Roncarelli v. Duplessis
(Supreme Court of Canada)

Frank Roncarelli (Plaintiff), Appellant and The Honourable Maurice Duplessis (Defendant), Respondent

1959] S.C.R. 121 The Chief Justice:

No satisfactory reason has been advanced for the Court of Queen's Bench (Appeal Side)¹ setting aside the finding of fact by the trial judge that the respondent ordered the Quebec Liquor Commission to cancel the appellant's licence. A reading of the testimony of the respondent and of the person constituting the commission at the relevant time satisfies me that the trial judge correctly decided the point. As to the other questions, I agree with Mr. Justice Martland.

The appeals should be allowed with costs here and below and judgment directed to be entered for the appellant against the respondent in the sum of $33,123.53 with interest from the date of the judgment of the Superior Court, together with the costs of the action.

Taschereau J. (dissenting):

[translation]

The respondent was the Premier and Attorney General of Quebec and held those high offices at the time the events which gave rise to this matter occurred.

The appellant, a Montreal restaurateur and holder of a licence from the Liquor Commission for the sale of spirits, took action personally against the respondent in Superior Court, claiming $118,741 in damages. He alleged in his action that he had been licensed for many years, that he always complied with the province’s laws governing the sale of alcoholic beverages, and that his restaurant had an excellent reputation and served a large and desirable clientele.

He further alleged that he had been and still was a member of the religious sect known as "Jehovah’s Witnesses" and that because he had posted bonds for some 390 of his fellow Witnesses who had been brought before court in Montreal on charges of distributing literature without a licence, the respondent unlawfully intervened with the manager of the Commission in order to cause him to lose his licence, which was revoked on December 4, 1946. Because of the alleged unwarranted intervention by the respondent, the appellant lost his licence and thus sustained the considerable damages he was claiming.

The Superior Court allowed the action and awarded damages in the amount of $8,123.53, and the Court of Queen’s Bench,² Rinfret J. dissenting, allowed the appeal and dismissed the action on various grounds.

The respondent put forward several arguments against the claim, but I will examine only one, because I believe it is sufficient to dismiss this appeal. The Code of Civil Procedure of the Province of Quebec contains the following provision: 88. No public officer or other person fulfilling any public function or duty can be sued for damages by reason of any act done by him in the exercise of his functions, nor can any verdict or judgment be rendered against him, unless notice of such action had been given him at least one month before the issue of the writ of summons.

Such notice must be in writing; it must state the grounds of the action, and name of the plaintiff's attorney or agent, and indicate his office; and must be served upon him personally or at his domicile.

Failure to give such notice may be invoked by the respondent by means of a formal objection or a pleading on the merits. Charland v. Kay;³ Corporation de la Paroisse de St-David v. Paquet;⁴ Houde v. Benoit.⁵

The very words used by the legislature in article 88 C.C.P., "nor can any […] judgment be rendered " against the respondent, indicate also that the Court has a duty to raise the matter on its own initiative if the respondent omits or neglects to do so by formal objection or in his written pleading. Serving such notice on a public officer fulfilling any public function or duty is a prerequisite essential to the success of a court proceeding. If it is not given, the courts cannot award damages. In the case at bar, it is acknowledged that no notice was given.

But it is the appellant’s contention that the respondent cannot use that means, which is a demurrer, because the advice which he allegedly gave and which was allegedly the determining factor in the loss of his licence was not given because of something he did in the exercise of his functions.

The evidence shows that the appellant had indeed been licensed by the Liquor Commission for many years, that his restaurant was kept in impeccable condition, and that in December 1946, while he was still licensed, the licence was revoked because he posted bond for several hundred of his fellow Jehovah’s Witnesses who had been distributing literature thought to be seditious.

There was a firmly rooted belief among the public, before this Court rendered a judgment in Boucher v. The King,⁶ that the "Jehovah’s Witnesses" were disturbers of the peace and constant sources of trouble and disorder in the province. Their movement was considered dangerous, likely to pit one segment of the population against another and to provoke serious unrest. There was even talk of seditious conspiracy, and it was certainly not without reasonable cause, as that opinion was subsequently confirmed unanimously by five judges of the Court of Queen’s Bench in Boucher v. The King ⁷ and also by four dissenting judges of this Court (Boucher v. The King, supra).

Mr. Archambault, then general manager of the Liquor Commission, had strong suspicions that the "Frank Roncarelli" who, through his bonds, financially assisted this movement which be believed to be subversive, held a restaurant licence for the sale of alcohol. He obviously thought it was inappropriate that the profits Roncarelli made from his Commission licence should be used to support the cause of religious agitators, whose teachings and methods were at odds with popular beliefs. He brought the matter to the attention of the respondent, the Attorney General, who by virtue of that position was the province’s official adviser on all legal matters.

During an initial telephone conversation, Mr. Archambault suggested to the respondent that Roncarelli’s licence be revoked, something he personally had the right to do under s. 35 of the Alcoholic Liquor Act, which reads: 35. – The Commission may cancel any permit at its discretion.

Since the executive of the Liquor Commission comprised only a general manager, namely Mr. Archambault, that discretion rested entirely with him.

The respondent urged caution and suggested that he check for certain whether the licensee Roncarelli was indeed the same Roncarelli who posted bonds so generously. When it was determined that it was the same person, Mr. Archambault contacted the respondent, and this is what Mr. Archambault said in his testimony about those conversations: Q. Now, that day you received a letter, November 30, 1946, did you decide that day to revoke the licence?

A. Certainly, that day I called the Premier, who was also the Attorney General, to share some observations with him, that is, the information I had, and let him know that I intended to revoke the privilege, and the Premier told me to take precautions, to carefully check whether it was one and the same person, that there could be several Roncarellis, et cetera. So when I received confirmation from Y3 that it was the same person, I called the Premier to assure him that it was indeed Frank Roncarelli, holder of a Liquor Commission licence; the Premier then authorized me, gave his consent, his approval, his permission and order to proceed.

And now the respondent’s version: Probably, after the report done by informer Y3, the report that was produced, Mr. Justice Archambault telephoned me and said, ‘We’re sure he’s the one." And since I had looked at the problem in the meantime and read through the statutes enacted since the Liquor Commission was created and all the amendments that had been made, and I had consulted, I came to the conclusion that in my heart and soul, I was duty bound to approve the very specific suggestions from the judge and authorize the cancellation of a privilege which that man did not deserve, to my mind, and of which he was not worthy.

And: After careful consideration and knowing that I was doing what I had to do, I told Mr. Archambault that I would approve his suggestion to cancel the permit, cancel the privilege.

And later: ...I told Judge Archambault that I shared his opinion, that I did not believe Roncarelli deserved to get privileges from the province given his attitude which I mentioned earlier.

...and when Judge Archambault told me that he checked and it was the same person, I said, ‘You’re right. Take away the licence. Take away the privilege.’

Asked whether he gave Mr. Archambault an order, the respondent said: No, I did not give Mr. Archambault an order; I just told you what happened.

Whether Roncarelli’s licence was revoked as a result of Mr. Archambault’s decision alone, a decision which he had discretionary authority to make, or whether that discretion was influenced by what the respondent said is not, in my view, a determining factor in this case. I stand firm in the belief that while the respondent’s words may have had some influence on the decision that was made, the respondent was none the less a public officer acting in the exercise of his functions, and that it was essential that he be given the notice required by article 88 C.C.P. The absence of such notice prevents the courts from awarding damages.

The respondent is surely a public officer, and it is clear in my mind that he did not act as a private individual. He was consulted as the legal adviser to the Liquor Commission and also as the public officer responsible for preventing unrest and keeping the peace in the province. It was a matter of the Attorney General, acting in the exercise of his functions, being required to instruct a branch of the government to which he was the adviser. See: An Act respecting the Department of the Attorney General, R.S.Q. 1941, c. 46, s. 3, Alcoholic Liquor Act, R.S.Q. 1941, c. 255, s. 138.

Some may believe, rightly or wrongly, that the respondent was mistaken, thinking that he was under an obligation, in order to keep the peace and quell existing unrest that threatened to escalate further, to advise that the appellant’s licence be revoked. I myself cannot accept the fallacious principle that an error committed by a public officer in doing an act that is nevertheless related to his mandate strips that act of its official character and that the person committing the error then ceases to be acting in the exercise of his functions.

Because the appellant did not meet the requirements of article 88 C.C.P. in that he failed to give the required notice to the respondent, who was a public officer acting in the exercise of his functions, I believe the action cannot succeed. Failing to meet that prerequisite constitutes a demurrer that relieves me of having to examine the other aspects of this case.

I therefore find that the main appeal and the appeal filed to increase the amount awarded by the trial judge must be dismissed with all Court costs.

[English:]

The judgment of Rand and Judson JJ. was delivered by Rand J.:

The material facts from which my conclusion is drawn are these. The appellant was the proprietor of a restaurant in a busy section of Montreal which in 1946 through its transmission to him from his father had been continuously licensed for the sale of liquor for approximately 34 years; he is of good education and repute and the restaurant was of a superior class. On December 4 of that year, while his application for annual renewal was before the Liquor Commission, the existing license was cancelled and his application for renewal rejected, to which was added a declaration by the respondent that no future license would ever issue to him. These primary facts took place in the following circumstances.

For some years the appellant had been an adherent of a rather militant Christian religious sect known as the Witnesses of Jehovah. Their ideology condemns the established church institutions and stresses the absolute and exclusive personal relation of the individual to the Deity without human intermediation or intervention.

The first impact of their proselytizing zeal upon the Roman Catholic church and community in Quebec, as might be expected, produced a violent reaction. Meetings were forcibly broken up, property damaged, individuals ordered out of communities, in one case out of the province, and generally, within the cities and towns, bitter controversy aroused. The work of the Witnesses was carried on both by word of mouth and by the distribution of printed matter, the latter including two periodicals known as "The Watch Tower" and "Awake", sold at a small price.

In 1945 the provincial authorities began to take steps to bring an end to what was considered insulting and offensive to the religious beliefs and feelings of the Roman Catholic population. Large scale arrests were made of young men and women, by whom the publications mentioned were being held out for sale, under local by-laws requiring a licence for peddling any kind of wares. Altogether almost one thousand of such charges were laid. The penalty involved in Montreal, where most of the arrests took place, was a fine of $40, and as the Witnesses disputed liability, bail was in all cases resorted to.

The appellant, being a person of some means, was accepted by the Recorder's Court as bail without question, and up to November 12, 1946, he had gone security in about 380 cases, some of the accused being involved in repeated offences. Up to this time there had been no suggestion of impropriety; the security of the appellant was taken as so satisfactory that at times, to avoid delay when he was absent from the city, recognizances were signed by him in blank and kept ready for completion by the Court officials. The reason for the accumulation of charges was the doubt that they could be sustained in law. Apparently the legal officers of Montreal, acting in concert with those of the Province, had come to an agreement with the attorney for the Witnesses to have a test case proceeded with. Pending that, however, there was no stoppage of the sale of the tracts and this became the annoying circumstance that produced the volume of proceedings.

On or about November 12 it was decided to require bail in cash for Witnesses so arrested and the sum set ranged from $100 to $300. No such bail was furnished by the appellant; his connection with giving security ended with this change of practice; and in the result, all of the charges in relation to which he had become surety were dismissed.

At no time did he take any part in the distribution of the tracts: he was an adherent of the group but nothing more. It was shown that he had leased to another member premises in Sherbrooke which were used as a hall for carrying on religious meetings: but it is unnecessary to do more than mention that fact to reject it as having no bearing on the issues raised. Beyond the giving of bail and being an adherent, the appellant is free from any relation that could be tortured into a badge of character pertinent to his fitness or unfitness to hold a liquor licence.

The mounting resistance that stopped the surety bail sought other means of crushing the propagandist invasion and among the circumstances looked into was the situation of the appellant. Admittedly an adherent, he was enabling these protagonists to be at large to carry on their campaign of publishing what they believed to be the Christian truth as revealed by the Bible; he was also the holder of a liquor licence, a "privilege" granted by the Province, the profits from which, as it was seen by the authorities, he was using to promote the disturbance of settled beliefs and arouse community disaffection generally. Following discussions between the then Mr. Archambault, as the personality of the Liquor Commission, and the chief prosecuting officer in Montreal, the former, on or about November 21, telephoned to the respondent, advised him of those facts, and queried what should be done. Mr. Duplessis answered that the matter was serious and that the identity of the person furnishing bail and the liquor licensee should be put beyond doubt. A few days later, that identity being established through a private investigator, Mr. Archambault again communicated with the respondent and, as a result of what passed between them, the licence, as of December 4, 1946, was revoked.

In the meantime, about November 25, 1946, a blasting answer had come from the Witnesses. In an issue of one of the periodicals, under the heading "Quebec's Burning Hate", was a searing denunciation of what was alleged to be the savage persecution of Christian believers. Immediately instructions were sent out from the department of the Attorney-General ordering the confiscation of the issue and proceedings were taken against one Boucher charging him with publication of a seditious libel.

It is then wholly as a private citizen, an adherent of a religious group, holding a liquor licence and furnishing bail to arrested persons for no other purpose than to enable them to be released from detention pending the determination of the charges against them, and with no other relevant considerations to be taken into account, that he is involved in the issues of this controversy.

