Supreme Court Judgments

Supreme Court of Canada

Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138

Date: 1974-01-22

Joseph Thorarinn Thorson (Plaintiff) Appellant;

and

The Attorney General of Canada, The Secretary of State of Canada, The Receiver General of Canada, Keith Spicer, The Bilingual Districts Advisory Board, Roger Duhamel, Paul Fox and Roger St. Denis (Defendants) Respondents.

1973: June 6, 7; 1974: January 22.

Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Spence, Pigeon, Laskin and Dickson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Actions—Status—Standing of taxpayer in class action—Interest no greater than that of any other taxpayer—Challenge of federal legislation—Official Languages Act, R.S.C. 1970, c. O‑2.

The appellant, suing as a taxpayer in a class action, claimed that the Official Languages Act, 1968-69 (Can.), c. 54 and Appropriation Acts providing money to implement it were unconstitutional. The question of standing was raised as a preliminary question of law and was decided against the appellant, both at first instance and on appeal.

Held (Fauteux C.J. and Abbott and Judson JJ. dissenting): The appeal should be allowed.

Per Martland, Ritchie, Spence, Pigeon, Laskin and Dickson JJ.: A question of alleged excess of legislative power is a justiciable one, and it is open to the Court, in the exercise of a discretionary power, to allow a taxpayer to have such a question adjudicated in a class action, being in effect a class action by a member of the public, when otherwise it could be immune from judicial review because there is no person or class of persons particularly aggrieved and because of the unwillingness of the Attorney-General to institute proceedings or of the Government to direct a reference. Any attempt to place standing in a federal taxpayer suit on the likely tax burden is as unreal as it is in the case of municipal taxpayer suits. It is not the alleged waste of public funds alone but the right of citizenry to constitutional behaviour that

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will support standing. As a matter of discretion the appellant should be allowed to proceed to have the suit determined on the merits.

Per Fauteux C.J., Abbott and Judson JJ. dissenting: The ratio of the judgments in the Ontario courts is that an individual has no status to challenge the constitutional validity of an Act of Parliament unless he is specially affected or exceptionally prejudiced by it. Municipal taxpayer class actions are in a class of their own since municipal corporations and municipal councils are creatures of a statute and can only do those things which they are authorized to do.

[MacIlreith v. Hart, (1907), 39 S.C.R. 657; Smith v. Attorney General of Ontario, [1924] S.C.R. 331; Dyson v. The Attorney General, [1911] 1 K.B. 410, (2nd Dyson case) [1912] 1 Ch. 158; Attorney General v. Independent Broadcasting Authority, ex parte McWhirter, [1973] 1 All E.R. 689; London County Council v. Attorney General, [1902] A.C. 165; Wallasey Local Board v. Gracey, (1887), 36 Ch. 593; Tottenham U.D.C. v. Williamson & Sons Ltd., [1896] 2 Q.B. 353; Boyce v. Paddington Borough Council, [1903] 1 Ch. 109; Electrical Development Co. of Ontario v. Attorney General of Ontario, [1919] A.C. 687; B.C. Power Corpn. Ltd. v. B.C. Electric Co. Ltd., [1962] S.C.R. 642; Attorney General for Victoria v. The Commonwealth (1946), 71 C.L.R. 237; Massachusetts v. Mellon, (1923), 262 U.S. 447; Ref. Re ss. (1), (3), (4), s. 11, Official Languages Act, s. 14 Official Languages Act (N.B.), (1972), 5 N.B.R. (2d) 653; Paterson v. Bowes, (1853), 4 Gr. 170; Toronto v. Bowes, (1853), 4 Gr. 489 affd. (1856), 6 Gr. 1, affd. (1858), 11 Moo. P.C. 463, 14 E.R. 770; Crampton v. Zabriskie, (1879), 101 U.S. 601; Bromley v. Smith, (1826), 1 Sim. 8, 57 E.R. 482; Prescott v. Birmingham, [1955] Ch. 210; Bradbury v. Enfield, [1967] 1 W.L.R. 1311; Holden v. Bolton, (1887), 3 T.L.R. 676; Collins v. Lower Hutt City Corporation, [1961] N.Z.L.R. 250; Bradford v. Municipality of Brisbane, [1901] Queensland L.J. 44; Frothingham v. Mellon, (1923), 262 U.S. 447; Flast v. Cohen, (1968), 392 U.S. 83; Everson v. Board of Education, (1947), 330 U.S.1; Doremus v. Board of Education, (1952), 342 U.S. 429; Sierra Club v. Morton, (1972), 405 U.S. 727; Anderson v. Commonwealth (1932), 47 C.L.R.

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50; R. v. Barker, (1762), 3 Burr. 1265, 97 E.R. 823 referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario[1] dismissing an appeal from a judgment of Houlden J. whereby the appellants action was dismissed for want of status.

