COURT FILE NO.: 99-1436

DATE: 2004/09/30

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PSC INDUSTRIAL SERVICES INC. v.

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

(As represented by the Ministry of the Environment)

BEFORE: The Honourable Mr. Justice B.H. Matheson

COUNSEL: Kenneth Post, Douglas Hodgson and Roxanne Davis, for the Plaintiff/Respondent

Roger Horst and Michele Hecke, for the Defendant/Moving Party

E N D O R S E M E N T

[1] This is a motion brought by the defendant for an order granting leave to appeal the decision of Mr. Justice Whitten’s Order of March 1, 2004 to the Divisional Court. That order dismissed the defendant’s motion pursuant to Rule 21.

[2] This motion was heard in Hamilton on July 7, 8, and 14, 2004.

[3] This motion was brought pursuant to Rule 62.02(4)(a) and (b) of the Rules of Civil Procedure. That Rule is stated as follows:

“Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.”

[4] There were a number of grounds for appeal of the Order of Justice Whitten. According to the defendant, they are as follows:

(a) There are conflicting decisions in the Supreme Court of Canada and in the Superior Court of Ontario.

(b) That the learned judge erred in law in finding that a corporation is entitled to Charter rights under Sections 7, 8 and 11 of the Canadian Charter.

(c) That the learned judge erred in law in failing to find that the plaintiff’s pleading contained a radical defect in its pleadings.

(d) If the learned judge were correct then there would be significant changes with respect to Charter rights.

(e) There is good reason to doubt the correctness of the Rule 21 Order and the proposed appeal involves matters of such importance that leave should be granted.

POLICY CONSIDERATIONS OF LEAVE TO APPEAL

[5] Associate Chief Justice Cunningham in an article entitled Appeals of Orders, which is found in the Ontario Electronic Bench Book, wrote:

“An unlimited right to appeal every order of a court would overload appellate courts. An absolute right to appeal an interlocutory order would allow parties to use the expense and delay of the appeal proceedings to harass the opposing party. Restricting interlocutory appeals is a significant social and legal policy. The criteria in Rule 62.02 are sufficiently favourable to a would-be appellant on matters that may be outcome determinative. The criteria also provide enough of a safeguard for the would-be appellant with a point that has a reasonable expectation of success, so that this perhaps, should be the sole avenue of appeal of orders other than those which terminate litigation.”

[6] Thus, the onus is on the applicant to show to the satisfaction of this court that there are conflicting decisions of another court in this province or the Supreme Court of Canada, or that the motions judge erred and that the matter involves issues of such importance that leave should be granted.

[7] The defendant states that the learned motions judge was in error because he did not give sufficient weight to the decisions, which the defendant argues, show that the Charter sections pleaded, are not allowed to corporations that have not been charged with an offence or a breach of a regulatory directive.

[8] The defendant also states that the issues raised and decisions made are of such importance that a review is necessary.

[9] I will deal with the grounds raised by the defendant in the order as follows:

(a) The Order of Justice Whitten conflicts with the orders of the Supreme Court of Canada and the Court of Appeal of Ontario.

(b) That the Order appealed from erred in law with an incorrect interpretation of Section 8 of the Charter.

(c) That the Order appealed from erred in law with an incorrect interpretation of Section 11 (d) and (g) of the Charter.

(d) If the learned motions judge were correct it would be a significant change to the rights under Sections, 7, 8, and 11.

[10] There is another appeal to the Court of Appeal from part of the decision of Justice Whitten, but it does not need leave of this Court.

ALLEGED FACTUAL SITUATION ON WHICH THIS ACTION IS BROUGHT

[11] The plaintiff is a corporation that deals with waste, and this includes hazardous waste. Apparently there was an investigation under the Environmental Protection Act by the Ministry. It is the position of the plaintiff that the Ministry through its officers and agents, caused an investigation to be made into certain infractions of the Act.

[12] While these investigations were going on, the Ministry caused press releases, T.V programs and correspondence to be made. The plaintiff has taken the position that this amounted to charge; trial and conviction and thus its rights under the Charter were infringed. No charges were laid against the company. It also alleges that there was a threat of taking core samples from the site of the plaintiff’s operation. This was never done. The plaintiff states that this threat was an unlawful seizure and was contrary to the Charter.

ALLEGED CONFLICTS WITH THE SUPREME COURT OF CANADA AND THE COURT OF APPEAL OF ONTARIO

[13] Cosyns v. Canada (Attorney General), 7 O.R. (3d) 641 at 652, Justice Rosenberg writing for the Court of Appeal states:

“In Ontario the courts have consistently held that the expression ‘liberty and security of the person’ in s. 7 relates to a person’s physical and mental integrity and one’s control over these, and does not guarantee economic interest.”

Later at page 654, he continues:

“However, there is a second reason why s.7 is not applicable to the case as pleaded in the statement of claim. There are two components to s. 7 that must be satisfied before finding a violation. First, there must be a breach of one of the s. 7 interests of the individual – life, liberty or security of the person. There must also be a second component and that is that the law or government action that results in the breach must be found to violate the principles of fundamental justice.”