The complementary state of things is equally free from doubt. From the evidence of Mr. Duplessis and Mr. Archambault alone, it appears that the action taken by the latter as the general manager and sole member of the Commission was dictated by Mr. Duplessis as Attorney-General and Prime Minister of the province; that that step was taken as a means of bringing to a halt the activities of the Witnesses, to punish the appellant for the part he had played not only by revoking the existing licence but in declaring him barred from one "forever", and to warn others that they similarly would be stripped of provincial "privileges" if they persisted in any activity directly or indirectly related to the Witnesses and to the objectionable campaign. The respondent felt that action to be his duty, something which his conscience demanded of him; and as representing the provincial government his decision became automatically that of Mr. Archambault and the Commission. The following excerpts of evidence make this clear:

[translation] MR. DUPLESSIS:

A. ...In November 1946, Edouard Archambault, who at the time was general manager of the Liquor Commission, telephoned me long distance in Quebec City from Montreal and told me that Roncarelli was posting bonds left and right in Recorder’s Court, tying up police activities and clogging the courts, and that this Roncarelli held a licence from the Quebec Liquor Commission. The fact is, My Lord, that a licence is a privilege, not a right. The first paragraph of section 35 of the Alcoholic Liquor Act, passed in 1921 by Statute II, Geo. V, c. 24, states:

The Commission may cancel any permit at its discretion.

"I’ll find out more and let you know," I said to the judge. "In the meantime, I’ll look into the matter with legal officers, I’ll think about it and see what I need to do." A few days later, and during that time I studied the problem, I reviewed the files, as Attorney General and Premier, a few days later Judge Archambault, Edouard Archambault, telephoned me to say that he was certain the Roncarelli in question, who was tying up the Recorder’s Court, which to a large degree covered the services of the Montreal Police Department, which the newspapers rightly reported did not have enough officers, was indeed the person who held a licence. I told him, "In the circumstances, I believe I have a duty, as Attorney General and Premier, in good conscience, in the exercise of my official duties and to carry out the mandate given to me by the people and renewed with a huge majority in 1948 after the permit was canceled and after I was sued, I believed it was my duty, in good conscience, to tell the judge that the licence, the Government of Quebec could not grant a privilege to an individual like Roncarelli who had the attitude he had."

I said, "There may be poor people, good people, people more idealistic than smart or of sound good judgment; people like that are probably at the mercy of those who would exploit them. I’m going to give an interview to make everyone aware of section 69 of the Criminal Code, which states that accomplices are as responsible as the person who commits the offence."

Q. You did not receive other documents, just the telephone calls from Mr. Justice Archambault?

A. Yes, of course, a message from Judge Archambault, another telephone call from Judge Archambault, assessments of the situation. I even spoke to Cabinet. I discussed the case. I consulted legal officers and I believe in my heart and soul that I carried out my duty as Attorney General; I did what had to be done. If I had to do it all over, I would do the same thing.

Q. Mr. Premier, on February 8, 1947, the newspaper La Presse ran an article headlined "Roncarelli subit un second refus" [Roncarelli denied a second time]. The subtitle stated that the Honourable Mr. Duplessis refused to grant the restaurant owner, a protector of Jehovah’s Witnesses, leave to sue the Liquor Commission. The following words, Mr. Premier, appear near the very end of the article:

It was I, as Attorney-General of the Province charged with the protection of good order, who gave the order to annual [sic] Frank Roncarelli's permit.

I ask you, Mr. Premier: is that an accurate account of what you said at that press conference?

A. What I said at the press conference is what I just stated. I did not know Roncarelli; I did not know that Roncarelli had a licence. […] when he drew my attention to the absolutely abnormal situation of a man holding a privilege from the province taking many actions designed to tie up the province’s courts and the Montreal city police, that was when I approved his suggestion and said as Attorney General…

THE COURT: -- You are being asked another question, Mr. Premier. Would you please reread the question. (The previous question was then reread.)

A. What I told the press is what I just stated earlier. The article as it ran did not quote me word for word. What I said, I repeat, is that Judge Archambault, manager of the Liquor Commission, apprised me of a situation I was unaware of, and as Attorney General, in order to fulfil my duty, I told Judge Archambault that I shared his opinion, that I did not believe that Roncarelli deserved to get privileges from the province given his attitude which I mentioned earlier.

D. The words I read to you earlier are supposed to be the actual words you said, because they are preceded by a reference to a verbatim report:

By so doing, not only have we exercised a right but we have fulfilled an imperious duty. The permit was cancelled not temporarily but definitely and for always.

WITNESS: -- Did I say that?

COUNSEL: -- Yes.

A. Yes. Roncarelli’s licence was canceled then and for good. I said it and I felt it was my duty, and deep down I believed that I would have failed in my duty if I had not done it.

Q. With this additional information, would you say that the words "It was I, as Attorney-General of the Province charged with the protection of good order, who gave the order to annual [sic] Frank Roncarelli's permit." Would you say they are accurate?

A. I said earlier how it was. I received a telephone call from Mr. Archambault informing me of certain facts about Roncarelli about which I was unaware. Check, identify to see if it was indeed the same person, study, reflection, consultation and decision to approve the suggestion by the manager of the Liquor Commission that Roncarelli’s privilege be cancelled.

THE COURT:

Q. Mr. Stein would like to know if you gave Mr. Archambault an order.

A. No, I did not give Mr. Archambault an order. I just told you what happened. Judge Archambault informed me of a situation of which I was unaware; I did not know the facts. He was the one who gave me the facts. I don’t know what you call it when the Attorney General, who heads a department, takes to an officer, even a senior officer, and gives an opinion; it’s not really an order, it is and it’s not. But the decision was made at the suggestion of Judge Archambault after he brought the facts to my attention.

Q. Mr. Premier, forgive me for repeating the question, but it seems to me that you did not answer the question I asked. The same words appeared not only in this newspaper, but also in other newspapers, and the exact same words were repeated in the Montreal Star in English, in The Gazette in English, in Le Canada in French and also in La Patrie in French: "It was I, as Attorney-General of the Province charged with the protection of good order, who gave the order to annual [sic] Frank Roncarelli's permit." I ask you whether it is possible that you used those words almost exactly in discussing the matter with journalists that day.

A. When journalists come to the office for an interview, the interview sometimes lasts half an hour, an hour, an hour and a half. What exact words are used? It’s hard to remember the exact words. But the real truth is what I said earlier, and that’s what I told the journalists: as Premier and Attorney General, I accept responsibility. If I had told Judge Archambault, "Do not do it", he probably would not have done it. Since he suggested to me that it be done, and after thinking and checking, I found that it was the right thing, that it was in keeping with my duty. I approved, and it’s always an order. When the senior officer speaks, it’s an order that’s being given, even if he is accepting a suggestion from an officer in his department, it’s a direct order. I don’t recall the exact wording, but those are the facts.

Q. Referring to the article in The Gazette of December 5, that is, the day after the licence was canceled, the following words appear in English:

In a statement to the press yesterday, the Premier recalled that: 'Two weeks ago, I pointed out that the Provincial Government had the firm intention to take the most rigorous and efficient measures possible to get rid of those who under the names of Witnesses of Jehovah, distribute circulars which in my opinion, are not only injurious for Quebec and its population, but which are of a very libelous and seditious character. The propaganda of the Witnesses of Jehovah cannot be tolerated and there are more than 400 of them now before the courts in Montreal, Quebec, Three Rivers and other centers.'

'A certain Mr. Roncarelli has supplied bail for hundreds of witnesses of Jehovah. The sympathy which this man has shown for the Witnesses, in such an evident, repeated and audacious manner, is a provocation to public order, to the administration of justice and is definitely contrary to the aims of justice.'

Q. I ask you, Mr. Premier: is that almost exactly or exactly what you said at the press conference?

R. Did I say, "A certain Mr. Roncarelli has supplied bail for hundreds of witnesses of Jehovah. The Sympathy which this man has shown for the Witnesses, in such an evident, repeated and audacious manner, is a provocation to public order, to the administration of justice and is definitely contrary to the aims of justice."? I said it, and I believe it to be true.

MR. ARCHAMBAULT:

Q. Now, that day you received a letter, November 30, 1946, did you decide that day to revoke the licence?

A. Certainly, that day I called the Premier, who was also the Attorney General, to share some observations with him, that is, the information I had, and let him know that I intended to revoke the privilege, and the Premier told me to take precautions, to carefully check whether it was one and the same person, that there could be several Roncarellis, et cetera. So when I received confirmation from Y3 that it was the same person, I called the Premier to assure him that it was indeed Frank Roncarelli, holder of a Liquor Commission licence; the Premier then authorized me, gave his consent, his approval, his permission and order to proceed.

[English:]

In these circumstances, when the de facto power of the Executive over its appointees at will to such a statutory public function is exercised deliberately and intentionally to destroy the vital business interests of a citizen, is there legal redress by him against the person so acting? This calls for an examination of the statutory provisions governing the issue, renewal and revocation of liquor licences and the scope of authority entrusted by law to the Attorney-General and the government in relation to the administration of the Act.

The liquor law is contained in R.S.Q. 1941, c. 255, entitled Alcoholic Liquor Act. A Commission is created as a corporation, the only member of which is the general manager. By s. 5. The exercise of the functions, duties and powers of the Quebec Liquor Commission shall be vested in one person alone, named by the Lieutenant-Governor in Council, with the title of Manager. The remuneration of such person shall be determined by the Lieutenant-Governor in Council and be paid out of the revenues of the Liquor Commission. R.S. 1925, c. 37, s. 5; 1 Ed. VII (2), c. 14, ss. 1 and 5; 1 Geo. VI, c. 22, ss. 1 and 5.

The entire staff for carrying out the duties of the Commission are appointed by the general manager -- here Mr. Archambault -- who fixes salaries and assigns functions, the Lieutenant-Governor in Council reserving the right of approval of the salaries. Besides the general operation of buying and selling liquor throughout the province and doing all things necessary to that end, the Commission is authorized by s. 9 (e) to "grant, refuse or cancel permits for the sale of alcoholic liquors or other permits in regard thereto and to transfer the permit of any person deceased". By s. 12 suits against the general manager for acts done in the exercise of his duties require the authority of the Chief Justice of the province, and the Commission can be sued only with the consent of the Attorney-General. Every officer of the Commission is declared to be a public officer and by R.S.Q. 1941, c. 10, s. 2, holds office during pleasure. By s. 19 the Commission shall pay over to the Provincial Treasurer any moneys which the latter considers available and by s. 20 the Commission is to account to the Provincial Treasurer for its receipts, disbursements, assets and liabilities. Sections 30 and 32 provide for the issue of permits to sell; they are to be granted to individuals only, in their own names; by s. 34 the Commission "may refuse to grant any permit"; subs.(2) provides for permits in special cases of municipalities where prohibition of sale is revoked in whole or part by by-law; subs. (3) restricts or refuses the grant of permits in certain cities the Council of which so requests; but it is provided that ...If the filing of such by-law takes place after the Commission has granted a permit in such city or town, the Commission shall be unable to give effect to the request before the first of May next after the date of filing.

Subsection (4) deals with a refusal to issue permits in small cities unless requested by a by-law, approved by a majority vote of the electors. By subs. (6) special power is given the Commission to grant permits to hotels in summer resorts for five months only notwithstanding that requests under subss. (2) and (4) are not made. Section 35 prescribes the expiration of every permit on April 30 of each year. Dealing with cancellation, the section provides that the "Commission may cancel any permit at its discretion". Besides the loss of the privilege and without the necessity of legal proceedings, cancellation entails loss of fees paid to obtain it and confiscation of the liquor in the possession of the holder and the receptacles containing it. If the cancellation is not followed by prosecution for an offence under the Act, compensation is provided for certain items of the forfeiture. Subsection (5) requires the Commission to cancel any permit made use of on behalf of a person other than the holder; s. 36 requires cancellation in specified cases. The sale of liquor is, by s. 42, forbidden to various persons. Section 148 places upon the Attorney-General the duty of 1. Assuring the observance of this Act and of the Alcoholic Liquor Possession and Transportation Act (Chap. 256), and investigating, preventing and suppressing the infringements of such acts, in every way authorized thereby;

2. Conducting the suits or prosecutions for infringements of this Act or of the said Alcoholic Liquor Possession and Transportation Act. R.S. 1925, c. 37, s. 78a; 24 Geo. V, c. 17, s. 17.

The provisions of the statute, which may be supplemented by detailed regulations, furnish a code for the complete administration of the sale and distribution of alcoholic liquors directed by the Commission as a public service, for all legitimate purposes of the populace. It recognizes the association of wines and liquors as embellishments of food and its ritual and as an interest of the public. As put in Macbeth, the "sauce to meat is ceremony", and so we have restaurants, cafés, hotels and other places of serving food, specifically provided for in that association.

At the same time the issue of permits has a complementary interest in those so catering to the public. The continuance of the permit over the years, as in this case, not only recognizes its virtual necessity to a superior class restaurant but also its identification with the business carried on. The provisions for assignment of the permit are to this most pertinent and they were exemplified in the continuity of the business here. As its exercise continues, the economic life of the holder becomes progressively more deeply implicated with the privilege while at the same time his vocation becomes correspondingly dependent on it.

The field of licensed occupations and businesses of this nature is steadily becoming of greater concern to citizens generally. It is a matter of vital importance that a public administration that can refuse to allow a person to enter or continue a calling which, in the absence of regulation, would be free and legitimate, should be conducted with complete impartiality and integrity; and that the grounds for refusing or cancelling a permit should unquestionably be such and such only as are incompatible with the purposes envisaged by the statute: the duty of a Commission is to serve those purposes and those only. A decision to deny or cancel such a privilege lies within the "discretion" of the Commission; but that means that decision is to be based upon a weighing of considerations pertinent to the object of the administration.

In public regulation of this sort there is no such thing as absolute and untrammelled "discretion", that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute. Fraud and corruption in the Commission may not be mentioned in such statutes but they are always implied as exceptions. "Discretion" necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption. Could an applicant be refused a permit because he had been born in another province, or because of the colour of his hair? The ordinary language of the legislature cannot be so distorted.

