A-239-81
The Queen, on the Information of the Deputy
Attorney General of Canada (Plaintiff) (Appel-
lant)
v.
Shaklee Canada Inc. (Defendant) (Respondent)
Court of Appeal, Pratte, Heald and Urie JJ.
Calgary, April 15 and 16; Ottawa, May 9, 1985.
Combines — Pyramid selling — Interpretation of s.
36.3(1)(b) of Act Appeal from Trial judgment dismissing
claim for prohibition order pursuant to s. 30(2) of Act —
Respondent paying bonuses to supervisors although not direct
part of sales chain — Distributor independent of former
supervisor upon becoming supervisor Former supervisor
receiving percentage bonuses of former distributor's sales —
Trial Judge finding bonuses paid in respect of sales to ulti
mate consumers or users — Appeal allowed Scheme within
s. 36.3(1)(b) and not exempted by subparagraph (i), (ü) or (iii)
— Bonuses arising when supervisor orders from Shaklee, not
when retail customers place orders with distributors or when
distributors place orders with supervisors Also, sales by
supervisor to distributor not exempted by s. 36.3(1)(b)(iii) as
distributor having right of further participation in scheme
ensuing from sale — Distributor's purchase volume counted in
determining whether distributor entitled to become supervisor,
and ensuing entitlement to bonuses on Purchase Volume of
recruits — Fact evil envisaged by Parliament in enacting s.
36.3(1)(b)(iii), i.e. participants having paid for inventory with
out reasonable opportunity of disposing of it, not present as
respondent agreeing to repurchase product on reasonable
terms, irrelevant Combines Investigation Act, R.S.C. 1970,
c. C-23, ss. 30(2), 36.3(1)(b) (as enacted by S.C. 1974-75-76,
c. 76, s. 18), (2) (as enacted idem).
Combines — Remedies — Prohibition order — S. 30(4)
giving Court of Appeal authority to make order Trial Division
should have made Pyramid selling schemes prohibited by s.
36.3(1)(b) inherently deceptive or misleading — Scheme relat
ing financial gain to people rather than to product potentially
misleading as increasing number of sellers competing for same
market, diminishing opportunity to earn bonuses Shaklee
plan contravening s. 36.3(1)(b) and 36.3(2) — Court justified
in making prohibition order Continuing nature of offence
making prohibition order more effective than prosecution —
Combines Investigation Act, R.S.C. 1970, c. C-23. ss. 30(2),(4),
36.3(1)(b) (as enacted by S.C. 1974-75-76, c. 76, s. 18), (2) (as
enacted idem), (3) (as enacted idem), 44(4), 46(1) (as am. by
S.C. 1974-75-76, c. 76, s. 23) — Combines Investigation Act,
R.S.C. 1927, c. 26, s. 31 (as am. by S.C. 1952, c. 39, s. 3).
Combines — Pyramid selling permitted by provincial legis
lation S. 36.3(4) providing section not applying in respect of
pyramid selling scheme licensed or permitted by provincial
legislation — Alberta, B.C., Quebec and Saskatchewan legis
lation examined — Respondent failing to show any province or
Territory licensed or permitted practices defined in s. 36.3(1)
Alberta Franchises Act, R.S.A. 1980, c. F-17, s. 1(1)(m) —
The Pyramid Distribution Act, R.S.B.C. 1979, c. 351 —
Consumer Protection Act of Quebec, S.Q. 1978, c. P-40, ss.
234, 235 — Pyramid Franchises Act, R.S.S. 1978, c. P-50, s.
2(g) Combines Investigation Act, R.S.C. 1970, c. C-23, s.
36.3(1) (as enacted by S.C. 1974-75-76, c. 76, s. 18), (4) (as
enacted idem).
Constitutional law — Distribution of powers — S. 36.3(1)(b)
and 36.3(2) validly enacted by Parliament under legislative
authority over criminal law S. 36.3(1)(b) designed to protect
public from investing effort and money in recruitment of
participants into deceptive pyramidal schemes in hope of
future financial gain — Case law examined — S. 36.3 in truth
and substance criminal legislation and not colourable invasion
of provincial jurisdiction over property and civil rights —
Section clearly indicating public evil addressed Constitu
tion Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (R.S.C. 1970,
Appendix II, No. 5] (as am. by Canada Act 1982, 1982, c. 11
(U.K.), Schedule to the Constitution Act, 1982, Item 1), ss.
91(2),(27), 92(13),(16) — Combines Investigation Act, R.S.C.
1970, c. C-23, s. 36.3(1)(b) (as enacted by S.C. 1974-75-76, c.
76, s. 18).
This is an appeal from a judgment of the Trial Division
dismissing the appellant's claim for an order of prohibition. The
defendant carries on business in all ten provinces and the
Northwest Territories. A consumer orders products from a
distributor, who purchases products from his supervisor, who
purchases the goods from the respondent. A distributor's profit
is the difference between his purchase price and the actual
selling price. The supervisor's profit is based on a percentage of
the total sales of his distributors. Bonuses are also paid to
supervisors who are not a direct part of the sales chain. A
Shaklee recruit is sponsored into membership by a supervisor,
and becomes a distributor. A distributor becomes a supervisor
by inducing others to join as distributors and by maintaining a
certain level of sales from his body of recruits. Once the former
distributor becomes a supervisor, he is independent from his
original supervisor. As compensation for this reduction in
profit, the original supervisor is given percentage bonuses of his
former distributor's sales. The Trial Judge found that the bonus
was paid in respect of "sales ... to ultimate consumers or
users" of the product and, as such, the bonus was within the
exclusion of subparagraph 36.3(1)(b)(iii). His conclusion was
influenced by the provision of the agreement that permits a
distributor to terminate the relationship and to require the
defendant to repurchase product on hand. He held that while
there will always be an element of each distributor's purchase
volume that relates to inventory, resulting in a supervisor
receiving a benefit in respect of sales that are not sales to
ultimate consumers, that is simply a consequence of fixing a
particular time period for the calculation of a bonus. The evil
paragraph 36.3(1)(b) was designed to cure was that some
participants might find themselves, having paid for a product,
without a reasonable opportunity of disposing of it. This is not
present in the defendant's scheme because of its commitment to
repurchase product on reasonable terms.
Held, the appeal should be allowed, and an order of prohibi
tion made.
