T-3881-77
The Queen (Plaintiff)
v.
Eric B. Appleby and Maritime Law Book Ltd.
(Defendants)
Trial Division, Addy J.—Fredericton, May 8;
Ottawa, June 25, 1980.
Crown — National Library Act — Plaintiff seeking order
that defendants, publishers, furnish copies of books pursuant
to s. 11(1) of the Act — Specific remedy provided for in s.
11(4) of the Act in case of failure to conform to obligation
under s. 11(1) — Whether remedy exhaustive — Whether
plaintiff can seek remedy requested — National Library Act,
R.S.C. 1970, c. N-11, s. 11.
Plaintiff seeks an order, pursuant to section 11 of the Na
tional Library Act, that copies of various law books which
defendants published prior to January 1, 1977, be furnished.
The question is whether, because section 11(4) of the Act
contains a specific remedy for any failure to conform to the
obligation created by section 11(1) as varied by section 11(2),
that remedy is in effect exhaustive and bars the plaintiff from
seeking the one presently being requested.
Held, the action is dismissed. Parliament has, in the legisla
tion under consideration, chosen to stipulate that no compensa
tion would be provided by decreeing that the publisher would
supply the book "at his own expense" and has provided a clear
remedy to ensure compliance with that statutory duty and a
specific penalty for default. This is a clear case where the
general principle that the stipulated remedy is deemed to be
exclusive should be applied. There is no justification whatsoever
for any exception being made to it.
Pasmore v. The Oswaldtwistle Urban District Council
[1898] A.C. 387, referred to. Vallance v. Falle (1884) 13
Q.B.D. 109, referred to. Manitoba Fisheries Ltd. v. The
Queen [1979] 1 S.C.R. 101, applied.
ACTION.
COUNSEL:
L. S. Holland for plaintiff.
E. B. Appleby for defendants.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
E. B. Appleby, Fredericton, for defendants.
The following are the reasons for judgment
rendered in English by
ADDY J.: The defendant, Eric B. Appleby, was,
until 1974, the publisher of various law reports. At
that time he caused Maritime Law Book Ltd. to be
incorporated and the publishing was from that
time carried on by the corporated defendant. The
plaintiff is claiming from both defendants, pursu
ant to section 11 of the National Library Act', an
order that copies of the various law books which
they have published from time to time be
furnished.
Section 11 of the National Library Act reads as
follows:
11. (1) Subject to this section and the regulations, the
publisher of a book published in Canada shall, at his own
expense and within one week from the date of publication, send
two copies of the book to the National Librarian, who shall give
to the publisher a written receipt for the book.
(2) Where the retail value of a book published in Canada
exceeds fifty dollars, the publisher of the book is deemed to
have complied with the requirements of this section if, at his
own expense and within one week from the date of publication,
he sends to the National Librarian one copy of the book, equal
in quality to the best quality prôduced.
(3) The Minister may make regulations
(a) respecting the quality of the copies required to be sent to
the National Librarian of any book the copies of which are
not of uniform quality;
(b) prescribing the classes or kinds of books in respect of
which only one copy is required to be sent to the National
Librarian; and
(c) prescribing the classes or kinds of books in respect of
which no copies are required to be sent to the National
Librarian unless specifically requested by him.
(4) Every publisher of a book published in Canada who
contravenes or fails to comply with any provision of this section
or the regulations is guilty of an offence and is liable on
summary conviction to a fine not exceeding one hundred and
fifty dollars. [The most relevant portions of the section have
been underlined.]
On the basis of an undertaking on the part of
the corporate defendant to forward, in accordance
with section 11, copies of all books published since
the 1st of January 1977, the parties have agreed
that the present action is now limited solely to the
publications issued previous to that date. The par
ties agreed at trial on what specific publications
were involved.
R.S.C. 1970, c. N-11.
