T-1339-72
The Queen (Applicant)
v.
The Chemical Institute of Canada (Respondent)
Trial Division, Urie J.—Ottawa, December 13,
1973 and January 10, 1974.
Crown—Post office—Scientific publication—Whether pub
lication `for benefit of members of a particular profes-
sion"—Distribution under second class rates discontinued—
Post Office Act, R.S.C. 1970, c. P-14, s. 11(1Xo).
The "chemical profession" is a name utilized by persons
tied by the common bond of an interest and training in the
field of chemistry and therefore the departmental ruling that
the publication "Chemistry in Canada" is a publication
"primarily for the benefit of members of a particular profes
sion" within the meaning of section 11(1)(o) of the Post
Office Act is upheld. The second class mail registration
cannot be continued by virtue of the amendment to the Act
that provided the exception contained in the said section
11(1)(o).
Becke v. Smith (1836) 2 M & W 191, applied.
APPLICATION.
COUNSEL:
Barry Collins for the Queen.
D. Donald Diplock, Q.C., for The Chemical
Institute of Canada.
SOLICITORS:
Deputy Attorney General of Canada for the
Queen.
Honeywell and Wotherspoon, Ottawa, for
The Chemical Institute of Canada.
URIE J.—This is an application brought by
The Chemical Institute of Canada pursuant to
section 17(3)(b) of the Federal Court Act to
determine the answer to the following question,
the form of which was agreed upon by the
parties:
Was The Chemical Institute of Canada's publication "Chem-
istry in Canada" being "published primarily for the benefit
of the members of a particular profession" within the mean
ing of section 11(1)(o) of the Post Office Act when that
section came into force on April 1, 1969?
Pursuant to the Order of the Associate Chief
Justice dated October 24, 1973, no pleadings
were filed but a trial was held on December 13,
1973 at which evidence was adduced by each of
the parties.
The Chemical Institute of Canada (hereinafter
called the "Institute") was incorporated by Let
ters Patent dated February 15, 1945 in which
one of the stated objects is: "to maintain all
Branches of the profession of Chemistry and
Chemical Engineering in their proper status
among other learned and scientific professions."
The evidence disclosed that the Institute has for
some time published a monthly periodical,
Chemistry in Canada, (hereinafter called the
"publication") which is circulated to subscribers
by mail. Until April 1, 1969 postal rates charged
on mailing the publication were the rates for
second class mail. By virtue of amendments to
the Post Office Act, the Post Office Department
denied the Institute's application to have the
publication's second class mail registration con
tinued beyond that date on the ground that the
publication was being "published primarily for
the benefit of the members of a particular
profession" within the meaning of section
11(1)(o) of the Post Office Act as amended,
which section reads as follows:
Newspapers and Periodicals
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
interest to the general public,
(b) that is devoted primarily to religion, the sciences,
agriculture, forestry, the fisheries, social or literary criti
cism 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 organ
ized on a national or provincial basis,
may, if it is
(d) registered with the Post Office Department for the
purposes of this section pursuant to the regulations,
(e) ordinarily published at a frequency stated in the news
paper or periodical of not less than four times a year,
(f) addressed to a bona fide subscriber as defined by
regulation or to a known newsdealer in Canada, and
(g) prepared for mailing in the manner prescribed by the
regulations,
be transmitted by mail in Canada at the rate of postage
specified in this section for that newspaper or periodical,
unless
(h) where the principal business of the person by whom
or at whose direction it is published is other than publish
ing, it is published as an auxiliary to or for the purpose of
advancing such person's principal business,
(i) except in the case of a publication described in para
graph (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,
(j) more than seventy per cent of the space therein, in
more than fifty per cent of the issues thereof published
during the twelve months immediately preceding the day
of its registration for the purposes of this section pursuant
to the regulations or of any renewal of such registration, is
devoted to advertising,
(k) the specified subscription price thereof is ordinarily
less than fifty cents a year,
(I) the paid circulation thereof is ordinarily less than fifty
per cent of its total circulation,
(m) it is posted at a post office not approved by the
regulations for the mailing of newspapers and periodicals,
(n) the postage for the mailing thereof in Canada is not
prepaid in the manner prescribed by the regulations,
(o) in the case of a publication described in paragraph (b)
or (c) it is published primarily for the benefit of the
members of a particular profession, or
(p) it otherwise contravenes regulations made by the
Postmaster General for carrying the purposes and provi
sions of this Act into effect. [The emphasis is mine.]
