Mr. GORDON GRAYDON (Peel):

Mr. Speaker, I should like to direct a question to the Prime Minister (Mr. Mackenzie King). In view of the fact that Victoria day falls on Tuesday this year, will the government consider declaring the Monday nearest May 24 as the legal holiday to be observed generally by the citizens of Canada in this instance?

Right Hon. W. L. MACKENZIE KING (Prime Minister):

My hon. friend was kind enough to give me an intimation of his intention to ask this question, and I thought it might be of interest to him and to other hon. members of the house if I stated the general position with respect to holidays as provided for in the statutes.

The following are the public statutory holidays in Canada, the dates of which are fixed by statute:

New Year's day Good Friday Easter Monday Victoria day Dominion day Labour day Remembrance day Christmas day.

The following are fixed by proclamation: The sovereign's birthday Thanksgiving day.

Shop Cards Registration

When New Year's day, Christmas day, Victoria day, Dominion day or the sovereign's birthday falls on a Sunday, the following day, in accordance with statutory provision, is observed as the holiday. It will be apparent from this statement that if Victoria day were to be observed on Monday rather than on Tuesday this year, the statute would have to be altered in the meantime. I may say that I have received some communications suggesting that there should be no change, because arrangements have already been made to hold certain celebrations on Tuesday, May 24. I presume once it is understood that the governor in council has no authority in the matter, apart from that given by the statute, it will be apparent that we cannot very well alter the arrangement for Victoria day, at all events for this year.

Hon. C. D. HOWE (Minister of Transport) :

At the last sitting the hon. member for Bow River (Mr. Johnston) made inquiry as to a return of correspondence between myself and the Canadian Broadcasting Corporation with reference to the change in the radio licence fee. The information was sent forward by our department some days ago but apparently the return has not been brought down. However, for the information of my hon. friend I may say there was no correspondence.

Hon. C. H. CAHAN (St. Lawrence-St. George):

Mr. Speaker, I happened to be

called out of the house on April 26 when this bill was in committee. I should now like to make a few remarks with regard to it.

The shop card, which is the subject matter of this legislation, is stated to be desirable in order to afford labour unions, whose members engage not in the production of wares but in the performance of services, means of registering their distinctive cards in order

that those establishments which employ, in the performance of services, members of these unions, may be enabled to use, by arrangement with the unions, the union shop cards and to prevent unauthorized use of the cards.

My only experience with shop cards has been in the barber shop in the city of Montreal, to which I resort occasionally, which displays a card indicating that all the employees of that shop are members of a certain labour union. This is a very proper method of advertising, and I think if it were within our power to do so we might approve of protecting that form of advertising so that a labour union might advertise that in certain shops the employees are all members of its particular union. A similar proposition was made to me some years ago when I was Secretary of State. I investigated the matter in so far as I was able so to do, and the opinion which I reached was at that time clear, and I think, decisive, that it is not within the legislative competence of the parliament of Canada to enact a measure such as this, except possibly by enacting an amendment to the criminal code that would make it a criminal offence for a competitive shop to misuse a card, or to deceive its customers by the display of a card, indicating that its employees were members of a labour union when as a matter of fact they were not such members. [DOT]

However, when this bill was up for a second reading I asked the Minister of Justice, I think, or the Secretary of State, to have the matter investigated by the Department of Justice, and the Deputy Minister of Justice, for whom I have a great respect indeed, has reported an opinion which appears in Hansard of April 26 last, in which he states that this bill does not deal with trade marks; but he adds, at page 2265:

I am of opinion that the purpose and effect of the bill is to vest in certain labour unions a copyright which they do not now enjoy, and that the validity of the bill is supportable on the ground that it is copyright legislation within the meaning of section 91 (23) of the British North America Act.

