Ontario Assn. of Architects v. Assn. of Architectural Technologists of Ontario (C.A.) [2003] 1 F.C. 331
Date: 20020528
Docket: A-739-00
Neutral citation: 2002 FCA 218
CORAM: STONE J.A.
BETWEEN:
ONTARIO ASSOCIATION OF ARCHITECTS
Appellant
and
ASSOCIATION OF ARCHITECTURAL TECHNOLOGISTS OF ONTARIO
Respondent
Heard at Toronto, Ontario, on April 23, 2002.
Judgment delivered at Ottawa, Ontario, on May 28, 2002.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: STONE J.A.
SHARLOW J.A.
Date: 20020528
Docket: A-739-00
Neutral citation: 2002 FCA 218
CORAM: STONE J.A.
EVANS J.A.
SHARLOW J.A.
BETWEEN:
ONTARIO ASSOCIATION OF ARCHITECTS
Appellant
and
ASSOCIATION OF ARCHITECTURAL TECHNOLOGISTS OF ONTARIO
Respondent
REASONS FOR JUDGMENT
A. INTRODUCTION
[1] The Registrar of Trade-marks has given public notice that the Association of Architectural Technologists of Ontario ("AATO") has adopted and used as official marks for services, the words ARCHITECTURAL TECHNICIAN, ARCHITECTE-TECHNICIEN, ARCHITECTURAL TECHNOLOGIST, ARCHITECTE-TECHNOLOGUE.
[2] As a result, members of the appellant, the Ontario Association of Architects ("OAA"), may be prevented from using any of these words in connection with their professional services, unless they had started to use them before April 28, 1999, the date when the Registrar gave public notice in the Trade-marks Journal of their adoption and use by the AATO as official marks.
[3] This is an appeal from a decision of the Trial Division in which the Applications Judge dismissed an application by the OAA to reverse the decision to give public notice of the adoption and use of the official marks. He held that the Registrar had committed no reviewable error in concluding that the AATO is a public authority and that it had adopted and used the marks as official marks for services. The decision is reported as Ontario Assn. of Architects v. Assn. of Architectural Technologists of Ontario, [2001] 1 F.C. 577 (T.D.).
[4] There are important advantages for a body that is able to claim a mark as an official mark, rather than simply as a trade-mark. However, only a public authority may register an official mark under subparagraph 9(1)(n)(iii) of the Trade-marks Act, R.S.C. 1985, c. T-13. The principal issue in this appeal is whether the AATO, a self-regulatory professional body, is a public authority for the purpose of this provision and thus capable of requesting the Registrar to give public notice of its adoption and use of a mark as an official mark.
[5] A secondary issue is whether an application for judicial review under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, or an appeal under section 56 of the Trade-marks Act, is the appropriate proceeding in which an interested person may challenge the public notice given by the Registrar of an official mark. Although this case does not turn on the resolution of this issue, I propose to deal with it in these reasons since there is justifiable uncertainty in the profession on the proper way to proceed in cases of this kind.
B. THE FACTS
[6] The AATO is an Ontario not-for-profit corporation without share capital. It was incorporated by letters patent in 1969 and was continued by a private Act of the Ontario Legislature, An Act respecting the Association of Architectural Technologists of Ontario, 1996, S.O. 1996, Ch. Pr-20 ("AATO Act").
[7] On October 5, 1998, AATO's solicitors wrote to the Registrar requesting that public notice be given of its official marks. The formal application stated: "The official mark has been adopted and used by the applicant in association with services." No other evidence was included of the Association's adoption or use of the marks.
[8] On November 23, 1998, an examiner from the Canadian Intellectual Property Office replied, querying whether the AATO was subject to a sufficient degree of government control to qualify as a public authority under subparagraph 9(1)(n)(iii). AATO's solicitors were invited to address the five factors identified in Registrar of Trade Marks v. Canadian Olympic Association, [1983] 1 F.C. 692 (C.A.), respecting the government control test. Their reply to this query obviously satisfied the examiner, and public notice of the AATO's adoption and use of the marks as official marks was given in the issue of the Trade-marks Journal published on April 28, 1999.
[9] The Ontario Association of Architects ("OAA") is a body corporate established under the laws of Ontario and continued as a corporation without share capital by the Architects Act, R.S.O. 1990, c. A.26. The objects of the OAA include the regulation of the practice of architecture in Ontario and the governance of its members: subsections 2(1), (2). Licences to practise architecture in Ontario are issued by the Registrar of the OAA to individuals who satisfy the prescribed requirements: subsection 13(1). Only those who are so licensed, or who hold a certificate of practice, may engage in the practice of architecture in the Province: subsection 11(1).
[10] On June 23, 1999, the OAA made an application to the Trial Division for an order to reverse the decision of the Registrar to give public notice of the adoption and use of the AATO's official marks. The application was made pursuant to rule 300 of the Federal Court Rules, 1998, SOR/98-106, which governs both applications for judicial review and appeals under section 56 of the Trade-marks Act. However, the applicant did not specify which remedial route it was pursuing.
