91(2)
|
Article 91(2)
|
|
91. It shall be lawful for the Queen, by and with
the Advice and Consent of the Senate and House of Commons, to make Laws for
the Peace, Order, and good Government of Canada, in relation to all
Matters not coming within the Classes of Subjects by this Act assigned
exclusively to the Legislatures of the Provinces; and for greater Certainty,
but not so as to restrict the Generality of the foregoing Terms of this
Section, it is hereby declared that (notwithstanding anything in this Act)
the exclusive Legislative Authority of the Parliament of Canada extends
to all Matters coming within the Classes of Subjects next hereinafter
enumerated; that is to say,
…
2. The Regulation of Trade and Commerce.
|
91. Il sera loisible à la Reine, de l'avis et du
consentement du Sénat et de la Chambre des Communes, de faire des lois pour la
paix, l'ordre et le bon gouvernement du Canada, relativement à toutes les
matières ne tombant pas dans les catégories de sujets par la présente loi
exclusivement assignés aux législatures des provinces; mais, pour plus de
garantie, sans toutefois restreindre la généralité des termes ci-haut
employés dans le présent article, il est par la présente déclaré que
(nonobstant toute disposition contraire énoncée dans la présente loi)
l'autorité législative exclusive du parlement du Canada s'étend à toutes les
matières tombant dans les catégories de sujets ci-dessous énumérés, savoir:
…
2, La réglementation du trafic et du commerce
|
|
Section 92(13)
|
Article 92(13)
|
|
92. In each Province the Legislature may
exclusively make Laws in relation to Matters coming within the Classes of
Subjects next hereinafter enumerated; that is to say,
…
13. Property and Civil Rights in the Province.
|
92. Dans chaque province la législature pourra
exclusivement faire des lois relatives aux matières tombant dans les
catégories de sujets ci-dessous énumérés, savoir:
…
13. La propriété et les droits civils dans la
province;
|
ANNEX C
|
The
Canadian Bill of Rights, SC 1960, c 44
|
Déclaration canadienne des
droits,
SC 1960, c 44
|
Section 2
|
Article 2
|
|
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 accordance with the principles of fundamental
justice for the determination of his rights and obligations;
|
Toute loi du Canada, à moins
qu’une loi du Parlement du Canada ne déclare expressément qu’elle
s’appliquera nonobstant la Déclaration canadienne des droits, doit
s’interpréter et s’appliquer de manière à ne pas supprimer, restreindre ou
enfreindre l’un quelconque des droits ou des libertés reconnus et déclarés
aux présentes, ni à en autoriser la suppression, la diminution ou la
transgression, et en particulier, nulle loi du Canada ne doit s’interpréter
ni s’appliquer comme
…
e) privant une
personne du droit à une audition impartiale de sa cause, selon les principes
de justice fondamentale, pour la définition de ses droits et obligations;
|
ANNEX D
|
Health Professions
Act,
RSBC 1996, Ch 183
|
|
Section 12
|
|
12
(1) The Lieutenant Governor in Council may, by regulation, designate a health
profession for the purposes of this Act.
(2) In respect of a designated
health profession, the minister may, by regulation, prescribe the following:
(a) the name of the college
established under section 15(1) for the health profession;
(b) one or more titles to be
used exclusively by registrants;
(b.1) limits or conditions
respecting the use of titles prescribed under paragraph (b);
(c) services that may be
provided by registrants;
(d) limits or conditions on
the services that may be provided by registrants;
(e) services that may be
provided only by registrants.
|
|
Section 12.1
|
|
12.1 (1) If a regulation under section 12 (2) (b)
prescribes a title to be used exclusively by registrants of a college, a
person other than a registrant of the college must not use the title, an
abbreviation of the title or an equivalent of the title or abbreviation in
another language
(a) to describe the person's
work,
(b) in association with or as
part of another title describing the person's work, or
(c) in association with a
description of the person's work.
(2) If a regulation under section 12 (2) (b.1)
prescribes a limit or condition respecting the use of a title, the title must
not be used except in accordance with the regulation.
