DATE: 20020619
DOCKET: C37369

COURT OF APPEAL FOR ONTARIO

O’CONNOR A.C.J.O., CRONK and ARMSTRONG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN ON BEHALF OF THE CORPORATION OF THE CITY OF TORONTO Respondent

• and -

MARCO CACCIATORE Appellant

John Weingust, Q.C. for the appellant Amanda Ross for the respondent

Heard: May 23, 2002

On appeal from the judgment of Justice L. Feldman dated October 4, 2001, reported at [2001] O.J. No. 5227.

O’CONNOR A.C.J.O.:

[1] The appellant appeals from the judgment of Justice L. Feldman of the Ontario Court of Justice, dismissing his appeal from a conviction under s. 2(20) of The Municipality of Metropolitan Toronto By-Law No. 20-85 (“By-Law 20-85”) for selling tickets to a professional lacrosse game without a licence.

[2] The appellant raises two arguments. First, he submits that s. 2(20) of By-Law 20-85 does not apply to the sale of tickets because tickets are not “goods” within the meaning of s. 2(20). Second, he argues that the Municipality of Metropolitan Toronto does not have the authority to enact s. 2(20) of By-Law 20-85 under which he was convicted.

[3] For the reasons below, I would dismiss the appeal.

Background

[4] On March 26, 1999, a uniformed police officer saw the appellant on the street outside Maple Leaf Gardens offering to sell tickets to a professional lacrosse game between Toronto and Syracuse. The officer saw the appellant make two sales, but was unable to see the number of tickets and the amount of money that were exchanged.

[5] The officer had dealt with the appellant on many previous occasions and knew him to be a ticket scalper. The officer approached the appellant and determined that the appellant had a further twelve tickets for the same lacrosse game on his person. The officer asked the appellant to produce a “pedlar’s licence” for engaging in the business of selling tickets in the Municipality of Metropolitan Toronto. The appellant was unable to produce a licence.

[6] The officer issued the appellant a ticket charging him with an offence under s. 2(20) of By-Law 20-85. The offence was described as “pedlar-no licence”.

[7] The relevant part of By-Law 20-85 provides:

2. There shall be taken out by:

(20) every person who goes from place to place or to a particular place with goods, wares or merchandise for sale …

a licence from the Commission authorizing them respectively to carry on their several trades, callings, businesses, and occupations in the Metropolitan Area … and no person shall, within the limits of the Metropolitan Area, carry on or engage in any of the said trades, callings, businesses or occupations until he has procured such licence so to do.

[8] On June 20, 2000, Justice of the Peace I. McNish found the appellant guilty of the offence charged. On October 4, 2001, Justice Feldman dismissed the appellant’s appeal from conviction. The appellant appeals with leave to this court.

Analysis

[9] Before turning to the appellant’s arguments, there are three matters that warrant brief mention. First, By-Law 20-85 only requires a licence for those engaged in a trade, calling, business or occupation. It does not require a licence for those engaged in activities of a casual or non-commercial nature. The evidence is clear that at the relevant time the appellant was engaged in the business of selling tickets.

[10] Second, nothing turns on the fact that the ticket issued to the appellant described the offence as “pedlar-no licence” rather than describing it in the specific words used in By-Law 20-85. The term “pedlar” conveys the meaning that the appellant was engaged in a business. In any event, the ticket referred to the specific section of By-Law 20-85 under which the appellant was charged. It is clear that the appellant had adequate notice of the elements of the offence charged.

[11] Finally, the price at which the appellant was selling tickets at the time in question is irrelevant to a charge under s. 2(20) of By-Law 20-85. Under s. 2(a) of the Ticket Speculation Act, R.S.O. 1990, c. T.7, it is an element of the offence that a person sell a ticket for a price higher than the price at which the ticket was first issued. However, the appellant was not charged under that Act.

(a) Issue 1: The Application of By-Law 20-85

[12] The appellant submits that selling tickets is not included among the specified businesses for which a licence is required under s. 2(20) of By-Law 20-85. More particularly, the appellant submits that the courts below erred in concluding that the sale of tickets is included within the meaning of the sale of “goods” in s. 2(20) of By-Law 20-85.

[13] I do not accept this argument. The word “goods” is not defined in By-Law 20-85. However, “goods” is a very broad term. The term is commonly used to refer to personal property as opposed to real property. In its ordinary usage, “goods” includes articles for which personal rights can be obtained by way of possession. In this regard, “goods” may be contrasted with choses or things in action for which rights are claimed or enforced by way of legal action.

[14] Dictionary definitions can be helpful both in fixing the outer limits of the ordinary meaning of words and in describing the practice of the community in using particular words. Sullivan, Driedger on the Construction of Statutes, 3rd ed. (1994) at p. 12. The Canadian Oxford Dictionary defines “goods” as “movable property or merchandise” and defines “property” as “something owned; a possession, either tangible, e.g. a house, land, etc., or intangible, e.g. patents, copyrights, etc.”. The Dictionary of Canadian Law, 2nd ed. defines “goods” as “[c]hattels personal other than things in action or money”. Similarly, Black’s Law Dictionary, 7th ed. defines “goods” as “[t]angible or movable personal property other than money; esp., articles of trade or items of merchandise”.

[15] In my view, tickets are “goods” within the ordinary meaning of the word. Tickets are articles of personal property that are routinely bought and sold as part of everyday commercial activity in a wide array of businesses, including those in the entertainment and travel fields. Although the function of a ticket is to enable the owner to redeem a service, the ticket nonetheless has independent value for which personal rights of property are obtained by physical possession. Tickets are not choses in action.