It is from this ruling that the Institute brings
this application. As I understand it, it was
conceded that all of the conditions for second
class mailing privileges required by section 11
are met by the publication unless the depart
mental ruling under section 11(1)(o) is upheld
by me.
The Institute contends that while its member
ship has the common bond of a training in
chemistry in its broadest sense, it is composed
of various kinds of chemists such as biochem
ists, analytical chemists, organic chemists,
chemical technicians and technologists, etc., but
more importantly, chemical engineers who are
members of a separate profession. The latter
group applies engineering principles to large
scale changes in the properties of matters. That
being the case, it was argued, the publication is
not for the benefit of "a particular profession"
but for at least two professions and more if it is
agreed that the various sub-species of chemists
referred to above are themselves members of
separate professions. To support this proposi
tion, evidence was adduced that the Institute is
composed of two constituent societies namely,
the Canadian Society of Chemical Engineering
and the Canadian Society for Chemical and
Biochemical Technology although it was admit
ted that neither are separate legal entities but
only groups of members of the Institute particu
larly interested in the areas which the names of
the two societies imply.
The Institute called as an expert witness a
distinguished and well-known Canadian scien
tist, Dr. O. M. Solandt, the gist of whose tes
timony was that all persons having a training in
chemistry are members of a larger group which
might be described as the scientific community.
However, within that group are people of many
professions including pure research chemists,
biochemists, chemical engineers and perhaps
even surgeons, internists, dentists and pharma
cists. They all use to a greater or lesser extent
the same body of knowledge but perform quite
different functions and are, therefore, in his
view, each members of their own professions.
While Dr. Solandt's opinion is certainly en
titled to the greatest of respect, it is, in my view,
a personal one in the same way that the opinion
of any other person of academic renown would
be but it does not assist in any great measure in
the determination of the issue before this Court.
All such opinions are purely subjective in nature
and, to the extent possible in cases of this kind,
I must endeavour to apply objective tests in
determining the intent of the section of the
legislation before me.
Reference to standard dictionaries discloses
that the word "profession" in its broadest sense
was first applied to the three learned profes
sions of divinity, law and medicine and subse
quently to the military profession. During the
centuries those broad categories have been
expanded and subdivided and the word "profes-
sion" now is used more widely to refer to "a
vocation in which a professed knowledge of
some department of learning is used in its
application to the affairs of others, or in the
practice of an act founded upon it". (Shorter
Oxford Dictionary, 3rd ed.)
I do not agree with Dr Solandt in his view that
within the broad general profession of medicine,
for example, those who specialize in surgery,
internal medicine or any one of the many other
areas of specialization are members of separate
professions. Neither, in my view, are barristers,
solicitors, or notaries members of a profession
other than law. But these views, too, are subjec
tive and to that extent are of limited assistance.
However, it must also be conceded that added
to the classic learned professions, of course,
would be science in its broadest sense, probably
better described as the scientific community.
Within that category there are those who are
engaged in pure scientific research and others
who are more involved in the application of
scientific knowledge to practical, large scale,
every-day problems. In the former category are
persons who, by their training, engage in a par
ticular field of scientific research, and over the
years in the eyes of the public and their breth
ren in the scientific community they have
become known as members of a profession
engaged in that particular field. Within the latter
category certainly the profession of engineering
would fall. But the engineer makes use of the
body of scientific knowledge largely developed
by researchers specializing themselves in par-
ticular areas of interest, e.g. electricity, chemis
try, mining, physics and numerous others. Does
the fact that they are engineers in the broad
sense mean that these persons are not part of
the professions the members of which are spe
cialists in certain scientific fields and may be
known as chemists, geologists, physicists and
research scientists in electricity? I think not, but
that does not really help in the determination of
the question at issue here because the Institute
has itself in the past and, apparently, from the
substantial body of evidence adduced before
me, up until 1968 or 1969 referred to its mem
bers as being in the Chemical profession. Yet
now it seeks to deny that there is such a profes
sion and says that the Institute is composed of a
number of separate professions being those
whose basic interests are confined to one aspect
of the whole, e.g. biochemistry, organic chemis
try, etc. and the application of engineering prin
ciples to the science of chemistry.