Important questions originally raised by the
defendants in the pleadings, including the legisla
tive competence of the Parliament of Canada to
enact section 11 and the question of whether the
section is in conflict with the Canadian Bill of
Rights, S.C. 1960, c. 44 [R.S.C. 1970, Appendix
III] since it provides for expropriation without
compensation, were abandoned at trial as a result
of a unanimous finding on these issues of the
Appeal Division of the New Brunswick Supreme
Court, to which I shall refer later. The sole issue
remaining to be determined is whether, because
section 11(4) of the statute contains a specific
remedy for any failure to conform to the obligation
created by section 11(1) as varied, by section
11(2), that remedy is in effect exhaustive and bars
the plaintiff from seeking the one presently being
requested.
It is clear that the duty or obligation created by
section 11 is not even remotely a codification,
re-statement or re-enactment of any common law
right, duty or obligation: it is essentially and exclu
sively a creature of statute. It is, in addition, an
enactment which might be characterized as
extraordinary under the circumstances as it effec
tually provides for what amounts to an expropria
tion of a property right without providing for any
compensation whatsoever.
The personal defendant, Eric B. Appleby, has
been accused and convicted, pursuant to section
11(4), of unlawfully between October 13, 1973
and February 19, 1974, failing to send two copies
of a book which he had published. He was fined
$100 and in default was sentenced to serve ten
days imprisonment. He was further ordered to
comply with section 11 within thirty days. His
appeal by way of trial de novo failed and a further
appeal to the New Brunswick Court of Appeal was
also dismissed. This case is reported in Regina v.
Appleby (No. 2) 2 .
The Court had this to say about the order for
compliance with section 11 at page 118 of the
report:
2 (1977) 76 D.L.R. (3d) 110.
Counsel for the Crown concedes that the order requiring full
compliance with the provisions of s. 11 could not have been
enforced unless the trial Judge, acting under s. 663(1)(b) of the
Criminal Code, had made compliance with the Act a condition
of a probation order, and he submits that the Court should hear
evidence or submissions with respect to sentence should this
Court uphold the conviction. I think the case should be treated
as one contested solely for the purpose of having determined the
validity of the section of the National Library Act alleged to
have been contravened, and I would therefore strike out the
portion of the sentence directing compliance with s. 11 of the
Act and affirm the remainder of the sentence.
Even without going into the question of whether
or not, because of the expression "within one
week" in subsection (1), each offence is a continu
ing one which, after the week had elapsed would
entitle the Crown to charge an offender with a
separate offence for each day of non-compliance, it
is evident that each failure to produce each of the
books published would most certainly constitute a
separate offence. One might, therefore, conclude
that not only does section 11(4) provide a remedy
but it appears to be a very forceful and effective
remedy.
In the determination of the fundamental legal
question in issue before me, however, the likeli
hood of the severity of the penalty, which might
result from criminal prosecution or the effective
ness of the remedy as compared with those nor
mally available through civil proceedings, is not, in
my view, a valid consideration. It is important,
however, to bear in mind that where a breach of a
right may result in criminal proceedings against
the delinquent party, the person offended has no
control over the penalty nor has he any tangible
right to insist on any particular penalty, the latter
remaining always within the discretion of the
court, except to the extent that a minimum penalty
might be provided for. Finally, except where, as in
the case at bar, the Crown itself is the party whose
rights are infringed, the offended party cannot
normally reap any pecuniary benefit or compensa
tion from any fine which might be imposed. There
exist, therefore, at law substantial and fundamen
tal differences between the two even from the
viewpoint of the offended party, that is, from the
standpoint of the remedy itself, although the pos
sibility of criminal proceedings may at times, from
a practical standpoint, prove just as effective or
even more effective in ensuring compliance on the
part of the party on whom the duty has been
imposed.
Craies on Statute Law', at pages 247 and 248,
contains an excellent review of the law and of the
jurisprudence on the point whether the statutory
remedy provided is an exclusive one and I can
conceive of no better way of expressing it. Under
the heading "Specific remedy excludes other reme
dies" he states:
If a statute creates a new duty or imposes a new liability, and
prescribes a specific remedy in case of neglect to perform the
duty or discharge the liability, the general rule is "that no
remedy can be taken but the particular remedy prescribed by
the statute." (Stevens v. Evans (1761) 2 Burr. 1152, 1157....)
