KAYLEIGH MILLER, DONALD VOSBURGH, RODERICK POLLARD, INFINITY VAPES INC., v. ANTHONY MILLER,, 2022 NBKB 205

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON Miller et al v. PNB 2022 NBKB 205 FC-29-2022 2022/11/01 BETWEEN: KAYLEIGH MILLER, DONALD VOSBURGH, RODERICK POLLARD, INFINITY VAPES INC., and ANTHONY MILLER, Plaintiffs (Respondents on Motion), – and – THE PROVINCE OF NEW BRUNSWICK, Respondent (Applicant on Motion). DECISION BEFORE: Chief Justice Tracey K. DeWare AT: Fredericton, New Brunswick DATE OF HEARING: October 11, 2022 DATE OF DECISION: November 1, 2022 APPEARANCES: Rose Campbell, Isabel Lavoie Daigle and John C.

Gillis, on behalf of the Respondent (Applicant on Motion) Mel K. Norton, N. Joan Kasozi, and Christopher MacLeod, on behalf of the Plaintiffs (Respondents on

Motion) DeWare, C.J. INTRODUCTION [ 1 ] The Applicant, the Province of New Brunswick, files the current motion seeking an order that certain parts of the Respondents’ – Kaleigh Miller, Donald Vosburgh, Roderick Pollard, Infinity Vapes Inc., and Anthony Miller – Amended Notice of Action with Amended Statement of Claim be struck pursuant to Rules 23.01(1) (a), 23.01(2) (

b) and 27.09 of the New Brunswick Rules of Court . The Respondents oppose the motion and request the Applicant’s motion be dismissed with costs. FACTS [ 2 ] In the spring of 2021, the Applicant introduced Bill-63, which was an amendment to the Tobacco and Electronic Cigarette Sales Act ( TECSA ) which banned the sale of flavoured vaping products (“the flavour ban”). In an action filed in February 2022 and amended in March 2022, the Respondents challenge the constitutionality of the amendments to TECSA , in particular

section 2.2 , which states as follows: 2.2(1) For the purposes of this section, “noticeable flavour” means a flavour that has a noticeable taste or scent, including, but not limited to, the following recognizable flavours: (

a) fruit; (

b) chocolate; (

c) honey; (

d) spice; (

e) clove; (

f) herb; (

g) alcohol; (

h) candy; (

i) vanilla; (

j) menthol; and (

k) mint. 2.2(2) No person shall sell or offer for sale a substance that is intended to be heated in an electronic cigarette and that has a noticeable flavour, that is represented as having a noticeable flavour, or that is presented by its packaging, by advertisement or otherwise as having a noticeable flavour. 2.2(3) No person shall sell or offer for sale a substance that is intended to be added to the substance referred to in subsection (2) and that has a noticeable flavour, that is represented as having a noticeable flavour, or that is presented by its packaging, by advertisement or otherwise as having a noticeable flavour. 2.2(4) Despite subsections (2) and (3), a person may sell or offer for sale the following substances:

(

a) a substance that is tobacco flavoured and does not have another noticeable flavour; and (

b) a substance containing cannabis. [3] The Respondents challenge the constitutionality of the “flavour ban” pursuant to

section 7 and

section 15 of the CanadianCharter of Rights and Freedoms.

Sections 7 and 15 of the Charter state as follows: 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordancewith the principles of fundamental justice. 15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law withoutdiscrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental orphysical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantagedindividuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age ormental or physical disability. (Emphasis mine.) [4] On March 21, 2022, the Respondents filed a motion seeking injunctive relief which was heard by Justice Morrison on March 29,2022.

Justice Morrison issued his decision (Byram et al v. The Province of New Brunswick, 2022 NBQB 73 ), wherein hedenied the injunction. In rendering his decision, Justice Morrison commented at paragraphs [19], [27] and [33] as follows: [19] The applicants argue that a claim that is based on a violation of Charter rights ought not to be determined in a

summary fashion. Iagree with the submission of counsel for the Province that simply raising a Charter issue does not automatically mean that there is atriable issue. However, in this case cogent arguments have been advanced by both sides with respect to the Charter issues engaged.The issues are not purely questions of law but rather their determination will involve mixed questions of fact and law. In suchcases, determination of the Charter issues should be left to the trial judge after consideration of a full factual foundation.