As I have already stated, I was clearly of the opinion that this bill or a similar bill was not within the legislative competence of parliament, and that for parliament to enact such legislation beyond its powers would prove a disservice to the labour unions which requested its enactment. I am still of that opinion. I may individually commend the policy of this proposed act, but I think the utmost care should be taken to ensure its

Shop Cards Registration

enactment by a legislature which is constitutionally competent so to do, so that its validity may be beyond doubt.

I am of the opinion that provincial legislatures are competent, and that the bill, if enacted by a provincial legislature, would be valid beyond question.

This bill does not deal with "trade marks." It deals with "shop cards of labour unions." The shop cards are not designs, devices or words to be used to distinguish a manufacturer's or trader's goods, wares or merchandise, and therefore these cards cannot be deemed to be trade marks either at common law or by statute. The bill does not deal with industrial designs, which are defined by our statute law and protected. It is clear, I think, that a shop card is used for advertising purposes only. It advertises, as I have already stated, that the employees of a shop in which a shop card is exhibited are members of a particular labour union.

I remember that when the matter was brought before me as Secretary of State some years ago I spent a great deal of time in examining all the precedents, and I could find no judicial authority to the effect that there may be, by common or statute law, a copyright in such an advertisement.

_ Copyright was originally a common law right which by a series of statutory enactments became merged in the statutory right known as copyright, and since 1911 such statutory right exists in the United Kingdom and in all British dominions and possessions.

Originally, copyright was the exclusive right which an author or designer had, at common law, to print, publish or sell his own original work. Then it was decided by the courts that it included the exclusive right of multiplying copies of an original work. It gave protection also to sculptors, designers and engravers, to authors of literary works, musical compositions, and later, as this house well knows, to performing rights in musical productions. The law of copyright was also extended to protect paintings, drawings and photographs, and works of architecture. But I can find no decision in respect of copyright, either under common law or under the statute law, which purports to protect advertisements.

Chitty, J., in Lamb v. Evans, 1892, 3 Ch. 462, held that there might be copyright in the headings under which advertisements were classified, but not in the advertisements themselves. And in 1893 the court of appeal, 1 Ch. 218, held that though there might not

be copyright in advertisements, there might be copyright in the arrangement of a sheet of advertisements.

Recently it has been found that there is a copyright in the arrangement of statistics in regard to certain branches of insurance, so that those who originated those tables have a copyright in the tables and in their reproduction.

Tradesmen's catalogues may be the subject of copyright, but solely on the ground that the compiler of the catalogue has exercised skill and judgment in making his compilation.

Certainly these shop cards do not fall within that special category of advertisements. This bill does not purport to embody any criminal legislation whatsoever. Ko fines or other penalties are imposed by the bill. It merely provides that a labour union may have a shop card, not on the ground that the labour union is the author of the card, or that it designed the card, but by the mere fact that it has registered a card, as provided in the bill, in a new branch of the state department which is to be organized for that purpose.

Section 9 of the bill provides that a civil action may be brought for unauthorized use of the shop card. I quote:

. 9- t1) An action or suit may be maintained m any court of record having jurisdiction to the amount claimed, by any labour union which has complied with the provisions of this act as to registration, or by any authorized executive officer thereof, against any person, labour union, association, or corporation, alleged to be using without permission the shop card ot such labour union.

That, if passed by a competent legislature, might be commended. But the bill provides merely for a civil action for compensation for the misuse of personal or movable property, and under that provision, in a civil action, damages must be strictly proved. That is' under our English law of torts, an action for deceit. In other words, the bill deals with an alleged deceitful use of property, which is not a trade mark, or a copyright, and is therefore clearly, I think, within the exclusive jurisdiction of the provincial legislatures. The only action that lies under the terms of the bill is an action for compensation for the use or misuse.

