A-384-85
Arthur L. Jefford and/or Jefford Industries Lim
ited (Appellants)
v.
The Queen, Ministry of Consumer and Corporate
Affairs Canada (Respondents)
INDEXED AS: JEFFORD V. CANADA
Court of Appeal, Heald, Marceau and MacGuigan
JJ.—Toronto, January 15; Ottawa, January 21,
1988.
Judicial review — Prerogative writs — Mandamus —
Appeal from dismissal of motion for mandamus to compel
Minister of Consumer and Corporate Affairs to enforce legis
lation prohibiting sale of urea formaldehyde foam insulation
— No mandamus unless duty on Minister to act — Legislation
not imposing duty on Minister to prosecute offences under
Hazardous Products Act — Whether to prosecute within dis
cretion of Attorney General — Appeal dismissed.
Hazardous products — Appeal from dismissal of man-
damus application to compel Minister of Consumer and Cor
porate Affairs to enforce legislation prohibiting sale of urea
formaldehyde foam insulation — Whether ban on sale of
U.F.F.I. extends to resale of buildings containing U.F.F.I. —
Mandamus unavailable as no duty on Minister to prosecute.
This is an appeal from the dismissal of a motion for a writ of
mandamus to compel the Minister of Consumer and Corporate
Affairs to enforce legislation prohibiting the sale of urea for
maldehyde foam insulation (U.F.F.I.). The appellants took the
position that the ban on the sale of U.F.F.I. includes a ban on
the resale of buildings which have had U.F.F.I. installed in
them. The Motions Judge held that the Schedule intended to
ban the sale of U.F.F.I., but not to ban it as a component part
of an already existing building, as it was not so expressly stated
in Part I of the Schedule. She did not deal with the argument
that the Court lacks jurisdiction to grant the remedy sought
because the prosecution of offences under the Act is a matter
within the discretion of the Attorney General.
Held, the appeal should be dismissed.
The Court lacks jurisdiction to grant the relief sought. The
jurisdictional question was a threshold issue which should have
been considered before the substantive merits of the applica
tion. Before mandamus will issue there must be a duty upon the
person against whom the order is directed to do the very thing
ordered. Neither the Department of Consumer and Corporate
Affairs Act nor the Hazardous Products Act imposes a duty on
the Minister to prosecute offences. Parliament clearly intended
that the Criminal Code would apply to such offences. Pursuant
to section 2 of the Code, the Attorney General would have
carriage of such proceedings. Mandamus therefore does not lie
against the Minister of Consumer and Corporate Affairs. Nor
would it lie against the Attorney General who, when perform
ing his accusatorial functions is exercising his executive author
ity and while so acting, is not subject to review by the courts
barring flagrant impropriety. The advent of the Charter had
not altered that principle.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 7.
Criminal Code, R.S.C. 1970, c. C-34, s. 2.
Department of Consumer and Corporate Affairs Act,
R.S.C. 1970, c. C-27, ss. 3, 5, 6.
Hazardous Products Act, R.S.C. 1970, c. H-3, ss. 3, 4, 6,
9, 10, 11, 12, 13, 14, Schedule, Part I, Item 32 (as
added by SOR/8l-30, s. 1).
CASES JUDICIALLY CONSIDERED:
APPLIED:
Balderston v. The Queen in right of Manitoba et al.
(1983), 6 C.R.R. 356 (Man. C.A.).
CONSIDERED:
Re R. and Arviv (1985), 20 D.L.R. (4th) 422 (Ont.
C.A.); leave to appeal refused, [1985] 1 S.C.R. y; Camp-
bell v. Attorney-General of Ontario (1987), 58 O.R. (2d)
209 (H.C.).
REFERRED TO:
Vardy v. Scott et al., [1977] 1 S.C.R. 293; O'Grady v.
Whyte, [1983] 1 F.C. 719 (C.A.); Karavos v. The City of
Toronto and Gillies, [1948] O.W.N. 17 (C.A.).
APPEARANCE:
Arthur L. Jefford on his own behalf.
COUNSEL:
Beverley J. Wilton for respondents.
APPLICANT ON HIS OWN BEHALF:
Arthur L. Jefford, Mississauga, Ontario.
SOLICITOR:
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is an appeal from an order of
the Trial Division [(1985), 11 C.L.R. 89; 3 C.P.R.
