Royal Demaria Wines Co. Ltd. v. Lieutenant Governor in
Council et al.
[Indexed as: Royal Demaria Wines Co. v. Ontario
(Lieutenant Governor in Council)]
2018 ONSC 7525
Superior Court of Justice, Divisional Court, Platana, Sachs and Horkins JJ.
December 18, 2018
Constitutional law — Paramountcy — Applicant obtaining trade-mark
“Canada’s Icewine Specialist” — Applicant not permitted to use term
“icewine” when it failed to obtain approval for its wine under provincial
Vintners Quality Alliance Act — No operational conflict existing
between Trade-Marks Act and provincial Act or between Canada Agricultural Products Act and provincial Act — Canada Agricultural
Products Act, R.S.C. 1985, c. 20 — Trade-Marks Act, R.S.C. 1985, c. T-13 —
Vintners Quality Alliance Act, 1999, S.O. 1999, c. 3.
Corporations — By-laws — Respondent not-for-profit corporation
operating as designated wine authority under Vintners Quality Alliance
Act for purposes of administering Act and regulations — By-law which
required winemakers to obtain one new approval for wine during any
consecutive 18-month period connected to purpose of Act and reasonable
exercise of respondent’s jurisdiction — Vintners Quality Alliance Act,
1999, S.O. 1999, c. 3.
Statutes — Regulations — Respondent operating as designated wine
authority under Vintners Quality Alliance Act for purposes of administering Act and regulations — Lieutenant Governor in Council passing
regulation that allowed respondent to revoke approval for previously
approved wines if wine manufacturer was no longer member of
respondent — Regulation not irrelevant, extraneous or completely
unrelated to purposes of Act — Regulation not ultra vires — Vintners
Quality Alliance Act, 1999, S.O. 1999, c. 3.
The respondent VQAO was a not-for-profit corporation that operated as the designated wine authority under the Vintners Quality Alliance Act, 1999 (the “Act”).
The core of the Act prohibits the use of certain terms, descriptions and designations without VQAO approval. One of those terms is “icewine”. In order to obtain
the right to use a regulated term such as “icewine”, a winemaker must be a member of the VQAO and the wine in question must have received approval from the
VQAO. In order to receive approval, a wine must pass a taste test by a tasting
panel. The applicant was a producer of icewine in Ontario. Over an 18-month
period, the wines that it submitted did not receive approval as they failed the taste
test. The VQAO’s by-law provides that if a winemaker fails to obtain VQAO
approval for any one if its wines over an 18-month period, the winemaker’s VQAO
membership is subject to termination. The applicant’s membership was terminated. The Lieutenant Governor in Council subsequently passed a regulation
(the “new Regulation”) allowing it to suspend or revoke approval for previously
approved wines if the manufacturer ceased to be a member of the VQAO. Acting
under the new regulation, the VQAO revoked its approval of the applicant’s two
previously-approved icewines. The applicant brought an application alleging that
the VQAO rule providing for a taste test, the by-law requiring a winemaker to
obtain one new approval within an 18-month period and the new regulation were