C. THE TRIAL DIVISION'S DECISION
[11] The Applications Judge held, first, that the OAA had no standing to appeal under section 56 of the Trade-marks Act from a decision by the Registrar to which it had not been a party. However, since the Registrar's decision curtailed the right of OAA members to use the AATO's marks in connection with their services, the OAA was interested in the decision and had standing to bring an application for judicial review. Accordingly, he treated the application as if it were an application for judicial review. Since the OAA had filed its notice of application outside the normal time for making an application for judicial review, but within the time for appealing, the Judge impliedly must have granted an extension of time.
[12] Second, the Applications Judge found that the AATO was a public authority and, as such, was entitled to request that public notice be given of the adoption and use of official marks. He reasoned (supra at para. 18) that, as a creature of statute, the AATO is controlled by the legislature that created it: "Its enabling legislation is capable of being amended by the Government of Ontario at any time".
[13] Turning to the public duty and public function elements of the test for determining whether a body is a public authority, the Applications Judge concluded (supra at para. 19) that, although the AATO undoubtedly serves the interests of its members, it also owes a duty "to the public in regulating its profession" by prescribing and enforcing ethical and competency standards for its members. He noted, too, that the AATO's revenue is to be used to further its regulatory functions and not for the benefit of its members. Hence, the Judge held, AATO's statutory objects and the powers that it exercised over its members sufficed to impress it with duties owed to the public and to endow it with a public function. Accordingly, its activities were for the public benefit.
[14] Third, the Applications Judge was satisfied that the AATO's assertion in its application to the Registrar that it had adopted and used the marks as its official marks was sufficient to discharge its onus of proving that it satisfied this statutory requirement.
C. THE STATUTORY FRAMEWORK
Trade-marks Act, R.S.C. 1985, c. T-13
| 9(1)(n) any badge, crest, emblem or mark ... (iii) adopted and used by any public authority, in Canada as an official mark for wares or services, in respect of which the Registrar has, at the request of Her Majesty or of the university or public authority, as the case may be, given public notice of its adoption and use; |
9(1)n) tout insigne, écusson, marque ou emblème_: ... (iii) adopté et employé par une autorité publique au Canada comme marque officielle pour des marchandises ou services, à l'égard duquel le registraire, sur la demande de Sa Majesté ou de l'université ou autorité publique, selon le cas, a donné un avis public d'adoption et emploi; |
| 56. (1) An appeal lies to the Federal Court from any decision of the Registrar under this Act within two months from the date on which notice of the decision was dispatched by the Registrar or within such further time as the Court may allow, either before or after the expiration of the two months. |
56. (1) Appel de toute décision rendue par le registraire, sous le régime de la présente loi, peut être interjeté à la Cour fédérale dans les deux mois qui suivent la date où le registraire a expédié l'avis de la décision ou dans tel délai supplémentaire accordé par le tribunal, soit avant, soit après l'expiration des deux mois. |
An Act respecting the Association of Architectural Technologists of Ontario, 1996,
S.O. 1996, Ch. Pr-20.
[15] It is convenient to describe here the provisions of the AATO Act that are relevant to this appeal. Section 2 sets out the principal objects of the AATO, which are virtually identical to those in its letters patent, which the Act superseded.
2. The objects of the Association are,
(a) to increase the knowledge, skill and proficiency of architectural technologists, architectural technicians, building technologists and building technicians and to grant accreditation and certification to such persons;
(b) to foster the attainment of the highest standard of quality and competence in the field of architectural technology;
(c) to establish, maintain and enforce strict rules of ethical conduct for members of the Association in the field of architectural technology;
(d) to inform the public of the purposes and aims of the Association;
(e) to promote harmonious relationships among members of the Association in order to stimulate the development of the Association and enhance its public reputation.
Any surplus funds derived from its activities are to be applied solely for carrying out the AATO's objects, and shall not be divided among its members: section 13.
[16] Section 3 of the Act creates a council to manage the AATO's affairs and provides for the election of council members. Section 4 confers on the council a power to make by-laws, which must be open for examination by members of the public.
[17] The AATO must grant membership to all applicants who are Canadian citizens of good character and satisfy its certification board that they have met the membership requirements prescribed in the by-laws or have equivalent qualifications: section 5. The AATO's registrar is under a duty to maintain a register of members in good standing, which must be kept open for public examination (section 7), and to remove from the register the names of members whose registration has been suspended or revoked as a result of disciplinary proceedings or whose membership has lapsed for other reasons (section 8). A copy of the register, certified by the registrar, shall, in the absence of evidence to the contrary, be received in evidence in any proceedings as proof of a person's membership in the AATO: section 11. A person who has been refused membership in the AATO or who has been the subject of a disciplinary sanction may appeal to the Divisional Court on questions of fact or law: section 10.