J.T. Thorson, Q.C., in person.

J.J. Robinette, Q.C., T.B. Smith, Q.C., for the respondent.

The judgment of Fauteux C.J. and Abbott and Judson JJ. was delivered by

JUDSON J.—The appellant, Joseph Thorarinn Thorson, sued in the Supreme Court of Ontario for a declaration that the Official Languages Act is ultra vires of the Parliament of Canada, and for a similar declaration in respect of appropriation Acts of the Parliament of Canada insofar as they grant money out of the Consolidated Revenue Fund for the purposes of this Act. The appellant also asked for an order compelling repayment into the Consolidated Revenue Fund of moneys already expended.

One of the defences raised by the defendants in the action was that the appellant had no status to maintain the action. Following the close of pleadings, the defendants applied for an order under Rule 124 of the Rules of Practice of the Supreme Court of Ontario for leave to set down for hearing two questions of law before the trial of the action. These are:

1. That the plaintiff (appellant) has no status or standing to maintain this action;

2. That since the plaintiff (appellant) has not alleged that he as a taxpayer of Canada has suffered any special damage or damage that would set him apart from other taxpayers of Canada as a result of the enactment of the Official Languages Act, the plaintiff (appellant) has no status or standing to obtain the relief claimed in the amended statement of claim.

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Leave was granted and these two questions came on for hearing before Mr. Justice Houlden. He found that the appellant had no status to maintain the action and accordingly dismissed it. His judgment[2] was affirmed by a unanimous Court of Appeal[3].

The ratio of the judgments in the Ontario courts is that an individual has no status to challenge the constitutional validity of an Act of Parliament unless he is specially affected or exceptionally prejudiced by it. The plaintiff in this action had only the same interest as any other taxpayer in Canada, and any increased taxes resulting from the implementation of the Act would be borne by all the taxpayers of Canada.

In my opinion, this decision is sound and the case is governed directly by the judgment of this Court in Smith v. Attorney General of Ontario[4]. In this action, Smith was asking for a declaratory judgment that Part IV of the Canada Temperance Act was not validly in force in the Province of Ontario. The ratio of the judgment of the Court is contained in the reasons of Duff J., at pp. 337 and 338, in the following terms:

Much may be said, no doubt, for the view that an individual in the position of the appellant ought, without subjecting himself to a prosecution for a criminal offence, to have some means of raising the question of the legality of official acts imposing constraint upon him in his daily conduct which, on grounds not unreasonable, he thinks are unauthorized and illegal. We think, however, that to accede to appellant’s contention upon this point would involve the consequence that virtually every resident of Ontario could maintain a similar action; and we can discover no firm ground on which the appellant’s claim can be supported which would not be equally available to sustain the right of any citizen of a province to initiate proceedings impeaching the constitutional validity of any legislation directly affecting him, along with other citizens, in a similar way in his business or in his personal life.

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We think the recognition of such a principle would lead to grave inconvenience and analogy is against it. An individual, for example, has no status to maintain an action restraining a wrongful violation of a public right unless he is exceptionally prejudiced by the wrongful act. It is true that in this court this rule has been relaxed in order to admit actions by ratepayers for restraining ultra vires expenditures by the governing bodies of municipalities; MacIlreith v. Hart (1907), 39 S.C.R. 657. We are not sure that the reasons capable of being advanced in support of this exception would not be just as pertinent as arguments in favour of the appellant’s contention, but this exception does not rest upon any clearly defined principle, and we think it ought not to be extended.

These reasons were accepted by Mignault J. and Maclean J. Idington J. thought that the action was an attempt to get an opinion which, on the facts presented, the Court had no right to give. He declined to express any opinion on the questions submitted and concurred in the dismissal of the action for the reasons given by him. The Chief Justice, who presided at the hearing, died before judgment was pronounced.

In the Smith case, as in the present appeal, much emphasis was laid on the decision in Dyson v. Attorney-General[5]. In my opinion Dyson’s case has no bearing upon the problem before us. The appellant in this case is seeking a declaration that Parliament had no power to enact a certain piece of legislation. Dyson’s case was concerned with no such issue. The attack in Dyson’s case was upon the action of the Commissioners of Inland Revenue. They had devised a form which required all land owners to state the annual value of their land on a certain basis. Dyson’s objection was that this demand was not authorized by the Act, and the Court of Appeal agreed with him[6]. The decision was, therefore, a declaratory judgment against a certain form of administrative action. It was sought in the Smith case to extend this principle to legislation and this request was rejected, and rightly so in my opinion. It is being repeated in

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this appeal and should be rejected again.