The supervisor's bonus entitlement does not arise when retail
customers place orders with distributors, or when distributors
place orders with supervisors. It arises when the supervisor
orders from Shaklee. The sale in respect of which the bonus is
paid is the sale from Shaklee to the first, second and third level
supervisors. Such sales are not sales made to ultimate consum
ers or users, so as to be encompassed by the exemption set out
in subparagraph 36.3(1)(b)(iii). Also, the sales by supervisors
to distributors are not within that subparagraph because the
distributor has a "right of further participation in the scheme,
immediate or contingent" which ensues from the sales. The
Trial Judge did not consider the effect of these words. The
Purchase Volume of the goods sold by the supervisor to the
distributor forms part of the distributor's Purchase Volume,
and a contingent right of participation in the scheme is given to
the distributor since that Purchase Volume is counted in deter
mining whether the distributor is entitled to become a supervi
sor, with the resultant contingent entitlement to a bonus on the
Purchase Volume of supervisors whom he might recruit. The
Trial Judge was influenced by the evil envisaged by Parliament
in enacting subparagraph 36.3(1)(b)(iii). This is irrelevant in
light of the fact that the plan comes within the prohibition in
paragraph 36.3(1)(b) and is not exempted by subparagraphs
(i), (ii) or (iii).
This Court, pursuant to the discretion conferred upon it by
subsection 30(4) to make any order that the Trial Division
should have made, is justified in making the prohibition order.
The pyramid selling schemes described in paragraph 36.3(1)(b)
are inherently deceptive practices. A scheme which relates
financial gain to people rather than to product contains the
potential to be misleading and deceptive since the result is for
an increasing number of sellers of the product to be pursuing
the same market. This results in a diminished opportunity to
earn the bonuses promised. The Shaklee plan is covered by
paragraph 36.3(1)(b). Pursuant to subsection 44(4), the Attor
ney General could have proceeded by way of an information
requesting an order of prohibition, or by way of prosecution
under subsection 36.3(3). He could not proceed with both
remedies. Because of the continuing nature of the offence, it
can be more effectively dealt with by a prohibition order, than
by prosecution.
The respondent contends that subsection 36.3 is not appli
cable to the Shaklee plan by virtue of subsection 36.3(4) which
exempts a pyramid selling scheme licensed by a province from
the provisions of the section. The respondent submits that if one
province licenses or permits Shaklee's direct sales program,
then the program may be carried on anywhere in Canada
without offending section 36.3 of the Act. However, the
respondent did not show that any province or Territory has
licensed or otherwise permitted the practices defined in subsec
tion 36.3(1). Subsection 36.3(4) must be confined to the prac
tices defined in subsection 36.3(1) as schemes of pyramid
selling. At the time the information was laid, only Alberta,
Saskatchewan, British Columbia and Quebec had legislation
dealing with pyramid selling. The definition of "pyramid sales
franchise" contained in subsection 1(1)(m) of the Alberta
Franchises Act makes it clear that the Alberta legislation does
not address the practices described in subsection 36.3(1). It was
conceded that the Shaklee plan does not fall within the British
Columbia statute. The Consumer Protection Act of Quebec
contains an absolute prohibition of pyramid sales. The defini
tion of "pyramid franchise" in Saskatchewan's Pyramid Fran
chises Act reveals that the type of scheme envisaged is one
which contains as a condition precedent the requirement for
payment of a franchise fee or a requirement for the purchase of
goods. Since subsection 36.3(1) does not impose either of these
conditions as an essential requirement, the scheme of pyramid
selling permitted under the Saskatchewan legislation is differ
ent from the one covered by subsection 36.3(1) and does not
encompass the Shaklee plan.
The respondent contends that its business, being structured
by private contracts, is a matter of property and civil rights,
and of a merely local or private nature and therefore within the
exclusive jurisdiction of the provinces. The appellant asserts
that paragraph 36.3(1)(b) and subsection 36.3(2) were validly
enacted by the Parliament of Canada in the exercise of its
legislative authority over the regulation of the criminal law.
Section 36.3 is "in truth and in substance" criminal legislation
and not a "colourable invasion of provincial jurisdiction over
property and civil rights". It clearly indicates the public evil
which it addresses. According to the case law, it is supportable
under the criminal law power. In Russell v. Reg. (1882), 7
App. Cas. 829 (P.C.) it was stated that "Laws ... designed for
the promotion of public order ... and which subject those who
contravene them to criminal procedure ... belong to the subject
of public wrongs rather than to that of civil rights ... and have
direct relation to the criminal law." In Proprietary Articles
Trade Association v. Attorney-General for Canada, [193!]
A.C. 310, the Privy Council held that where Parliament has
made criminal, combines which it intends in the public interest
to prevent, this is a valid exercise of the criminal law power
provided the combines prohibited operate to the detriment of
the public. Rand J. in Reference re Validity of Section 5(a) of
the Dairy Industry Act, [1949] S.C.R. I, held that it is proper
to look for some evil, or injurious or undesirable effect upon the
public against which the law is directed. That effect may be in
relation to social, economic or political interests. Dickson J., as
he then was, stated in Attorney General of Canada v. Canadian
National Transportation, Ltd. et al., [1983] 2 S.C.R. 206; 3
D.L.R. (4th) 16, that there is a long history of Canadian
anti-combines legislation being sustained as criminal law. The
respondent submits that section 36.3 does not have the charac
teristics of criminal law, so the business activity is within
provincial jurisdiction to regulate. The case law does not sup
port this submission. In Attorney-General for British
Columbia v. Attorney-General for Canada, [1937] A.C. 368,
the Privy Council said that "The only limitation on the plenary
power of the Dominion to determine what shall or shall not be
criminal is the condition that Parliament shall not in the guise
of enacting criminal legislation in truth and in substance
encroach on any of the classes of subjects enumerated in s. 92."
It is no objection that it does in fact affect them.
CASES JUDICIALLY CONSIDERED
APPLIED:
Goodyear Tire and Rubber Company of Canada Limited
v. The Queen, [1956] S.C.R. 303; Russell v. Reg. (1882),
7 App. Cas. 829 (P.C.); Proprietary Articles Trade
Association v. Attorney-General for Canada, [1931]
A.C. 310 (P.C.); Reference re Validity of Section 5(a) of
the Dairy Industry Act, [1949] S.C.R. 1, affirmed (sub
nom. Canadian Federation of Agriculture v. Attorney-
General for Quebec, (Margarine Reference) [1951] 1
A.C. 179 (P.C.)); Attorney General of Canada v.