[18] Section 9 defines the scope of the monopoly created by the Act. Subsection 9(1) provides that a registered member of the AATO may use the designation "M.A.A.T.O." and one or more of the designations: "architectural technician" or "architecte-technicien"; "architectural-technologist" or "architecte-technologue"; "registered building technologist " or "registered building technician". It is an offence for those who are not registered members of the AATO to use these designations or to hold themselves out as registered members: subsection 9(2). However, as a result of submissions made by the OAA, subsection 9(3) was added to create an important exception to subsection (2): it is not an offence for those holding licences or certificates of practice issued under the Architects Act, or who are permitted by paragraph 46(8)(c) of that Act to use the title "architect" or "architecte", to use designations that otherwise may be used only by members of the AATO.
[19] Section 12 emphasises the relatively narrow scope of the statutory monopoly. It provides that, subject to subsection 9(2), nothing in the Act prevents those who are not members of the AATO from describing themselves as building technologists or building technicians, from being employed in those capacities, or from offering or providing services similar to those offered or provided by architectural technologists or architectural technicians.
D. ISSUES AND ANALYSIS
Issue 1: Should the appellants have proceeded by way of an application for judicial review or an appeal?
(a) judicial history
[20] Prior to the decision under appeal, there was doubt in the Trial Division about whether a legal challenge to a public notice given under subparagraph 9(1)(n)(iii) of the Trade-marks Act must proceed by way of an application for judicial review or as an appeal under section 56.
[21] In one of the early decisions commenting on this issue, Jerome A.C.J. said that the plaintiff could have appealed against the giving of public notice of the adoption and use of an official mark, "assuming it had standing": Canadian Olympic Assn. v. USA Hockey, Inc. (1997), 74 C.P.R. (3d) 348 at 350 (F.C.T.D.). To similar effect, see also Canadian Olympic Assn. v. USA Basketball Inc., [1997] F.C.J. No. 825 (T.D.).
[22] On appeal, the issue was noted but not resolved in a brief judgment delivered orally. The Court merely agreed that bringing an action was not the correct procedure for challenging the Registrar's implicit decision that the respondents were public authorities for the purpose of subparagraph 9(1)(n)(iii): Canadian Olympic Assn. v. USA Hockey, Inc. (1999), 3 C.P.R. (4th) 259 at 260 (F.C.A.), per Desjardins J.A.
[23] The issue was next considered in Magnotta Winery Corp. v. Vintners Quality Alliance of Canada (1999), 163 F.T.R. 93, a case involving a motion to extend the time for the applicant to bring an application for judicial review under section 18.1 of the Federal Court Act. Reed J.'s decision to grant the extension (supra at para. 24) made it unnecessary for her to decide whether an application for judicial review or an appeal was the appropriate proceeding.
[24] However, she noted (supra at para. 20) the decisions cited above involving the Canadian Olympic Association and the view expressed by R. Hughes et al., Hughes on Trade Marks (Scarborough: Butterworths, 1984), note 27 at 453-57, that only a person whose request for public notice was refused by the Registrar could appeal. After observing (supra at para. 27) that other applicants seemed nonetheless to have commenced proceedings under section 56, Reed J. concluded: "I have no doubt that what is correct will not be decided by this Court. It will be for the Court of Appeal." She suggested that applicants could avoid the procedural problem by pursuing simultaneously an appeal and an application for judicial review.
[25] More recently, after noting the lack of clarity on the issue, Tremblay-Lamer J. stated in Canada Post Corp. v. Post Office, [2001] 2 F.C. 63 at para. 31 (T.D.): "considering that the applicant was not a party to the notice given by the Registrar, the judicial review route appears to be more appropriate". Nonetheless, since the respondent in that case had standing both to appeal and to make an application for judicial review, the Judge allowed the matter to proceed as an appeal and, like Reed J., preferred to leave to this Court the question of the correct procedure.
[26] The decision under appeal in the case at bar is thus the first occasion on which a Judge of the Trial Division has unequivocally held that a person who did not participate in a public notice proceeding before the Registrar has no standing to appeal. Any challenge must be made by way of an application for judicial review. This decision was followed by O'Keefe J. in Maple Leaf Meats Inc. v. Consorzio Del Prosciutto Di Parma (2000), 197 F.T.R. 272, who refused to convert the appeal into an application for judicial review until he had heard a fully argued and documented application for an extension of time for bringing the application for judicial review. Notice of discontinuance of this appeal (Court File No. A-836-00) was filed on behalf of the appellant on April 25, 2002.
(b) section 18.1 of the Federal Court Act and section 56 of the Trade-marks Act compared
[27] In order to provide context to the procedural issue under consideration, it is relevant to compare the characteristics of an appeal under section 56 and an application for judicial review. They are similar in at least two respects. First, both proceedings are commenced as an application: Federal Court Rules, 1998, rule 300(a) and (d).