It is also my opinion that Duff J. was right in refusing to extend the ratepayer’s action in municipal cases to the kind of action before him in the Smith case and before us in the present case. These actions to restrain illegal or ultra vires expenditures, to recover funds illegally paid out or retained by a member of council (MacIlreith v. Hart[7]; Paterson v. Bowes[8]) bear no analogy to the present case. I do not regard them as a relaxation of the rule enunciated in the Smith case. They are in a class of their own. Municipal corporations and municipal councils are creatures of a statute and can only do those things which they are authorized, expressly or implicitly, to do. The ratepayer’s action is one means of keeping municipal action within municipal powers.

I would dismiss the appeal with costs.

The judgment of Martland, Ritchie, Spence, Pigeon, Laskin and Dickson JJ. was delivered by

LASKIN J.—An important question of standing is raised by this appeal, brought here by leave of this Court. The appellant, suing as a taxpayer in a class action, claims a declaration against the Attorney General of Canada that the Official Languages Act, 1968-69 (Can.), c. 54, now R.S.C. 1970, c. O-2, and Appropriation Acts providing money to implement it, are unconstitutional. There are other defendants in the action as framed, against whom specific relief is claimed, but it seems to have been assumed that their liability depends initially on whether the appellant can succeed in his claim against the Attorney General of Canada; and that unless the

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appellant has standing to seek a declaration of unconstitutionality, the various claims of relief must fail in limine.

The question of standing was, on the motion of the defendants under R.124 (Ont.), set down for hearing as a preliminary question of law, and was decided by Houlden J. in their favour. An appeal by the plaintiff to the Ontario Court of Appeal was dismissed without calling on counsel for the defendants. The Court of Appeal, in short reasons, approved the interpretation placed by Houlden J. on the two judgments of this Court upon which, in his view, the issue turned, namely MacIlreith v. Hart[9] and Smith v. Attorney General of Ontario[10]. Houlden J. regarded the Smith case as laying down the applicable principle as expounded in the reasons of Duff J., speaking in this respect for the majority of the Court. Houlden J. said this in the course of his reasons:

In my judgment, the principle stated in the Smith case is one of general application. This principle is that an individual has no status or standing to challenge the constitutional validity of an Act of Parliament in an action of this type unless he is specially affected or exceptionally prejudiced by it… The fact that the taxes of the plaintiff and the taxes of every taxpayer in Canada will be raised as a result of the implementation of the Official Languages Act is not, in my opinion, sufficient to constitute special damage or prejudice to the plaintiff so as to enable the plaintiff to bring this action.

I think there is sound reason for this result. If every taxpayer could bring an action to test the validity of a statute that involved the expenditure of public money it would in my view lead to grave inconvenience and public disorder. It is for this reason, I believe, that the plaintiff has been unable to

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find any Canadian or English decision as authority for the position he is asserting.

I do not think that anything is added to the reasons for denying standing, if otherwise cogent, by reference to grave inconvenience and public disorder. An effective answer to similar arguments advanced in Dyson v. The Attorney General[11], was given by Farwell L.J. in his reasons at p. 423, reasons endorsed by Fletcher Moulton L.J. in the second Dyson case[12], at p. 168. The Courts are quite able to control declaratory actions, both through discretion, by directing a stay, and by imposing costs; and as a matter of experience, MacIlreith v. Hart, to which I will return, does not seem to have spawned any inordinate number of ratepayers’ actions to challenge the legality of municipal expenditures. A more telling consideration for me, but on the other side of the isssue, is whether a question of constitutionality should be immunized from judicial review by denying standing to anyone to challenge the impugned statute. That, in my view, is the consequence of the judgments below in the present case. The substantive issue raised by the plaintiff’s action is a justiciable one; and, prima facie, it would be strange and, indeed, alarming, if there was no way in which a question of alleged excess of legislative power, a matter traditionally within the scope of the judicial process, could be made the subject of adjudication.

Because of the way in which the matter now before this Court arose, the facts alleged in the amended statement of claim are taken as admitted for present purposes. They do not, of course, answer the legal question which has been posited on those facts. There is one admission of fact to which I wish to refer, however, which was not considered in the reasons of the

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Courts below. Before bringing his action, the plaintiff wrote to the Attorney General of Canada inviting him, in his capacity as representative of the Crown in right of Canada in matters legal, to take appropriate proceedings to test the validity of the Official Languages Act. The letter noted that prior to the enactment of this statute the plaintiff had asked for a reference to this Court to have its validity considered but his request was refused. Although the record contains no reply to the plaintiff’s letter there is an admission by the defendants in their amended statement of defence that the Attorney General declined to act in his public capacity to challenge the constitutionality of the statute.