TheRecord demonstrates that there are complex issues to be determined and thus it cannot be said that the application is either frivolous orvexatious. The first part of the test is satisfied. (…) [27] If this was a commercial case rather than a Charter challenge to duly enacted legislation, I might have accepted that the applicantshave suffered irreparable financial harm. I conclude otherwise. First, the Charter protects individuals’ rights and thus the corporateapplicants Infinity and FOV cannot advance a Charter claim. Further, economic or financial harm is not harm that is protectedby the Charter.

I agree with the submission of counsel for the Province that it would be incongruous for the Court to grantinjunctive relief for a matter that cannot be protected through the overarching proceeding. (…) [33] As mentioned earlier, the health harms advanced by the applicants wither in light of the fact that a viable vaping alternative tosmoking tobacco is available in the form of tobacco flavoured vaping products.

I acknowledge that the applicants are likely to suffereconomic harm, however, the evidence of Ms. van der Pluijm is that the Province has incurred significant costs in both money and timeto establish the licensing framework and to fully operationalize the program. When one places the economic interests of the sevenapplicants on the scale against the public interest, the scale tips dramatically in favour of the public interest. In my view, the balance ofconvenience weighs strongly in favour of not granting the injunction.

[Emphasis mine.] [ 5 ] The present motion was filed by the Applicant on August 12, 2022. At that time, the Applicant set out the order sought as follows: 1. The Plaintiffs’ Amended Notice of Action with Amended Statement of Claim (“Amended Statement of Claim”) be struck out in part for failing to disclose a reasonable cause of action against the Province, pursuant to Rule 23.01(1) (b); 2. Certain questions of law raised in the Amended Statement of Claim be determined prior to trial as this would dispose of the action, shorten the trial or result in a substantial saving of costs pursuant to 23.01(1)(a); 3.

The corporate plaintiff Infinity Vapes Inc. does not have legal capacity to advance the claim pursuant to Rule 23.01(2) (b); 4. The Plaintiffs’ Amended Statement of Claim be struck out in part on the basis that it may prejudice, embarrass or delay the fair trial of this action pursuant to 27.09; 5. That the Court-directed tentative discovery dates (Week of October 17 and 24, 2022) be adjourned pending the outcome of this motion; 6. Pursuant to Rule 59 of the Rules of Court , costs of this Motion; and 7.

For such further and other relief as this Honourable Court deems just and expedient. [ 6 ] The Applicant explains the grounds relied upon in their notice of motion in support of the relief sought as follows: 1. Economic claims – Individual Plaintiffs a. The individual Plaintiffs state at paras. 2 (in part) and 44 that the alleged infringement of their Charter rights will cause them to suffer the loss of their livelihood and they claim damages pursuant to s. 24 and 52 of the Charter as a result; b. Economic rights are not a protected interest under

section 7 (or 15) of the Charter in the manner alleged by the individual Plaintiffs in the Amended Statement of Claim, and as such, the pleadings fail to disclose a reasonable cause of action and should be struck; pursuant to Rules 23.01(

a) and (b); c. Further, pursuant to Rule 27.09(a), the Plaintiffs’ claims as to their alleged loss of livelihood should be struck as it may prejudice, embarrass or delay the fair trial of the action; 2. Legal capacity – Corporate Plaintiff a. Corporations do not enjoy the protection of the Charter in the manner alleged by the individual Plaintiffs at paras 44 & 51(

d) in the

Amended Statement of Claim, and as such, the pleadings fail to disclose a reasonable cause of action and should be struck pursuant toRules 23.01(1)(

a) and 23.01(1)(b); b. Further, pursuant to Rule 23.01(2)(b), the corporate Plaintiff Infinity Vapes Inc. does not have legal capacity to commence orcontinue the action as it relates to the Charter claims as plead in the Amended Statement of Claim; c. Further, pursuant to Rule 27.09(a), the corporate Plaintiff Infinity Vapes Inc. claim as to its alleged Charter rights should be struck asit may prejudice, embarrass or delay the fair trial of the action; ISSUES [7] The issues for the court to resolve on this motion are as follows: (

i) Does res judicata or issue estoppel apply in this case as the issues were previously raised and judicially determined at the time theinjunction request was considered? (ii) Should certain portions of the Statement of Claim be struck on the grounds that they do not disclose a reasonable cause of actionbecause economic rights are not protected under