[28] Second, the standard of review of questions of law within the expertise of the Registrar is unlikely to depend on the type of proceeding in which those decisions are challenged. Despite the de novo nature of the appeal under section 56, decisions on questions within the expertise of the Registrar have been held to be reviewable for unreasonableness, unless additional evidence on a question of fact is adduced before the Trial Division: Molson Breweries v. John Labbatt Ltd., [2000] 3 F.C. 145 at para. 51 (C.A.). It is unimaginable that, on an application for judicial review, a less deferential standard would be applied to a question of law within the expertise of the Registrar. Nor, in the absence of a preclusive clause, would one expect the Court to adopt the more deferential standard of patent unreasonableness.
[29] On the other hand, there are two principal differences between appeals under section 56 and applications for judicial review. The first concerns the standard and scope of review of the Registrar's findings of fact, including facts relevant to the exercise of discretion. On an appeal under section 56 an applicant is entitled to adduce evidence that was not before the Registrar. When additional evidence is put in, the Judge of the Trial Division hearing the appeal must review the findings of fact on a standard of correctness. However, given the specialist expertise of the Registrar and the corresponding deference afforded to his decisions, the right of the parties to turn an appeal from any decision of the Registrar into a trial de novo seems somewhat anomalous and is liable to induce parties to treat the administrative proceeding as simply a way station en route to the Federal Court: Garbo Group Inc. v. Harriet Brown & Co. (1999), 176 F.T.R. 80 at para. 41; Molson Breweries, supra, at paras. 45-48.
[30] In contrast, applications for judicial review are normally conducted on the basis of the material before the administrative decision-maker. However, affidavit evidence is admitted on issues of procedural fairness and jurisdiction. Supplementary affidavits and cross-examination on them require leave of the Court; Federal Court Rules, 1998, rule 312.
[31] Further, when no additional evidence is adduced before the Trial Division, unreasonableness is the standard of review of the Registrar's findings of fact on an appeal: Molson Breweries, supra. However, the statutory standard of review of erroneous findings of fact under the Federal Court Act, paragraph 18.1(4)(d), is more deferential and akin to patent unreasonableness: Canadian Pasta Manufacturers' Assn. v. Aurora Importing & Distributing Ltd., [1997] F.C.J. No. 115 at paras. 5-7 (C.A.).
[32] A second, but generally less important, difference between an appeal under section 56 and an application for judicial review concerns limitation periods. An application for judicial review must normally be commenced within 30 days from the date when the applicant receives notice of the administrative decision under review: subsection 18.1(2). On the other hand, an applicant has two months within which to file and serve notice of an appeal: subsection 56(2). However, since both provisions confer discretion on the Court to extend these limitation periods, this difference will generally not be significant.
(c) subparagraph 9(1)(n)(iii)
[33] Subsection 9(1) is an equally important part of the context for determining the procedural issue. It is silent on the remedies available to either the person requesting the Registrar to give notice of an official mark or to anyone who claims to be adversely affected by, or otherwise interested in, the Registrar's decision. Nonetheless, the right of appeal under section 56 is general in nature because it applies "to all appeals by whatever party from any proceedings before the Registrar": Austin Nichols & Co. v. Cinnabon, Inc., [1998] 4 F.C. 569 at para. 10 (C.A.), per Décary J.A. Hence, it applies in principle to the decision by the Registrar to give public notice under subparagraph 9(1)(n)(iii) of the adoption and use of an official mark. The only contentious procedural issue in this appeal is whether, on the facts before us, the AATO has standing to launch an appeal under section 56.
[34] An important effect of the giving of public notice under paragraph 9(1)(n)(iii) is that, from that date, other persons are prevented from using any mark "as a trade mark or otherwise" that is likely to be mistaken for the official mark (section 11), except in connection with goods or services with which the mark was used before public notice was given of the official mark: Canadian Olympic Association v. Konica Canada Inc., [1992] 1 F.C. 797 at paras. 21-23 (C.A.). Moreover, the Registrar may not refuse to give public notice of the adoption and use of a mark as an official mark for wares or services on the ground that it is merely descriptive, is not distinctive of the public authority's wares or services, or is liable to be confused with another's mark. Indeed, the Registrar has virtually no discretion to refuse to give notice of the adoption and use of a mark as an official mark, once the body making the request establishes that the statutory criteria have been met: Mihaljevic v. British Columbia (1988), 22 F.T.R. 59 at 88-89, aff'd (1990), 34 C.P.R. (3d) 54 (F.C.A.).
[35] Nonetheless, section 56 imposes no duty on the Registrar to give prior notice of a request made under subparagraph 9(1)(n)(iii) and no provision is made for an objector to be heard before the Registrar grants the request, perhaps because of the limited range of issues that the Registrar has to decide. This is, of course, quite unlike the registration of a trade mark, which is preceded by public notice of the application and a determination by the trade marks opposition board based on the submissions of the applicant for the registration of a trade mark and of any opponents: Trade-marks Act, subsections 11.13(1), 37(1) and 38(1).