To deny or revoke a permit because a citizen exercises an unchallengeable right totally irrelevant to the sale of liquor in a restaurant is equally beyond the scope of the discretion conferred. There was here not only revocation of the existing permit but a declaration of a future, definitive disqualification of the appellant to obtain one: it was to be "forever". This purports to divest his citizenship status of its incident of membership in the class of those of the public to whom such a privilege could be extended. Under the statutory language here, that is not competent to the Commission and a fortiori to the government or the respondent: McGillivray v. Kimber ⁸. There is here an administrative tribunal which, in certain respects, is to act in a judicial manner; and even on the view of the dissenting justices in McGillivray, there is liability: what could be more malicious than to punish this licensee for having done what he had an absolute right to do in a matter utterly irrelevant to the Liquor Act? Malice in the proper sense is simply acting for a reason and purpose knowingly foreign to the administration, to which was added here the element of intentional punishment by what was virtually vocation outlawry.

It may be difficult if not impossible in cases generally to demonstrate a breach of this public duty in the illegal purpose served; there may be no means, even if proceedings against the Commission were permitted by the Attorney-General, as here they were refused, of compelling the Commission to justify a refusal or revocation or to give reasons for its action; on these questions I make no observation; but in the case before us that difficulty is not present: the reasons are openly avowed.

The act of the respondent through the instrumentality of the Commission brought about a breach of an implied public statutory duty toward the appellant; it was a gross abuse of legal power expressly intended to punish him for an act wholly irrelevant to the statute, a punishment which inflicted on him, as it was intended to do, the destruction of his economic life as a restaurant keeper within the province. Whatever may be the immunity of the Commission or its member from an action for damages, there is none in the respondent. He was under no duty in relation to the appellant and his act was an intrusion upon the functions of a statutory body. The injury done by him was a fault engaging liability within the principles of the underlying public law of Quebec: Mostyn v. Fabrigas ⁹, and under art. 1053 of the Civil Code. That, in the presence of expanding administrative regulation of economic activities, such a step and its consequences are to be suffered by the victim without recourse or remedy, that an administration according to law is to be superseded by action dictated by and according to the arbitrary likes, dislikes and irrelevant purposes of public officers acting beyond their duty, would signalize the beginning of disintegration of the rule of law as a fundamental postulate of our constitutional structure. An administration of licences on the highest level of fair and impartial treatment to all may be forced to follow the practice of "first come, first served", which makes the strictest observance of equal responsibility to all of even greater importance; at this stage of developing government it would be a danger of high consequence to tolerate such a departure from good faith in executing the legislative purpose. It should be added, however, that that principle is not, by this language, intended to be extended to ordinary governmental employment: with that we are not here concerned.

It was urged by Mr. Beaulieu that the respondent, as the incumbent of an office of state, so long as he was proceeding in "good faith", was free to act in a matter of this kind virtually as he pleased. The office of Attorney-General traditionally and by statute carries duties that relate to advising the Executive, including here, administrative bodies, enforcing the public law and directing the administration of justice. In any decision of the statutory body in this case, he had no part to play beyond giving advice on legal questions arising. In that role his action should have been limited to advice on the validity of a revocation for such a reason or purpose and what that advice should have been does not seem to me to admit of any doubt. To pass from this limited scope of action to that of bringing about a step by the Commission beyond the bounds prescribed by the legislature for its exclusive action converted what was done into his personal act.

"Good faith" in this context, applicable both to the respondent and the general manager, means carrying out the statute according to its intent and for its purpose; it means good faith in acting with a rational appreciation of that intent and purpose and not with an improper intent and for an alien purpose; it does not mean for the purposes of punishing a person for exercising an unchallengeable right; it does not mean arbitrarily and illegally attempting to divest a citizen of an incident of his civil status.

I mention, in order to make clear that it has not been overlooked, the decision of the House of Lords in Allen v. Flood ¹⁰, in which the principle was laid down that an act of an individual otherwise not actionable does not become so because of the motive or reason for doing it, even maliciously to injure, as distinguished from an act done by two or more persons. No contention was made in the present case based on agreed action by the respondent and Mr. Archambault. In Allen v. Flood, the actor was a labour leader and the victims non-union workmen who were lawfully dismissed by their employer to avoid a strike involving no breach of contract or law. Here the act done was in relation to a public administration affecting the rights of a citizen to enjoy a public privilege, and a duty implied by the statute toward the victim was violated. The existing permit was an interest for which the appellant was entitled to protection against any unauthorized interference, and the illegal destruction of which gave rise to a remedy for the damages suffered. In Allen v. Flood there were no such elements.

Nor is it necessary to examine the question whether on the basis of an improper revocation the appellant could have compelled the issue of a new permit or whether the purported revocation was a void act. The revocation was de facto, it was intended to end the privilege and to bring about the consequences that followed. As against the respondent, the appellant was entitled to treat the breach of duty as effecting a revocation and to elect for damages.

Mr. Scott argued further that even if the revocation were within the scope of discretion and not a breach of duty, the intervention of the respondent in so using the Commission was equally a fault. The proposition generalized is this: where, by a statute restricting the ordinary activities of citizens, a privilege is conferred by an administrative body, the continuance of that enjoyment is to be free from the influence of third persons on that body for the purpose only of injuring the privilege holder. It is the application to such a privilege of the proposition urged but rejected in Allen v. Flood in the case of a private employment. The grounds of distinction between the two cases have been pointed out; but for the reasons given consideration of this ground is unnecessary and I express no opinion for or against it.

A subsidiary defence was that notice of action had not been given as required by art. 88 C.C.P. This provides generally that, without such notice, no public officer or person fulfilling any public function or duty is liable in damages "by reason of any act done by him in the exercise of his functions". Was the act here, then, done by the respondent in the course of that exercise? The basis of the claim, as I have found it, is that the act was quite beyond the scope of any function or duty committed to him, so far so that it was one done exclusively in a private capacity, however much in fact the influence of public office and power may have carried over into it. It would be only through an assumption of a general overriding power of executive direction in statutory administrative matters that any colour of propriety in the act could be found. But such an assumption would be in direct conflict with fundamental postulates of our provincial as well as dominion government; and in the actual circumstances there is not a shadow of justification for it in the statutory language.

The damages suffered involved the vocation of the appellant within the province. Any attempt at a precise computation or estimate must assume probabilities in an area of uncertainty and risk. The situation is one which the Court should approach as a jury would, in a view of its broad features; and in the best consideration I can give to them, the damages should be fixed at the sum of $25,000 plus that allowed by the trial court.

I would therefore allow the appeals, set aside the judgment of the Court of Queen's Bench and restore the judgment at trial modified by increasing the damages to the sum of $33,123.53. The appellant should have his costs in the Court of Queen's Bench and in this Court.

The judgment of Locke and Martland JJ. was delivered by Martland J.:

This is an appeal from a judgment of the Court of Queen's Bench, Appeal Side, for the Province of Quebec¹¹, District of Montreal, rendered on April 12, 1956, overruling the judgment of the Superior Court rendered on May 2, 1951, under the terms of which the appellant had been awarded damages in the sum of $8,123.53 and costs.

The appellant had appealed from the judgment of the Superior Court in respect of the amount of damages awarded. This appeal was dismissed.

The facts which give rise to this appeal are as follows:

The appellant, on December 4, 1946, was the owner of a restaurant and café situated at 1429 Crescent Street in the City of Montreal. At that time he was the holder of a liquor permit, no. 68, granted to him on May 1, 1946, pursuant to the provisions of the Alcoholic Liquor Act of the Province of Quebec and which permitted the sale of alcoholic liquors in the restaurant and café. The permit was valid until April 30, 1947, subject to possible cancellation by the Quebec Liquor Commission (hereinafter sometimes referred to as "the Commission") in accordance with the provisions of s. 35 of that Act. The business operated by the appellant had been founded by his father in the year 1912 and it had been continuously licensed until December 4, 1946. The evidence is that prior to that date the appellant had complied with the requirements of the Alcoholic Liquor Act and had conducted a high-class restaurant business.

The appellant was an adherent of the Witnesses of Jehovah. From some time in 1944 until November 12, 1946, he had, on numerous occasions, given security for Witnesses of Jehovah who had been prosecuted under City of Montreal By-laws numbered 270 and 1643 for minor offences of distributing, peddling and canvassing without a licence. The maximum penalty for these offences was a fine of $40 and costs, or imprisonment for 60 days. The total number of bonds furnished by the appellant was 390. These security bonds were accepted by the City attorney and the Recorder of the City of Montreal without remuneration to the appellant. None of the accused who had been bonded ever defaulted. Subsequently the appellant was released from these bonds at his own request and new security was furnished by others.

As a result of a change of procedure in the Recorder's Court in Montreal by the Attorney in Chief of that Court, the appellant was not accepted as a bondsman in any cases before that Court after November 12, 1946.

Up to November 12, 1946, the security bonds furnished by the appellant were accepted without question. These bonds were based upon the value of the appellant's immovable property containing the restaurant. The appellant did not give any security in any criminal case involving a charge of sedition.

About the 24th or 25th of November 1946 the pamphlet "Quebec's Burning Hate" began to be distributed in the Province of Quebec by the Witnesses of Jehovah. The Chief Crown Prosecutor in Montreal, then Mtre. Oscar Gagnon, K.C., decided that the distribution of this pamphlet should be prevented. There is no evidence that the appellant was at any time a distributor of this pamphlet and his restaurant and café in Montreal was not used for the distribution or storage of these pamphlets by himself or by anyone else. The appellant had ceased to be a bondsman before the distribution of this pamphlet in the Province of Quebec had commenced.

On November 25, 1946, a number of pamphlets was seized in a building in the City of Sherbrooke owned by the appellant and leased from him, as a place of worship, by Witnesses of Jehovah under the control of the local minister Mr. Raymond Browning. There is no evidence that the appellant was in any way responsible for the activities of this congregation, or that he knew that the pamphlet "Quebec's Burning Hate" was in those premises.

In the course of his inquiries about the distribution of this pamphlet, Mr. Gagnon learned that the appellant had been giving bail in a large number of cases in the Recorder's Court and also that he was the holder of the liquor permit for his restaurant. These facts were brought by Mr. Gagnon to the attention of Mr. Edouard Archambault, then Chairman of the Quebec Liquor Commission and subsequently Chief Judge of the Court of Sessions of the Peace. Mr. Archambault then interviewed Recorder Paquette, who informed him that the appellant held a licence from the Quebec Liquor Commission; that he was furnishing bail in a large number of cases of infractions of municipal by-laws; that these were so numerous that a great part of the police of Montreal had been taken from their duties as a consequence and that his Court was congested by the large number of cases pending before it.

Subsequent to the receipt of this information, Mr. Archambault communicated by telephone with the respondent. The discussion which took place on that occasion and on the occasion of a subsequent telephone call will be reviewed later. Following the two telephone conversations between Mr. Archambault and the respondent, Mr. Archambault, as manager of the Quebec Liquor Commission, issued an order for the cancellation of the appellant's permit without any prior notice to the appellant. All the liquor in the possession of the appellant on his restaurant premises was seized and was taken into the custody of the Commission.

The appellant carried on his restaurant business without a liquor licence for a period of approximately six months, after which, finding that the business could not be thus operated profitably, he closed it down and later effected a sale of the premises.

The appellant commenced action against the respondent on June 3, 1947, claiming damages in the total sum of $118,741. He alleged that the respondent, without legal or statutory authority, had caused the cancellation of his liquor permit as an act of reprisal because of his having acted as surety or bondsman for the Witnesses of Jehovah in connection with the charges above mentioned. He alleged that the permit had been arbitrarily and unlawfully cancelled and that, as a result, he had sustained the damages claimed.

By his defence the respondent alleged that the Witnesses of Jehovah, in the years 1945 and 1946, had, with the consent and encouragement of the appellant, organized a propaganda campaign in the Province of Quebec, and particularly in the City of Montreal, where they had distributed pamphlets of a seditious character. The respondent referred to the fact that the appellant had acted as surety for a number of persons under arrest and thus permitted them to repeat their offences and to continue their campaign. He alleged that in his capacity as Attorney-General of the Province of Quebec, after becoming cognizant of the conduct of the appellant and of the fact that he held a permit issued by the Quebec Liquor Commission, he had decided, after careful reflection, that it was contrary to public order to permit the appellant to enjoy the benefit of the privileges of this permit and that he, the respondent, had recommended to the manager of the Quebec Liquor Commission the cancellation of that permit. It was alleged that the permit did not give any right, but constituted a privilege available only during the pleasure of the Commission. He alleged that in the matter he had acted in his quality of Prime Minister and Attorney-General of the Province of Quebec and, accordingly, could not incur any personal responsibility. He further pleaded the provisions of art. 88 of the Code of Civil Procedure and alleged that he had not received notice of the action as required by the provisions of that article.

The case came on for trial in the Superior Court before MacKinnon J., who made findings of fact and reached conclusions in law as follows:

1. that the respondent gave an order to the manager of the Commission, Mr. Archambault, to cancel the appellant's permit and that it was the respondent's order which was the determining factor in relation to the cancellation of that permit;
2. that the Commission had acted arbitrarily when it cancelled the permit and had disregarded the rules of reason and justice;
3. that the respondent had failed to show that, in law, he had any authority to interfere with the administration of the Commission, or to order it to cancel a permit;
4. that the respondent was not entitled to receive notice of the action pursuant to art. 88 of the Code of Civil Procedure because his acts which were complained of were not done in the exercise of his functions.