Canadian National Transportation, Ltd. et al., [1983] 2
S.C.R. 206; 3 D.L.R. (4th) 16; Attorney-General for
British Columbia v. Attorney-General for Canada,
[1937] A.C. 368 (P.C.); R. v. Perfection Creameries
Ltd., [1939] 3 D.L.R. 185 (Man. C.A.); R. v. Standard
Meats Ltd. (1973), 13 C.C.C. (2d) 194 (Sask. C.A.).
REFERRED TO:
Attorney General of Canada et al. v. Law Society of
British Columbia et al., [1982] 2 S.C.R. 307; 137 D.L.R.
(3d) 1.
COUNSEL:
Ingrid Hutton, Q.C. for plaintiff (appellant).
John Sproat and Judson Whiteside for
defendant (respondent).
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff (appellant).
Miller, Thomson, Sidgewick, Lewis & Healy,
Toronto, for defendant (respondent).
The following are the reasons for judgment
rendered in English by
HEALS J.: This is an appeal from a judgment of
the Trial Division [[1981] 2 F.C. 730] dismissing
the appellant's claim for an order of prohibition
pursuant to subsection 30(2) of the Combines
Investigation Act, R.S.C., 1970, c. C-23, (the
Act). In the information filed by the appellant, it
was alleged that the respondent did, between
August 20, 1977 and September 25, 1980, in the
City of Edmonton, Alberta and elsewhere in
Canada, induce or invite persons to participate in a
scheme of pyramid selling contrary to subsection
36.3(2) [as enacted by S.C. 1974-75-76, c. 76, s.
18] of the Act. That information claimed, inter
alia, by way of relief, an order under subsection
30(2) of the Act prohibiting the respondent, its
directors, officers, servants, agents, distributors,
supervisors and co-ordinators from doing any act
or thing constituting or directed towards the com
mission of an offence under subsection 36.3(2) of
the Act, by inducing or inviting another person to
participate in a scheme of pyramid selling.
The evidence adduced in the Trial Division con
sists entirely of a statement of agreed facts,
(Appeal Book, pages 5 to 140 inclusive). When the
hearing of the appeal opened, the Court, with the
consent of both parties, received in evidence a
supplementary statement of agreed facts, pursuant
to Rule 1102 [Federal Court Rules, C.R.C., c.
663]. The purpose and effect of the supplementary
statement was to update the factual situation as
contained in the original statement of agreed facts
because more than four years had elapsed since
the original statement was filed. The learned Trial
Judge has described the details of the scheme
utilized by the respondent for the sale of its prod
ucts. I need not repeat them here. It is sufficient
for my purposes to provide a short over-view of the
factual situation.
The defendant, a wholly owned subsidiary of a
U.S. company, was incorporated in Alberta and
carries on business in all ten provinces of Canada
as well as in the Northwest Territories. All mar
keting of Shaklee products (which include food
supplements, cleaners and cosmetics) is by direct
sales. Generally speaking, a distributor takes an
order from a consumer; he then orders the prod
ucts from his supervisor who places the order with
the respondent. The supervisor then purchases the
goods from the respondent and sells them to the
distributor, who, in turn, receives payment from
the ultimate consumer. The distributor's profit is
the difference between his purchase price and his
actual selling price. A distributor can only pur
chase Shaklee products from his supervisor. He
cannot purchase directly from the respondent. The
distributor purchases at a discount from the sug
gested retail price with the average discount being
33%. If a distributor's monthly personal purchase
volume equals $150 he earns a bonus. The supervi
sor's profit is based on a percentage of the total
sales of all his distributors. (Additionally, a super
visor can still make a profit from his own direct
sales.) Total sales are known as "Purchase
Volume" or PV.
Various bonuses are paid to distributors and
supervisors depending on sales volumes. These
bonuses are not the subject of the alleged offence.
The alleged offence concerns, rather, bonuses
which are paid to supervisors who are not a direct
part of the sales chain. This chain or "sponsorship
line" is accurately explained and illustrated by the
Trial Judge at pages 145 to 148 of the Appeal
Book [at pages 733 ff. F.C.]. In summary the plan
operates in the following manner: a person joining
Shaklee is sponsored into membership by a super
visor and, upon acceptance, that person becomes a
distributor. A distributor may become a supervisor
by inducing others to join the program as distribu
tors and by maintaining a certain level of sales
from his body of recruits.
Once the former distributor has become a super
visor, he is thenceforth independent from his origi
nal supervisor. Thereafter, the original supervisor
is no longer part of the former distributor's chain
of sales. He does not accept orders or sell goods to
his former distributor. Since the original supervi
sor's profit is based on the total sales of his dis-
tributors, the loss of a distributor from the supervi
sor's chain will, necessarily, affect the supervisor's
profit. As compensation for this reduction in his
profit, the original supervisor is given bonuses
ranging from 1% to 6% of his former distributor's
sales. (This bonus is calculated so as to include all
the distributors of the former distributor as well.)
It is these bonuses which comprise the subject-
matter of the alleged offence. These bonuses are
received notwithstanding that the original supervi
sor is not involved in the ordering or purchasing of
the goods, nor does he have any other involvement,
except, perhaps in a supervisory capacity, in so far
as the sales generated by the former distributor are
concerned. Upon becoming a distributor, the
person concerned is required to purchase from his
sponsor an earnings opportunity kit for $12.50.
Either the distributor or the respondent can termi
nate the distributor agreement. If the termination
occurs within two months, the kit can be returned
to Shaklee and the $12.50 purchase price is
refunded in full. All Shaklee products purchased
by a distributor are returnable in the event of
termination for a refund of not less than 90% if the
distributor terminated and 100% if the respondent
terminated. Distributors are not required to keep
inventory on hand nor are they required to pay an
entrance fee for admission to the plan.
The ratio of the decision of the learned Trial
Judge is to be found at pages 148 and 149 of the
Appeal Book [at pages 737-739 F.C.]. It reads:
It is useful to repeat the definition of paragraph 36.3(1)(b):
36.3 (1) ... "scheme of pyramid selling" means
(b) a scheme for the sale or lease of a product whereby one
person sells or leases a product to another person (the
"second" person) who receives the right to receive a rebate,
commission or other benefit in respect of sales or leases of
the same or another product that are not
(i) sales or leases made to the second person,
(ii) sales or leases made by the second person, or
(iii) sales or leases, made to ultimate consumers or users of
the same or other product, to which no right of further
participation in the scheme, immediate or contingent, is
attached.