"Where an Act creates an obligation," said the court in Doe d.
Bishop of Rochester v. Bridges, ((1831) 1 B. & Ad. 847, 859)
"and enforces the performance in a specific manner, we take it
to be a general rule that performance cannot be enforced in any
other manner." And in Stevens v. Jeacocke, ((1848) 11 Q.B.
731, 741) the court said: "It is a rule of law that an action will
not lie for the infringement of a right created by statute, where
another specific remedy for infringement is provided by the
same statute." And in R. v. County Court Judge of Essex,
((1887) 18 Q.B.D. 704, 707 ...) Lord Esher M.R. said: "The
ordinary rule of construction applies to this case, that where the
legislature has passed a new statute giving a new remedy, that
remedy is the only one which can be pursued."
The result of the application of the rule may even be to oust
jurisdiction as in Barraclough v. Brown, ([1897] A.C. 615, 622
...) where the question raised was whether an action for a
declaration of a right would lie on a statute which gave a new
right to recover certain expenses in a court of summary juris
diction from persons not otherwise liable. Lord Watson said:
"The right and the remedy are given uno flatu, and one cannot
be dissociated from the other. By these words the legislature
has, in my opinion, committed to the summary court exclusive
jurisdiction, not merely to assess the amount of expenses to be
repaid to the undertaker, but to determine by whom the
amount is payable, and has therefore by plain implication
enacted that no other court has any authority to entertain or
decide these matters." In the Court of Appeal, where section 35
of the Local Government Superannuation Act 1937 was in
question, Asquith L.J. said: "It is undoubtedly good law that
where a statute creates a right and in plain language gives a
specific remedy or appoints a specific tribunal for its enforce
ment, a party seeking to enforce that right must resort to this
remedy or this tribunal and not to others." (Wilkinson v.
Barking Corporation [1948] 1 K.B. 721, 724.) [The underlin
ing is mine.]
'Seventh Edition, 1971.
In the case entitled Workmen's Compensation
Board v. White Motor Company of Canada 4 at
page 573 Hughes J.A. quoted and adopted Pas-
more v. The Oswaldtwistle Urban District
Councils where the same principle is stated as
follows:
The principle that where a specific remedy is given by a statute,
it thereby deprives the person who insists upon a remedy of any
other form of remedy than that given by the statute, is one
which is very familiar and which runs through the law.
As in most cases, where general principles of
law exist, there are exceptions. By looking at the
enactment as a whole or by considering such
things as its general objective, the harm which the
remedy is designed to obviate or the persons or the
extent of the class of persons whom the statute is
designed either to protect by or render subject to
the prohibition or duty, one might well come to the
conclusion that Parliament, contrary to the general
principle did not, in a particular case, intend the
remedy to be exclusive, although it has not
expressly stated so in the text of the statute.
Valiance v. Falleb seems to be the leading case on
the subject. The rule as laid down in that case was
approved in Groves v. Wimborne 7 ; Saunders v.
The Holborn District Board of Works 8 ; and Monk
v. Warbey 9 . As mentioned in the above cited text
of Craies at page 249, Stephen J. stated the law on
this point in the Valiance case, supra, as follows:
"The general rule ... seems in substance to be, that the
provisions and object of the particular enactment must be
looked at in order to discover whether it was intended to confer
a general right which might be the subject of an action, or to
create a duty sanctioned only by a particular penalty, in which
case the only remedy for breach of the duty would be by
proceedings for the penalty." It was held that the penalty
prescribed by the Merchant Shipping Act 1854 was exclusive.
The case of Waghorn v. Collison 10 was referred
to by the plaintiff in support of the argument that
the general rule should not be applied in the case
4 (1971) 3 N.B.R. (2d) 565.
5 [1898] A.C. 387 at p. 394.
6 (1884) 13 Q.B.D. 109.