Damages were awarded in the total amount of $8,123.53.

From this judgment the respondent appealed. The appellant cross-appealed in respect of the matter of damages, asking for an award in an increased amount.

The respondent's appeal on the issue of liability was allowed and the appellant's appeal was dismissed. Rinfret J. dissented in respect of the allowance of the respondent's appeal.

Various reasons were given for the allowance of the appeal by the majority of the Court¹². They may be summarized as follows:

Bissonnette J. reached the conclusion that, upon the evidence, the decision to cancel the permit had been made by Mr. Archambault before taking the respondent's advice. He also held that, according to the strict interpretation of the Alcoholic Liquor Act, the Commission was not obliged to justify before any Court the wisdom of its acts in cancelling a liquor permit.

Pratte J. allowed the appeal of the respondent on the first ground advanced by Bissonnette J., finding that there was no relationship of cause and effect as between the acts of the respondent and the cancellation of the permit because Mr. Archambault had already made his decision to cancel before consulting with the respondent.

Casey J. was of the same view with respect to this point. He also held that, although the discretion of the Commission to cancel a permit should not be exercised arbitrarily or capriciously, no individual has an inherent right to engage in the business regulated by the Act and the continuance of a permit was conditional upon the holder being of good moral character and a suitable person to exercise that privilege. In his view the chairman of the Commission had reasonable grounds for believing that the Witnesses of Jehovah were engaged in a campaign of libel and sedition and that the appellant, an active member of the sect, was participating in the group's activities. His view was that, in the light of this, the Commission could properly cancel the permit.

Martineau J., like the other majority judges in the Court, found that there was no relationship of cause and effect as between what the respondent had done and the cancellation of the permit, also holding that Mr. Archambault had decided to cancel it before communicating with the respondent. He was also of the view that a Minister of the Crown is not liable if, in the exercise of powers granted to him by law, he makes an erroneous decision upon reliable information. He also held that, while the Commission's discretion to cancel a permit was not absolute and had to be exercised in good faith, the discretion is not quasi-judicial but "quasi-illimited" and only restricted by the good faith of its officers. He was of the opinion that the good faith of both the respondent and Mr. Archambault could not be doubted. He found that no order to cancel the permit had been given by the respondent to Mr. Archambault. He also held that, even if an order had been given and had been the determining factor in procuring the cancellation of the permit, there would be no liability upon the respondent, in view of the appellant's participation in the propaganda of the Witnesses of Jehovah.

Rinfret J., who dissented and who would have dismissed the respondent's appeal, in general agreed with the conclusions reached by the trial judge.

In view of the foregoing, it appears that there are four main points which require to be considered in the present appeal, which are as follows:

1. Was there a relationship of cause and effect as between the respondent's acts and the cancellation of the appellant's permit?
2. If there was such a relationship, were the acts of the respondent justifiable on the ground that he acted in good faith in the exercise of his official functions as Attorney-General and Prime Minister of the Province of Quebec?
3. Was the cancellation of the appellant's permit a lawful act of the Commission, acting within the scope of its powers as defined in the Alcoholic Liquor Act?
4. Was the respondent entitled to the protection provided by art. 88 of the Code of Civil Procedure?

It is proposed to consider each of these points in the above sequence.

With respect to the first point, after reviewing the evidence, I am satisfied that there was ample evidence to sustain the finding of the trial judge that the cancellation of the appellant's permit was the result of instructions given by the respondent to the manager of the Commission.

Two telephone calls were made by Mr. Archambault to the respondent. According to the evidence of the respondent, Mr. Archambault telephoned him in November 1946 "and told me that Roncarelli was posting bonds left and right in Recorder’s Court, tying up police activities and clogging the courts, and that this Roncarelli held a licence from the Quebec Liquor Commission."

In reply the respondent says that he said to Mr. Archambault: [translation] It’s a very serious thing. Are you sure Roncarelli has a licence from the Liquor Commission?

Mr. Archambault then replied that he would inform himself and would communicate with the respondent.

Some time after the first telephone conversation, and apparently about November 30 or December 1, 1946, Mr. Archambault again telephoned the respondent to say: [translation] he was certain the Roncarelli in question, who was tying up the Recorder’s Court, which to a large degree covered the services of the Montreal Police Department, which the newspapers rightly reported did not have enough officers, was indeed the person who held a licence.

To this the respondent replied: [translation] In the circumstances, I believe I have a duty, as Attorney General and Premier, in good conscience, in the exercise of my official duties and to carry out the mandate given to me by the people and renewed with a huge majority in 1948 after the permit was cancelled and after I was sued, I believed it was my duty, in good conscience, to tell the judge that the licence, the Government of Quebec could not grant a privilege to an individual like Roncarelli who had the attitude he had.

The respondent further says that he told Mr. Archambault: [translation] You’re right. Take away the licence. Take away the privilege.

In February 1947 the respondent, in an interview with the press, stated that the appellant's permit had been cancelled on orders from him. His statement on this point appeared in a news dispatch to the Canadian Press from its Quebec correspondent: It was I, as Attorney-General of the Province charged with the protection of good order, who gave the order to annual [sic] Frank Roncarelli's permit.

Mr. Duplessis said:

By so doing, not only have we exercised a right but we have fulfilled an imperious duty. The permit was cancelled not temporarily but definitely and for always.

It seems to me that the only reason Mr. Archambault could have had for telephoning the respondent in the first place, after his receipt of the information given by Mr. Gagnon and Recorder Paquette, was to obtain the respondent's direction as to what should be done. I find it difficult to accept the proposition that there was no relationship of cause and effect as between what the respondent said to Mr. Archambault and the cancellation of the permit. While it is true that in his evidence Mr. Archambault states that he had decided to cancel the permit on the day he received the written report from his secret agent Y3, dated November 30, 1946 (which was subsequent to the first telephone conversation), he goes on to say: Q. Now, that day you received a letter, November 30, 1946, did you decide that day to revoke the licence?

A. Certainly, that day I called the Premier, who was also the Attorney General, to share some observations with him, that is, the information I had, and let him know that I intended to revoke the privilege, and the Premier told me to take precautions, to carefully check whether it was one and the same person, that there could be several Roncarellis, et cetera. So when I received confirmation from Y3 that it was the same person, I called the Premier to assure him that it was indeed Frank Roncarelli, holder of a Liquor Commission licence; the Premier then authorized me, gave his consent, his approval, his permission and order to proceed.

I conclude from this evidence that any "decision" of Mr. Archambault's was at most tentative and would only be made effective if he received direction from the respondent to carry it out. I would doubt that, if the respondent had advised against the cancellation of the permit, Mr. Archambault's decision would have been implemented.

The respondent appears to have shared this view because in his evidence he states as follows: If I had told Judge Archambault, "Do not do it", he probably would not have done it. Since he suggested to me that it be done, and after thinking and checking, I found that it was the right thing, that it was in keeping with my duty. I approved, and it’s always an order. When the senior officer speaks, it’s an order that’s being given, even if he is accepting a suggestion from an officer in his department, it’s a direct order. I don’t recall the exact wording, but those are the facts.

I, therefore, agree with the learned trial judge that the cancellation of the appellant's permit was the result of an order given by the respondent.

The second point for consideration is as to whether the respondent's acts were justifiable as having been done in good faith in the exercise of his official function as Attorney-General and Prime Minister of the Province of Quebec.

In support of his contention that the respondent had so acted, we were referred by his counsel to the following statutory provisions:

THE ATTORNEY-GENERAL'S DEPARTMENT ACT, R.S.Q. 1941, c. 46 . . . . .

3. The Attorney-General is the official legal adviser of the Lieutenant-Governor, and the legal member of the Executive Council of the Province of Quebec.

4. The duties of the Attorney-General are the following:

1. To see that the administration of public affairs is in accordance with the law;

2. To exercise a general superintendence over all matters connected with the administration of justice in the Province.

5. The function and powers of the Attorney-General are the following:

1. He has the functions and powers which belong to the office of Attorney-General of England, respectively, by law or usage, insofar as the same are applicable to this Province, and also the functions and powers, which, up to the Union, belonged to such offices in the late Province of Canada, and which, under the provisions of the British North America Act, 1867, are within the powers of the Government of this Province;

2. He advises the heads of the several departments of the Government of the Province upon all matters of law concerning such departments, or arising in the administration thereof;

7. He is charged with superintending the administration or the execution, as the case may be, of the laws respecting police.

THE EXECUTIVE POWER ACT, R.S.Q. 1941, c. 7 . . . . .

5. The Lieutenant-Governor may appoint, under the Great Seal, from among the members of the Executive Council, the following officials, who shall remain in office during pleasure:

1. A Prime Minister who shall, ex-officio, be president of the Council.

THE ALCOHOLIC LIQUOR ACT, R.S.Q. 1941, c. 255 DIVISION XII INVESTIGATION AND PROSECUTION OF OFFENCES 148. The Attorney-General shall be charged with:

1. Assuring the observance of this act and of the Alcoholic Liquor Possession and Transportation Act (Chap. 256), and investigating, preventing and suppressing the infringements of such acts, in every way authorized thereby;

2. Conducting the suits or prosecutions for infringements of this act or of the said Alcoholic Liquor Possession and Transportation Act.

I do not find, in any of these provisions, authority to enable the respondent, either as Attorney-General or Prime Minister, to direct the cancellation of a permit under the Alcoholic Liquor Act. On the contrary, the intent and purpose of that Act appears to be to place the complete control over the liquor traffic in Quebec in the hands of an independent commission. The only function of the Attorney-General under that statute is in relation to the assuring of the observance of its provisions. There is no evidence of any breach of that Act by the appellant.

However, it is further argued on behalf of the respondent that, as Attorney-General, in order to suppress or to prevent crimes and offences, "He may do so by instituting legal proceedings; he may do so by other methods". This amounts to a contention that he is free to use any methods he chooses; that, on suspicion of participation in what he thinks would be an offence, he may sentence a citizen to economic ruin without trial. This seems to me to be a very dangerous proposition and one which is completely alien to the legal concepts applicable to the administration of public office in Quebec, as well as in the other provinces of Canada.

In my view, the respondent was not acting in the exercise of any official powers which he possessed in doing what he did in this matter.

The third point to be considered is as to whether the appellant's permit was lawfully cancelled by the Commission under the provisions of the Alcoholic Liquor Act. Section 35 of that Act makes provision for the cancellation of a permit in the following terms: 35. 1. Whatever be the date of issue of any permit granted by the Commission, such permit shall expire on the 30th of April following, unless it be cancelled by the Commission before such date, or unless the date at which it must expire be prior to the 30th of April following.

The Commission may cancel permit at its discretion.

It is contended by the respondent, and with considerable force, that this provision gives to the Commission an unqualified administrative discretion as to the cancellation of a permit issued pursuant to that Act. Such a discretion, it is contended, is not subject to any review in the Courts.

The appellant contends that the Commission's statutory discretion is not absolute and is subject to legal restraint. He cites the statement of the law by Lord Halsbury in Sharp v. Wakefield ¹³: An extensive power is confided to the justices in their capacity as justices to be exercised judicially; and "discretion" means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke's Case; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.

That was a case dealing with the discretionary powers of the licensing justices to refuse renewal of a licence for the sale of intoxicating liquors. This statement of the law was approved by Lord Greene M.R. in Minister of National Revenue v. Wrights' Canadian Ropes, Limited ¹⁴.

The appellant further contends that, in exercising this discretion, the rules of natural justice must be observed and points out that no notice of the intention of the Commission to cancel his permit was ever given to the appellant, nor was he given a chance to be heard by the Commission before the permit was cancelled.

With respect to this latter point, it would appear to be somewhat doubtful whether the appellant had a right to a personal hearing, in view of the judgment of Lord Radcliffe in Nakkuda Ali v. Jayaratne ¹⁵. However, regardless of this, it is my view that the discretionary power to cancel a permit given to the Commission by the Alcoholic Liquor Act must be related to the administration and enforcement of that statute. It is not proper to exercise the power of cancellation for reasons which are unrelated to the carrying into effect of the intent and purpose of the Act. The association of the appellant with the Witnesses of Jehovah and his furnishing of bail for members of that sect, which were admitted to be the reasons for the cancellation of his permit and which were entirely lawful, had no relationship to the intent and purposes of the Alcoholic Liquor Act.

Furthermore, it should be borne in mind that the right of cancellation of a permit under that Act is a substantial power conferred upon what the statute contemplated as an independent commission. That power must be exercised solely by that corporation. It must not and cannot be exercised by any one else. The principle involved is stated by the Earl of Selborne in the following passage in his judgment in Spackman v. Plumstead Board of Works ¹⁶: No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter, and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice.

While the Earl of Selborne is here discussing the rules applicable to a quasi-judicial tribunal, that portion of his statement which requires such a tribunal to act honestly and impartially and not under the dictation of some other person or persons is, I think, equally applicable to the performance of an administrative function.

The same principle was applied in respect of the performance of an administrative function by Chief Justice Greenshields in Jaillard v. City of Montreal ¹⁷.

In the present case it is my view, for the reasons already given, that the power was not, in fact, exercised by the Commission, but was exercised by the respondent, acting through the manager of the Commission. Cancellation of a permit by the Commission at the request or upon the direction of a third party, whoever he may be, is not a proper and valid exercise of the power conferred upon the Commission by s. 35 of the Act. The Commission cannot abdicate its own functions and powers and act upon such direction.