The simplest scenario, the special bonus program applied to a
supervisor with one first level supervisor in his sponsorship
group, involves the sale of a product by one person, the
defendant, to another person (the "second" person), the super
visor. It also involves that second person, the supervisor, having
"the right to receive a ... benefit in respect of sales ... of ...
another product that are not (i) sales ... made to" nor "(ii)
sales ... made by" the supervisor. It does, however, appear
that, regardless of intervening sales by the first level supervisor
to distributors and by one distributor to another, the bonus is,
in the final analysis, paid in respect of "sales ... to ultimate
consumers or users" of that other product and, as such, the
bonus is within the exclusion of subparagraph (iii).
I reach that conclusion because of the provision of the
agreement each distributor has with the defendant that permits
him to terminate the relationship at the end of any month and
to require the defendant to repurchase product on hand for not
less than 90% of what he paid for it. As long as a distributor
participates in the program there may and likely will, from
time to time, be an element of his personal PV that relates to
inventory in his hands and that would, at the same time, be
reflected in the group PV. Strictly speaking, a supervisor with a
right to receive a special bonus on his first level supervisor's
group PV containing such elements of personal PV would have
a "right to receive a ... benefit in respect of sales ... of ...
another product that are not ... sales ... made to ultimate
consumers" as that term is used in subparagraph
36.3(1)(b)(iii). That, however, is nothing but an inevitable
consequence of the necessity of fixing a particular time period
for the calculation of the bonus. It remains that the program
does provide for the liquidation of the distributor's inventory on
a reasonable basis. Thus, in the final analysis, a distributor's
personal PV over the term of his participation in the program is
an amount that relates only to product sold to someone outside
the program or retained for his personal use. In either event,
the sale of the product that gives rise to the group PV upon
which the special bonus is based is a sale to an "ultimate user
or consumer" as contemplated by subparagraph 36.3(I)(b)(iii).
Referring only to the scheme of pyramid selling defined by
paragraph 36.3(1)(b), it would appear that an essential element
of the evil which Parliament envisaged is that some participants
in such a scheme might find themselves, having paid for
product, without a reasonable opportunity of disposing of it.
That element is contemplated by subparagraph 36.3(I)(b)(iii).
It is an element that is not present in the defendant's program
because of its commitment to repurchase product on reasonable
terms. Having reached that conclusion, I do not find it neces
sary to comment on other positions taken by the parties.
The reasoning, mutatis mutandis, and the result is the same
vis-Ã -vis the other special bonuses provided in the program.
The defendant may move for judgment on the basis of these
reasons.
Interpretation of paragraph 36.3(1) (b) of the Act
The appellant alleges several errors by the
learned Trial Judge in his interpretation of para-
graph 36.3(1)(b) [as enacted by S.C. 1974-75-76,
c. 76, s. 18].
The first alleged error is that he misconstrued
the words "in respect of sales ... of the ...
product that are not ... (iii) sales ... made to
ultimate consumers or users of the ... product
..." so as to deprive those words of all meaning,
thereby rendering paragraph 36.3(1)(b) inopera
tive and, that, because of this misinterpretation, he
erred in his conclusion that the bonuses paid by
Shaklee to a "second person" (a supervisor, for
example) based on the monthly PV figure obtained
by the "second person's" first, second and third
level supervisors and their respective sales group,
were made in respect of "sales ... made to ulti
mate consumers or users of the ... product ... .
It is the appellant's submission that merely
because the amount of the bonus is determined by
reference to the "PV" of articles ultimately sold to
consumers, it does not necessarily follow that the
sale in respect of which the bonus is paid is a sale
made to an ultimate consumer. Put another way, it
is the appellant's view that paragraph 36.3(1)(b)
prohibits internal sales or sales made between
participants in the scheme which are not made by
or to the recipient of the bonus. To test the validity
of this submission, it is useful to take the "simplest
scenario" envisaged by the Trial Judge in the
passage quoted supra, namely, application of the
special bonus program to a Supervisor with one
first level supervisor in his sponsorship group. The
product is sold by the respondent to another person
(the "second person"), the supervisor. According
to the respondent's plan, that supervisor has a
right to be paid a special bonus of 6% of the group
PV of the first supervisor appointed in each of his
sponsorship lines. Similar wording is used for the
3% and 1% bonuses. The group PV of each super
visor is established only after the supervisor places
his order with the respondent; the supervisor cre
ates the group PV by placing his own order. That
order will undoubtedly be for one of the following
purposes: (a) his personal use; (b) retail sales by
him; or (c) purchasing products which are neces
sary for re-sale to his distributors.
The supervisor's bonus entitlement does not
arise when retail customers place orders with dis
tributors or when distributors place orders with
supervisors. It arises for the first time when the
supervisor orders from Shaklee. Accordingly, it
seems clear that the sale in respect of which the
bonus is paid is the sale from Shaklee to the first,
second and third level supervisors. Thus, I agree
with counsel for the appellant that sales by Shak-
lee to the first, second and third level of supervi
sors are not sales "made to ultimate consumers or
users ... " so as to be encompassed by the exemp
tion set out in subparagraph 36.3(1)(b)(iii).
Additionally, I share the view of the appellant
that the sales by supervisors to distributors under
the Shaklee plan as discussed supra do not come
within the exception provided in subparagraph (iii)
of paragraph 36.3(1) (b) because the distributor to
whom a sale is made by his supervisor, does have a
"right of further participation in the scheme,
immediate or contingent ..." which ensues from
that sale. The PV of the goods sold by the supervi
sor to the distributor forms a part of the distribu
tor's PV and a contingent right of participation in
the scheme is given to the distributor since that PV
is counted in determining whether the distributor
is entitled to become a supervisor with the result
ant contingent entitlement to the bonuses of 6%,
3% and 1% on the PV of supervisors whom he
might recruit into the plan. As observed by counsel
for the appellant, it appears that the learned Trial
Judge failed to consider the effect of the last
portion of subparagraph (iii) of paragraph
36.3(1)(b) on that portion of the Shaklee plan
which is herein impeached. I refer to the words "to
which no right of further participation in the
scheme, immediate or contingent, is attached." I
conclude that he failed to consider the effect of
those words in this case because that portion of
subparagraph (iii) is not mentioned in his reasons
and because, for the reasons given supra, it is clear
that on the admitted facts in this case, there was a
contingent right of further participation vested by
the plan in distributors.