[36] Thus, since the Registrar is under no duty to give prior notice of a request made pursuant to subparagraph 9(1)(n)(iii) or to invite interested persons to file objections, the body making the request will normally be the only party to the proceeding before the Registrar. Conceivably, a person could learn of a pending subparagraph 9(1)(n)(iii) request and make submissions in opposition to the official mark, either as a result of the Registrar's voluntarily giving prior notice of it or in some other way. Such a person might have a right of appeal under section 56 as a party to the proceeding. However, I need not decide this point here.
(d) conclusion
[37] In Restaurants Pacini Inc. v. Pachino's Pizza Ltd. (1994), 112 F.T.R. 29 at para. 8, Pinard J. said [translation]: "although the right of appeal granted by subsection 56(1) of the Act is not limited to any person, this does not mean that any person can file a notice of appeal", since a right of appeal is exceptional in nature. Indeed, Décary J.A.'s obiter dicta in Austin Nichols, supra, limited the right of appeal under subsection 56(1) to the parties to proceedings before the Registrar.
[38] Accordingly, the question in this appeal is whether the Court should conclude that the right of appeal in section 56 is implicitly limited to the person making the request to the Registrar under subparagraph 9(1)(n)(iii) as the only party to the administrative proceeding, or extends also to persons interested in the decision because their interests (or, as in this case, their members' interests) may be adversely affected by the Registrar's giving public notice of the adoption and use of the official marks.
[39] In my opinion, the Applications Judge was correct to conclude that this application should be treated as an application for judicial review, and not as an appeal under section 56, even though the OAA is no mere idle bystander and has an interest sufficient to give it standing to bring an application for judicial review under section 18.1.
[40] Normally, rights of appeal are limited to the parties to and, sometimes, to interveners in the proceedings leading to the decision under appeal. Appellate courts may permit an intervention in an appeal launched by a party, even though the intervener had not participated in the proceedings below. However, that is not our case. The OAA seeks to bring an appeal in its own name, not to intervene in an appeal brought by another.
[41] Counsel also drew our attention to Société des Acadiens du Nouveau-Brunswick Inc. v. Assn. of Parents for Fairness in Education, Grand Falls District 50 Branch, [1986] 1 S.C.R. 549. In that case, the Court affirmed the inherent jurisdiction of the New Brunswick Court of Appeal, inherited from the English Court of Chancery, to grant leave to an intervener to appeal, even though the intervener had not participated at first instance. Again, I am not persuaded that this is a helpful analogy. Even if the Court, as a court of equity, has also inherited this jurisdiction (on which, see generally Glaxo Wellcome plc v. Minister of National Revenue, [1998] 4 F.C. 439 (C.A.)), the rationale of the Chancery Court's power to allow interveners to appeal was to ensure that it could do justice to all whose interests would otherwise be bound by the decision. However, it is not necessary to permit the OAA to appeal against the Registrar's decision, because it has another remedy available to it, namely, an application for judicial review. It is seeking to appeal only to obtain the benefit of a most unusual statutory right of appeal from an administrative tribunal.
[42] In the absence of any authority on point, I see nothing in the scheme of subsection 9(1) that would justify a departure from the normal principle that a person who was neither a party to nor an intervener in the proceedings below has no standing to exercise a statutory right of appeal.
[43] On the contrary, it would be very odd in my view for Parliament to give to a person who had no right to participate before the Registrar the benefit of a right of appeal under section 56, with its unusual, trial de novo aspect. It is one thing for Parliament to decide to permit a party to a proceeding before the Registrar to adduce evidence for the first time on the appeal, but quite another to conclude that this right extends to a person who neither participated nor had the right to participate in the proceeding culminating in the decision under appeal.
[44] If, as I have suggested, section 56 is somewhat anomalous in giving to parties before the Registrar, a specialist tribunal, the right to adduce additional evidence on an appeal to the Federal Court, the anomaly should not be exacerbated by extending the right to those who had no right to present either evidence or argument to the Registrar and did not, in fact, do so. On the other hand, a person might have standing to appeal who had learned in some other way of a request under subparagraph 9(1)(n)(iii), and made submissions to the Registrar opposing the giving of public notice of the adoption and use of the mark as an official mark
[45] Moreover, an effective review of the limited range of issues decided by the Registrar when giving public notice under subparagraph 9(1)(n)(iii) is generally unlikely to be greatly assisted by the right to adduce evidence not before the Registrar. This is, after all, the principal procedural feature of an appeal under section 56 that distinguishes it from an application for judicial review.
[46] Admittedly, additional evidence might be provided by an opponent that the public authority had not adopted and used the mark as an official mark for wares or services, thus putting it to the proof of its merely asserted adoption and use. However, Parliament did not see fit to provide an opportunity for a prospective opponent of public notice to present such evidence to the Registrar, but created, instead, a summary, non-adversarial form of procedure for determining the limited range of issues that arise on a request under subparagraph 9(1)(n)(iii). In these circumstances, it would surely be strange to attribute to Parliament an intention to permit the production of such evidence by way of an appeal to the Trial Division.