[16] The appellant argues that whatever the ordinary meaning of “goods” may be, this court’s decision in Toronto (City) v. Wassilyn (1999), 43 O.R. (3d) 97 (C.A.) precludes the conclusion that tickets are “goods”. The appellant argues that Wassilyn decided that the word “goods” in the City of Toronto Municipal Code, c. 315 (the “Municipal Code”) does not include tickets and that the decision in Wassilyn governs the interpretation of the word “goods” in By-Law 20-85.

[17] In my view, the appellant misinterprets the reasons in Wassilyn. In that case, the appellant was convicted under s. 315 of the Municipal Code of vending tickets to a Blue Jays baseball game outside the Skydome in Toronto. In allowing the appeal against conviction, this court held that the definition of “vend” in s. 315-1 of the Municipal Code exceeded the statutory authority granted to the City by the City of Toronto Act, 1993 (No. 3), S.O. 1993, c. P.-39, which was the enabling legislation for the by-law in question. Section 2 of the City of Toronto Act, 1993 (No. 3) authorized the City to pass by-laws prohibiting activities carried out on public highways, including “selling, offering to sell, displaying or exposing any goods …from a portable display unit” [Emphasis added]. However, the definition of “vend” in s. 315-1 of the Municipal Code did not include the requirement that sales be from a portable display unit. At page 100, Finlayson J.A. held:

To the extent that the language in the Municipal Code makes it an offence to sell or display articles of sale such as tickets, other than from a portable display unit, it is ultra vires the City and of no force and effect.

[18] It was for that reason that the conviction was quashed. However, in the course of his reasons, Finlayson J.A. observed that “[t]he authorizing statute makes no reference to tickets whatsoever”. The appellant in this case relies on this observation as authority for the proposition that the word “goods” in the City of Toronto Act, 1993 (No. 3) does not include tickets and, by extension, that the word “goods” in By-Law 20-85 does not include tickets.

[19] In authorizing the City to pass by-laws to prohibit the sale of certain articles, s. 2 of the City of Toronto Act, 1993 (No. 3) refers to goods, wares and merchandise, but goes on to list several more specific articles: “products, refreshments, foodstuffs or flowers”. It was in this context that the court in Wassilyn observed that there was no reference to “tickets” in the authorizing statute. I do not read the court’s observation as suggesting that tickets would not come within the ordinary meaning of the word “goods” in other contexts.

[20] Section 230(1) of the Municipal Act, R.S.O. 1980, c. 302, now s. 234(1), under which By-Law 20-85 was enacted, differs from s. 2 of the City of Toronto Act, 1993 (No. 3) in a significant respect. Section 230(1) authorizes municipalities to pass by-laws for licensing persons who go from place to place or to a particular place with “goods, wares or merchandise” for sale. Unlike the City of Toronto Act, 1993 (No. 3), there is no reference in s. 230(1) to specific articles following the general words “goods, wares or merchandise”. Therefore, unlike Wassilyn, there is no basis for an argument that the inclusion of specific articles in s. 230(1) operates to narrow the ordinary meaning of the more general preceding words, “goods, wares or merchandise”. I conclude that the passage from Wassilyn relied upon by the appellant does not assist his argument.

[21] Finally, I see no other reason why the word “goods” in s. 2(20) of By-Law 20-85 should be given anything other than its ordinary meaning. There is nothing about the sale of tickets from a licensing standpoint that suggests the need for a different approach to the sale of tickets than to the sale of other types of goods. Accordingly, I would not give effect to this ground of appeal.

(b) Issue 2: The Statutory Authority for By-Law 20-85

[22] As an alternative argument, the appellant submits that the licensing authority conferred on municipalities under s. 230(1) of the Municipal Act was narrowed, at least for the City of Toronto, by the enactment of ss. 2(1) and (2) of the City of Toronto Act, 1993 (No. 3). As mentioned above, the City of Toronto Act, 1993 (No. 3) authorizes the City to pass by-laws regulating or prohibiting certain selling activities only when those activities are carried out from a portable display unit. The appellant argues that this limitation on the regulatory or prohibitory power of the City of Toronto should apply to the Municipality of Metropolitan Toronto’s authority to enact licensing by-laws under the Municipal Act.

[23] This argument ignores the fact that the City of Toronto Act, 1993 (No. 3) bears no relation to By-Law 20-85. The City of Toronto Act, 1993 (No. 3) was passed some years after By-Law 20-85 came into effect, and it pertains to the former City of Toronto, which is a different and smaller geographic entity than the former Municipality of Metropolitan Toronto that enacted By-Law 20-85.

[24] Moreover, By-Law-20-85, passed under the authority of the Municipal Act, is the licensing by-law that regulates people and their trades, callings, businesses and occupations in the former Municipality of Metropolitan Toronto. The Municipal Code, passed under the authority of the City of Toronto Act, 1993 (No. 3), is a by-law that regulates the use of the streets and sidewalks in the former City of Toronto. The two by-laws have different purposes and while provisions in both by-laws regulate the sale of goods, wares and merchandise, there is no operational conflict either between the two authorizing statutes or between the two by-laws passed thereunder.

[25] I am satisfied that the Municipality of Metropolitan Toronto has the necessary authority under the Municipal Act to enact s. 2(20) of By-Law 20-85.

Disposition

[26] For the above reasons, I would dismiss the appeal.

RELEASED: “D.O.”

“JUN 19 2002”

“Dennis O’Connor A.C.J.O.”

“I agree E.A. Cronk J.A.”

“I agree Robert P. Armstrong J.A.”