Based on his reasons for judgment, the learned
Trial Judge appears to have been influenced in
reaching his decision by the circumstance that,
since an essential element of the evil envisaged
by Parliament in enacting subparagraph
36.3(1)(b)(iii) was that some participants might
find themselves having paid for inventory without
a reasonable opportunity of disposing of it, and
that since this element was not present in the
respondent's plan because of its commitment to
repurchase all of the product on reasonable terms,
the rationale for the prohibition contained in sub-
paragraph 36.3(1)(b)(iii) did not apply to the case
at bar. With respect, I am unable to agree that
such a circumstance can operate so as to remove
the plan from the prohibition contained in para
graph 36.3(1)(b) if the evidence establishes that
the plan in question comes within the four corners
of the statutory prohibition of paragraph
36.3(1)(b) and if it is not encompassed by any of
the exceptions specified in subparagraphs (i), (ii),
or (iii) of paragraph 36.3(1)(b). For the reasons
expressed supra, I do not consider that the
impeached portion of the Shaklee plan is protected
by any of subparagraphs (i), (ii) or (iii). I do
however consider that it is caught by the general
prohibition set out in paragraph 36.3(1)(b). On
this basis, the agreement of the respondent to
repurchase product thereby removing the possible
evil of "inventory loading" is an irrelevant circum
stance when approached from the perspective of
determining whether or not the respondent has
breached the provisions of paragraph 36.3(1)(b)
and subsection 36.3(2) of the Act. For these rea
sons I conclude that the learned Trial Judge erred
in law in failing to find, on the instant facts, that
the respondent had committed a breach of the
provisions of subsection 36.3(2) of the Act as
specified in the information (Appeal Book, pages 1
and 2).
The Court's Discretion to Make an Order of
Prohibition
The relevant portion of subsection 30(4) of the
Act provides:
30....
(4) Where the court of appeal ... allows an appeal, it may
quash any order made by the court appealed from, and may
make any order that in its opinion the court appealed from
could and should have made [Emphasis added.]
The power of the Trial Division of this Court in
a proceeding of this kind is set out in subsection
30(2) of the Act. The relevant portion of that
subsection reads:
30. ...
(2) Where it appears to a superior court of criminal jurisdic
tion in proceedings commenced by information of the Attorney
General of Canada ... for the purposes of this section that a
person has done, is about to do or is likely to do any act or thing
constituting or directed toward the commission of an offence
under Part V, the court may prohibit the commission of the
offence or the doing or continuation of any act or thing by that
person or any other person constituting or directed toward the
commission of such an offence, ... [Emphasis added.]
It is the appellant's submission that the Trial
Division of this Court should have exercised its
discretion pursuant to subsection 30(2) supra to
issue an order of prohibition in the form requested
in the appellant's information (there was no issue
between the parties as to the jurisdiction of the
Trial Division to act under subsection 30(2). I
agree that the Trial Division has jurisdiction since
subsection 46(1) [as am. by S.C. 1974-75-76, c.
76, s. 23] of the Act provides, inter alia, that the
Attorney General of Canada may institute and
conduct any prosecution or other proceedings
under section 30, in the Trial Division. The subsec
tion provides further that for the purposes of such
proceedings, the Trial Division "has all the powers
and jurisdiction of a superior court of criminal
jurisdiction under the Criminal Code and under
this Act.")
It is the appellant's further submission that this
Court, acting under the authority of subsection
30(4) supra, should make the prohibition order
which the Trial Division should have made in the
circumstances. While conceding that the order of
prohibition available under subsection 30(2) is a
discretionary remedy, the appellant's counsel enu
merates a number of circumstances which, in her
submission, strongly support the issuance of a
prohibition order in this case. Those circumstances
may be summarized as follows:
(a) The pyramid selling schemes described in
paragraph 36.3(1)(b) are inherently deceptive
practices. The sales made thereunder operate on
the basis of a geometric progression, resulting in
early market saturation; each distributor is soon in
competition with the distributors whom he spon
sors not only for the business of the ultimate
consumer, but for recruitment of potential new
distributors. The result, it is submitted, is that the
chance to receive bonuses from sales made within
the scheme to or by recruits of recruits will only
exist, generally speaking, for the earliest partici
pants in the scheme in any given market. The
investment of time, effort and money by later
participants in the scheme is made at a time when
the opportunity to earn the bonuses promised does
not realistically exist. For this reason, it is submit
ted that the schemes or plans encompassed by
paragraph 36.3(1)(b) are inherently misleading.
Since the Shaklee plan is covered by paragraph
36.3(1)(b), the above comments, in the appellant's
submission, apply to the Shaklee plan.
(b) The Shaklee plan has continued from
August of 1977 to the present time and will in all
probability continue unless restrained. The scheme
is very successful in so far as the respondent is
concerned. There are currently in Canada approxi
mately 77,000 distributors. Of the distributors,
10,000 are actively selling Shaklee products,
approximately 20,000 sell Shaklee products on a
part-time basis, approximately 20,000 purchase
Shaklee products primarily for their own use, and
approximately 27,000 are inactive and do not pres
ently sell Shaklee products.
(c) The representations in the Shaklee sales plan
concerning the opportunity to earn the bonuses
from sales among participants in the plan were a
large and important part of the recruiting empha
sis. In the appellant's submission, the facts are that
this expectation was realized by relatively few of
the 77,000 distributors who joined the plan and the
average earnings of those recipients of the bonus
were far more modest than the expectation created
by the Shaklee sales plan.
(d) In the appellant's submission, the respondent
has benefited from the misleading bonus induce
ment since some 77,000 distributors have joined
the plan and have likely purchased at least suffi-
cient products to familiarize themselves with the
products and to commence selling them.
I agree with counsel for the appellant that the
pyramid selling schemes prohibited by paragraph
36.3(1)(b) are inherently deceptive or misleading
for the reasons advanced supra. A scheme which
relates financial gain to people rather than to
product contains the potential to be misleading
and deceptive since the inevitable result, if the
scheme is successful, is for an increasing number
of sellers of the product to be pursuing the same
market. This will most surely result in a dimin
ished opportunity to earn the bonuses promised.
For all of the above reasons, and because I have
concluded that the respondent's conduct has con
travened paragraph 36.3(1)(b) and subsection
36.3(2) of the Act, thereby constituting an offence
pursuant to subsection 36.3(3) [as enacted by S.C.
