When Areas of Law Intersect

The Re B.C. Motor Vehicle Act eluciated some interesting challenges in the intersection of different areas of law.

The court cited Joseph Eliot Magnet of the University of Ottawa,

The transposition of the administrative law principle to a constitutional context is problematic. In the administrative law cases, the issue of intent concerns the intent of a specific person. In the constitutional cases, the issue of intent concerns the legislature, an incorporeal body made up of hundreds of persons. It may be said that such a body, like a corporation, is a legal fiction and has no intention in the relevant sense. It would follow that legislative intent, in the constitutional setting, is a hollow concept.

A corporation could therefore be preclued from the protections in s. 7 of the Charter.

Company’s Freedom of Speech?

In Irwin Toy Ltd. v. Quebec, the respondant sought protection from s. 248 and 249 of the Consumer Protection Act,

Advertising for persons under 13.

248. Subject to what is provided in the regulations, no person may make use of commercial advertising directed at persons under thirteen years of age.

1978, c. 9, s. 248.

Criteria of intent.

249. To determine whether or not an advertisement is directed at persons under thirteen years of age, account must be taken of the context of its presentation, and in particular of

(a) the nature and intended purpose of the goods advertised;

(b) the manner of presenting such advertisement;

(c) the time and place it is shown.

Irwin cited freedom of expression rights under s. 7 of the Charter. Dickson C.J. found,

We have already noted that it is nonsensical to speak of a corporation being put in jail. To say that bankruptcy and winding up proceedings engage s. 7 would stretch the meaning of the right to life beyond recognition.

As a result, corporations are generally assumed to be vicariously liable for the actions of its employees, but this liability can be extended further to primary liability.

Senior Directing Mind

R. v. Canadian Dredge & Dock Co. used the English identification doctrine, where a senior individual in a corporation can be metaphorically held to represent the mens rea and actus reus for a crime as the directing mind. Laskin C.J. stated,

Therefore, even in mens rea offences, if the court finds the officer or managerial level employee to be a vital organ of the company and virtually its directing mind in the sphere of duty assigned him so that his actions and intent are the action and intent of the company itself, the company can be held criminally liable. The wrongful action of the primary representative, by attribution to the corporation, creates primary rather than vicarious liability. The identity doctrine merges the board of directors, the managing director, the superintendent, the manager or anyone else to whom was delegated the governing executive authority of the corporation, and the conduct of any of the merged entities is thereby attributed to the corporation. A corporation may, by this means, have more than one directing mind.

Rhône (The) v. Peter A.B. Widener (The) elaborated on this further, establishing the requirements for a directing mind,

The key factor which distinguishes directing minds from normal employees is the capacity to exercise decision-making authority on matters of corporate policy, rather than merely to give effect to such policy on an operational basis…

[senior officer in this case] had certain decision-making authority… [and] important operational duties, [whereas] governing authority over the management and operation… lay elsewhere.

Directing mind in this case was found to be an employee given central authority that provides discretion, rather than necessity or tradition of duties.