Section 7 and

Section 15 of the Charter? (iii) Should certain portions of the Statement of Claim be struck as the corporate Plaintiff cannot claim

section 15 Charter protection asset out in the Statement of Claim? and (iv) Costs. POSITION OF THE PARTIES [8] The Applicant maintains that streamlining the issues in the Statement of Claim at this juncture will save significant time andexpense for all parties. The Applicant suggests that while the individual Respondents can appropriately pursue their claims pursuant tosection 7 of the Charter, the current state of the law is clear – the Charter does not grant protection of purely economic rights nor maycorporate parties advance Charter claims except in the rarest of circumstances.

Finally, the Applicant suggests that there are no issues ofres judicata in this matter. The Applicant points out that Justice Morrison was considering a request for an injunction and analyzed thatrequest pursuant to the legal test set out in RJR-MacDonald Inc. v. Canada (Attorney General), (SCC). The Applicantsuggests the legal tests for the preliminary determination of a question of law and the striking of portions of a pleading are completelydifferent. [9] The Respondents argue the Applicant is back before the court arguing the same points it did before Justice Morrison.

TheRespondents suggest that Justice Morrison has already ruled that these are viable claims which must be adjudicated upon at a trial. TheRespondents maintain that the principles of res judicata are intended to protect parties from the re-litigation of issues already adjudicatedupon by the courts. The Respondents submit that the pre-conditions for a finding of res judicata or issue estoppel have been met in thiscase. The Respondents insist it would be completely inappropriate to strike any portion of the Statement of Claim at this stage of theproceedings.

LAW AND ANALYSIS Does res judicata/issue estoppel apply in this case? [10] The Respondents refer the Court to the three-part test to establish res judicata/issue estoppel as set out in Danyluk v. AinsworthTechnologies Inc. 2001 SCC 44:

(

i) the same question has been decided; (ii) the decision which is said to create the estoppel is final; and (iii) the same partis or their privies are involved in each action. [11] In my view, only the third element of the Danyluk criteria are met in this case. The questions before this court are not the samequestions that were before Justice Morrison. Justice Morrison was considering whether or not the moving parties had met the test forinjunctive relief as set out in RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] S.C.J. No. 17. Thisthree-part test requires the following:

(1) A preliminary assessment of the case must be made on the merits of the case to ensure that there is a serious issue to be tried;

(2) It must be determined that the Applicant will suffer irreparable harm if the application were refused; and

(3) An assessment must be made as to which of the parties would suffer greater harm from the granting or refusal to grant the injunctionpending a decision on the merits. [12] The only part of the RJR-MacDonald test which intersects with the court’s analysis in the context of determining thispreliminary question of law and the request to strike a portion of a pleading is part one. However, in the context of this case, JusticeMorrison was considering part one of the RJR-MacDonald test in the context of the entirety of the pleading, not specific portionsthereof.

It is clear form Justice Morrison’s decision that he considered certain portions of the action to be less persuasive. While JusticeMorrison agreed the Charter issues engaged required a trial, part of his reasoning in refusing the injunction was the fact the corporatePlaintiff could not proceed with a Charter claim and economic harm is not protected by the Charter.