1974-75-76, c. 76, s. 18] of the Act, I am persuad
ed that this Court, pursuant to the discretion
conferred upon it by subsection 30(4), would be
justified in making the order of prohibition sought
by the appellant in the Trial Division. It is to be
noted that subsection (2) of section 36.3 prohibits
the instant scheme since it provides that: "No
person shall induce or invite another person to
participate in a scheme of pyramid selling". Sub
section (3) of section 36.3 provides that:
36.3.. .
(3) Any person who violates subsection (2) is guilty of an
offence and is liable
(a) on conviction on indictment, to a fine in the discretion of
the court or to imprisonment for five years or to both; or
(b) on summary conviction, to a fine of twenty-five thousand
dollars or to imprisonment for one year or to both.
Accordingly, it appears that the Attorney Gen
eral of Canada had two ways of proceeding open
to him in the instant case. He could have proceed
ed as he did, by way of an information requesting
an order of prohibition or he could have proceeded
by way of a prosecution under subsection 36.3(3).
He could not, however, proceed with both reme
dies. I say this because of the provisions of subsec-
tion 44(4) of the Act, the relevant portion of which
provides that:
44. ...
(4) In any case where subsection 30(2) is applicable the
Attorney General of Canada ... may in his discretion institute
proceedings either by way of an information under that subsec
tion or by way of prosecution.
A similar situation was considered by the
Supreme Court of Canada in the case of Goodyear
Tire and Rubber Company of Canada Limited v.
The Queen, [1956] S.C.R. 303. In that case the
Court was considering the validity of section 31 of
the Combines Investigation Act of 1952 [R.S.C.
1927, c. 26, as am. by S.C. 1952, c. 39, s. 3] which
empowered the Court to order in addition to any
other penalty the prohibition of the continuation or
repetition of the offence of which the person had
been convicted. The appellants had pleaded guilty
to a charge of conspiracy under the Criminal Code
[R.S.C. 1927, c. 36] and were fined. The Trial
Judge directed that an order of prohibition issue
under section 31. The Supreme Court of Canada
held that the portion of section 31 invoked by the
Trial Judge was intra vires. At pages 311 and 312
of his reasons, Mr. Justice Rand said:
What has called for the device of injunction and punishment
for its contravention is undoubtedly the experience in dealing
with these offences. The burden of proving the combination and
its operation is, for obvious reasons, complicated and time
consuming and the procedure of enforcement by conviction and
fine has tended to exhibit a course of things bearing a close
likeness to periodic licensing of illegality. That sanctions cannot
be made more effective, that an offence by its nature continu
ing cannot be dealt with as criminal law by an enjoining decree
that will facilitate enforcement, might go far towards enabling
self-confessed lawlessness to set the will of Parliament at
defiance.
In my view, this quotation articulates clearly the
rationale for the enactment of section 31 of the
1952 Act and that rationale applies equally to
subsection 30(2) of the present Act. An offence of
this kind, because of its continuing nature, is the
kind of offence which can be more effectively dealt
with by the prohibition order contemplated and
authorized by subsection 30(2). This represents an
additional compelling reason why the Court's dis
cretion should be exercised in favour of a prohibi
tion order issued pursuant to that subsection.
The applicability of subsection 36.3(4) of the
Combines Investigation Act
Subsection (4) of section 36.3 reads:
36.3.. .
(4) This section does not apply in respect of a scheme of
pyramid selling that is licensed or otherwise permitted by or
pursuant to an Act of the legislature of a province.
It is the submission of counsel for the respond
ent that even if the Shaklee plan is a scheme of
"pyramid selling" as defined in subsection 36.3(1),
section 36.3 is made inapplicable to the Shaklee
plan by subsection (4) supra. In his view, subsec
tion 36.3(4) means that section 36.3 is inapplicable
to the respondent in any part of Canada if it can
be established that the respondent is "licensed or
otherwise permitted" to conduct its business "by
or pursuant to an Act of the legislature" in any
one of the provinces of Canada. Put another way,
the respondent's submission is that if one province
licenses or permits Shaklee's direct sales program,
then that program may be carried on anywhere in
Canada without offending section 36.3 of the Act.
It seems clear that the reach of subsection (4)
must be confined to the practices defined in sub
section (1) of section 36.3 as schemes of pyramid
selling. Accordingly, unless there is provincial
legislation dealing with the practices described in
subsection 36.3(1), it cannot be said to license or
permit a scheme of pyramid selling within the
meaning of subsection 36.3(4). At the time the
information was laid only four provinces (Alberta,
Saskatchewan, British Columbia and Quebec) had
existing legislation dealing with pyramid selling.
The licences issued to the respondent in the other
provinces and in the Northwest Territories do not
permit or purport to permit the respondent to
engage in schemes of pyramid selling and are not
issued under statutes addressing that practice. In
most of ,those provinces, the licences relate to
door-to-door selling or the authority to collect
retail sales tax. There are no statutes in these
provinces or the Territories which "license or
otherwise permit" the operation of a pyramid
scheme. This brings me to a consideration of the
relevant legislation in Alberta, British Columbia,
Saskatchewan and Quebec. In his oral argument, I
understood counsel for the respondent to concede
that the definition of "pyramid sales franchise" as
contained in subsection 1(1) (m) of the Alberta
Franchises Act, R.S.A. 1980, c. F-17 makes it
clear that the Alberta legislation does not address
the practices described in subsection 36.3(1) since
the Alberta definition requires that all pyramid
sales franchises covered by the Act must be fran
chises where a participant pays a franchise fee.
This appears to be a condition precedent to the
operation of the Alberta statute. I also understood
respondent's counsel to concede in oral argument
that the Shaklee plan does not fall within the
applicable British Columbia statute (The Pyramid
Distribution Act, R.S.B.C. 1979, c. 351). A perus
al of the Consumer Protection Act of Quebec, S.Q.
1978, c. P-40, sections 234 and 235, establishes
that there is an absolute prohibition in respect of
pyramid sales in that Province. This leaves the
Saskatchewan legislation. Respondent's counsel
argued forcefully that the Saskatchewan legisla
tion encompassed the Shaklee plan and that since
the respondent had been granted an exemption
from the licensing provisions of the Saskatchewan
Act by the Saskatchewan authorities, this repre
sented compliance with subsection (4) of section
36.3 of the Act.
The applicable Saskatchewan legislation is the
Pyramid Franchises Act, R.S.S. 1978, c. P-50.