In my view, this argument cannot prevail
because it not only flies in the face of the usual
principles of statutory interpretation but also in
the face of its own constitution, published
works and the evidence of John Jardine, a wit
ness called for the Crown. "Profession", in my
view, is a broad term in the sense used original
ly in relation only to the three learned profes
sions. Its use in the sense urged by the Institute
is, in my opinion, colloquial in that it refers to
subdivisions of recognized professions as being
themselves professions and to that extent could
be said to be capable of being used in relation to
any specialized vocation whether it be appraisal
of real estate, or the selling of life insurance or
securities with just as much force as in relation
to the myriad of specializations within the spec
trum of professions in its true sense. Yet it is
well known that those vocations are not recog
nized as professions if only because they do not
have a "professed knowledge of some depart
ment of learning" and are not given the recogni
tion accorded by governments to most profes
sions of the power of self-regulation.
Mr. Jardine, a member of the Institute for
many years, was called by the Crown, not as an
expert, but in his capacity both as a chemist and
professional engineer employed as such since
1945. He testified that throughout his career the
phrase "the chemical profession" has been and
is commonly used in the chemical industry to
designate the body of professional persons who
earn their living in the fields of chemistry,
chemical engineering and related chemical
fields. In support of this proposition he filed
various exhibits showing its usage in that way.
Included in these exhibits was a copy of the
first issue of the publication Chemistry in
Canada in which the phrase is used on a
number of occasions. I was impressed by Mr.
Jardine and I accept his evidence of usage and
conclude that "the chemical profession" is a
name utilized by persons tied by the common
bond of an interest and training in the field of
chemistry.
Counsel for both parties agreed that in this
case the applicable rule of construction of the
section is the golden rule, which is really a
modification of the literal rule. It was stated in
this way by Parke B. in Becke v. Smith (1836) 2
M & W 191 at p. 195:
It is a very useful rule, in the construction of a statute, to
adhere to the ordinary meaning of the words used, and to
the grammatical construction, unless that is at variance with
the intention of the legislature, to be collected from the
statute itself, or leads to any manifest absurdity or repug
nance, in which case the language may be varied or modi
fied, so as to avoid such inconvenience, but no further.
Having found as I have that the chemical
profession is a recognizable group composed of
persons having a common interest and training
in the field of chemistry there is no difficulty in
finding that the literal meaning of the words of
section 11(1)(o) includes the publication direct
ed to members of the Institute as members of a
particular profession, unless, as was submitted
by its counsel this is modified because it leads
to a manifest absurdity or is ambiguous and
capable of two meanings or is at variance with
the intention of the legislature, in any of which
events the interpretation should be rejected.
Firstly, I find it impossible to agree that the
interpretation leads to a manifest absurdity.
There is nothing absurd in the conclusion unless
I reject not only the evidence of Mr. Jardine,
which I have already accepted and, as well,
reject the usage of the phrase "chemical profes
sion" by the Institute itself until recently. To
deny that usage, in my view, would be absurd, a
conclusion with which I do not think the Insti
tute can quarrel.
Secondly, I cannot agree that the words are in
the slightest ambiguous. It cannot be disputed
that the publication is primarily for the benefit
of members of the Institute. If, as I have found,
those members are part of a particular profes
sion, namely an ascertainable body commonly
designated by persons in it as "the chemical
profession" it is plainly unambiguous and the
ambiguity argument then cannot prevail.
Thirdly, an examination of the statute does
not reveal anything which would indicate that
the conclusion is at variance with the intention
of the legislature. On the contrary, it appears to
be in accord with it. If the words "a particular
profession" had not been used and either the
words "a profession" or "professions" had been
used instead, then no publications for the ben
efit of any . profession would have had available
to it second class mailing rates. By using the
word "particular" the legislature made clear that
it did not intend that a publication primarily
directed to several or all professions would be
precluded from taking advantage of the second
class mailing privileges. A plain reading of the
whole of section 11 makes it clear that the
legislature intended that low second class mail
ing rates would be available only to publications
written for the benefit of a broader sector of the
general public than is the case when it is direct
ed toward a narrower segment, namely those in
any given profession.
Therefore, for all of the above reasons, I must
answer the question put to me as set forth at the
beginning of these reasons in the affirmative.
The Crown shall be entitled to taxed costs if
demanded.
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.