If a previous request to the Attorney General to institute proceedings or to agree to a relator action is a condition of a private person’s right to initiate proceedings such as this on his own (see Attorney General v. Independent Broadcasting Authority, ex parte McWhirter[13], at p. 698) that condition has been met in this case. I doubt, however, whether such a condition can have any application in a federal system where the Attorney General is the legal officer of a Government obliged to enforce legislation enacted by Parliament and a challenge is made to the validity of the legislation. The situation is markedly different from that of unitary Great Britain where there is no unconstitutional legislation and the Attorney General, where he proceeds as guardian of the public interest, does so against subordinate delegated authorities. Indeed, in such situations the decision of the Attorney General to proceed on his own or to permit a relator action is within his discretion and not subject to judicial control: see London County Council v. Attorney General[14]. Nevertheless, what was said by Lord Denning in the McWhirter case, supra, on the position of a member of the public where the Attorney General refuses without good reason to take pro-

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ceedings ex officio or to give leave for relator proceedings, is relevant to a distinction that I take and on which, in my opinion, the result in this case turns. I shall come to this later in these reasons.

I agree with the submission of counsel for the respondents that the appellant’s taxpayer class action here is realistically a class action by a member of the public. He is bringing what has been called a “public action” (see Jaffe, Judicial Control of Administrative Action (1965), p. 483), and the question that arises is whether the principle of MacIlreith v. Hart should be extended to cover such federal taxpayer actions (and, if so, it would extend as well to provincial taxpayer actions), as contended for by the appellant, or whether this kind of action should never be permitted for the reasons given in the Smith case, as contended for by the respondents. It is my view that this statement of the issue is both too broad and too narrow. It is too broad because it does not take account of the nature of the legislation whose validity is challenged; it is too narrow because it suggests an “either or” approach by the Courts. I am of the opinion that the Court is entitled in taxpayer actions to control standing no less than it is entitled to control the granting of declaratory orders sought in such actions. In short, the matter to me is one for the discretion of the Court, and relevant to this discretion is the nature of the legislation under attack.

Where regulatory legislation is the object of a claim of invalidity, being legislation which puts certain persons, or certain activities theretofore free of restraint, under a compulsory scheme to which such persons must adhere on pain of a penalty or a prohibitory order or nullification of a transaction in breach of the scheme, they may properly claim to be aggrieved or to have a

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tenable ground upon which to challenge the validity of the legislation. In such a situation, a mere taxpayer or other member of the public not directly affected by the legislation would have no standing to impugn it. Smith v. Attorney General of Ontario is this class of case. Disregarding for this purpose the significant point that the wrong Attorney General was sued, the correctness of the decision might be put in doubt if it be taken to hold that the amended Canada Temperance Act was immune from challenge by a declaratory action at the suit of either Smith or the Montreal firm which refused, because of the amended legislation, to fill Smith’s liquor order and hence brought to a halt a proposed business relationship.

Why, in such a case, should Smith be disqualified as a plaintiff in a declaratory action and be compelled to violate the statute and risk prosecution in order to raise the question of its invalidity? The reasons of Duff J. mention this point but then dispose of it in the following passage, at p. 337 of [1924] S.C.R., quoted and relied upon by Houlden J.:

Much may be said, no doubt, for the view that an individual in the position of the appellant ought, without subjecting himself to a prosecution for a criminal offence, to have some means of raising the question of the legality of official acts imposing constraint upon him in his daily conduct which, on grounds not unreasonable, he thinks are unauthorized and illegal. We think, however, that to accede to appellant’s contention upon this point would involve the consequence that virtually every resident of Ontario could maintain a similar action; and we can discover no firm ground on which the appellant’s claim can be supported which would not be equally available to sustain the right of any citizen of a province to initiate proceedings impeaching the constitutional validity of any legislation directly affecting him, along with other citizens, in a similar way in his business or in his personal life.

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We think the recognition of such a principle would lead to grave inconvenience and analogy is against it. An individual, for example, has no status to maintain an action restraining a wrongful violation of a public right unless he is exceptionally prejudiced by the wrongful act. It is true that in this court this rule has been relaxed in order to admit actions by ratepayers for restraining ultra vires expenditures by the governing bodies of municipalities; MacIlreith v. Hart. We are not sure that the reasons capable of being advanced in support of this exception would not be just as pertinent as arguments in favour of the appellant’s contention, but this exception does not rest upon any clearly defined principle, and we think it ought not to be extended.

On the whole we think the principle contended for, since it receives no sanction from legal analogy, and since it is open to serious objection as calculated to be attended by general inconvenience in practice, ought not to be adopted. But the question is an arguable one; and, as the merits of the appeal have been fully discussed, we are loath to give a judgment against the appellant solely based upon a fairly disputable point of procedure; and accordingly we think it right to say that in our opinion the appellant’s action also fails in substance.

