A-201-74
Consumers' Association of Canada (Applicant)
v.
The Postmaster General (Respondent)
Court of Appeal, Jackett C.J., MacKay and Smith
D.JJ.—Toronto, January 23 and February 21,
1975.
Judicial review—Applicant publishing magazine—Applica-
tion and subsequent application for reconsideration to Post
Office for second class registration refused—Whether maga
zine excluded because "published by ... a fraternal, trade,
professional, or other association or a trade union, credit
union, cooperative or local church congregation"—Meaning of
"or other association"—Post Office Act, R.S.C. 1970, c. P-14,
s. 11(1)—Federal Court Act, s. 28.
Applicant publishes a magazine, in English Canadian Con
sumer, in French Le Consommateur Canadien. Applicant
applied to Post Office for second class registration, maintaining
that the magazine's primary purpose was "social criticism."
The application, and a subsequent request for reconsideration
were denied. Applicant applied under section 28 of the Federal
Court Act for an order setting aside the decision of the respond
ent, and declaring that the magazine is entitled to second class
rates under section 11 of the Post Office Act.
Held, granting the application, the decision is set aside and
the matter is referred back to the respondent. Whether the
magazine's main purpose is social criticism is a question of fact,
and outside the scope of the decision. Clearly, the magazine
comes within the ambit of section 11(1)(a) of the Post Office
Act, in that it is published to disseminate to the public (1)
news, (2) articles of comment on or analysis of the news and
(3) articles with respect to other topics currently of interest to
the general public. The magazine is not one of the exceptions
set forth in section 11(1)(i). The meaning of each of the words,
listed in section 11(1) (i) as exceptions, is quite limited. It could
not have been the intention of Parliament, by adding the words
"or other association" to bring every conceivable type of asso
ciation within the meaning of the paragraph. If the words "or
other association" were intended to have a wide meaning, not
limited to associations ejusdem generis with "fraternal, trade
and professional associations", there would be no purpose in
adding four additional kinds of associations following the words
"or other association".
APPLICATION for judicial review.
COUNSEL:
P. Gilchrist for applicant.
G. R. Garton for respondent.
SOLICITORS:
Cameron, Brewin & Scott, Toronto, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court rendered in English.
This is an application under section 28 of the
Federal Court Act, made on behalf of the appli
cant for an order setting aside the decision of the
respondent dated the 22nd day of July 1974 and
declaring that the appellant's magazines The
Canadian Consumer and Le Consommateur
Canadien are entitled to second class postal rates
under section eleven (11) of the Post Office Act.
The applicant was formed in 1947 as an unin-
corporated association under the name of the
Canadian Association of Consumers and was in
corporated under the laws of Canada under its
present name on the first day of May 1962. Its
purposes, according to its constitution are:
(a) to unite the strength of consumers to improve the stand
ards of living in Canadian homes;
(b) to study consumer problems and make recommendations
for their solution;
(c) to bring the views of consumers to the attention of
governments, trade and industry, and to provide a channel
from these to the consumer;
(d) to obtain and provide for consumers information and
counsel on consumer goods and services and to conduct
research and tests for the better accomplishment of the
objects of the Corporation.
Since 1963 the applicant has published a maga
zine, in English, Canadian Consumer, and in
French, Le Consommateur Canadien. Since 1970
the magazine has been published six times a year.
Any person who subscribes to the magazine, in
English or in French, becomes thereby a member
of the applicant. In January 1974 the subscription
price was five dollars a year and at that time the
applicant had approximately 120,000 members. In
addition to the 120,000 copies distributed to mem
bers, over 13,000 copies were and are distributed
to dealers for sale to the public at news stands in
the major Canadian cities.
Following discussions and correspondence with
officials of the Post Office Department, the appli
cant made a formal application to Canada Post
Office, dated September 11, 1973, for registration
of its magazine as second class mail, indicating
that the primary purpose for which the publication
is published is in the interest of social or literary
criticism. This application was rejected by letter
on September 12, 1973, confirmed by a second
letter on October 2, 1973. On April 10, 1974 the
applicant by letter requested reconsideration of the
decision denying its application for second class
postal rates. By letter dated July 22, 1974, the
Acting Director of Service Development and Mail
Classification informed the applicant that the pre
vious ruling must stand. The applicant thereupon,
on July 25, 1974 launched this application.
The statutory provisions relevant to the applica
tion are found in certain paragraphs of subsection
(1) of section 11 of the Post Office Act, R.S.C.