Issue 2: Is the AATO a public authority for the purpose of subparagraph 9(1)(n)(iii)?
(a) Defining the test
[47] A three-part test has been adopted in English cases for determining whether a body is a public authority, particularly in the context of short statutory limitation periods sheltering public authorities from liability. The elements of this test were described as follows in a subparagraph 9(1)(n)(iii) case, Registrar of Trade Marks v. Canadian Olympic Association (supra at 699):
(a) there must be a duty to the public;
(b) there must be a significant degree of governmental control, and
(c) any profit earned must be for the benefit of the public and not for private benefit.
[48] However, the Court also said (supra at 699) that the law in Canada on this issue was unsettled. Thus, it was unclear whether the definition of a public authority includes the first criterion, that is, that it owes legally enforceable duties to the public. More important, the Court stated (supra at 700) that the meaning of public authority "may vary according to statutory context" and that (supra at 703)
the necessity for finding such obligations or duties to the public is not necessarily determinative of whether or not the public body is a "public authority" as that term is used in the context of the Act here under review.
[49] The Court regarded the degree of governmental control and the extent to which the body's activities benefit the public as the most important factors in determining whether a body is a public authority for the purpose of subparagraph 9(1)(n)(iii). It also took into account the provisions relating to the disposition of the Canadian Olympic Association's assets on the surrender of its charter, presumably as a factor in determining whether the Association existed to benefit the public, rather than its members. The two-part test of "public benefit and government control" was also used in Stadium Corporation of Ontario Ltd. v. Wagon-Wheel Concessions Ltd., [1989] 3 F.C. 132 at 140 (T.D.), and Canadian Olympic Assn. v. Konica Canada Inc., supra at para. 6.
[50] However, the case law is not unanimous on whether it is relevant to enquire if a body is subject to duties to the public in order to be a public authority within the meaning of subparagraph 9(1)(n)(iii). For example, in Big Sisters Assn. of Ontario v. Big Brothers of Canada (1997), 75 C.P.R. (3d) 177 (F.C.T.D.), aff'd (1999), 86 C.P.R. (3d) 504 (F.C.A.), Gibson J. doubted (supra at 216) whether the parties were public authorities for the purpose of section 9, even though they had not raised the issue. He was of the view (supra at 215) that the Court in Registrar of Trade Marks v. Canadian Olympic Association, supra, had "impliedly adopted" the argument that, in order to be a public authority, a body must be under a duty to the public. He doubted whether the parties in the case before him satisfied this requirement.
[51] In the decision under appeal, the Applications Judge noted (supra at paras. 16 and 17) that the public duty requirement had been dropped in some cases and retained in others and, although mentioned in Registrar of Trade Marks v. Canadian Olympic Association, supra, was not in fact applied. Quoting from Anne of Green Gables Licensing Authority Inc. v. Avonlea Traditions Inc. (2000), 4 C.P.R. (4th) 289 at 337 (Ont. Sup. Ct.), aff'd (2000), 6 C.P.R. (4th) 57 (Ont. C.A.), he adopted "the combined test of control, influence and purpose to promote the public good". I would have thought that influence could be characterized as a dimension of control, so that the broad criteria for determining whether a body is a public authority for the purpose of subparagraph 9(1)(n)(iii) are governmental control and public benefit.
[52] As most subsequent cases have recognized, in Registrar of Trade Marks v. Canadian Olympic Association, supra, this Court regarded the public duty test as inappropriate in the context of subparagraph 9(1)(n)(iii), at least in the way that it had been applied in some cases dealing with public authorities and short limitation periods. I see no reason for departing from the two-part test of government control and public benefit. However, in determining whether a body's functions are sufficiently for the public benefit, a court may consider its objects, duties and powers, including the distribution of its assets. In this context, a duty to do something that is of benefit to the public is relevant as an element of "public benefit", even though it is not a "public duty" in the sense of being legally enforceable by a public law remedy, such as an order of mandamus or its equivalent.
[53] Therefore, the Applications Judge was correct in law in his formulation of the applicable test for determining whether the AATO is a public authority.
(b) Applying the test
[54] Although the Applications Judge stated that the standard of review applicable to the Registrar's decision is unreasonableness, there is no indication in his reasons that he in fact deferred. Rather, as I read his reasons, he decided for himself whether the AATO is a public authority by applying the tests of public benefit and governmental control, perhaps because the Registrar gave no reasons for his decision. Of course, since the Applications Judge came to the same conclusion as the Registrar, the standard of review was of less practical significance than it would have been if he had disagreed.