Much of the argument in the present appeal, especially in the submissions of the appellant, related to the significance of the assertion of Duff J., upon which Houlden J. grounded his decision and which I have already quoted, that “an individual, for example, has no right to maintain an action restraining a wrongful violation of a public right unless he is exceptionally prejudiced by the wrongful act.” The plaintiff’s contention was that, on the pleadings, taking the facts alleged as established for the purposes of a motion under R. 124 (Ont.), he was within this proposition, and that he was not called upon to show that he was more exceptionally prejudiced than others who, like him, were also exceptionally prejudiced. Put another way, the submission is that the issue is not magnitude of the exceptional prejudice but merely whether it exists in the case of the plaintiff, albeit many

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others are under the same exceptional prejudice.

I am of the opinion that the foregoing statement of Duff J. cannot be torn from the context of case law and principle out of which it obviously arises, and that the submissions of the plaintiff become somewhat tortuous in seeking to parse the words “exceptional prejudice” as if they were disembodied terms of a statute. Although Duff J. cited no authority for his assertion, it is a derivation from English cases, relating to private attempts to enjoin a public nuisance. In this class of case, which involves no question of the constitutionality of legislation, there is a clear way in which the public interest can be guarded through the intervention of the Attorney General who would be sensitive to public complaint about an interference with public rights: see Wallasey Local Board v. Gracey[15]; Tottenham Urban District Council v. Williamson & Sons Ltd.[16]; Boyce v. Paddington Borough Council[17]. It is on this basis that the Courts have said that a private person who seeks relief from what is a nuisance to the public must show that he has a particular interest or will suffer an injury peculiar to himself if he would sue to enjoin it.

This is not a principle which is capable of wholesale transfer to a field of federal public law concerned with the distribution of legislative power between central and unit legislatures, and with the validity of the legislation of one or other of those two levels. There is no question in such a case of respecting legislative sovereignty, as in unitary Great Britain, but rather a question of whether Parliament or a Legislature has itself respected the limits of its authority under the Constitution.

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The Official Languages Act is not a regulatory type of statute akin to the Canada Temperance Act which was involved in the Smith case. It is both declaratory and directory in respect of the use of English and French by and in federal authorities and agencies, including Courts, and in the provision of services to the public through communication in both languages by those authorities and agencies, whether in the national capital region, or at their head or central office elsewhere in Canada, or at each principal office in a federal bilingual district established under the Act. Administration of the Act is confided to a Commissioner of Official Languages who is charged to ensure recognition of the status of both official languages and compliance with the spirit and intent of the Act. He is authorized to inquire into complaints, to recommend remedial action after investigation of any complaint and to report to Parliament if appropriate remedial action is not taken. The Act creates no offences and imposes no penalties; there are no duties laid upon members of the public, although the public service may be said, broadly speaking, to be affected by the promotion of bilingualism in order that members of the public may be served and may communicate in both official languages. Public officials only might be exposed to prosecution under s. 115 of the Criminal Code.

The question of the constitutionality of legislation has in this country always been a justiciable question. Any attempt by Parliament or a Legislature to fix conditions precedent, as by way of requiring consent of some public officer or authority, to the determination of an issue of constitutionality of legislation cannot foreclose the Courts merely because the conditions remain unsatisfied: Electrical Development Co. of Ontario v. Attorney General of Ontario[18], B.C. Power Corp. Ltd. v. B.C. Electric Co.

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Ltd.[19] Should they then foreclose themselves by drawing strict lines on standing, regardless of the nature of the legislation whose validity is questioned?

Short of a reference either to a provincial appellate Court by the Lieutenant Governor in Council or to this Court by the Governor General in Council, is there any other way in which the validity of a statute like the Official Languages Act can be determined in a judicial proceeding when the federal Attorney General has declined to act? Counsel for the respondents contended that a provincial Attorney General could take declaratory proceedings, but he could cite no authority for this proposition nor could I find any. However, want of authority is not an answer if principle supports the submission. I am unable to appreciate upon what principle this submission stands. Can it be said that one Attorney General of one Province is in any different position than any others of other Provinces, or is it suggested that an Attorney General class action be taken? Even if a provincial Attorney General might validly be authorized by provincial legislation to take such declaratory proceedings, I am unaware of any such legislation. As an ordinary common law matter, I do not think a provincial Attorney General is in as strong a position in a case such as the present one as is a federal taxpayer bringing a class action. The provincial Attorney General would be representing the public interest of his Province only, and, moreover, the invalidation of the Official Languages Act would not result in any accretion to, or vindicate any legislative power of the Province.

There is Australian authority to support a declaratory action by a State Attorney General to challenge the validity of Commonwealth legislation where that legislation amounts to an invasion of State legislative power: see Attorney

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General for Victoria v. The Commonwealth[20]. This, and other like cases cited therein, represent an adaptation to Australian federalism of the English position of the Attorney General as the guardian of public rights, those rights being the rights of the citizens of the State whom the State Attorney General represents. On the other hand, authority in the United States is to the contrary. In Massachusetts v. Mellon[21], a companion case to Frothingham v. Mellon considered below, the Supreme Court of the United States said this on the point (at p. 485):

It cannot be conceded that a State, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof… While the State, under some circumstances, may sue in that capacity for the protection of its citizens…it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government.