Clause 2(g) of the Act defines "pyramid fran
chise" as follows:
2. In this Act:
(g) "pyramid franchise" means an agreement or arrangement,
expressed or implied, oral or written, between two or more
persons by which a franchisee upon paying a franchise fee or
upon purchasing goods is granted the right:
(i) to offer to sell, sell or distribute goods; and
(ii) to recruit one or more persons who upon paying a
franchise fee or upon purchasing goods are granted the same
or similar rights;
under a marketing plan or system, organized, directed, pre
scribed or controlled, in substantial part, by a franchisor;
A perusal of this definition reveals that the type of
pyramid scheme envisaged in that statute is one
which contains as a condition precedent the
requirement for payment of a franchise fee or a
requirement for the purchase of goods. Since sub
section 36.3(1) does not impose either of these
conditions as an essential requirement, it is evi
dent, in my view, that the scheme of pyramid
selling permitted under the Saskatchewan statute
is quite different from the one covered by subsec
tion 36.3(1). It follows, in my view, that the
Saskatchewan legislation does not encompass the
Shaklee plan. Accordingly, even accepting the
respondent's proposition that it is only necessary to
show a licensing or permission in one province (in
respect of which I have some doubt), the submis
sion by the respondent as to the applicability of
subsection (4) fails on the facts in this case
because it has not been shown that any province or
Territory has licensed or otherwise permitted the
practices defined in subsection (1) of section 36.3
as schemes of pyramid selling.
The Constitutional Issue
The remaining submission by counsel for the
respondent was that the business carried on by the
respondent, being structured by private contracts,
is a matter of property and civil rights in the
province, and a matter of a merely local or private
nature within the province, and, therefore, within
the exclusive jurisdiction of the provinces pursuant
to the Constitution Act, 1867 [30 & 31 Vict., c. 3
(U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1)], and in
particular, pursuant to head 13 (Property and
Civil Rights in the Province), and head 16 (Gener-
ally all Matters of a merely local or private Nature
in the Province) of section 92 thereof. On the other
hand, the appellant asserts that paragraph
36.3(1)(b) and subsection 36.3(2) of the Act were
validly enacted by the Parliament of Canada in the
exercise of its legislative authority over the regula
tion of the criminal law, or alternatively, over
trade and commerce, and peace, order and good
government pursuant to section 91 of the Consti
tution Act, 1867.
The Criminal Law Power
As a starting point for discussion of the constitu
tional competence of the Parliament of Canada to
enact the impugned subsections, I think it useful to
examine the thrust of this legislation. Based on the
factual circumstances discussed earlier herein, I
think the thrust of paragraph 36.3(1)(b) is the
protection of members of the public who have
invested effort and money in the recruitment of
participants into the pyramidal schemes prohibited
by that paragraph in the hope and expectation of
future financial benefit. As noted supra a scheme
which relates financial gain to people rather than
to product contains a misleading and deceptive
potential because the inevitable consequence in a
successful plan such as the Shaklee plan will be
that more and more sellers are competing in a
diminishing market which is becoming rapidly
saturated because of the geometric progression
implicit in the plan. The question to be answered
in this discussion is whether or not the prohibition
of such a practice is a valid exercise of the Crimi
nal Law Power vested in the Parliament of Canada
by head 27 of section 91 of the Constitution Act,
1867. I begin by referring to the oft quoted state
ment of Sir Montague E. Smith in Russell v. Reg.
(1882), 7 App. Cas. 829 (P.C.), at page 839 where
he said:
Laws ... designed for the promotion of public order, safety, or
morals, and which subject those who contravene them to crimi
nal procedure and punishment, belong to the subject of public
wrongs rather than to that of civil rights ... and have direct
relation to criminal law.
In 1931, the Privy Council in the case of Proprie
tary Articles Trade Association v. Attorney-Gen
eral for Canada, [1931] A.C. 310 expressed the
view that where Parliament has made criminal,
combines which it intends in the public interest to
prevent, this is a valid exercise of the criminal law
power provided the combines prohibited have oper
ated or are likely to operate to the detriment or
against the interests of the public. Additionally, it
was held to be a valid exercise even though the
prohibition may cover activities not hitherto con-
sidered to have been criminal. At pages 323-324,
Lord Atkin said:
... and if Parliament genuinely determines that commercial
activities which can be so described are to be suppressed in the
public interest, their Lordships see no reason why Parliament
should not make them crimes.
The comments of Lord Atkin in this case were
referred to by Mr. Justice Rand in the decision of
the Supreme Court of Canada in Reference re
Validity of Section 5(a) of the Dairy Industry Act,
[1949] S.C.R. 1, affirmed (sub nom. Canadian
Federation of Agriculture v. Attorney-General for
Quebec, (Margarine Reference) [19511 1 A.C. 179
(P.C.)) where he observed that Lord Atkin, in that
case had (page 49) "rejected the notion that the
acts against which criminal law is directed must
carry some moral taint." Mr. Justice Rand went
on to say at page 49:
A crime is an act which the law, with appropriate penal
sanctions, forbids; but as prohibitions are not enacted in a
vacuum, we can properly look for some evil or injurious or
undesirable effect upon the public against which the law is
directed. That effect may be in relation to social, economic or
political interests; and the legislature has had in mind to
suppress the evil or to safeguard the interest threatened.
I come now to the 1983 decision of the Supreme
Court of Canada in the case of Attorney General
of Canada v. Canadian National Transportation,
Ltd. et al., [1983] 2 S.C.R. 206; 3 D.L.R. (4th)
16. At issue in that case was whether the Attorney
General of Canada was constitutionally competent
to prefer indictments and conduct proceedings in
respect of alleged violations of the Combines
Investigation Act, R.S.C. 1970, c. C-23, as amend
ed. Dickson J. as he then was, considered at some
length the question of the Combines Investigation
Act as criminal law. His opening comment in this
portion of his reasons reads [page 250 S.C.R.;
page 49 D.L.R.]:
There is a long history of Canadian anti-combines legislation
being sustained as criminal law.
In the course of his review of that history, he
observed [at page 254 S.C.R.] at page 52 [D.L.R.]
that:
In 1952 Parliament added new sections to the Combines Inves
tigation Act permitting courts hearing combines charges to
make orders prohibiting the continuation of combines, or orders
dissolving mergers, trusts or monopolies, such orders to be in
addition to any other penalty the court might impose upon
conviction: 1952 (Can.), c. 39, s. 3. These sections were upheld
by this Court under the criminal law power in Goodyear Tire
and Rubber Co. v. The Queen, [1956] S.C.R. 303.