Finally, there is the question as to the giving of notice of the action by the appellant to the respondent pursuant to art. 88 of the Code of Civil Procedure, which reads as follows:

ACTIONS AGAINST PUBLIC OFFICERS 88. No public officer or other person fulfilling any public function or duty can be sued for damages by reason of any act done by him in the exercise of his functions, nor can any verdict or judgment be rendered against him, unless notice of such action has been given him at least one month before the issue of the writ of summons.

Such notice must be in writing; it must state the grounds of the action, and the name of the plaintiff's attorney or agent, and indicate his office; and must be served upon him personally or at his domicile.

The contention of the respondent is that, as Attorney-General, he was a public official whose function was to maintain law and order in the Province; that he acted as he did in the intended exercise of that function and that he is not deprived of the protection afforded by the article because he had exceeded the powers which, in law, he possessed.

The issue is as to whether those acts were "done by him in the exercise of his functions". For the reasons already given in dealing with the second of the four points under discussion, I do not think that it was a function either of the Prime Minister or of the Attorney-General to interfere with the administration of the Commission by causing the cancellation of a liquor permit. That was something entirely outside his legal functions. It involved the exercise of powers which, in law, he did not possess at all.

Is the position altered by the fact that apparently he thought it was his right and duty to act as he did? I do not think that it is. The question of whether or not his acts were done by him in the exercise of his functions is not to be determined on the basis of his own appreciation of those functions, but must be determined according to law. The respondent apparently assumed that he was justified in using any means he thought fit to deal with the situation which confronted him. In my view, when he deliberately elected to use means which were entirely outside his powers and were unlawful, he did not act in the exercise of his functions as a public official.

The principle which should be applied is stated by Lopes J. in Agnew v. Jobson ¹⁸. That was an action for assault against a justice of the peace who had ordered a medical examination of the person of the plaintiff. There was no legal authority to make such an order, but it was admitted that the defendant bona fide believed that he had the authority to do that which he did. The defendant relied on absence of notice of the action as required by 11 & 12 Vic., c. 44. Section 8 of that Act provided that "no action shall be brought against any justice of the peace for anything done by him in the execution of his office" unless within six calendar months of the act complained of. Section 9, the one relied on by the defendant, provided that "no such action shall be commenced against any such justice" until a month after notice of action. Lopes J. held that "such justice" in s. 9 referred to a justice in execution of his office in s. 8. He held that s. 9 did not provide a defence to the defendant in these words (p. 68): I am of opinion that the defendant Jobson is not entitled to notice of action. There was a total absence of any authority to do the act, and although he acted bona fide, believing he had authority, there was nothing on which to ground the belief, no knowledge of any fact such a belief might be based on.

Similarly here there was nothing on which the respondent could found the belief that he was entitled to deprive the appellant of his liquor permit.

On the issue of liability, I have, for the foregoing reasons, reached the conclusion that the respondent, by acts not justifiable in law, wrongfully caused the cancellation of the appellant's permit and thus cause damage to the appellant. The respondent intentionally inflicted damage upon the appellant and, therefore, in the absence of lawful justification, which I do not find, he is liable to the appellant for the commission of a fault under art. 1053 of the Civil Code.

I now turn to the matter of damages.

The learned trial judge awarded damages to the appellant in the sum of $8,123.53, made up of $1,123.53 for loss of value of liquor seized by the Commission, $6,000 for loss of profits from the restaurant from December 4, 1946, the date of the cancellation of the permit, to May 1, 1947, the date when the permit would normally have expired, and $1,000 for damages to his personal reputation. No objection is taken by the appellant in respect of these awards, but he contends that he is also entitled to compensation under certain other heads of damage in respect of which no award was made by the learned trial judge. These are in respect of damage to the good will and reputation of his business, loss of property rights in his permit and loss of future profits for a period of at least one year from May 1, 1947. Damages in respect of these items were not allowed by the learned trial judge because of the fact that the appellant's permit was "only a temporary asset".

The appellant contends that, although his permit was not permanent, yet, in the light of the long history of his restaurant and the continuous renewals of the permit previously, he had a reasonable expectation of renewal in the future, had not the cancellation been effected in December 1946. He contends that the value of the good will of his business was substantially damaged by that cancellation.

His position on this point is supported by the reasoning of Duff J. (as he then was) in McGillivray v. Kimber ¹⁹. That was an action claiming damages for the wrongful cancellation of the appellant's pilot's licence by the Sydney Pilotage Authority. At p. 163 he says: The statement of defence seems to proceed upon the theory that for the purpose of measuring legal responsibility the consequences of this dismissal came to an end with the expiry of the term and that I shall discuss; but for the present it is sufficient to repeat that the dismissal was an act which being not only calculated, but intended to prevent the appellant continuing the exercise of his calling had in fact this intended effect; and the respondents are consequently answerable in damages unless there was in law justification or excuse for what they did. Per Bowen L.J., Mogul S.S. Co. v. McGregor, 23 Q.B.D. 598.

The statement by Bowen L.J. to which he refers appears at p. 613 of the report and is also of significance in relation to the appellant's right of action in this case. It is as follows: Now, intentionally to do that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another in that other person's property or trade, is actionable if done without just cause or excuse.

The evidence establishes that there was a substantial reduction in the value of the good will of the appellant's restaurant business as a result of what occurred, apart from the matter of any loss which might have resulted on the sale of the physical assets. It is difficult to assess this loss and there is not a great deal of evidence to assist in so doing. The appellant did file, as exhibits, income tax returns for the three years prior to 1946, which showed in those years a total net income from the business of $23,578.88. The profit-making possibilities of the business are certainly an item to be considered in determining the value of the good will.

However, in all the circumstances, the amount of these damages must be determined in a somewhat arbitrary fashion. I consider that $25,000 should be allowed as damages for the diminution of the value of the good will and for the loss of future profits.

I would allow both appeals, with costs here and below, and order the respondent to pay to the appellant damages in the total amount of $33,123.53, with interest from the date of the judgment in the Superior Court, and costs.

Cartwright J. (dissenting):

This appeal is from two judgments of the Court of Queen's Bench (Appeal Side) for the Province of Quebec²⁰, of which the first allowed an appeal from a judgment of MacKinnon J. and dismissed the appellant's action, and the second dismissed a cross-appeal asking that the damages awarded by the learned trial judge be increased.

The respondent is, and was at all relevant times, the Prime Minister and Attorney-General of the Province of Quebec.

The appellant on December 4, 1946, was the owner of an immovable property, known as 1429 Crescent Street in the City of Montreal, where he had for many years successfully carried on the business of a restaurant and cafe. He was the holder of liquor permit no. 68 granted to him on May 1, 1946, for the sale of alcoholic liquors in his restaurant and cafe pursuant to the provisions of the Alcoholic Liquor Act, R.S.Q. 1941, c. 255, hereinafter referred to as "the Act". This permit would normally have expired on April 30, 1947. The business carried on by the appellant had been founded by his father in 1912 and had been licensed uninterruptedly from that time until 1946. Prior to December 4, 1946, the appellant had complied with all the requirements of the Act and had carried on his restaurant business in conformity with the laws of the Province.

The appellant was at all relevant times a member of a sect known as "The Witnesses of Jehovah" and from some time in 1944 up to November 12, 1946, had on about 390 occasions, acted as bailsman for numbers of his co-religionists prosecuted under by-laws of the City of Montreal for distributing literature without a licence. None of those for whom he acted as bailsman defaulted in appearance, and all of them were ultimately discharged upon the by-laws under which they were charged being held to be invalid.

About the 24th or 25th of November 1946 members of the sect commenced distributing copies of a circular entitled "Quebec's burning hate for God and Christ and Freedom is the shame of all Canada". Copies of this circular are printed in the record, the English version being exhibit D7 and the French version exhibit D11. The then senior Crown Prosecutor in Montreal, Mtre Oscar Gagnon, formed the opinion that the circular was a seditious libel and that its distribution should be prevented. It results from the judgment of this Court in Boucher v. The King ²¹ that the learned Crown Prosecutor was in error in forming the opinion that the circular could be regarded as seditious. It, however, can hardly be denied that it was couched in terms which would outrage the feelings of the great majority of the inhabitants of the Province of Quebec; and the same may be said of a number of other documents circulated by the sect, copies of which form part of the record in the case at bar.

The evidence does not show that the appellant took part in the distribution of any of the circulars mentioned or that he was a leader or chief of the sect. He did not act as bailsman for any member of the sect charged in connection with the distribution of the circular, "Quebec's burning hate".

On November 25, 1946, pamphlets, including copies of "Quebec's burning hate" were seized in a building in the City of Sherbrooke owned by the appellant and leased by him to a congregation of Witnesses of Jehovah as a "Kingdom Hall" or place of worship. The appellant was not aware that the pamphlets were in this building.

From his investigations and the reports which he received Mr. Gagnon concluded that the distribution of the pamphlets "centred around Mr. Roncarelli or people close to him " and he so informed Edouard Archambault, the manager of the Quebec Liquor Commission. It may well be that Mr. Gagnon reached the conclusion mentioned on insufficient evidence. Mr. Gagnon also informed Mr. Archambault that the appellant had acted as bailsman for a great number of Witnesses of Jehovah.

On receiving this information from Mr. Gagnon, Mr. Archambault read the circular, "Quebec's burning hate" and had a conversation with Mr. Paquette, the Recorder-in-Chief at Montreal, who confirmed the statements as to the appellant furnishing bail.

At this point Mr. Archambault formed the opinion that he should cancel the permit held by the appellant, but before taking any action he telephoned the respondent at Quebec, told him what information he had received and that he proposed cancelling the permit. The respondent told him to be careful to make sure that the Roncarelli who had furnished bail was in fact the appellant. Mr. Archambault satisfied himself as to this through the report of an agent "Y3", in whom he had confidence, and thereupon, according to his uncontradicted evidence, decided to cancel the permit. The reasons which brought him to this decision were stated by him as follows: Q. So at the time you had already decided to revoke that licence?

A. Yes.

Q. Based, I presume, on the reports you had already received from Oscar Gagnon and Recorder-in-Chief Paquette that Mr. Roncarelli had posted bonds?

A. Yes; and aside from that, based on the literature I had read.

Q. And the pamphlet you referred to: "Quebec's Burning Hate"?

A. Yes, sir.

Mr. Archambault then telephoned the respondent. The substance of the two telephone conversations between Mr. Archambault and the respondent is summarized by the former as follows: Q. Now, that day you received a letter, November 30, 1946, did you decide that day to revoke the licence?

A. Certainly, that day I called the Premier, who was also the Attorney General, to share some observations with him, that is, the information I had, and let him know that I intended to revoke the privilege, and the Premier told me to take precautions, to carefully check whether it was one and the same person, that there could be several Roncarellis, et cetera. So when I received confirmation from Y3 that it was the same person, I called the Premier to assure him that it was indeed Frank Roncarelli, holder of a Liquor Commission licence; the Premier then authorized me, gave his consent, his approval, his permission and order to proceed.

The evidence of the respondent is also that the suggestion of cancelling the permit was made by Mr. Archambault, and there is no evidence to the contrary.

There has been a difference of opinion in the Courts below as to whether what was said by the respondent to Mr. Archambault amounted to an order to cancel or merely to a "eager approval " of a decision already made. I do not find it necessary to choose between these conflicting views as I propose to assume for the purposes of this appeal that what was said by the respondent was so far a determining factor in the cancellation of the permit as to render him liable for the damages caused thereby to the appellant if the cancellation was an actionable wrong giving rise to a right of action for damages.

All of the Judges in the Courts below who have dealt with that aspect of the matter have concluded that the respondent acted throughout in the honest belief that he was fulfilling his duty to the Province, and this conclusion is supported by the evidence.

The opinion of Mr. Archambault and of the respondent appears to have been that a permit to sell liquor under the Act is a privilege in the gift of the Province which ought not to be given to, or allowed to continue to be enjoyed by, one who was actively supporting members of a group of persons who were engaged in a concerted campaign to vilify the Province and were persistently acting in contravention of existing by-laws. Once it is found, as I think it must be on the evidence, that this opinion was honestly entertained, I have reached the conclusion, for reasons that will appear, that the Court cannot inquire as to whether there was sufficient evidence to warrant its formation or as to whether it constituted a reasonable ground for cancellation of the permit.

The permit was cancelled on December 4, 1946, without any prior notice to the appellant and without his being given any opportunity to show cause why it ought not to be cancelled. It is clear that the appellant suffered substantial financial loss as a result of the cancellation.

In determining whether the cancellation of the permit in these circumstances was an actionable wrong on the part of the commission or of Mr. Archambault, its manager, it is necessary to consider the relevant provisions of the Act. These appear to me to be as follows: S.5 A Commission is by this act created under the name of "The Quebec Liquor Commission", or "Commission des liqueurs de Québec", and shall constitute a corporation, vested with all the rights and powers belonging generally to corporations.

The exercise of the functions, duties and powers of the Quebec Liquor Commission shall be vested in one person alone, named by the Lieutenant-Governor in Council, with the title of manager. The remuneration of such person shall be determined by the Lieutenant-Governor in Council and be paid out of the revenues of the Liquor Commission.

S.9 The function, duties and powers of the Commission shall be the following:

d. To control the possession, sale and delivery of alcoholic liquor in accordance with the provisions of this act;

e. To grant, refuse, or cancel permits for the sale of alcoholic liquor or other permits in regard thereto, and to transfer the permit of any person deceased;

S.32 No permit shall be granted other than to an individual, and in his personal name.

The application for a permit may be made only by a British subject, must be signed by the applicant before witnesses, and must give his surname, Christian names, age, occupation, nationality and domicile, the kind of permit required and the place where it will be used, and must be accompanied by the amount of the duties payable upon the application for the permit. The applicant must furnish all additional information which the Commission may deem expedient to ask for.