The merit of the Australian position does not reach the present case because, as I have already noted, there is no invasion of provincial legislative power in the enactment of the Official Languages Act even assuming it to be unconstitutional; and the cited Australian case does not go so far as to support the right of a State Attorney General to challenge a mere Appropriation Act of the Commonwealth.

Counsel for the respondents also relied in this connection upon Reference re Subsections (1) (3) and (4) of S. 11 of the Official Languages Act, S. 23C of the New Brunswick Evidence Act and S. 14 of the New Brunswick Official Languages Act[22], which was a judgment of the New Brunswick Court of Appeal on a reference. There, one Leonard C. Jones applied successfully to the Court for leave to be joined as an interested party and to have all rights as a party

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including a right of appeal. This does not assist in the present case because a reference was refused by the federal authorities, and I do not think that a plaintiff is compelled to shop around for a reference by one of the ten provincial governments.

I come finally to the judgment of this Court in MacIlreith v. Hart[23]. In that case a municipal council had paid $231 to the mayor to reimburse him for his expenses in attending a municipal convention. A ratepayer of the municipality brought a class action against the mayor (the municipal council having refused to do so) for a declaration that the payment was illegal and that the sum in question should be returned by the mayor. There was at the time no authority for the municipal council to pay convention expenses. On the question whether a ratepayer’s action lay, the trial judge dismissed the suit on the ground that the Attorney General was a necessary party. The Supreme Court of Nova Scotia en banc reversed, holding the action to be maintainable as brought, and this decision was affirmed by this Court.

Case law in Ontario has sanctioned such actions for a long time. The leading case is Paterson v. Bowes[24], and on the merits, sub nom Toronto v. Bowes[25]. The law in the United States is the same: see Crampton v. Zabriskie[26]. Paterson v. Bowes founded itself on Bromley v. Smith[27] which, on its facts, falls short of being in a strict sense a ratepayers’ action to challenge an illegal municipal expenditure. It does not seem to have enjoyed any prominence in England, but there is more recent case law there which provides some support for the doctrine

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stated in Paterson v. Bowes: see Prescott v. Birmingham[28]; and cf. Bradbury v. Enfield[29]. There is also contrary authority in England: see Holden v. Bolton[30]; and in New Zealand: see Collins v. Lower Hutt City Corporation[31]. Professor de Smith rightly refers to the Prescott case as a weak authority because standing is approved there sub silentio and he says this on the subject (Judicial Review of Administrative Action (1968 2d ed.), at p. 479):

The state of the law is now thoroughly confused, and it is to be hoped that the House of Lords will soon have an opportunity to pronounce upon these matters. The assumption that to proclaim the ratepayer’s locus standi in positive terms would let loose a torrent of ratepayers’ actions is in fact mere conjecture. But if restrictive principles are to be cast aside, they should be cast aside unequivocally.

In those cases where the restrictive principle of requiring carriage of the suit by the Attorney General and denying any suit if the Attorney General refuses to act, has been cast aside, the rationale of the ratepayer’s action has been explained in various ways, dependent, it seems to me, on the factual situation in the particular case. In Smith v. Bromley, where a limited number of householders of a parish were subject to rates imposed for the management and cultivation of certain allotments of enclosed waste lands over which rights of common existed, it was held that it was open to a dissident group to seek to reclaim a sum illegally paid out of the collected rates by the treasurer, albeit so paid with the approval of the majority. Sir John Leach V.C. said, briefly,

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Where a matter is necessarily injurious to the common right the majority of the persons interested can neither excuse the wrong nor deprive all other parties of their remedy by suit.

The Attorney General may file an information in a case like this in respect of the public nature of the right; and the proceedings must be by the Attorney General when all persons interested are parties to the abuse; but where that is not the case, I am not aware of any principle or authority which makes it necessary that he should be before the Court.

Paterson v. Bowes spoke in terms of the interest of inhabitants (it was an inhabitants’ class action rather than a ratepayers’) to prevent a misapplication of funds which came from municipal rates, and it distinguished the case of the public nuisance. Analogy there to equity jurisdiction to hold a faithless agent to be trustee for his principal was based on the fact that the defendant mayor had obtained £10,000 as a discount on the purchase for the city of debentures in the sum of £50,000, and had retained the sum for his own use. The municipal council refused at first to act and it was only after the question of standing had been resolved in favour of the inhabitants who brought the action that the council agreed to be substituted as plaintiff. In Crampton v. Zabriskie, the Supreme Court of the United States said this of a taxpayer’s suit against an illegal expenditure of money by a county:

Of the right of resident tax-payers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county or the illegal creation of a debt which they in common with other property-holders of the county may otherwise be compelled to pay, there is at this day no serious question. The right has been recognized by the State courts in numerous cases; and from the nature of the powers exercised by municipal corporations, the great danger of their abuse and the necessity of prompt action to prevent irremediable injuries, it would seem eminently proper for courts of equity to interfere upon the application of the tax-payers of a

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county to prevent the consummation of a wrong, when the officers of those corporations assume, in excess of their powers, to create burdens upon property-holders. Certainly, in the absence of legislation restricting the right to interfere in such cases to public officers of the State or county, there would seem to be no substantial reason why a bill by or on behalf of individual tax-payers should not be entertained to prevent the misuse of corporate powers. The courts may be safely trusted to prevent the abuse of their process in such cases.

In the Smith case, as already noted, Duff J. regarded MacIlreith v. Hart as an exception from a general rule which did not rest upon any clearly defined principle. That was not the view of the Court, of which he was a member, which decided the case. He concurred in the reasons of Davies J. who founded himself on the principle of Paterson v. Bowes and who found reconciliation with English authority by concluding that ratepayers, who sue to vindicate a public right to have municipal money lawfully appropriated, suffer damage peculiar to themselves qua ratepayers in the increased rates they would have to pay by reason of illegal expenditures, even though the damage be small. Idington J. proceeded squarely on Paterson v. Bowes. So did Maclennan J. (with whom Fitzpatrick C.J. concurred) although he viewed that case as reflecting a trustee-beneficiary relationship between the municipality and its ratepayers. It is quite clear that obeisance to the special damage requirement was purely formal, and that at least equally important was the fact that ultra vires expenditures were involved which the municipal council was unwilling to reclaim.

If the Attorney General should also be unwilling to involve himself in a local municipal matter, that would end the affair unless standing was given to a ratepayer willing to bear the costs of an action to correct a wrong in munici-

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pal administration. This was the case in Bradford v. Municipality of Brisbane[32], a judgment of Griffith C.J., where the Attorney General refused to interfere and a ratepayer was denied standing to enjoin an allegedly illegal municipal expenditure. I am unable to appreciate how an argument of principle can be made that such a wrong, an illegality which is certainly justiciable, should go uncorrected at law, whatever may eventuate as political redress.

For myself, I do not think that it was necessary to restrict the doctrine of MacIlreith v. Hart in order to decide the Smith case as it was decided. Two entirely different situations were presented in those two cases. In the Smith case, a regulatory, even prohibitory, statute was in issue under which offences and penalties were prescribed; in MacIlreith v. Hart, there was a public right involved which had no punitive aspects for any particular ratepayer or class of ratepayers, and it would beget wonder that, in such a case, there should be no judicial means of recovering or controlling an illegal expenditure of public money.

Assuming for the moment that MacIlreith v. Hart approved a ratepayers’ suit because of the communality of the relationship of persons in the city of Halifax (which had at the time a population of about 47,000) even though only $231 was involved, I do not see that the principle is any less valid in respect of a taxpayers’ suit concerning Halifax in its present-day population of about 125,000, nor in respect of Metropolitan Toronto or Montreal, each of which has a population in excess of two million. The population of Metropolitan Toronto and of Montreal is greater than that of each of seven of the Provinces of Canada. If the principle of MacIlreith v. Hart is applicable to municipal ratepayers’ actions, why not to a provincial taxpayers’ action to challenge the constitutionality of legislation involving expenditure of public

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money where no other means of challenge is open?

There is, of course, this difference between an illegal expenditure by a municipality or a public corporation and an allegedly illegal expenditure by a Province or by the Dominion. Neither the Province nor the Dominion is limited in expenditure by the considerations that apply to a municipality or to a corporation. The issue here is not simply one (as it seemed to be in Frothingham v. Mellon[33], discussed below) where the challenge is merely to an Appropriation Act. The main challenge is to the Official Languages Act, but, because it has been implemented by the appointment of a Commissioner of Official Languages and other staff, there is the ancillary reference to allegedly illegal expenditures made in respect of an unconstitutional object.