[55] Housen v. Nikolaisen, 2002 SCC 33 has defined the standards of review to be applied by an appellate court when deciding an appeal from a judge of the court below. Thus, this Court is entitled to review for correctness any question of law decided by the Applications Judge in the course of applying to the facts before him the two-part test of a public authority. If it appears from his reasons that the Applications Judge committed a material legal error, the Court must then review the Registrar's decision. However, if no error of law is apparent from the Applications Judge's reasons, his application of the test for determining whether the AATO is a public authority involves a question of mixed law and fact, and is reviewable only for palpable and overriding error.
[56] I turn now to consider each element of the definition of a public authority in the context of the facts before us.
(i) governmental control
[57] Counsel for the OAA argued that the Judge erred in law in concluding, in effect, that, simply because it is a creature of statute, the AATO is subject to a significant degree of governmental control. The Applications Judge explained his conclusion by saying of the AATO (supra at para. 18): "Its enabling legislation is capable of being amended or repealed by the Government of Ontario at any time." Perhaps an even stronger way of putting this point would be to say that the AATO is subject to governmental control because it is a statutory body with no delegated power to alter its corporate powers, objects or functions without an amendment to its statute.
[58] Thus, the essential question is whether the fact that the AATO requires an amendment to its legislation to change its objects, powers or duties is a sufficiently significant degree of government control to satisfy this element of the test of whether a body is a public authority. In my respectful opinion, the Judge erred when he concluded that AATO's statutory origin is in itself sufficient to make it a public authority. That conclusion is reviewable for correctness because it is likely to be of precedential effect in future cases where a body's status as a public authority is in dispute: see Housen v. Nikolaisen, supra at para. 28.
[59] Even if the test of governmental control of an otherwise private organization does not require control by the Executive, as opposed to control by the Legislature, it does call for some ongoing government supervision of the activities of the body claiming to be a public authority for the purpose of subparagraph 9(1)(n)(iii).
[60] A comparison with the Architects Act reveals the kinds of government control often included in Ontario legislation creating self-regulatory professional bodies. For example, section 6 confers powers on the relevant Minister to review the activities of the OAA's Council; to request Council to undertake activities that, in the Minister's opinion, are necessary and desirable for implementing the intent of the Act; and to advise Council on the implementation of the statutory scheme. In addition, the Council's regulation-making power is exercisable with the approval of the Lieutenant Governor in Council: subsection 7(1). The Lieutenant Governor in Council also has the power to appoint between three and five members of the Council (paragraph 3(2)(b)); a member of the Complaints Committee (paragraph 29(1)(b)) and the Discipline Committee (paragraph 33(1)(b)); and the Complaints Review Councillor (subsection 31(1)).
[61] Similar provisions are contained in the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, sections 2, 3, 5 and 6, and the legislation governing the regulation of the various health disciplines.
[62] In my view, this is the kind of government superintendence to which one would expect a self-regulatory professional body to be subject if it is to be characterized as under a significant degree of governmental control for the purpose of subparagraph 9(1)(n)(iii). Counsel for the AATO conceded that the only form of governmental control on which he could rely was that exercisable through the Legislature's exclusive power to change the AATO's statutory objects, powers and duties. This is insufficient to satisfy the governmental control test because it is not a power that enables the government, directly or through its nominees, to exercise a degree of ongoing influence in the body's governance and decision-making similar to that often found in legislation dealing with statutory bodies that regulate the practice of a profession in which only those whom they license may engage, such as architecture and the law.
[63] In reaching this conclusion, I have kept in mind the statutory context in which this question is being considered, namely, subparagraph 9(1)(n)(iii) of the Trade-marks Act. This provision, it will be recalled, confers very substantial benefits not available to the owners of trade marks, and thus has the capacity to injure both existing trade mark owners and the public. An official mark need not serve to distinguish wares or services, it may be merely descriptive, and it may be confusing with another's mark. Once public notice has been given of its adoption and use, an official mark "is hardy and virtually unexpungeable" (Mihaljevic v. British Columbia, supra at 89) and, once the Registrar has given public notice under subparagraph 9(1)(n)(iii), no mark may be used that is likely to be confused with an official mark.
[64] These considerations persuade me that subparagraph 9(1)(n)(iii) should not be given an expansive meaning by equating the need for legislative amendment with government control. To hold that any body created by statute satisfies the government control test would widen very considerably the range of bodies that may be able to claim the benefit of an official mark. A body that succeeded in securing a private Act of the Legislature would be recognized as a public authority if it could also show that its activities conferred a public benefit. And, according to the Applications Judge, the fact that the body also benefits its members does not preclude a finding of public benefit. Hence, the fact that a self-regulatory body is statutory, and its objects and powers may be amended unilaterally and exclusively by the Legislature that created it, does not in law constitute "governmental control" in this context.
(ii) public benefit
[65] In view of my conclusion that the AATO is not subject to a sufficiently significant degree of governmental control to qualify as a public authority, it is strictly not necessary for me to consider whether the activities of the AATO satisfy the public benefit requirement. Nonetheless, I shall deal with this issue since it was fully canvassed in argument and constitutes the other half of the definition of a public authority.