The lack of merit in these particularparagraphs of the pleading left Justice Morrison with the view that injunctive relief was not appropriate despite the fact that some of theCharter claims should proceed to trial. [13] In my view, the principles of res judicata/issue estoppel are not applicable in the circumstances of this case. The first issue istherefore answered in the negative. Should certain portions of the Statement of Claim be struck on the grounds that individual economic rights are not protectedunder

section 7 or 15 of the Charter? [14] Rule 23.01(1)(

a) provides as follows: 23.01 Where Available

(1) The plaintiff or a defendant may, at any time before the action is set down for trial, apply to the court (

a) for the determination prior to trial, of any question of law raised by a pleading in the action where the determination of that questionmay dispose of the action, shorten the trial, or result in a substantial saving of costs, (…)

[ 15 ] Rule 23.01(2)(

b) provides as follows:

(2) A defendant may, at any time before the action is set down for trial, apply to the court to have the action stayed or dismissed on the ground that (…) (

b) the plaintiff does not have legal capacity to commence or continue the action, or [ 16 ] Rule 27.09 provides as follows: 27.09 Striking Out a Pleading or Other Document The court may strike out any pleading, or other document, or any part thereof, at any time, with or without leave to amend, upon such terms as may be just, on the ground that it (

a) may prejudice, embarrass or delay the fair trial of the action, (

b) is scandalous, frivolous or vexatious, (

c) is an abuse of the process of the court (

d) is a contempt of court, or (

e) is not in conformity with the Rules of Court . [ 17 ] The Applicant asks this court to strike those portions of the Amended Statement of Claim where relief is sought for a violation of economic rights under the Charter , as economic rights are not protected by

section 7 nor 15 of the Charter as alleged by the Respondents. The Applicant argues that it is appropriate for the Court to determine pursuant to Rule 23.01(1) (

a) the preliminary question of law of the viability of the relief claimed for a violation of economic rights. The Applicant further submits that if this preliminary question is answered in their favour, then the corresponding paragraph of the Respondents’ Statement of Claim should be struck. The Applicant suggests the following paragraph must be struck: 44. Further, it is established at law that the right to pursue a livelihood is part of the “life, liberty and security of the person” rights protected by

Section 7 of the Charter when limitations upon that right cannot be rationally justified by government. The Act will do immeasurable harm to the ability of entrepreneurs the individual plaintiffs to earn a living. In short, it will result in fewer jobs and more smoking-related illnesses, without any countervailing effect on illegal use by minors.

[ 18 ] The Respondents rely upon the Supreme Court of Canada’s analysis in Fraser v. Canada (Attorney General) , 2020 SCC 28 . The Fraser case considered the impact of certain features of the RCMP pension scheme which were argued to have a disproportionate impact on women. Full-time RCMP members who temporarily reduced their hours under a job-sharing agreement were unable to acquire full- time pension credit for their service. However, full-time RCMP members who were suspended or went on unpaid leave continued to receive the benefit of full credit towards their pension even during their period of absence.

The argument was advanced that these rules had a disproportionate impact on women with children as they represented the vast majority of the members who participated in the job- sharing program. [ 19 ] The Supreme Court of Canada in Fraser determined that the particular features considered under the RCMP pension plan were discriminatory against women.

The Supreme Court of Canada’s conclusion on this point is set out in Fraser at paragraphs 105-108 as follows: 105 Courts, by identifying adverse impact discrimination, have “been particularly effective in dealing with criteria which specifically disadvantage women with childcare responsibilities” (Fredman (2011), at p. 181). The European Court of Justice, for example, has held that providing workers with less favourable benefits based on their working hours can amount to adverse impact discrimination against women (see Jenkins v. Kingsgate (Clothing Productions) Ltd , C-96/80, [1981] E.C.R.

I-911; Bilka-Kaufhaus GmbH v. Weber von Hartz , C-170/84, [1986] E.C.R. I-1607; Rinner-Kühn v. FWW Spezial-Gebäudereinigung GmbH , C-171/88, [1989] E.C.R. I-2743; Vroege v. NCIV Instituut voor Volkshuisvesting BV , C-57/93, [1994] E.C.R I-4541; Schönheit v. Stadt Frankfurt am Main , C-4/02 and C-5/02, [2003] E.C.R. I-12575; see also Reg. v. Secretary of State for Employment, Ex parte Equal Opportunities Commission , [1995] 1 A.C. 1 (H.L.) ; Braun, at pp. 137-40). 106 All of these sources – and more – show the clear association between gender and fewer or less stable working hours.