1970, c. P-14. These paragraphs read as follows:
11. (1) A Canadian newspaper or Canadian periodical
(a) that is published for the purpose of disseminating to the
public any one or more of the following:
(i) news,
(ii) articles of comment on or analysis of the news, and
(iii) articles with respect to other topics currently of inter
est to the general public,
(b) that is devoted primarily to religion, the sciences,
agriculture, forestry, the fisheries, social or literary criticism
or reviews of literature or the arts or that is an academic or
scholarly journal, or
(c) that is devoted primarily to the promotion of public
health and published by a non-profit organization organized
on a national or provincial basis,
may, if it is
(d) registered with the Post Office Department for the pur
poses of this section pursuant to the regulations,
be transmitted by mail in Canada at the rate of postage
specified in this section for that newspaper or periodical, unless,
(i) except in the case of a publication described in paragraph
(b) or (c), it is published by or under the auspices of a
fraternal, trade, professional or other association or a trade
union, credit union, cooperative, or local church
congregation,
In our view it will not be necessary to determine
whether the primary purpose of the applicant's
magazine is "social criticism" and we have some
doubt that such a question can be considered one
of law rather than fact. Applications of this nature
to this court are restricted to questions of law. We
are of the opinion that the matter may be resolved
by considering the terms and meaning of the above
quoted paragraphs of subsection (1) of section 11
of the Post Office Act, apart from the reference in
paragraph (b) to "social criticism".
It is clear, from a perusal of the contents of the
English issues of the magazine, numbers 1, 2, 4
and 5 of Volume 3, being the issues for January-
February, April, August and October, 1973, and
the French issue number 5 of the same Volume,
being the issue for October 1973 (all of which
issues constitute Exhibit "A" to the affidavit of
Maryon Brechin, dated January 3, 1974), that the
magazine is published for the purpose of dis
seminating to the public one or more of the
following:
(i) news,
(ii) articles of comment on or analysis of the
news,
(iii) articles with respect to other topics current
ly of interest to the general public.
The applicant and respondent are in agreement
that this is so. The magazine therefore falls within
the classes of periodicals described in section
11(1) (a) as qualifying, on compliance with certain
conditions, for what are called second class postal
rates.
Apart from the case of "social criticism" it has
not been contended, nor do we believe it could be
contended successfully that the purpose of the
publication is primarily devoted to any of the
things described in section 11(b) or (c), though
some of the published articles are related to one or
more of those things. We find that a number of the
articles in the issues specified above are concerned
with matters which may properly be described as
falling within the term "social criticism". Also
some articles are concerned with "health". Beyond
this we do not think it necessary to go.
The only difficulty we have found in coming to a
decision that this magazine, in both its English and
French versions, is entitled to be granted second
class postal rates instead of the higher third class
rates that are held by the respondent to be the
rates properly applicable arises from section
11(1)(i), which describes publications that are
excluded from those which qualify for second
class rates.
What paragraph (i) enacts is a rule which takes
away second class entitlement from any publica
tion described in paragraph (a), if it is published
by or under the auspices of a fraternal, trade,
professional or other association or a trade union,
credit union, cooperative or local church
organization.
If we look at the ordinary and generally under
stood meaning of "fraternal association", "trade
association" and "professional association" it is
clear to us that the meaning of each is limited. In
none of these expressions is the meaning thought
of as being as wide as the words might possibly be
imagined to extend. Nor in our view should it be so
thought of. The same applies to "trade union",
"credit union", "cooperative" and "local church
congregation". In their ordinarily accepted sense
these words also have limited extent.
The rule of construction generally known as the
"ejusdem generis" rule was cited by counsel for
the applicant as applicable to if not decisive in this
case. This rule is designed to assist in ascertaining
the true intention of Parliament and is often a
thoroughly sound guide. Looking at all the terms
in the paragraph which describe specific kinds of
organizations, all of which have meanings quite
limited in scope, and particularly at the words
"fraternal, trade, professional", we cannot think
that Parliament meant, by simply adding the
words "or other association", to bring every con
ceivable kind of association of human beings
within the provisions of the paragraph. If that had
been the intention of Parliament there would have
been no need to spell out several specific kinds of
associations. Words like "any kind of association
whatever" would have been sufficient. Or, if it was
thought desirable to name some specific associa
tions, the addition of words like "or any other
association, whether 'ejusdem generis' with the
foregoing or not" would have sufficed to make the
intention clear.
The opinion just stated is strengthened by a
further look at the order in which the organiza
tions are set out. First there are the words: "a
fraternal, trade, professional", followed by: "or
other association" followed again by "or a trade
union, credit union, cooperative, or local church
congregation". All of these last four types of
organizations are associations (in the broad sense)
of human beings. Surely, if the words "or other
association" are intended to have a very wide
meaning, not limited to associations "ejusdem gen-
eris" with "fraternal, trade and professional
associations" as those terms are generally under
stood, there would be no purpose in adding four
additional kinds of associations after the words "or
other association".
In our view, paragraph (i) does not make the
applicant ineligible for second class postal rates.
The application is granted, the decision of the
respondent, refusing to register the magazine as
second class mail, is set aside and the matter is
referred back to the respondent to be dealt with
accordingly.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.