[66] Counsel for the OAA submitted that the Applications Judge committed a legal error when he stated (supra at paras. 19 and 22) that the AATO regulated the professions of architectural technician and architectural technologist. He said that, unlike the Architects Act, subsection 2(3), the objects of the AATO do not include the regulation of the practice of a profession. At most, the AATO regulates the conduct of its members and, through its powers to set standards and determine membership, controls who may claim membership and use the designations that are reserved almost exclusively for its members.
[67] I agree that the AATO does not regulate a profession in the sense of controlling professional activities in which only its members may lawfully engage. However, I do not accept that the Applications Judge committed a legal error in expressing himself as he did. For, as counsel for the AATO pointed out, by setting and enforcing standards of professional competence and ethical conduct of its members, the AATO regulates part of the practice of the profession. That is, it regulates the part of the profession in which practitioners use their membership in the AATO and the statutory designations, including architectural technician or architectural technologist, in connection with the services that they provide.
[68] Further, it was entirely reasonable in my opinion for the Applications Judge to conclude that the AATO's regulatory activities benefit the public. By engaging a member of the AATO, a client who requires the services offered by architectural technicians or architectural technologists has some assurance that the person engaged is competent and honest. Moreover, because the registrar of the AATO is under a duty to ensure the accuracy of the register, which must be available for public inspection, potential clients or employers can check whether a given person is a member.
[69] I would also agree with the Applications Judge that the fact the activities of the AATO may also benefit its members is not a fatal objection to characterizing them as benefiting the public. The mix of public and private benefit tends to be a feature of professional self-regulation, even when, as in the case of the legal profession for example, a statutory body regulates the practice of the profession and a non-statutory body acts as its advocate. Both perform functions (professional education, for example) that serve the interests of the public as citizens and clients, as well as those of members of the profession.
[70] Similarly, I am not persuaded by the further argument that the AATO does not exist for the benefit of the public because section 13 of the AATO Act provides that any surplus that the AATO derives from carrying on its affairs shall be applied to the pursuit of its objects and shall not be divided among the members. Counsel for the OAA argues that paragraph 2(e) of the Act provides that it is an object of the AATO to promote harmonious relationships among members in order to stimulate the development of the AATO and to enhance its public reputation. Accordingly, he argues, all the surplus could be spent on this object, which benefits the AATO's members and not the public.
[71] However, in my view this object has a dual function: to encourage the public to seek out the services of members of the AATO by eliminating unseemly conduct among members and thus enhancing the reputation of the AATO and its members, and, thereby, to increase members' professional income. Section 13 and paragraph 2(e) are not, in my opinion, incompatible with a finding that the AATO's activities benefit the public.
[72] Accordingly, the Applications Judge committed no reviewable error in concluding that the AATO satisfied the public benefit element of the definition of a public authority for the purpose of subparagraph 9(1)(n)(iii).
[73] Finally, I would note that, as with many other statutory self-regulatory professional bodies in Ontario, including the OAA, decisions of the AATO to refuse membership and to discipline members are subject to an appeal on questions of fact and law to the Divisional Court of the Superior Court of Justice. By expanding somewhat the scope of judicial review to which such decisions would otherwise be subject, the Legislature has provided another indication that the public benefits from the proper performance by the AATO of its functions.
E. CONCLUSIONS
[74] In view of my conclusion that the Applications Judge erred in law when he held that the AATO established that it was subject to a significant degree of governmental control simply because it was created by statute, I do not propose to deal with the separate issue of whether the AATO had established that it had adopted and used the marks as official marks for services.
[75] The error committed by the Applications Judge requires that the appeal be allowed. Moreover, since the only connection between the AATO and government is its statutory creation, and its consequent inability to amend its objects, powers and duties without an amendment to its statute, the Registrar's decision to give public notice under subparagraph 9(1)(n)(iii) was either an unreasonable application of the statute to the facts or must have been based on a legal error, namely that, as a body created by statute, the AATO was thereby subject to a sufficiently significant degree of governmental control to be a public authority.
[76] For these reasons, I would allow the appeal with costs and set aside the order of the Trial Division, grant the application for judicial review with costs, and set aside the public notice given by the Registrar of the marks adopted and used by the AATO as official marks for services.
"John M. Evans"
J.A.
"I agree
A.J. Stone J.A."
"I agree
K. Sharlow J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-739-00
STYLE OF CAUSE: Ontario Association of Architects v. Association of Architectural Technologists of Ontario
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 23, 2002
REASONS FOR JUDGMENT : Evans J.A.
CONCURRED IN BY: Stone J.A.
Sharlow J.A.
DATED: May 28, 2002
APPEARANCES:
Mr. Glen A. Bloom FOR THE APPELLANT
Mr. Leon J. Melconian FOR THE RESPONDENT
SOLICITORS OF RECORD:
Osler Hoskin & Harcourt LLP FOR THE APPELLANT
Ottawa, Ontario
Melconian Law Office FOR THE RESPONDENT
Toronto, Ontario