Club Pro Adult Entertainment Inc. v. Ontario (Attorney General), 2008 ONCA 158

CITATION: Club Pro Adult Entertainment Inc. v. Ontario (Attorney General), 2008 ONCA 158

DATE: 20080303

DOCKET: C46557, C46559, C46560, C46561, C46562 and C46564

COURT OF APPEAL FOR ONTARIO

WINKLER C.J.O., ARMSTRONG and EPSTEIN JJ.A.

BETWEEN:

CLUB PRO ADULT ENTERTAINMENT INC., DOMENIC MARCIANO, VINCENZO DELUCA and JOHN BELLISARIO

Appellants/Respondents by way of Cross-Appeal

and

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO and THE ATTORNEY-GENERAL OF ONTARIO

Respondents/Appellants by way of Cross-Appeal

Morris Manning, Q.C. and Timothy Riddell for the appellants/respondents by way of cross-appeal

Arif Virani and Michael Dunn for the respondents/appellants by way of cross-appeal

Heard: December 20, 2007

On appeal from the orders of Justice N.J. Spies of the Superior Court of Justice, dated December 18, 2006, with reasons reported at (2006), 2006 CanLII 42254 (ON SC), 150 C.R.R. (2d) 1.

ENDORSEMENT

I Background

[1] The appellants are owners, employees or patrons of adult entertainment parlours who seek relief against the province and the Attorney General of Ontario in relation to the Smoke-Free Ontario Act, S.O. 1994, c. 10. In their statements of claim, [^1] the appellants sought damages under several private law causes of action and challenged the constitutional validity of the Act on both division of powers and Charter grounds. The respondents moved under rules 21.01(1)(b), 21.01(3)(d), 25.11 and 25.06 of the Rules of Civil Procedure for orders striking out all or portions of the statements of claim and dismissing the actions.

[2] The motion judge struck most of the causes of action without leave to amend, as no tenable cause of action could be established; however, she allowed the appellants to amend their pleadings to argue breach of contract, and she did not strike the appellants claim that the Act was ultra vires by reason of the federal government’s criminal law power.

[3] The appellants submit that the motion judge applied the wrong test under Rule 21, and that she erred in striking the private law and Charter claims. On cross-appeal, the respondents submit that the motion judge erred in allowing the action to proceed on the basis of the division of powers claim.

[4] For the reasons that follow, we dismiss the appeal and allow the cross-appeal.

II Discussion

(i) The Appeal

[5] In detailed reasons that spanned 78 pages, the motion judge thoroughly examined the authorities that applied to the motion before her and the allegations in the appellants’ 400 paragraph statements of claim.

[6] Contrary to the appellants’ assertions, there is no uncertainty in the jurisprudence, either with respect to the private law claims or the appellants’ constitutional arguments. These are questions that were appropriately determined on the motion to strike.

[7] In our view, the motion judge set out the correct test on a motion to strike and correctly applied that test to the claims before her. We find no error in her decision to strike the claims she did. Accordingly, for the reasons of the motion judge, the appeal is dismissed.

(ii) The Cross-Appeal

[8] The motion judge concluded that it is arguable that the SFOA is in pith and substance criminal law, and therefore ultra vires the province. Further, the motion judge held that there was a need for a factual matrix to decide the issue.

[9] With respect, we disagree with both conclusions.

[10] To determine whether a provincial law is validly enacted, the court must (i) determine the “pith and substance” or essential character of the law, and (ii) classify the essential character with reference to the heads of power under ss. 91 and 92 the Constitution Act, 1867. When considering the law’s “pith and substance”, the court examines the purpose and effects of the legislation. See Reference re: Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783 at para. 15.

[11] In our view, looking at the Act, it is plain and obvious that the pith and substance of the legislation is to promote the health of Ontarians. No extrinsic evidence is required to arrive at this conclusion. As a result, the Act is valid pursuant to the provincial government’s jurisdiction over health.

[12] Furthermore, the fact that the Act could be interpreted as an attempt by Ontario to suppress the “socially undesirable conduct of smoking” does not detract from the constitutional validity of the Act. As this court recently stated, “it is not enough for the appellants to show that the provisions they attack have a criminal law aspect. In order to succeed, they must establish that the provisions do not fall within provincial competence or are repugnant to federal legislation.” See R. v. Banks (2007), 2007 ONCA 19, 84 O.R. (3d) 1 at para. 31.[^2]

[13] Our conclusion on this issue is also supported by the Supreme Court of Canada’s statement that the regulation of tobacco use is “a comprehensive and multi-faceted federal and provincial program”. See RJR MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199 at para. 36.

[14] Accordingly, the division of powers claim should have been struck without leave to amend.

[15] We now turn to whether the legitimacy of the federalism claim can be resolved at the pleading stage.

[16] On this issue, the motion judge distinguished prior constitutional cases and held that she could rely on the facts as pleaded, provided no additional evidence would call the Act’s pith and substance into question. She ultimately concluded that a factual matrix was necessary because the appellants “did not accept the stated purpose of the [Act],” and because the Act has several exemptions.

[17] While in Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146, the Supreme Court made it clear that division of powers cases will only rarely be determined on the pleading, it did not close the door to having such matters summarily decided. In the circumstances present here, this is one of those rare instances where the federalism claim is capable of being resolved on the pleadings.

[18] The motion judge said that she was prevented from deciding the issue on the pleadings as a factual matrix was needed:

(1) to determine the stated purpose of the Act; and

(2) to determine the validity of the legislation, in the sense that it is not extended to people who work, frequent or reside in the places that allow for certain exemptions.

[19] For the following reasons, we disagree.

[20] First, it is irrelevant that the appellants do not accept the stated purpose of an Act, especially when the facts as pleaded in the appellants’ statements of claim (in particular the comments attributed to the Minister of Health) demonstrate that the province of Ontario passed the legislation for health purposes.

[21] Secondly, whether a legislative scheme is sufficiently comprehensive is a question of legislative efficacy, not one of constitutional validity. See Firearms Reference, supra at para. 57. No extrinsic evidence is necessary to determine the Act’s constitutional validity.

[22] There is no need for a trial on this issue. It is plain and obvious that the Act is intra vires the province.

III Disposition

[23] We therefore dismiss the appeal and allow the cross-appeal. An order will issue striking the appellants’ federalism claim without leave to amend.

[24] The respondents are entitled to the costs of the appeal and of the cross-appeal fixed at $20,000 inclusive of G.S.T. and disbursements.

“W. Winkler C.J.O.”

“Robert P. Armstrong J.A.”

“G. Epstein J.A.”

[^1]: Originally there were eight virtually identical actions which were subject to eight identical orders by the motion judge. However, the appellants only appeal from six of those eight orders.

[^2]: Released after the release of the motion judge’s decision in these matters.