(3d) 381] dismissing an originating notice of
motion filed by the appellants herein. The motion
was for a writ of mandamus to compel the Minis
ter of Consumer and Corporate Affairs to enforce
legislation prohibiting the advertising and sale of
"urea formaldehyde based thermal insulation,
foamed in place, used to insulate buildings" and to
inform the public of his intention to prosecute all
offenders of this legislation.
Urea formaldehyde foam insulation (U.F.F.I.) is
controlled under the Hazardous Products Act,
R.S.C. 1970, c. H-3. Section 3 thereof provides:
3. (1) No person shall advertise, sell or import into Canada
a hazardous product included in Part I of the schedule.
(3) Every person who violates subsection (1) or (2) is guilty
of
(a) an offence and liable on summary conviction to a fine of
one thousand dollars or to imprisonment for six months, or to
both; or
(b) an indictable offence and liable to imprisonment for two
years.
In December of 1980, Schedule I was amended
[SOR/81-30, s. 1] to include, as Item 32 thereof,
"Urea Formaldehyde based thermal insulation,
foamed in place, used to insulate buildings." Prod
ucts listed in Part I of that schedule are banned
from sale absolutely. Other products listed in Part
II of the Schedule may be sold under controlled
circumstances. The appellants installed U.F.F.I. in
a large number of buildings. With the announce
ment by the Government of the ban on the use of
this product, their business was destroyed and they
were deluged with enquiries from past customers.
The appellants took the position before the
learned Motions Judge that the ban on the sale of
U.F.F.I. necessarily includes a ban on the resale of
buildings which have had U.F.F.I. installed in
them.
The learned Motions Judge concluded that
U.F.F.I. does not exist as a product until it is
placed in the walls of a building. The insulation is
created by first "foaming" into the cavity of the
wall the "foam", to this a resin is added; the
mixture is then cured for seven days before the
"product" can be said to have become urea for
maldehyde foam insulation. By that time, it is, of
course, an integral part of the building. The
Motions Judge then reviewed the statute and con
cluded that when a product containing a banned
substance is intended to be covered by the Act, it is
expressly so stated in the Schedule. Unlike other
banned products, she observed that no reference is
made in the Schedule to a building which contains
the banned U.F.F.I. In the absence of any express
indication to the contrary, she found that the
Schedule in question intended to ban the sale of
U.F.F.I. as it might be sold for installation but not
to ban it as a component part of an already
existing building (A.B., page 37). In view of her
conclusion on this branch of the case, the learned
Motions Judge found it unnecessary to deal with
the jurisdictional argument advanced by the
respondents. Stated in a general way, that submis
sion was to the effect that this Court lacks juris
diction to grant the remedy sought because the
prosecution of offences under the Act is a matter
within the discretion of the Attorney General of
Canada.
Since the jurisdictional question is a threshold
issue, it is my view, with respect, that this issue
should be considered initially, before a consider
ation of the substantive merits of the motion
because a conclusion that the Court is without
jurisdiction to grant the relief sought, would
render unnecessary any further inquiry. Man-
damus lies to compel the performance of a public
duty. Before mandamus can issue there must be a
duty, without discretion, upon the person or body
against whom the order is directed to do the very
thing ordered.'
' See: Vardy v. Scott et al., [1977] 1 S.C.R. 293.
See: O'Grady v. Whyte, [1983] 1 F.C. 719 (C.A.), at pp. 722
and 723.
See also: Karavos v. The City of Toronto and Gillies, [1948]
O. W.N. 17 (C.A.), at p. 18, per Laidlaw J.A.
In this motion, the appellants ask for mandamus
against the Minister of Consumer and Corporate
Affairs and his officials. A perusal of the provi
sions of the Department of Consumer and Corpo
rate Affairs Act, R.S.C. 1970, c. C-27 reveals that
the Minister is charged with the responsibility of
managing and directing his department (section
3). His duties and responsibilities are detailed in
sections 5 and 6 of the Act. There is no provision
for any penalties for breaches of the statute. Turn
ing then to the Hazardous Products Act, the
duties of the Minister of Consumer and Corporate
Affairs are confined to: designating hazardous
products inspectors (section 4); acting as a
respondent concerning applications by owners of
products seized under the Act for an order of
restoration of possession of those products (section
6); disposing of hazardous products seized from
persons convicted of offences under section 3 (sec-
tion 6); appointing boards of review (section 9);
and, finally, empowering him to demand and
secure disclosure in respect of a product or sub
stance believed to be or likely to be a danger to the
health or safety of the public (section 10).