If the permit is to be used for the benefit of a partnership or corporation, the application therefore must likewise be accompanied by a declaration to that effect, and duly signed by such partnership or corporation. In such case, the partnership or corporation shall be responsible for any fine and costs, to which the holder of the permit may be condemned; and the amount thereof may be recovered before any court having jurisdiction, without prejudice to imprisonment, if any.

All applications for permits must be addressed to the Commission before the 10th of January in each year, to take effect on the 1st of May in the same year.

S.34 1. The Commission may refuse to grant any permit.

2. The Commission must refuse to grant any permit for the sale of alcoholic liquor in any municipality where a prohibition by-law is in force.

Subsections 2 to 6 of s. 34 enumerate special cases in which the Commission must refuse a permit. S.35 1. Whatever be the date of issue of any permit granted by the Commission, such permit shall expire on the 30th day of April following, unless it be cancelled by the Commission before such date, or unless the date at which it must expire be prior to the 30th of April following.

The Commission may cancel any permit at its discretion.

2. Saving the provisions of subsection 4 of this section, the cancellation of a permit shall entail the loss of the privilege conferred by such permit, and of the duties paid to obtain it, and the seizure and confiscation by the Commission of the alcoholic liquor found in the possession of the holder thereof, and the receptacles containing it, without any judicial proceedings being required for such confiscation.

The cancellation of a permit shall be served by a bailiff leaving a duplicate of such order of cancellation, signed by three members of the Commission, with the holder of such permit or with any other reasonable person at his domicile or place of business.

The cancellation shall take effect as soon as the order is served.

S.35 4. If the cancellation of the permit be not preceded or followed by a conviction for any offence under this act committed by the holder of such permit while it was in force, the Commission shall remit to such holder.

a. Such part of the duties which such person has paid upon the granting of such permit, proportionate to the number of full calendar months still to run up to the 1st of May following;

b. The proceeds of every sale by the Commission, after the seizure and confiscation thereof, of beer having an alcoholic content of not more than four per cent, in weight, less ten per cent of such proceeds;

c. The value, as determined by the Commission, of the other alcoholic liquor seized and confiscated, less ten per cent of such value.

5. Save in the case where a permit is granted to an individual on behalf of a partnership or corporation, in accordance with section 32, the Commission must cancel every permit made use of on behalf of any person other than the holder.

S.36 The Commission must cancel a permit:

1. Upon the production of a final condemnation, rendered against the permit-holder, his agent or employee, for selling, in the establishment, alcoholic liquor manufactured illegally or purchased in violation of this act;

2. Upon the production of three final condemnations rendered against the permit-holder for violation of this act;

3. If it appears that the permit-holder has, without the Commission's authorization, transferred, sold, pledged, or otherwise alienated the rights conferred by the permit.

On a consideration of these sections and of the remainder of the Act I am unable to find that the Legislature has, either expressly or by necessary implication, laid down any rules to guide the commission as to the circumstances under which it may refuse to grant a permit or may cancel a permit already granted. In my opinion the intention of the legislature, to be gathered from the whole Act, was to enumerate (i) certain cases in which the granting of a permit is forbidden, and (ii) certain cases in which the cancellation of a permit is mandatory, and, in all other cases to commit the decision as to whether a permit should be granted, refused or cancelled to the unfettered discretion of the commission. I conclude that the function of the commission in making that decision is administrative and not judicial or quasi-judicial. The submission of counsel for the respondent, made in the following words, appears to me to be well founded: Under the Statute, no one has a pre-existing right to obtain a permit, and the permit being granted under the condition that it may be cancelled at any time, and no cause of cancellation being mentioned and no form of procedure being indicated, the cancellation is a discretionary decision of a purely administrative character.

I accept as an accurate statement of the distinction between a judicial and an administrative tribunal that adopted by Masten J.A. in giving the judgment of the Court of Appeal for Ontario in re Ashby et al ²²: The distinction between a judicial tribunal and an administrative tribunal has been well pointed out by a learned writer in 49 Law Quarterly Review at pp. 106, 107 and 108:

A tribunal that dispenses justice, i.e. every judicial tribunal, is concerned with legal rights and liabilities, which means rights and liabilities conferred or imposed by 'law'; and 'law' means statute or long-settled principles. These legal rights and liabilities are treated by a judicial tribunal as pre-existing; such a tribunal professes merely to ascertain and give effect to them; it investigates the facts by hearing 'evidence' (as tested by long-settled rules), and it investigates the law by consulting precedents. Rights or liabilities so ascertained cannot, in theory, be refused recognition and enforcement, and no judicial tribunal claims the power of refusal.

In contrast, non-judicial tribunals of the type called 'administrative' have invariably based their decisions and orders, not on legal rights and liabilities, but on policy and expediency.

Leeds (Corp.) v. Ryder (1907) A.C. 420, at 423, 424, per Lord Loreburn L.C.; Shell Co. of Australia v. Federal Commissioner of Taxation (1931) A.C. 275, at 295; Boulter v. Kent JJ., (1897) A.C. 556, at 564.

A judicial tribunal looks for some law to guide it; an 'administrative' tribunal, within its province, is a law unto itself.

In re Ashby the Court found that the statute there under consideration set up certain fixed standards and prescribed conditions on which persons might have their certificates revoked by the board, and accordingly held its function to be quasi-judicial; in the case at bar, on the contrary, no standards or conditions are indicated and I am forced to conclude that the Legislature intended the commission "to be a law unto itself".

If I am right in the view that in cancelling the permit Mr. Archambault was performing an administrative act in the exercise of an unfettered discretion given to him by the statute it would seem to follow that he was not bound to give the appellant an opportunity to be heard before deciding to cancel and that the Court cannot be called upon to determine whether there existed sufficient grounds for his decision. If authority is needed for this conclusion it may be found in the judgment of the Judicial Committee, delivered by Lord Radcliffe, in Nakkuda Ali v. M.F. De S. Jayaratne ²³ and in the reasons of my brother Martland in Calgary Power Limited et al v. Copithorne ²⁴. The wisdom and desirability of conferring such a power upon an official without specifying the grounds upon which it is to be exercised are matters for the consideration of the Legislature not of the Court.

If, contrary to my conclusion, the function of the commission was quasi-judicial, it may well be that its decision to cancel the permit would be set aside by the Court for failure to observe the rules as to how such tribunals must proceed which are laid down in many authorities and are compendiously stated in the following passage in the judgment of the Earl of Selborne in Spackman v. Plumstead Board of Works ²⁵: No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter, and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice.

But even if it were assumed that the function of the commission was quasi-judicial and that its order cancelling the permit should be set aside for failure to observe the rules summarized in the passage quoted, I would be far from satisfied that any action for damages would lie.

If that question arose for decision it would be necessary to consider the judgments delivered in this Court in McGillivray v. Kimber ²⁶, the cases cited in Halsbury, 2nd ed., vol. 26, pp. 284 and 285, in support of the following statement: Persons exercising such quasi-judicial powers ... in the absence of fraud, collusion, or malice, are not liable to any civil action at the suit of any person aggrieved by their decisions...

and the judgment of Wilmot C.J., concurred in by Gould J. and Blackstone J., in Bassett v. Godschall ²⁷: The legislature hath intrusted the justices of peace with a discretionary power to grant or refuse licences for keeping inns and alehouses; if they abuse that power, or misbehave themselves in the execution of their office or authority, they are answerable criminally, by way of information, in B.R. I cannot think a justice of peace is answerable in an action to every individual who asks him for a licence to keep an inn or an alehouse, and he refuses to grant one; if he were so, there would be an end of the commission of the peace, for no man would act therein. Indeed he is answerable to the public if he misbehaves himself, and wilfully, knowingly and maliciously injures or oppresses the King's subjects, under colour of his office, and contrary to law: but he cannot be answerable to every individual, touching the matter in question, in an action. Every plaintiff in an action must have an antecedent right to bring it; the plaintiff here has no right to have a licence, unless the justices think proper to grant it, therefore he can have no right of action against the justices for refusing it.

For the above reasons I have reached the conclusion that the heavy financial loss undoubtedly suffered by the appellant was damnum sine injuria. The whole loss flowed directly from the cancellation of the permit which was an act of the commission authorized by law. I have formed this opinion entirely apart from any special statutory protection afforded to the commission or to its manager, Mr. Archambault, as, for example, by s. 12 of the Act.

The case of James v. Cowan ²⁸ relied upon by counsel for the appellant as supporting the existence of a right of action for damages seems to me to be clearly distinguishable. In that case the right of action asserted was for damages for the wrongful taking of the plaintiff's goods. The only justification put forward was an order held to be ultra vires and therefore void. It may be mentioned in passing that if, contrary to my view, the decision of the commission in the case at bar was made in the exercise of a judicial function, its failure to follow a rule of natural justice would appear to render the order voidable but not void; Dimes v. Grand Junction Canal Proprietors.²⁹

Having concluded that the act of the commission in cancelling the permit was not an actionable wrong, it appears to me to follow that the respondent cannot be answerable in damages for directing or approving, as the case may be, the doing of that act.

As it was put by Bissonnette J.:³⁰ [translation] It follows logically, then, that if, in exercising his discretionary authority, he (Mr. Archambault) did nothing wrong or unlawful, no one could justifiably seek to hold answerable beyond him as a person an adviser or even a political leader or senior political official, because unless the person is at fault, the adviser cannot be at fault.

On this branch of the matter, I should perhaps mention that there is, in the record, no room for any suggestion that the respondent coerced an unwilling Commission into making a decision contrary to the view of the latter as to what that decision should be.

For the above reasons it is my opinion that the appeal fails and it becomes unnecessary for me to consider the alternative defence as to lack of notice of action, based upon art. 88 of the Code of Civil Procedure or the question of the quantum of damages.

The appeal, as to both of the judgments of the Court of Queen's Bench, should be dismissed with costs.

Fauteux J. (dissenting):

[translation]

The appellant is appealing from two majority rulings by the Court of Queen’s Bench,³¹ the first a Superior Court judgment ordering the respondent to pay him $8,123.53 in damages, the second dismissing his appeal to increase the amount of damages awarded.

The facts giving rise to this dispute relate to activities carried on in the Province of Quebec, in particular in the years 1944, 1945 and 1946, by the religious sect "Jehovah’s Witnesses". Those activities took the form of meetings, distribution of circulars, pamphlets and books, and soliciting on the street and at people’s homes. Directed squarely against the faiths practised in the province, more specifically the Catholic faith, the teachings of the sect were disseminated in language that was clearly, if not deliberately, insulting and thus undermined public order in the towns and villages in which they were propagated. Meetings were broken up, people were assaulted, and there was damage to property. Further, and sharing the generally accepted view that this provocative campaign was the work of licence and not liberty under the law, many civil authorities refused to grant the protection sought by the members of the sect or endeavoured to thwart their activities, which were considered a threat to the public peace. The respondent, as Attorney General, heard all about the situation through his department, where complaints abounded. The number of court actions and prosecutions grew and grew. In Montreal, there were hundreds of arrests for distributing literature without a licence. In Recorder’s Court, where those charged with breaking the city by-law were tried, people argued that the by-law was invalid or did not apply, and cases were adjourned pending a judgment from a higher court on the merits of those arguments. It was the appellant, himself a member of the sect, who in most of the cases in Montreal posted bail to guarantee that the accused would appear. There was even an agreement between the appellant and prosecutors under which he was in a sense considered the official bondsman for members of the sect. The appellant continued to act as bondsman until November 12, 1946, when officials of the Recorder’s Court, concerned about the backlog of cases resulting from the gradual increase in arrests and about the time many constables were spending on those investigations and prosecutions at the expense of their other duties, tried to discourage the sect’s activities by demanding cash bonds in more substantial amounts, that is, between $100 and $300.

Two weeks after that decision, a new publication entitled "Quebec's burning hate for God and Christ and Freedom is the shame of all Canada" appeared in the province. The book, published in French, English and Ukrainian, was a very provocatively worded attack aimed specifically against the religious practices of the majority of the population and the administration of justice in the province and was therefore referred by police to the chief Crown prosecutor in Montreal, Mr. Gagnon, Q.C., who expressed the view that the publication was, within the meaning of the Criminal Code, seditious libel.

We should add straight away that the merits of that opinion were subsequently considered by a court of law with the following outcome. One Aimé Boucher, who distributed the book in the judicial district of St-Joseph de Beauce, was charged under sections 133, 134 and 318 of the Criminal Code and was convicted by a jury whose verdict was upheld by a majority of the Court of Queen’s Bench³² on appeal. On a subsequent appeal before five members of this Court, a majority, allowing the arguments based on the instructions from the trial judge but holding the view that a lawfully instructed jury was free to rule on the seditious publication, ordered a new trial. When the appeal was heard again – this time before nine judges of this Court³³ – that view was shared by four members of this Court. The other five acquitted the accused, essentially finding, as stated in the faithful summary from the appellant, that in law: Neither language calculated to promote feelings of ill-will and hostility between different classes of His Majesty's subjects nor criticizing the courts is seditious unless there is the intention to incite to violence or resistance to or defiance of constituted authority.

In short, the majority set aside as being law in the matter the definition of seditious intent given on page 94 of the 8^th edition of Stephen's Digest of Criminal Law, inasmuch as that definition was different from the law as stated in the above summary. Boucher v. His Majesty the King.³⁴ It thus appears that the opinion expressed by the Attorney General’s representative in Montreal when the book first came out in late 1946 was subsequently embraced by a majority of all the judges called upon to consider the matter, but rejected by what has, since 1951, been the judgment of this Court on the issue.