Under these circumstances I am personally of the opinion that parliament should hesitate about placing this bill upon the statute books of the country, where it may mislead a number of labour unions, whose work I would highly commend and which should be commended; but they should be protected by a competent legislature, so that they may not be induced to bring actions which, before ultimately

Shop Cards Registration

decided, will involve them in litigation and very considerable expense. I will not now vote against the third reading of the bill, but I thought it was my duty, in view of what has taken place during past years, to express this personal opinion on the third reading.

Hon. FERNAND RINFRET (Secretary of State):

I hope my hon. friend will not deem it any discourtesy on my part if I do not reply at length to the remarks he has just made. (This bill has been discussed for some time on a previous occasion, when it was up for second reading, and then in committee. On that occasion I had to explain, with my colleague the Minister of Labour (Mr. Rogers), the reasons why we were bringing it in and recommending it to the attention of the house.

I regret very much to have to disagree with my hon. friend, for whom I have the greatest regard, as also for his legal knowledge; but I must insist that every care was taken in the preparation of this bill, with the aid of officers in both departments, and we are not apprehensive about the point which he has brought up to-day.

I wish merely to remind the house that an amendment to the then Trade Mark and Design Act was adopted on March 25, 1927, to permit the registration of shop cards. That obtained for five years, and never once during that interval has the department been seized of the least doubt as to the validity of such an amendment. In 1932 my hon. friend, who was then secretary of state, brought forward a new bill, the Unfair Competition Act, where he did define "trade mark" in such a way that it would apply only to wares and designs associated with wares, and would not include the registration of shop cards. There is not one word in that bill which does so in a positive way. It was only the effect of the bill, in that as it was dealing only with objects or wares it did exclude automatically the registration of shop cards. But not even when that bill was discussed in the house was there the least allusion made as to whether it was constitutional or not to permit by federal legislation the registration of shop cards.

Since 1932, practically every year, when the labour unions came to Ottawa with a program of desired legislation, the request was made to restore the registration of shop cards. It was pressed before me in 1936 and 1937. I may say that last year we had a bill practically ready to achieve that object, and it was delayed only on account of the short session, which, hon. member's will remember, we had last year.

When I introduced the bill this year, on second reading both the Minister of Labour and myself gave a very full explanation of the trend and the particular character of the measure, and I may add that even since this bill was first discussed there has not been the least intimation to the department, except by my hon. friend the former secretary of state, that it may not be within the jurisdiction of the federal parliament.

Mr. CAHAN:

When the Unfair Competition Act was enacted-it is 1932 to which the hon. gentleman refers?-there was a full discussion in committee with regard to it; and that committee, was, I believe, an excellent one.

Mr. RINFRET:

There was nothing in the discussion in the house which in the least reflected this objection. I do not believe there was even an allusion.

Mr. CAHAN:

The discussions of the committee are not recorded in Hansard.

Mr. RINFRET:

My hon. friend has been very moderate and exceedingly courteous, as he always is. This matter was submitted to the Department of Justice, and the department, through its deputy minister, gave the opinion which I placed on Hansard when the bill was up for the second time before the house. It was a very short one, and I surmise that the matter did not even appear obscure or at all contentious to the Department of Justice. It stated that whether it was a trade mark or copyright there was not the least doubt in the mind of the department that we had jurisdiction in the matter. After all, Mr. Speaker, a shop card or a design of a labour union is very similar in character to other objects which are protected under several acts of the federal statute. If it is a work of art or literature it is protected by copyright; if it is an invention of the mind, it is protected by the Patent Act; if it is a design distinguishing particular wares or objects it is protected by the trade mark act.

Mr. CAHAN:

But this is neither.

Mr. RINFRET:

But does it not appear that a shop card representing the performance of services or the work of a labour union, which cannot possibly come under the other categories that I have mentioned, would enjoy similar protection under another act? In every case it is the protection of a moral property or right duly registered with the state.

I repeat, Mr. Speaker, that I do not think it is necessary for me to go into the details of

Farmers' Creditors Act

the bill again. I simply commend to the house the third reading of the bill, for the reasons I have given on previous occasions.