The foregoing survey shows that both this Court and the
Privy Council have consistently sustained anti-combines legisla
tion as criminal law.
It is submitted, however, by counsel for the
respondent, that section 36.3 does not have the
characteristics of criminal law and that when a
business activity lacks the prescribed characteris
tics of criminal activity then that activity is within
the jurisdiction of the provinces to regulate as a
matter of property and civil rights. Counsel then
referred to a number of provincial statutes in the
various provinces dealing with factors tending to
defeat contractual liability such as incapacity, mis
representation, duress, undue influence, mistake
and illegality. He cited numerous Consumer Pro
tection Acts, Unconscionable Transactions Relief
Acts and Direct Sellers Acts in the provinces as
evidence that the provinces have jurisdiction and
have exercised jurisdiction to deal with contractual
matters and trade practices which, although not
criminal in nature, were felt to be unfair or not in
the public interest. Accordingly, the respondent
submits that section 36.3 invades that provincial
jurisdiction to regulation contracts and trade
practices.
In my view, the relevant jurisprudence does not
support this submission when viewed in the context
of the case at bar. In the case of Attorney-General
for British Columbia v. Attorney-General for
Canada, [1937] A.C. 368 the Privy Council held
that section 498A of the Criminal Code was in
toto intra vires of the Parliament of Canada under
section 91, head 27—"The Criminal Law ...."
Section 498A made it an offence: to discriminate
against competitors of purchasers by selling goods
to certain purchasers at a discount which was
made available at the time of the sales transaction
to those purchasers and was not made available to
competitors of those purchasers in respect of a sale
of goods of like quality and quantity; to engage in
a policy of selling goods in any area of Canada at
prices lower than those exacted by such seller
elsewhere in Canada, for the purpose of destroying
competition or eliminating a competitor in such
part of Canada; to engage in a policy of selling
goods at prices unreasonably low for the purpose
of destroying competition or eliminating a com
petitor. Lord Atkin, speaking for the Court said at
pages 375 and 376:
Their Lordships agree with the Chief Justice that this case is
covered by the decision of the Judicial Committee in the
Proprietary Articles case ... The basis of that decision is that
there is no other criterion of "wrongness" than the intention of
the Legislature in the public interest to prohibit the act or
omission made criminal ... The only limitation on the plenary
power of the Dominion to determine what shall or shall not be
criminal is the condition that Parliament shall not in the guise
of enacting criminal legislation in truth and in substance
encroach on any of the classes of subjects enumerated in s. 92.
It is no objection that it does in fact affect them. If a genuine
attempt to amend the criminal law, it may obviously affect
previously existing civil rights. The object of an amendment of
the criminal law as a rule is to deprive the citizen of the right to
do that which, apart from the amendment, he could lawfully
do. No doubt the plenary power given by s. 91(27) does not
deprive the Provinces of their right under s. 92(15) of affixing
penal sanctions to their own competent legislation. On the other
hand, there seems to be nothing to prevent the Dominion, if it
thinks fit in the public interest, from applying the criminal law
generally to acts and omissions which so far are only covered by
provincial enactments.
In the case of R. v. Perfection Creameries Ltd.,
[1939] 3 D.L.R. 185, the Manitoba Court of
Appeal quoted with approval the above passage
from Lord Atkin's judgment in holding that sub
section 6(2) of the Dairy Industry Act, R.S.C.
1927, c. 45 which prohibited the manufacture of
butter containing over 16% of water or less than
80% of butter fat is criminal legislation in pith and
substance and not a colourable invasion of provin
cial jurisdiction over property and civil rights.
Similarly, the Saskatchewan Court of Appeal in
the case of R. v. Standard Meats Ltd. (1973), 13
C.C.C. (2d) 194 held that the object of section 5
of the Food and Drugs Act, R.S.C. 1970, c. F-27
in prohibiting, inter alia, the sale of food in a false,
misleading or deceptive manner, is the protection
of the public. At page 199 Chief Justice Culliton
said:
It is not a section, in my opinion, which creates a new crime in
its real sense, but rather a penal measure adopted to cast on the
respondent the obligation to refrain from doing certain acts
which, if permitted, would result in prejudice to the public. To
adopt the words of Cartwright, J. used in Beaver v. The Queen
[(1957), 118 C.C.C. 129], supra, Parliament converted a civil
personal duty to a public duty.
Applying the above jurisprudence to this case, I
have no difficulty in concluding that section 36.3
of the Combines Investigation Act is "in truth and
in substance" criminal legislation and not a
"colourable invasion of provincial jurisdiction over
property and civil rights." A perusal of the section
satisfies me that it clearly indicates the public evil
which it addresses. On this basis, it is clearly
supportable under the Criminal Law Power con
ferred upon the Parliament of Canada under head
27 of section 91.
Since I have concluded that Parliament had the
legislative competence to enact section 36.3 under
head 27 of section 91, it becomes unnecessary and
undesirable to consider the appellant's alternative
arguments relating to Parliament's legislative au
thority to enact section 36.3 under head 2 of
section 91 of the Constitution Act, 1867 (Trade
and Commerce) or under its authority to make
laws for the peace, order and good government of
Canada under section 91. (See Attorney General
of Canada v. Canadian National Transportation,
Ltd. et al., [1983] 2 S.C.R. 206, at pages 255 and
256; 3 D.L.R. (4th) 16, at pages 53 and 54; see
also Attorney General of Canada et al. v. Law
Society of British Columbia et al., [1982] 2
S.C.R. 307, at pages 362 and 363; 137 D.L.R.
(3d) 1, at page 43.)
For all of the above reasons, I have concluded
that the appeal should be allowed, the judgment of
the Trial Division quashed and an order of prohibi
tion made. The appellant is also entitled to her
costs both here and in the Trial Division. As to the
form of the prohibition order, the appellant has
asked that it be in the form set out on pages 2 and
3 of the Appeal Book. Counsel for the respondent
did not address the specifics to be contained in the
prohibition order. In these circumstances, I would
direct that the appellant prepare a draft of an
appropriate judgment to implement the Court's
conclusions and move for judgment accordingly
pursuant to Rule 337(2)(b) and Rule 324.
PRATTE J.: I agree.
URIE J.: I agree.
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.