Having formed the opinion that the publication constituted seditious libel, Mr. Gagnon took part in the investigation conducted to identify the distributors and bring them to justice. Around the same time, police in the City of Sherbrooke seized a number of pamphlets and books, including the book in question, in an establishment owned by the appellant and leased by him to members of the sect. A review of the situation and the role the appellant played in the proceedings in the Recorder’s Court in Montreal led Mr. Gagnon to conclude that the appellant was involved in distribution. Learning at the same time that the appellant owned a restaurant and held a Liquor Commission licence for the sale of spirits, he communicated the above facts to Mr. Archambault, then general manager of the Liquor Commission. After conferring with the recorder-in-chief of the City of Montreal and Mr. Gagnon, Mr. Archambault telephoned the Attorney General to inform him of these actions by members of the sect and the appellant in particular, and of his intention to cancel the appellant’s licence. The respondent asked Mr. Archambault to make sure that the licensee was indeed the same person who, according to Mr. Archambault, "was posting bonds left and right in Recorder’s Court, tying up police activities and clogging the courts". The respondent added, "In the meantime, I’ll look into the matter with legal officers, I’ll think about it and see what I need to do." Mr. Archambault checked the identity of the appellant, while the Attorney General studied the problem, reviewed the Alcoholic Liquor Act and amendments thereto, and discussed the issue in Cabinet and with legal officers in his department. A few days later, Mr. Archambault telephoned the Attorney General to confirm the licensee’s identity, and, as Mr. Archambault testified, "the Premier then authorized me, gave his consent, his approval, his permission and order to proceed."

Following that telephone conversation, the licence was canceled and all the spirits in the restaurant were confiscated. Owing to the loss of business resulting from the fact that he had no licence, the appellant a few months later sold the restaurant, which had been licensed for the sale of liquor for many years and operated first by his father and subsequently by him. The appellant then filed this action for damages against the respondent personally, claiming that, in the circumstances, the cancelation of the licence was, under article 1053 of the Civil Code, an unlawful act committed by the respondent which entitled the appellant to damages.

In his defence, and apart from the arguments on the merits of the action, the respondent specifically invoked the failure by the appellant to meet the requirements of art. 88 of the Code of Civil Procedure, which stipulates that no action may be taken against a public officer unless the officer is given notice at least one month before the writ of summons is issued.

After careful consideration of the issue and for the reasons given below, I have come to the conclusion that that argument is well founded. It should be noted, however, that were it not for that failure on the part of the appellant, I would have concluded, on the merits, that his action was justified, for reasons which in the circumstances can be briefly summarized as follows. No one challenges the position that the act cited in support of the claim for damages, that is, the cancelation of the licence, was an act that caused the appellant damage. Moreover, and according to the evidence on file, it is clear that the respondent and the respondent alone is responsible for that action. When the general manager of the Liquor Commission telephoned the Attorney General to apprise him of the above facts, he probably also said that he intended to revoke the licence. There is a big difference, however, between stating an intention and actually following through on it; and the truth is that in that first telephone conversation, the Attorney General was the one who accepted full responsibility. As indicated earlier, he asked Mr. Archambault to check the person’s identity and told him that in the meantime he would study the problem and determine what he ought to do. It was precisely to decide what action to take that he reviewed the legislation and discussed the matter in Cabinet and with his legal officers. When Mr. Archambault subsequently called him back to say that it was the same person, the Attorney General, the general manager said, "authorized me, gave his consent, his approval, his permission and order to proceed." The Superior Court judge and all the Court of Appeal judges cast no doubt, and rightly so in my view, on the Attorney General’s good faith, no more so than one could question the good faith of the general of the Liquor Commission. Neither acted maliciously. But by testifying that the respondent authorized him, gave him his consent, his approval, his permission and ordered him to proceed, the general manager of the Liquor Commission clearly indicated, in my view, that in the spirit of subordination, he relinquished to the Attorney General in the first telephone conversation the right to exercise the discretion which he alone held under the Alcoholic Liquor Act. He executed, but did not make, a decision made by the Attorney General. The Attorney General did not try to hide; he spoke about the matter openly through the newspapers. By making that decision himself as Premier and Attorney General, he assumed a right he was virtually denied under the Alcoholic Liquor Act; he committed an unlawful act. In the case at bar, the cancelation of the licence is solely attributable to the respondent and is, for that specific reason, an unlawful act which entitles the appellant to reparation for the damages he sustained as a result.

Article 88 Code of Civil Procedure. – This article reads as follows: No public officer or other person fulfilling any public function or duty can be sued for damages by reason of any act done by him in the exercise of his functions, nor can any verdict or judgment be rendered against him, unless notice of such action had been given him at least one month before the issue of the writ of summons.

Such notice must be in writing; it must state the grounds of the action, and name of the plaintiff's attorney or agent, and indicate his office; and must be served upon him personally or at his domicile.

In view of the prohibitive nature of the provisions and the rule of law set out in art. 14 of the Civil Code, failure to give notice where notice should be given renders the action null and void. This rule of law is stated as follows: 14. Les lois prohibitives emportent nullité, quoiqu'elle n'y soit pas prononcée.

Moreover, because no verdict or judgment can be rendered, that failure limits the very jurisdiction of the court. And not only, as acknowledged in the trial judgment, can that failure be raised in the arguments, but the Court itself must act proprio motu and comply with the prohibition.

In the case at bar, it is acknowledged that no notice was given to the Attorney General. The respondent specifically made that argument in his defence and invoked it in Superior Court and the Court of Appeal as well as before this Court. The trial judge addressed the point in the following terms (his emphasis): Defendant is not entitled to avail himself of this exceptional provision as the acts complained of were not "done by him in the exercise of his functions", but they were acts performed by him when he had gone outside his functions to perform them. They were not acts "in the exercise of" but "on the occasion of public duties". Defendant was outside his functions in the acts complained of.

In the Court of Appeal, ³⁵ only the dissenting judge, Rinfret J,, ruled on the matter. Drawing, I believe, on the interpretation in the case law of the phrase "in the exercise of his functions", which appears in art. 1054 C.C.P. and more specifically the test indicated in Plumb v. Cobden Flour Mills,³⁶ he ruled as follows on the merits of the action: [translation] The respondent’s action, as we saw, cannot be considered an act which the Attorney General or the Premier is permitted to do under the statutes; it cannot be deemed to have been done in the exercise or execution of his functions per se; it falls into the category of prohibited acts, acts done outside the boundaries of functions, and for that reason, it gives rise to personal liability.

then, pointing out that art. 88 C.C.P. establishes as a condition that the respondent be sued "by reason of any act done by him in the exercise of his functions", states that art. 88 does not apply in this case.

The majority judges referred to this argument but did not dwell on it given that the action, in their opinion, was in any event without proper grounds.

We see from this that the respondent’s right to notice depends solely, in this case, on the issue of whether the act in question was done by him "in the exercise of his functions" as that phrase must be interpreted in the context of art. 88 C.C.P. and in keeping with the real spirit and purpose of that article.

Article 1054 C.C. states that masters and principals are responsible for damage caused by their servants or workers in executing the duties for which they are employed. One is thus led to give the more or less identical phrase in art. 88 C.C.P. the same meaning as the case law gives to art. 1054 C.C. The rule of interpretation applicable to similar expressions establishes nothing more than a presumption, namely that similar expressions have the same meaning when they appear – and this is not the case here – in the same statute. Little weight is ascribed to that presumption. Maxwell, On Interpretation of Statutes, 9th ed., pp. 322 et seq. The considerations that come into play in establishing the purpose and scope of art. 88 C.C.P. and art. 1054 C.C. are totally different. Drawing on the doctrine of Respondent superior, art. 1054 C.C. establishes the liability of the principal for the actions of his servant, the servant being considered an extension of the legal entity of the principal. The respondent, acting in his capacity as Attorney General, is no one’s servant. He has no principal. The function he performs is derived from the statute. Article 88 C.C.P. has no bearing on the issue of liability. It affords special treatment, with regard to procedure only, for public officers because of the very nature of the function. The reasons given in the case law to limit the scope of the exercise of functions with respect to the liability referred to in art. 1054 C.C. are unrelated to those which lead the legislator to protect public officers with regard to procedure only. And with all due respect, I do not believe that the scope of that protection is subject to the limitations on liability affecting art. 1054 C.C. Section 8 of Chapter 101 of the Consolidated Statutes of Lower Canada, 1860, the source statute for art. C.C.P., establishes unequivocally in my view that, in pari materia, a public officer is not deemed to have ceased to be acting in the exercise of his functions simply because the act he is charged with doing exceeds his power or jurisdiction or breaks the law. Since the French version of that statute is not available, I quote the English version: Protection to extend to the magistrate only etc., and in what cases to him.

8. The privileges and protection given by this Act, shall be given to such justice, officer or other person acting as aforesaid, only, and to no other person or persons whatever, and any such justice, officer and other person shall be entitled to such protection and privileges in all cases where he has acted bona fide in the execution of his duty, although in such act done, he has exceeded his powers or jurisdiction, and has acted clearly contrary to law.

Article 88 C.C.P. assumes that those for whose benefit it is established committed an unlawful act for which they must answer. Any doubt one might have regarding that point is laid to rest by the text of art. 429 C.C.P., which states, in connection with a change of venue for the trial of a public officer: 429. Dans toute poursuite en dommages contre un officier public, à raison de quelque illégalité dans l'exécution de ses fonctions, le juge peut ordonner que le procès ait lieu dans un autre district, s'il est démontré que la cause ne peut être instruite avec impartialité dans le district où l'action a été portée.

It is therefore important to avoid associating with the right to notice any idea of justification for the act done or deducing from the simple fact that the public officer must be held personally liable that he loses all rights to notice. In Beattey v. Kozak,³⁷ where there was a need to avoid such confusion, a similar observation was made by our brother judge Rand. It should be added, however, that that ruling was not otherwise of assistance in the case at bar; the dispute in law was over the interpretation of a different statute and was resolved by giving effect to equally different case law on the impact in the matter of the role of good faith.

The impact of the role of good faith on the part of the public officer in committing an act, with regard to the scope of art. 88 C.C.P. and not with regard to the merits of the action, has been the subject of conflict in Quebec case law since the provision was established by art. 22 of the Code of Civil Procedure of 1867, the terms of which are reiterated in art. 88 of the 1897 code. According to some rulings, good faith had a bearing on the right to notice, and as soon as the statement contained an allegation of bad faith, the respondent was deprived of the right to invoke failure to give notice although on the merits, the evidence showing that the allegation was unfounded, the action would have to be dismissed because no notice was given. According to other rulings, the right to notice was deemed absolute in all cases. Good faith, it was said, based on the principle observed in art. 2202 C.C.P., is always presumed, and that presumption cannot be set aside by a simple allegation, but by evidence of bad faith. It was determined that a simple allegation in the pleading could not virtually abrogate the right to the benefit of art. 88. Given that that article determined whether the right to take action could even be exercised, it was ruled that that right of action would have to be denied ab initio and not at the end of the trial. That conflict no longer exists. More than 25 years ago, the Court of Appeal put an end to it by ruling that good or bad faith has no bearing on the right to notice and that notice must be given in all cases. Accepting the arguments already made in that direction, the Court of Appeal relied in particular on the historical source of the provision and the amendment thereto and its subsequent inclusion in the Code of Civil Procedure. The sources of the article are identified in Dame Chaput v. Crépeau ³⁸ by Bruneau J., and the changes to the previous situation made by inserting the article into the Code so that the Code would apply more generally to all public officers are indicated in the definitive jurisprudence established by the Court of Appeal in Charland v. Kay;³⁹ Corporation de la Paroisse de St-David-de-l'Auberivière v. Paquette et autres ⁴⁰ and Houde v. Benoît ⁴¹

In short, and as noted by Hall J. in Corporation de la Paroisse de St-David-de-l'Auberivière v. Paquette et autres, supra, art. 22 of the Code of Civil Procedure of 1867, predecessor of art. 88 of the 1897 Code, is rooted in the Act for the protection of Justices of the Peace, c. 101 of the Consolidated Statutes of Lower Canada. Section 1 of that Act prescribed notice of action, while other sections established other privileges, including a time frame of six months. Section 8 made the right to the privileges granted under the Act subject to good faith. When the Code of Civil Procedure was being written, the provision on notices was taken from the Act and made into art. 22 of the Code and declared applicable to all public officers. In the process, however, the good faith provision was left in the Act for the protection of Justices of the Peace and care was taken to avoid including it in art. 22 C.C.P. as a prerequisite for that article. Other considerations, such as the change made by the legislature on August 4, 1929, to art. 195 C.C.P. through Bill 19, George V, c. 81, which prohibited any order for evidence preceding a ruling to allow that until then limited to the merits the issues raised by the demurrer, support those views. It is that change, I believe, which created the opportunity for the Court of Appeal to set the case law for good. The above-mentioned reasons are sufficient to share the views expressed by the Court of Appeal in the cases cited earlier and to conclude, as Dorion J. did in Charland v. Kay, supra, that it is important to respect and give effect to the statute.