They provide powerful support for Ms. Fraser’s core argument: that the RCMP’s use of a temporary reduction in working hours as a basis for imposing less favourable pension consequences has an adverse impact on women. The first part of the s. 15(1) test has therefore been met. 107 This leads me to the second part of the s. 15(1) inquiry: whether this adverse impact reinforces, exacerbates or perpetuates disadvantage. 108 There is no doubt that it does. I agree with Ms.

Fraser that the negative pension consequences of job-sharing perpetuate a long-standing source of disadvantage to women: gender biases within pension plans, which have historically been designed “for middle and upper-income full-time employees with long service, typically male” ( Report of the Royal Commission on the Status of Pensions in Ontario (1980), at p. 116). (Emphasis mine.) [ 20 ] The Respondents refer this Court to the Supreme Court of Canada’s analysis at paragraph [76] in Fraser in support of their position: This brings us to the second step of the s. 15 test: whether the law has the effect of reinforcing, perpetuating, or exacerbating disadvantage ( Alliance , at para. 25).

This inquiry will usually proceed similarly in cases of disparate impact and explicit discrimination. There is no “rigid template” of factors relevant to this inquiry ( Quebec v. A , at para. 331, quoting Withler , at para. 66). The goal is to examine the impact of the harm caused to the affected group.

The harm may include “[e]conomic exclusion or disadvantage, [s]ocial exclusion ... [p]sychological harms ... [p]hysical harms ... [or] [p]olitical exclusion”, and must be viewed in light of any systemic or historical disadvantages faced by the claimant group (Sheppard (2010), at pp. 62-63 (emphasis deleted)). (Emphasis mine.) [ 21 ] The Applicant suggests that the Respondents are misinterpreting the scope of the Fraser decision as the jurisprudence in Canada clearly establishes that purely economic interests are not protected by

section 7 of the Charter . The Applicant relies upon the Supreme Court of Canada’s analysis in Siemans v. Manitoba , 2003 SCC 3 , which challenged legislation that prohibited video lottery terminals within a municipality. The argument advanced, very much akin to the argument advanced in this case, was that the legislation impeded the Plaintiff VLT owners’ right to pursue their livelihood pursuant to

section 7 of the Charter .

[22] The Applicant refers the Court to the pertinent portion of the Court’s analysis in Siemens at paragraphs [45] and [46] as follows: 45 The appellants also submitted that s. 16 of the VLT Act violates their right under s. 7 of the Charter to pursue a lawfuloccupation. Additionally, they submitted that it restricts their freedom of movement by preventing them from pursuing their chosenprofession in a certain location, namely, the Town of Winkler. However, as a brief review of this Court’s Charter jurisprudence makesclear, the rights asserted by the appellants do not fall within the meaning of s. 7.

The right to life, liberty and security of the personencompasses fundamental life choices, not pure economic interests. As La Forest J. explained in Godbout v. Longueuil (City), (SCC), [1997] 3 S.C.R. 844, at para. 66: ... the autonomy protected by the s. 7 right to liberty encompasses only those matters that can properly be characterized as fundamentallyor inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individualdignity and independence. More recently, Blencoe v.

British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44, concluded that the stigmasuffered by Mr. Blencoe while awaiting trial of a human rights complaint against him, which hindered him from pursuing his chosenprofession as a politician, did not implicate the rights under s. 7. See Bastarache J., at para. 86: The prejudice to the respondent in this case ... is essentially confined to his personal hardship.

He is not “employable” as a politician, heand his family have moved residences twice, his financial resources are depleted, and he has suffered physically and psychologically.However, the state has not interfered with the respondent and his family’s ability to make essential life choices. To accept that theprejudice suffered by the respondent in this case amounts to state interference with his security of the person would be to stretch themeaning of this right. 46 In the present case, the appellants’ alleged right to operate VLTs at their place of business cannot be characterized as afundamental life choice.

It is purely an economic interest. The ability to generate business revenue by one’s chosen means is not aright that is protected under s. 7 of the Charter. (Emphasis mine.) [23] The circumstances of this case are, in my view, identical to those considered by the Supreme Court of Canada in Siemans anddistinguishable from the circumstances considered in Fraser. Like in Siemans, the Respondents’ choice to sell flavoured vaping productsis purely an economic interest as was the operation of the VLT machines. The decision to sell flavoured vaping products cannot beconsidered a fundamental life choice.