[14] Irwin Toy Ltd. v. Quebec, [1989] 1 S.C.R. 927 at Supreme Court of Canada stated at page 1002:

“In order to put forward a s. 7 argument in a case of this kind where the officers of the corporation are not named as parties to the proceedings, the corporation would have to urge that its own life, liberty or security of the person was being deprived in a manner not in accordance with the principles of fundamental justice. In our opinion, a corporation cannot avail itself of the protection offered by s. 7 of the Charter. First, we would have to conceive of a manner in which a corporation could be deprived of its ‘life, liberty or security of the person’. We have already noted it is nonsensical to speak of a corporation being put in jail. To say that bankruptcy and winding up proceedings engage s. 7 would stretch the meaning of the right to life beyond recognition. The only remaining argument is that corporations are protected against deprivations if some sort of ‘economic liberty’.

There are several reasons why we are of the view that this argument cannot succeed.”

Later at page 1004, the Court goes on:

“That is, read as a whole, it appears to us that this section was intended to confer protection on a singularly human level. A plain, common sense reading of the phrase ‘Everyone has the right to life, liberty and the security of the person’ serves to underline the human element involved; only human beings can enjoy these rights. ‘Everyone’ then, must be read in the light of the rest of the section and defined to exclude corporations and other artificial entities incapable of enjoying life, liberty or security of the person, and include only human beings. In this regard, the case of Big M Drug Mart is of no application. There are no penal proceedings in the case at hand, so the principle articulated in Big M Drug Mart is not involved.”

[15] The Supreme Court of Canada in CIP Inc. v. Her Majesty the Queen, [1992] 1 S.C.R. 843 at 852 wrote:

“In my opinion, the respondent’s argument on this first issue overlooks the generally accepted contextual and purposive approach to the Charter analysis. In Irwin Toy Ltd., it was not the absence of penal proceedings per se that precluded the respondent corporation from invoking s. 7. Rather, the Court focused on the language of the right in combination with the nature of the specific interests embodied therein, and concluded that in that context, s. 7 could not logically apply to corporate entities. I do not read that decision as ruling out the possibility of corporations asserting other Charter guarantees. On the contrary, Irwin Toy Ltd. went only so far as to establish an appropriate analytical framework: whether or not a corporate entity can invoke a Charter right will depend upon whether it can establish that it has an interest falling within the scope of the guarantee, and one which accords with the purpose of that provision. (underlining added)

SECTION 8 OF THE CHARTER

[16] Section 8 reads as follows:

“Everyone has the right to be secure against unreasonable search or seizure.”

[17] In this factual situation, it would appear that the government under the relevant sections of the Environmental Protection Act did certain tests on the site of the plaintiff. The plaintiff in its pleadings indicates that the government by a number of press releases, both oral and written, threatened to do a core drilling. The plaintiff states that this was an unlawful seizure; i.e. the threat to do a core drilling. The defendant states that there was no illegal search or seizure, and the implied threat to do a core drilling does not meet the test.

[18] The defendant argues that the Supreme Court in R. V Dyment, [1988] 2 S.C.R. 417 at 431 stated the law as follows:

“As I see it, the essence of a seizure under s. 8 is the taking of a thing from a person by a public authority without that person’s consent.”

[19] The defendant argues that the threat is not a taking and that the plaintiff is asking the court to extend the meaning of seizure to include the threat to seize as well.

[20] The plaintiff relies on the Hunter v. Southam Inc., [1984] 2 S.C.R 145 case to state that an impending threat to take something may in fact be a seizure within the meaning of s. 8 of the Charter.

[21] There would appear to be an extension of the meaning of seizure. The plaintiff did not seek injunctive relief to stop the threats of the government, nor did it take steps in a timely fashion to stop the government from making searches of its corporate records. Can the plaintiff lay in wait to bring this before the courts?

SECTIONS 119(d) AND 11(g) OF THE CHARTER

[22] The defendant states that the plaintiff may not use this Section, as there are no charges laid as against the plaintiff.

[23] The defendant relies on R. v. Kalanj, [1989] 1 S.C.R. 1594 as to when a person is charged. At page 1607, Justice McIntyre wrote:

“I would therefore hold that a person is ‘charged with an offence’ within the meaning of s. 11 of the Charter when an information is sworn alleging an offence against him, or where a direct indictment is laid against him when no information is sworn.”

[24] The plaintiff states that the conduct of the defendant was such as to have it “charged, convicted and sentenced”. The amount of adverse publicity was such as to take away the presumption of its innocence.

[25] In view of the evidence that I heard and acknowledging that it was affidavit evidence and the arguments of counsel, I am of the view that the defendant has established that it has met the onus on it and that leave should be granted to allow an appeal to the Divisional Court. In my opinion, there are areas where the Court of Appeal and the Supreme Court have taken different views. The plaintiff also is advancing in my opinion positions of law that should be dealt with at an appellant level.

[26] I am mindful that the motions judge ruled against the defendant. In my review of his decision, I am mindful that he took a different approach then I. I am of the opinion that the issues raised deal with issues of conflict with other court decisions and the plaintiff is trying to expand the law in the interpretation of the Charter.

[27] I may be spoken to with respect to costs

Justice B.H. Matheson

DATE: September 30, 2004