By taking it upon himself to exercise the general manager’s discretionary power under the Act, the respondent acted unlawfully, but did not commit a criminal act or an offence within the meaning of article 1053 C.C.P. He did something he was not entitled to do, firmly and honestly believing, he said under oath, that he was not only entitled, but also required to do so in order to meet his obligations as Attorney General responsible for the administration of justice and the preservation of peace and order in the province and to fulfil his duties as the provincial government’s legal adviser. He did not take advantage of his function to commit an unlawful act. He did not commit the act in the exercise of his functions. He committed it because of his functions. His good faith was not challenged, and on that point, the judges of the Court of Appeal who considered the matter agreed with the trial judge. According to the decisions considered by this Court in Beatty v. Kozak, supra, under a different system of law than the Quebec system, the impact of good faith where good faith is based on an error of fact or and error of fact and law, if not solely on an error of law, to determine the exculpatory nature of the unlawful act, or even the right to notice. Alone competent to pass legislation on civil procedure, the Quebec legislature, through art. 88 C.C.P., did not want to make the right to notice subject to the effect of good or bad faith. In the circumstances of this case, I believe that the unlawful act committed by the respondent was committed in the exercise of his functions and that moreover it amounts to doing indirectly what art. 88 C.C.P. does not permit, based on the interpretation by the Court of Appeal, which is to rely on good or bad faith, whether in the popular or the technical sense of the word, in order to conclude that the respondent acted outside the exercise of his functions within the meaning of those expressions in art. 88 C.C.P., and that he lost the right to notice of action.

For these reasons, the appellant’s action should have been dismissed. I dismiss the appeals with costs.

[English]

Abbott J.:

In his action appellant claimed from respondent the sum of $118,741 as damages alleged to have been sustained as a result of the cancellation of a licence or permit for the sale of alcoholic liquors held by appellant. The action was maintained by the learned trial judge to the extent of $8,123.53. From that judgment two appeals were taken, one by respondent asking that the action be dismissed in its entirety, the other by appellant asking that the amount allowed as damages be increased by an amount of $90,000. The Court of Queen's Bench⁴² allowed the respondent's appeal, Rinfret J. dissenting, and dismissed the action. The appeal taken by appellant to increase the amount of the trial judgment was dismissed unanimously. The present appeals are from those two judgments.

The facts are these. On December 4, 1946, appellant was conducting a restaurant business in the City of Montreal, a business which he and his father and mother before him had been carrying on continuously for some thirty-four years prior to that date. The restaurant had been licensed for the sale of alcoholic beverages throughout the entire period.

In 1946 and for many years prior thereto, persons operating establishments of this kind and selling alcoholic beverages had been required to obtain a licence or permit under the Alcoholic Liquor Act, R.S.Q. 1941, c. 255. Unless granted for a shorter period, these were annual licences and expired on April 30 in each year. Moreover, s. 35, subs. 1., of the Act provides as follows: The Commission may cancel any permit at its discretion.

The Commission referred to is the "Quebec Liquor Commission" established as a corporation under the Act in question and, generally speaking, it has been entrusted by the Legislature with the responsibility of directing and administering the provincial monopoly of the sale and distribution of alcoholic beverages.

On December 4, 1946, without previous notice to the appellant, his licence to sell alcoholic beverages was cancelled by the Quebec Liquor Commission, and at about 2 p.m. on that date the stock of liquor on his premises was seized and removed. The licence was not restored and after operating for some months without such a licence, in 1947 appellant sold the restaurant and the building in which it was located.

Appellant learned from press reports either in the afternoon of December 4 or early the following day, that his licence had been cancelled and the stock of liquor seized because he was an adherent of a religious sect or group known as the Witnesses of Jehovah. It soon became clear from statements made by the respondent to the press and confirmed by him at the trial as having been made by him, that the cancellation of the licence had been made because of the appellant's association with the sect in question and in order to prevent him from continuing to furnish bail for members of that sect summoned before the Recorder's Court on charges of contravening certain city by-laws respecting the distribution of printed material.

It might be added here that in December 1946 and for some time prior thereto the Witnesses of Jehovah appear to have been carrying on in the Montreal district and elsewhere in the Province of Quebec, an active campaign of meetings and the distribution of printed pamphlets and other like material of an offensive character to a great many people of most religious beliefs, and I have no doubt that at that time many people believed this material to be seditious.

The evidence is referred to in detail in the Courts below and I do not propose to do so here. I am satisfied from a consideration of this evidence: First: that the cancellation of the appellant's licence was made for the sole reason which I have mentioned and with the object and purpose to which I have referred; Second: that such cancellation was made with the express authorization and upon the order of the respondent; Third: that the determining cause of the cancellation was that order, and that the manager of the Quebec Liquor Commission would not have cancelled the licence without the order and authorization given by the respondent.

There can be no question as to the first point. It was conceded by respondent in his evidence at the trial and by his counsel at the hearing before us. As to the second and third points, I share the view of the learned trial judge and of Rinfret J. that both were clearly established.

The religious beliefs of the appellant and the fact that he acted as bondsman for members of the sect in question had no connection whatever with his obligations as the holder of a licence to sell alcoholic liquors. The cancellation of his licence upon this ground alone therefore was without any legal justification. Moreover, the religious beliefs of the appellant and his perfectly legal activities as a bondsman had nothing to do with the object and purposes of the Alcoholic Liquor Act, and the powers and responsibilities of the manager of the Quebec Liquor Commission are confined to the administration and enforcement of the provisions of the said Act. This may be one explanation of the latter's decision to consult the respondent before taking the action which he did to cancel appellant's licence.

At all events a careful reading of the evidence and a consideration of the surrounding circumstances has convinced me that without having received the authorization, direction, order, or "eager approval" of the respondent -- however one chooses to describe it -- the manager of the Quebec Liquor Commission would not have cancelled the licence.

The proposition that in Canada a member of the executive branch of government does not make the law but merely carries it out or administers it requires no citation of authority to support it. Similarly, I do not find it necessary to cite from the wealth of authority supporting the principle that a public officer is responsible for acts done by him without legal justification. I content myself with quoting the well known passage from Dicey's "Law of the Constitution", 9th ed., p. 193, where he says ...every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorize as is any private and unofficial person.

In the instant case, the respondent was given no statutory power to interfere in the administration or direction of the Quebec Liquor Commission although as Attorney-General of the Province the Commission and its officers could of course consult him for legal opinions and legal advice. The Commission is not a department of government in the accepted sense of that term. Under the Alcoholic Liquor Act the Commission is an independent body with corporate status and with the powers and responsibilities conferred upon it by the Legislature. The Attorney-General is given no power under the said Act to intervene in the administration of the affairs of the Commission nor does the Attorney-General's Department Act, R.S.Q. 1941, c. 46, confer any such authority upon him.

I have no doubt that in taking the action which he did, the respondent was convinced that he was acting in what he conceived to be the best interests of the people of his province but this, of course, has no relevance to the issue of his responsibility in damages for any acts done in excess of his legal authority. I have no doubt also that respondent knew and was bound to know as Attorney-General that neither as Premier of the province nor as Attorney-General was he authorized in law to interfere with the administration of the Quebec Liquor Commission or to give an order or an authorization to any officer of that body to exercise a discretionary authority entrusted to such officer by the statute.

It follows, therefore, that in purporting to authorize and instruct the manager of the Quebec Liquor Commission to cancel appellant's licence, the respondent was acting without any legal authority whatsoever. Moreover, as I have said, I think respondent was bound to know that he was acting without such authority.

The respondent is therefore liable under art. 1053 of the Civil Code for the damages sustained by the appellant, by reason of the acts done by respondent in excess of his legal authority.

Respondent also contended that appellant's action must fail because no notice of such action was given under art. 88 of the Code of Civil Procedure, which reads as follows: 88. No public officer or other person fulfilling any public function or duty can be sued for damages by reason of any act done by him in the exercise of his functions, nor can any verdict or judgment be rendered against him, unless notice of such action had been given him at least one month before the issue of the writ of summons.

Such notice must be in writing; it must state the grounds of the action, and name of the plaintiff's attorney or agent, and indicate his office; and must be served upon him personally or at his domicile.

None of the learned judges constituting the majority in the Court of Queen's Bench has given as a reason for dismissing appellant's action, the failure to give such notice. The learned trial judge and Rinfret J. held that respondent is not entitled to avail himself of this exceptional provision since the act complained of was not "done by him in the exercise of his functions" but was an act done by him when he had gone outside his functions to perform it. I am in agreement with their views and there is little I need add to what they have said on this point. In this connection, however, reference may usefully be made to the decision of the Court of Appeal in Lachance v. Casault ⁴³. In that case a bailiff had attempted to take possession of books and papers in the hands of a judicial guardian without preparing a procès-verbal of the articles seized, as called for by the order of the Court requiring the guardian to give up possession to the seizing creditor. When the bailiff's action was resisted by the guardian as being unauthorized, the bailiff caused the guardian to be arrested. The charge having been subsequently dismissed, the bailiff was sued in damages for false arrest and malicious prosecution. It was held that, even assuming such bailiff was a public officer within the meaning of art. 88 C.C.P., he was not entitled to notice under the said article since at the time the act complained of was committed, he was not "in the legal exercise of his functions ".

In my opinion before a public officer can be held to be acting "in the exercise of his functions", within the meaning of art. 88 C.C.P., it must be established that at the time he performed the act complained of such public officer had reasonable ground for believing that such act was within his legal authority to perform; Asselin v. Davidson ⁴⁴. In the instant case, as I have said, in my view the respondent was bound to know that the act complained of was beyond his legal authority.

I now deal with the second appeal asking that the amount awarded to appellant by the trial judge be increased by an amount of $90,000. This amount is claimed under three heads, namely:

The licence to sell alcoholic beverages was, of course, only an annual licence subject to revocation at any time and the renewal of which might have been properly refused for a variety of reasons. Nevertheless, in my view, appellant could reasonably expect that so long as he continued to observe the provisions of the Alcoholic Liquor Act his licence would be renewed from year to year, as in fact it had been for many years past.

There can be no doubt that cancellation of appellant's licence without legal justification resulted in a substantial reduction in the value of the goodwill and profit making possibilities of the restaurant business carried on by him at 1429 Crescent St., Montreal, and in a pecuniary loss to him for which in my opinion he is entitled to recover damages from respondent.

The restaurant business is probably no less hazardous than most other businesses, and damages of this sort are obviously difficult to assess, the amount being of necessity a more or less arbitrary one. The learned trial judge awarded appellant the sum of $6,000 as loss of profits for the period from December 4, 1946, to May 1, 1947, the date on which the licence would have expired, and this would appear to be supported by the evidence. I have reached the conclusion that the amount awarded to the appellant by the learned trial judge should be increased by an amount of $25,000, as damages for diminution in the value of the goodwill of the business and for loss of future profits.

In the result, therefore, I would allow both appeals with costs here and below, and modify the judgment at the trial by increasing the amount of the damages to $33,123.53 with interest from the date of the judgment in the Superior Court.

Appeals allowed with costs, Taschereau, Cartwright and Fauteux J.J. dissenting.

Solicitors of record:

Attorneys for the plaintiff, appellant: A.L. Stein and F.R. Scott, Montreal. Attorneys for the defendant, respondent: L.E. Beaulieu and Edouard Asselin, Montreal.

¹ [1956] Que. Q.B. 447.

² [1956] Que. Q.B. 447.

³ (1933), 54 Que. K.B. 377.

⁴ (1937), 62 Que. K.B. 140.

⁵ [1943] Que. K.B. 713.

⁶ [1951] S.C.R. 265, 2 D.L.R. 369, 11 C.R. 85, 99 C.C.C. 1.

⁷ [1949] Que. K.B. 238.

⁸ (1915), 52 S.C.R. 146, 26 D.L.R. 164.

⁹ 98 E.R. 1021.

¹⁰ [1898] A.C. 1.

¹¹ [1956] Que. Q.B. 447.

¹² [1956] Que. Q.B. 447.

¹³ [1891] A.C. 173 at 179.

¹⁴ [1947] A.C. 109 at 122.

¹⁵ [1951] A.C. 66.

¹⁶ (1885), 10 App. Cas. 229 at 240.

¹⁷ (1934), 72 Que. S.C. 112.

¹⁸ (1877), 47 L.J.M.C. 67, 13 Cox C.C. 625.

¹⁹ (1915), 52 S.C.R. 146, 26 D.L.R. 164.

²⁰ [1956] Que. Q.B. 447.

²¹ [1951] S.C.R. 265, 2 D.L.R. 369, 11 C.R. 85, 99 C.C.C. 1.

²² [1934] O.R. 421 at 428, 3 D.L.R. 565, 62 C.C.C. 132.

²³ [1951] A.C. 66.

²⁴ [1959] S.C.R. 24, 16 D.L.R. (2d) 241.

²⁵ (1885), 10 App. Cas. 229 at 240.

²⁶ (1915), 52 S.C.R. 146, 26 D.L.R. 164.

²⁷ (1770), 3 Wils. 121 at 123, 95 E.R. 967.

²⁸ [1932] A.C. 542.

²⁹ (1852), 3 H.L. Cas. 759, 10 E.R. 301.

³⁰ [1956] Que. Q.B. 447 at 457.

³¹ [1956] Que. Q.B. 447.

³² [1949] Que. K.B. 238.

³³ [1951] S.C.R. 265, 2 D.L.R. 369, 11 C.R. 85, 99 C.C.C. 1.

³⁴ [1951] S.C.R. 265, 2 D.L.R. 369, 11 C.R. 85, 99 C.C.C. 1.

³⁵ [1956] Que. Q.B. 447.

³⁶ [1914] A.C. 62.

³⁷ [1958] S.C.R. 177 at 188, 13 D.L.R. (2d) 1, 120 C.C.C. 1.

³⁸ (1917), 57 Que. S.C. 443.

³⁹ (1933), 50 Que. K.B. 377.

⁴⁰ (1937), 62 Que. K.B. 143.

⁴¹ [1943] Que. K.B. 713.

⁴² [1956] Que. Q.B. 447.

⁴³ (1902), 12 Que. K.B. 179 at 202.

⁴⁴ (1914), 23 Que. K.B. 274 at 280.