In the United States, a taxpayer class action in respect of an allegedly unconstitutional State expenditure is now generally maintainable: see Douglas J., concurring in Flast v. Cohen[34], at p. 108; Everson v. Board of Education[35]; and Doremus v. Board of Education[36]. However, until recently federal taxpayer suits to challenge unconstitutional federal expenditures had been denied. Frothingham v. Mellon, already cited, decided less than a year before the Smith case, had laid down the governing rule. The reasons invoke the same concern as did the Smith case about multiplicity of actions, inconvenience, and the fact that public and not special individual interest is involved and, in addition, rely on the separation of powers doctrine which is a more explicit matter in the United States than it

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is here. In the course of his reasons for the Court, Sutherland J. said this:

The right of a taxpayer to enjoin the execution of a federal appropriation act, on the ground that it is invalid and will result in taxation for illegal purposes, has never been passed upon by this Court. In cases where it was presented, the question has either been allowed to pass sub silentio or the determination of it expressly withheld… The interest of a taxpayer of a municipality in the application of its moneys is direct and immediate and the remedy by injunction to prevent their misuse is not inappropriate. It is upheld by a large number of state cases and is the rule of this Court. Crampton v. Zabriskie, 101 U.S. 601, 609. Nevertheless, there are decisions to the contrary. See, for example, Miller v. Grandy, 13 Mich. 540, 550. The reasons which support the extension of the equitable remedy to a single taxpayer in such cases are based upon the peculiar relation of the corporate taxpayer to the corporation, which is not without some resemblance to that subsisting between stockholder and private corporation. IV Dillon Municipal Corporations, 5th ed., s. 1580, et seq. But the relation of a taxpayer of the United States to the Federal Government is very different. His interest in the moneys of the Treasury—partly realized from taxation and partly from other sources—is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.

There has been a considerable modification of Frothingham v. Mellon in the recent decision of the Supreme Court of the United States in Flast v. Cohen. There that Court held that a federal taxpayer suit may be pursued to challenge the constitutionality of a federal expenditure pursuant to the federal taxing and spending power where the challenge is also based on a specific constitutional limitation on the exercise of that power. In so far as United States decisions turn

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on the need for showing a justiciable “case or controversy”, within Article III, section 2 of the American Constitution, or otherwise require a constitutional base to support standing by a federal taxpayer, they have no application to Canada. I note, in any event, a recent recession there from the “case of controversy” requirement: see Sierra Club v. Morton[37].

In my opinion, standing of a federal taxpayer seeking to challenge the constitutionality of federal legislation is a matter particularly appropriate for the exercise of judicial discretion, relating as it does to the effectiveness of process. Central to that discretion is the justiciability of the issue sought to be raised, a point that could be said to be involved (although the case was not decided on that basis) in Anderson v. Commonwealth[38], where the High Court of Australia denied standing to a member of the public to challenge the validity of an agreement between the Commonwealth and one of the States. Relevant as well is the nature of the legislation whose validity is challenged, according to whether it involves prohibitions or restrictions on any class or classes of persons who would thus be particularly affected by its terms beyond any effect upon the public at large. If it is legislation of that kind, the Court may decide, as it did in the Smith case, that a member of the public, and perhaps even one like Smith, is too remotely effected to be accorded standing. On the other hand, where all members of the public are affected alike, as in the present case, and there is a justiciable issue respecting the validity of legislation, the Court must be able to say that as between allowing a taxpayers’ action and denying any standing at all when the Attorney General refuses to act, it may choose to hear the case on the merits.

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In his reasons in the Smith case, Duff J. concluded his exposition on standing by the statement that “the question is an arguable one”. I think that the argument for standing in the present case is fortified by analogy (which Duff J. thought was absent) to the cases on certiorari and prohibition which, even in a non-constitutional context, have admitted standing in a mere stranger to challenge jurisdictional excesses, although the granting of relief remains purely discretionary: see Wade, Administrative Law (3rd ed. 1971), at p. 138, pointing to the special public aspect of these remedies. Other analogies from English legal history depend on how far back in such history one is prepared to go. Lord Mansfield, for example, looked upon the writ of mandamus as a public remedy which “was introduced to prevent disorder from a failure of justice, and defect of police. Therefore it ought to be used upon all occasions where the law has established no specific remedy and where in justice and good government there ought to be one”: Rex v. Barker[39]. The expansion of the declaratory action, now well‑established, would to me be at odds with a consequent denial of its effectiveness if the law will recognize no one with standing to sue in relation to an issue which is justiciable and which strikes directly at constitutional authority.

I recognize that any attempt to place standing in a federal taxpayer suit on the likely tax burden or debt resulting from an illegal expenditure, by analogy to one of the reasons given for allowing municipal taxpayers’ suits, is as unreal

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as it is in the municipal taxpayer cases. Certainly, a federal taxpayer’s interest may be no less than that of a municipal taxpayer in that respect. It is not the alleged waste of public funds alone that will support standing but rather the right of the citizenry to constitutional behaviour by Parliament where the issue in such behaviour is justiciable as a legal question.

In the present case, I would, as a matter of discretion, hold that the appellant should be allowed to proceed to have his suit determined on the merits. Accordingly, I would allow the appeal, set aside the judgments below and dismiss the motion of the respondents under R. 124. The appellant should have his costs throughout.

Appeal allowed with costs.

Solicitor for the appellant: J.T. Thorson, Ottawa.

Solicitor for the respondents: D.S. Maxwell, Ottawa.