(3) A person other than a registrant of a college
must not use a name, title, description or abbreviation of a name or title,
or an equivalent of a name or title in another language, in any manner that
expresses or implies that he or she is a registrant or associated with the
college.
|
|
Section 15
|
|
15(1) A college is established
for a health profession on designation of the health profession under section
12(1)
.…
(3) for the purposes of
exercising its powers and performing its duties under this Act,
a college has the powers and capacity of a natural person of full
capacity, including the power to acquire and dispose of property.
|
|
Section 16
|
|
16(1) It is the duty of a college
at all times
(a) to serve and protect the
public; and
(b) to exercise its powers
and discharge its responsibilities under all enactments in the public
interest.
(2) A college has the following
objects:
(a) to superintend the
practice of the profession;
(b) to govern its registrants
according to this Act, the regulations, and the bylaws of the college;
(c) to establish the
conditions or requirements for registration of a person as a member of the
college;
(d) to establish, monitor and
enforce standards of practice to enhance the quality of practice and reduce
incompetent, impaired or unethical practice amongst registrants;
|
|
Section 17
|
|
17 (1) For each college
established under section 15, there is a board.
(2) The minister must, by
order,
(a) appoint persons to the
first board for a college, who hold office until the time at which the board
members referred to in subsection (3) (a) and (a.1) are first elected, and
(b) specify the date on or
before which the first election referred to in paragraph (a) must be
held.
(3) Following the first
election referred to in subsection (2) respecting a college, the board
for the college consists of the following:
…
(b) not fewer than 2 persons
appointed by order of the minister.
(4) The number of persons
appointed under subsection (3) (b)
(a) must not be
less than 1/3 of the total board membership, and
(b) must not be
more than the total number of persons elected or appointed under subsection
(3) (a) to (a.2).
…
|
|
Sections 18.1
|
|
18.1 (1) If the minister
considers it necessary in the public interest, the minister may appoint a
person to inquire into
(a) any aspect of
the administration or operation of a college, or
(b) the state of
practice of a health profession in
(i) British Columbia,
(ii) a locality, or
(iii) a facility.
(2) Subsection (1) includes
inquiry into an exercise of a power or a performance of a duty, or the
failure to exercise a power or perform a duty, under this Act.
(3) For the purposes of an
inquiry under this section, a person appointed under subsection (1) has the
powers, privileges and protection of a commission under sections 22 (1), 23
(a), (b) and (d) and 32 of the Public Inquiry Act.
(4) A person appointed under
subsection (1) must comply with any term of reference the minister may
establish concerning the conduct of the inquiry.
(5) The expenses incurred by
the government under this section respecting a college are a debt due and
owing by the college to the government.
|
|
Section 18.2
|
|
18.2 (1) On the completion of
an inquiry under section 18.1, the minister may issue a directive to the
board concerning which the inquiry was conducted.
(2) A directive under
subsection (1)
(a) may require
the board to exercise the powers or perform the duties of the board under
this Act to address the issues that were the subject of the inquiry under
section 18.1,
(b) despite
paragraph (a), must not require the board to
(i) adopt a
standard, limit or condition under section 19 (1) (k), (l) or (l.3) in a form
specified by the directive, or
(ii) do anything
under section 20 or Part 3 concerning a specific registrant as defined in
section 26, and
(c) may include a
requirement that a board submit a written report to the minister, within the
time specified in the directive, detailing the measures the board has taken to
implement that directive.
(3) A board must comply with a
directive issued to it under this section.
|
|
Section 19
|
|
19 (1) A board may make
bylaws, consistent with the duties and objects of a college under section 16,
that it considers necessary or advisable, including bylaws to do the
following:
…
(3) A bylaw under subsection (1)
has no effect unless it is filed with the minister.