Further, the TECSA does not perpetuate a source of disadvantage to a certain group based ongender or any of the other enumerated grounds. In Fraser, the economic interest was tied to the socioeconomic reality of workingwomen with children. There is no such socioeconomic interest at play in this case. [24] In answer to the second question, the economic rights or interests at stake in this case are not economic rights that are protectedunder

section 7 and

section 15 of the Charter. Should certain portions of the Statement of Claim be struck on the grounds that a corporate Plaintiff cannot advance a claimpursuant to

section 15 of the Charter? [25] The court must also determine as a preliminary question of law if the corporate Respondent, Infinity Vapes Inc., is able toadvance a Charter claim in these circumstances. The offending paragraph regarding the relief sought by the corporate Respondent asalleged by the Applicant is 52(d), which reads as follows: that this Court declare that

Section 2.2 of The Tobacco and Electronic Cigarette Sales Act (S.N.B. 1993 c. T 6.1) that came into effecton September 1, 2021, infringes upon the Plaintiffs’ rights to equal treatment under

Section 15 of the Charter, to wit, the regulatoryrequirements have a discriminatory effect on groups protected under section 15(1), including Infinity Vapes, which is entitled to impugn

a penal law that has a discriminatory effect which cannot be demonstrably justified in a free and democratic society under

Section 1 ofthe Charter; [26] The Respondents suggest that the ability for a corporate Plaintiff to advance a claim pursuant to

section 15 of the Charter hasbeen recognized by Canadian courts. The Respondents rely upon the Supreme Court of Canada’s analysis in R. v. Big M Drug MartLtd., (SCC), [1985] 1 SCR 295 in support of their position that the corporate Respondent does have standing to raiseCharter issues. The corporate Respondent maintains that it could face penal charges due to the provisions of TECSA and therefore itshould be accorded the opportunity to challenge the constitutionality of the legislation. [27] The Respondents refer the Court to the analysis set out in paragraphs 37, 38, 40, and 41 of R. v.

Big M Drug Mart in support oftheir position: 37 Section 24(1) sets out a remedy for individuals (whether real persons or artificial ones such as corporations) whose rightsunder the Charter have been infringed. It is not, however, the only recourse in the face of unconstitutional legislation. Where, ashere, the challenge is based on the unconstitutionality of the legislation, recourse to s. 24 is unnecessary and the particular effecton the challenging party is irrelevant. 38

Section 52 sets out the fundamental principle of constitutional law that the Constitution is supreme. The undoubted corollary to bedrawn from this principle is that no one can be convicted of an offence under an unconstitutional law. The respondent did notcome to court voluntarily as an interested citizen asking for a prerogative declaration that a statute is unconstitutional. If it had beenengaged in such “public interest litigation” it would have had to fulfill the status requirements laid down by this Court in the trilogy of“standing” cases (Thorson v.

Attorney General of Canada, (SCC), [1975] 1 S.C.R. 138, Nova Scotia Board of Censors v.McNeil, (SCC), [1976] 2 S.C.R. 265, Minister of Justice of Canada v. Borowski, (SCC), [1981] 2 S.C.R.575) but that was not the reason for its appearance in Court. (…) 40 Whether a corporation can enjoy or exercise freedom of religion is therefore irrelevant. The respondent is arguing that the legislationis constitutionally invalid because it impairs freedom of religion – if the law impairs freedom of religion it does not matter whether thecompany can possess religious belief.