7 [1898] 2 Q.B. 402.
8 [1895] 1 Q.B. 64.
9 [l935] I K.B. 75.
10 (1922) 91 L.J.K.B. 735.
at bar. The Waghorn case is of no help whatsoever
to the plaintiff as the statute under consideration
there contained an express provision to the effect
that the remedy would not be exclusive. It was
expressed in the following terms [at page 736]:
"... this provision [should] not be in derogation of
any right of the workman to recover wages by any
other proceedings."
In the case at bar, the person, whose interest is
being promoted by section 11, is the Crown in the
right of Canada through its institution, the Na
tional Library, and it is the Crown alone who can
enforce compliance with the statute. There is no
particular moral issue at stake nor any matter of
urgent public interest or import involved. Having
regard to the fact that no compensation is provided
for in the legislation, the statutory duty to supply
books gratuitously created by this Act of Parlia
ment, if not onerous from a financial standpoint,
constitutes nonetheless an invasion of a right to
private property which Parliament normally pro
tects very carefully.
In a recent decision in the case of Manitoba
Fisheries Limited v. The Queen'', Ritchie J. in
delivering reasons on behalf of the entire Court
had this to say on the subject at pages 109 and
110:
There is no express language in the Act providing for the
payment of compensation by the federal Crown but the appel
lant relies upon the long-established rule which is succinctly
stated by Lord Atkinson in Attorney-General v. De Keyser's
Royal Hotel Ltd. [1920] A.C. 508 at p. 542 where he said:
The recognized rule for the construction of statutes is that,
unless the words of the statute clearly so demand, a statute is
not to be construed so as to take away the property of a
subject without compensation.
The rule of construction is more amply stated in Maxwell on
Interpretation of Statutes, 11th ed., pp. 275 to 277 in language
which was approved by Wilson J.A. in the British Columbia
Court of Appeal in B.C. Power Corp. Ltd. v. Attorney-General
of British Columbia et al. (1962) 34 D.L.R. (2d) 25 at p. 44,
which is set out at length in the judgment of Mr. Justice Collier
at [1977] 2 F.C. p. 462, where reference is also made to the
approach adopted by Lord Radcliffe in Belfast Corporation v.
O.D. Cars Ltd. [1960] A.C. 490 at p. 523 (H.L.(N.l.)). In
considering whether a particular piece of legislation contem
plates taking without compensation, Lord Radcliffe there said:
On the one hand, there would be the general principle,
accepted by the legislature and scrupulously defended by the
" [1979] 1 S.C.R. 101.
courts, that the title to property or the enjoyment of its
possession was not to be compulsorily acquired from a sub
ject unless full compensation was afforded in its place.
Acquisition of title or possession was "taking." Aspects of
this principle are found in the rules of statutory interpreta
tion devised by the courts, which required the presence of the
most explicit words before an acquisition could be held to be
sanctioned by an Act of Parliament without full compensa
tion being provided, or imported an intention to give compen
sation and machinery for assessing it into any Act of Parlia
ment that did not positively exclude it. This vigilance to see
that the subject's rights to property were protected, so far as
was consistent with the requirements of expropriation of
what was previously enjoyed in specie, was regarded as an
important guarantee of individual liberty. It would be a
mistake to look on it as representing any conflict between the
legislature and the courts. The principle was, generally
speaking, common to both. [The underlining is mine.]
Parliament has, in the legislation under con
sideration, chosen to stipulate that no compensa
tion would be provided by decreeing that the pub
lisher would supply the book "at his own expense"
and has provided a clear remedy to ensure compli
ance with that statutory duty and a specific penal
ty for default. There is no reason to believe that, if,
in the case at bar, the Crown had decided to fully
apply the remedy provided for by Parliament to
each default, the desired result would not have
been obtained.
In these circumstances, I can think of no clearer
case where the general principle, that the stipulat
ed remedy is deemed to be exclusive, should not be
applied and can find no justification whatsoever
for any exception being made to it.
The action will, accordingly, be dismissed with
costs.
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.