…
(3.2) If the minister considers
it necessary or advisable to do so, the minister may, by order, within the
period prescribed for the purposes of subsection (3.1),
(a) disallow the bylaw or a portion of the bylaw, except for a bylaw
or a portion of a bylaw made under subsection (1) (k), (l) or (l.3), or
…
(4) The minister must disallow a
bylaw made under subsection (1) if the minister is not satisfied that
appropriate provision has been made respecting the following:
(a) the election of registrants to the board under
section 17 (3) (a);
(b) each of the objects referred to in section 16.
(5) The minister may request a
board to amend or repeal an existing bylaw for its college or to make a new
bylaw for its college if the minister is satisfied that this is necessary or
advisable.
(6) If a board does not comply
with a request under subsection (5) within 60 days after the date
of the request, the minister may, by order, amend or repeal the existing
bylaw for the college or make the new bylaw for the college in accordance
with the request.
…
|
|
Section 19
|
|
19(1) A board may
make bylaws, consistent with the duties and objects of a college under
section 16, that it considers necessary or advisable, including bylaws to do
the following:
…
(y.8)
subject to the regulations of the minister under section 12(2)(b.1),
establish limits or conditions respecting the use by registrants of the following:
(i) titles
describing the work of registrants, including titles prescribed under section
12(2)(b);
…
|
ANNEX E
|
Traditional Chinese
Medicine Practitioners and Acupuncturists Regulations (BC Reg 29012008)
|
|
Section 1
|
|
1.
In this regulation:
“Acupuncture”
means an act of stimulation, by means of needles, or specific sites on the
skin, mucous membranes or subcutaneous tissues of the human body to promote,
maintain, restore or improve health, to prevent a disorder, imbalance or
disease or to alleviate pain and includes
(a) the administration of manual,
mechanical, thermal, and electrical stimulation of acupuncture needles;
(b) the use of laser acupuncture,
magnetic therapy or acupressure; and
(c) moxibustion (Jiu) and suction cup (Ba
Guan).
“Traditional
Chinese Medicine” means the promotion, maintenance and restoration of health
and prevention of a disorder, imbalance or disease based on traditional
Chinese medicine theory by utilization of the primary therapies of
(a) Chinese acupuncture (Zhen),
moxibustion (Jiu), and suction cup (Ba Guan),
(b) Chinese manipulative therapy (Tui
Na),
(c) Chinese energy control therapy (Qi
Gong),
(d) Chinese rehabilitation exercises such
as Chinese shadow boxing (Tai Ji Quan), and
(e) prescribing, compounding, or
dispensing Chinese herbal formulae (Zhone Yao Chu Fang) and Chinese food cure
recipes (Shi Liao).
|
|
Section 2
|
|
2
The name "College of Traditional Chinese Medicine Practitioners and
Acupuncturists of British Columbia" is the name of the college
established under section 15 (1) of the Act for traditional Chinese medicine
and acupuncture.
|
|
Section
3
|
|
3(1)
The title “acupuncturist” is reserved for exclusive used by acupuncturists.
(2) The title “traditional Chinese medicine
practitioner” is reserved for exclusive use by traditional Chinese medicine
practitioners.
(3) The title “traditional Chinese medicine
herbalist’ is reserved for exclusive used by herbalists.
(4) The titles “doctor of traditional Chinese
medicine” and “doctor” are reserved for exclusive use by doctors of
traditional Chinese medicine.
(5) This section does not prevent a person from
using
(a) the title “doctor’ in a manner
authorized by another enactment that regulates a health profession, or
(b) an academic or educational
designation that the person is entitled to use.
|
|
Section 5
|
5
No person other than a
(a) raditional Chinese medicine
practitioner, acupuncturist or herbalist may make a traditional Chinese
medicine diagnosis identifying a disease, disorder or condition as the cause
of signs or symptoms;
(b) traditional Chinese medicine
practitioner or a herbalist may prescribe those Chinese herbal formulae
listed in a schedule to the bylaws of the College, and
(c) traditional Chinese medicine
practitioner or an acupuncturist may insert acupuncture needles under the
skin for the purposes of practising acupuncture.
|
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