An accused atheist would be equally entitled to resist a charge under the Act. The only way thisquestion might be relevant would be if s. 2(

a) were interpreted as limited to protecting only those persons who could prove a genuinelyheld religious belief. I can see no basis to so limit the breadth of s. 2(

a) in this case. 41 The argument that the respondent, by reason of being a corporation, is incapable of holding religious belief and therefore incapableof claiming rights under s. 2(

a) of the Charter, confuses the nature of this appeal. A law which itself infringes religious freedom is, bythat reason alone, inconsistent with s. 2(

a) of the Charter and it matters not whether the accused is a Christian, Jew, Muslim, Hindu,Buddhist, atheist, agnostic or whether an individual or a corporation. It is the nature of the law, not the status of the accused, that is inissue. As Mr. Justice Laycraft observed in the Alberta Court of Appeal at p. 636: The task of the court is to see whether all or part of the Lord’s Day Act is inconsistent with freedom of conscience and religion andtherefore of no force or effect. It does not affect that task that a person charged has no religion or even that he has no feelings ofconscience. Mr.

Justice Cartwright, dissenting in Robertson and Rosetanni, supra, though not in conflict with the majority of the Court on this point,stated at p. 661: It was argued that, in any event, in the case at bar the appeal must fail because there is no evidence that the appellants do not hold thereligious belief that they are under no obligation to observe Sunday. In my view such evidence would be irrelevant. The task of the Courtis to determine whether s. 4 of the Act infringes freedom of religion. This does not depend on the religious persuasion, if any, of theindividual prosecuted but on the nature of the law.

To give an extreme example, a law providing that every person in Canada should, onpain of fine or imprisonment, attend divine service in an Anglican church on at least one Sunday in every month would, in my opinion,infringe the religious freedom of every Anglican as well as that of every other citizen.

(Emphasis mine.) [28] The Applicant suggests the Respondents have mischaracterized the applications of R. v. Big M to the present case. The Applicantsuggests that this Court need go no further than a plain reading of the beginning of section 15(1) of the Charter: “Every individual isequal before and under the law (…).” The Applicant points out that

section 15 of the Charter is clearly limited in application toindividuals, not corporations. [29] The Applicant referred the Court to several instances where Canadian courts have confirmed that the protections accorded bysection 15 of the Charter apply uniquely to “persons”. In particular, the Court’s attention was drawn to the following pertinentcomments: (

i) Park Avenue Flooring Inc. v. EllisDon Construction Services Inc., 2016 ABCA 327 at paragraphs 10 and 11: 10 Ms Miller also advances an argument under

section 15 of the Charter. She contends that a corporation is discriminated against,contrary to section 15(1) of the Charter, because pursuant to the Legal Professions Act, the corporation must be represented by a lawyer.Section 15 is limited to individuals. It does not apply to corporations: see Edmonton Journal v Alberta (Attorney General), (SCC), [1989] 2 SCR 1326 per La Forest J at p 1382 and Rockwood v Newfoundland & Labrador, 2007 NLCA 68 at para 15,287 DLR (4th) 471. 11 I am not persuaded that the proposed appeal has any chance of success.

The law is well-settled and the applicant has notdemonstrated any error of law or jurisdiction. The application for permission to appeal is dismissed. (ii) Hagos v. Canada (Attorney General) 2014 FC 231 at paragraph 29: This Court was not asked by the applicants to disagree with Watkin. Had I been asked to do so, I doubt that I would have disagreed withthe persuasive reasons given by Justice Danièle Tremblay-Lamer to conclude that corporations cannot complain under the CanadianHuman Rights Act. It does not have standing, as

section 40 of the Act requires that a complaint be made by “any individual or group ofindividuals”. I fail to see how any of the grounds listed at

section 3 can apply to a corporation. Furthermore, the applicant did notraise, and I am not aware of, any case that would support such a contention. Indeed, even the case-law under

section 15 of theCanadian Charter of Rights and Freedoms is unanimous that corporations do not qualify for the protection afforded by section15. The Commission did refuse to pursue the matter of the complaint made by the corporation. In the circumstances, the decision wasalso reasonable. Furthermore, as we shall see later, I am of the view that none of the discriminatory practices required to groundjurisdiction were present in this case. (iii) Regina School Division No. 4 v.

Hall 2007 SKQB 475 at paragraph 9: The same lack of clarity applies with respect to the plaintiffs’ purported claim under s. 15 of the Charter. It is simply not possible todetermine the basis upon which the plaintiffs’ [sic] can maintain that their equality rights under s. 15 of the Charter have been infringed.Also, the allegations are made without any attempt to distinguish between the rights of Hall and those of YAS when the law is clearthat the rights protected under s. 15 apply only to human persons.