Nowhere does the statute impose upon the Minis
ter of Consumer and Corporate Affairs any duty
to institute or proceed with prosecutions of alleged
violations of that Act. 2
Since neither of the above statutes provide
procedures for the prosecution of offences, I think
it clear that Parliament intended that the provi
sions of the Criminal Code [R.S.C. 1970, c. C-34]
would apply to offences and prosecutions under the
Hazardous Products Act. Therefore, such prosecu
tions would be the responsibility of the Attorney
General of Canada since section 2 of the Criminal
Code fixes that Federal Minister with the carriage
of proceedings instituted "... at the instance of the
Government of Canada and conducted by or on
behalf of that Government in respect of a violation
2 Unlike the Department of Consumer and Corporate Affairs
Act, the Hazardous Products Act does create offences (sections
3 and 14). Sections 11 to 13 inclusive contain provisions
relating to prosecutions for offences under the Act. These
sections contemplate proceedings either by way of summary
conviction or by way of indictment.
of or conspiracy to violate any Act of the Parlia
ment of Canada ...."
It therefore follows, in my view, for the reasons
expressed, supra, that mandamus would not lie
against the Minister of Consumer and Corporate
Affairs. Would the appellants be in any better
position had the motion for mandamus been
directed to the Attorney General of Canada? I
think not. I have this view because of the abundant
jurisprudence to the effect that the Attorney Gen
eral, when performing his accusatorial functions is
exercising his executive authority and while so
acting, he is not subject to review by the courts
barring flagrant impropriety. This principle was
concisely stated by Chief Justice Monnin in the
Balderstone case: 3
Likewise I find nothing in the Code or in the common law,
which permits judges to review the activities of the Attorney-
General when performing his accusatorial functions. The Attor-
ney-General is a member of the executive council and reports to
it for matters of administration and budget. In matters of
criminal prosecutions he is responsible to himself and to the
courts for his conduct or that of his agents. At times his course
of action may cause the executive branch of government to be
apprised of some of his decisions, but in the end, that is a
matter for the opinion of the electors of the province.
The judicial and the executive must not mix. These are two
separate and distinct functions. The accusatorial officers lay
information or in some cases prefer indictments. Courts or the
curia listen to cases brought to their attention and decide them
on their merits or on meritorious preliminary matters. If a
judge should attempt to review the actions or conduct of the
Attorney-General—barring flagrant impropriety—he could be
falling into a field which is not his and interfering with the
administrative and accusatorial function of the Attorney-Gen
eral or his officers. That a judge must not do.
The Balderstone case was an instance where the
Attorney General exercised his discretion to prefer
a direct indictment. A more recent decision of the
Ontario Court of Appeal came to the same conclu
sion in the case of Re R. and Arviv. 4 In the Arviv
case, the Court held that the preferring of a direct
indictment by an Attorney General does not, per
7 Balderstone v. The Queen in right of Manitoba et al.
(1983), 6 C.R.R. 356 (Man. C.A.), at p. 363.
4 (1985), 20 D.L.R. (4th) 422 (Ont. C.A.), per Martin
J.A.—leave to appeal to Supreme Court of Canada refused
[[1985] 1 S.C.R. v].
se, contravene the guarantee in section 7 of the
Charter [Canadian Charter of Rights and Free
doms being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)]
to fundamental justice. It is apparent, therefore,
that the advent of the Charter has not altered the
principle enumerated supra. Another common
example of the exercise of discretion by an Attor
ney General while performing his accusatorial
functions is to be found in those criminal proceed
ings where he decides to enter a stay of proceed
ings. In the case of Campbell v. Attorney-General
of Ontario, 5 Mr. Justice Craig of the Ontario
High Court of Justice concluded, after a careful
review of the relevant jurisprudence, that the same
principle applied to the Attorney General's exer
cise of discretion in those circumstances as in cases
where a direct indictment had been preferred.
On the basis of the jurisprudence discussed
supra, I am satisfied that the conditions precedent
for the issuance of mandamus would not be satis
fied even if the motion had been directed to the
Attorney General of Canada. 6
Accordingly, I am satisfied that on these facts,
the Court is without jurisdiction to grant the relief
asked for. As has been seen, the relevant legisla
tion does not impose upon any Minister the duty to
perform the act referred to in this motion, without
discretion. It is therefore my opinion that the
appeal must be dismissed with costs.
MARCEAU J.: I agree.
MACGUIGAN J.: I agree.
5 (1987), 58 O.R. (2d) 209 (H.C.).
6 I reach this conclusion assuming the absence of evidence of
flagrant impropriety on the part of the Attorney General. On
this record, I see no such evidence.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.