Even assuming all allegations are proved, it is impossible toconclude that any of the actions of the defendants referred to in the counterclaim could ever arguably give rise to a breach of Hall’s s. 15Charter rights. In the result, these allegations are struck as is the counterclaim against these defendants in its entirety. (iv) Rockwood v. Newfoundland and Labrador 2007 NLCA 68 at paragraph 22: In

summary, a consideration of the language together with a purposive and contextual analysis of section 15(1) leads to the conclusionthat this provision was intended to apply to human beings and to ensure protection for their dignity and worth as such. It wasnot intended to, and does not, apply to corporations.

(Emphasis mine.) [30] It is of note that all of the jurisprudence quoted by the Applicant post-dates R. v. Big M Drug Mart as well as Irwin Toy Ltd. v.Québec (Attorney General) (SCC), 1989 1 SCR 927. The Irwin Toy decision raised similar issues as R. v. Big M DrugMart. In Irwin Toy, the Court similarly recognized the limited circumstances where corporations have been able to invoke Charterprotection. These are now generally accepted to be limited to those situations where the party is defending a proceeding either of acriminal or civil nature.

Significantly, neither of these situations are applicable in the present matter. [31] In answer to the third question posed in this motion, the corporate Respondent, Infinity Vapes Inc., cannot maintain a claimpursuant to

section 15 of the Charter. The corporate Respondent in this case has not been charged with an offense pursuant to TECSAnor is it in the process of defending a criminal or civil proceeding. [32] The Amended Statement of Claim is 19 pages long containing 52 paragraphs. While several paragraphs have been struck in theamended pleading, the Statement of Claim remains a lengthy, comprehensive claim. It is significant that the Applicant only seeks tostrike essentially two discrete issues from the Statement of Claim – the ability to seek Charter relief for pure economic loss and theability of the corporate Respondent to seek relief pursuant to

section 15 of the Charter. It is important to note that all parties willcontinue with this action on all other issues, of which there are many, even if the Applicant is successful. Finally, it is helpful to confirmthat the Applicant acknowledged at the outset of the motion that the individual Respondents’ claims pursuant to

section 7 of the Charterwere appropriate and should proceed to trial. [33] In the circumstances, I accept the position of the Applicant that the claims of the Respondents as set out in the AmendedStatement of Claim seeking Charter relief for an alleged infringement of their “economic” rights pursuant to

section 7 and 15 are notviable as pled given the well-settled jurisprudence in Canada directly on point. Likewise, I accept the position of the Applicant that thecorporate Respondent cannot proceed with its claim pursuant to

section 15 of the Charter in the circumstances of this case. [34] Rule 23.01(1)(

a) provides a mechanism for the Court to determine a question of law raised by a pleading prior to trial. It isappropriate to invoke this rule and determine the issues currently before the Court. Pursuant to Rule 23.01(1)(a), for all of the reasons setout herein, the Court confirms that the Respondents are unable to seek Charter relief as pled in paragraph 44 of the Amended Statementof Claim as the purely economic interest of pursuing a specific livelihood is not a right protected by

Section 7 or 15 of the Charter.Further, pursuant to Rule 23.01(1)(

a) for all of the reasons set out herein, the Court confirms that the corporate Respondent cannotpursue a claim pursuant to section 15(1) of the Charter as set out in paragraph 52(

d) of the Amended Statement of Claim. [35] The Court accepts following the determination of these issues pursuant to Rule 23.01(1)(

a) that it is both appropriate andnecessary pursuant to Rule 27.09(

a) and (

e) to strike paragraph 44 from the Respondents’ Amended Statement of Claim and to strike thereference to the corporate Respondent, Infinity Vapes Inc., from paragraph 52(

d) of the Amended Statement of Claim. COSTS [36] The Applicant has been successful on the motion and is entitled to costs which I fix at $1,500. DATED at Moncton, N.B., this 1st day of November 2022. _______________________________________ Tracey K. DeWare Chief Justice of the Court of King’s Benchof New Brunswick