ultra vires. The applicant had obtained the trademark “Canada’s Icewine Specialists”. It argued that there is an operational conflict between the Act and the
Trade-marks Act, that the doctrine of paramountcy applies, and that the Act and
regulations were inoperable to the extent that they did not allow the applicant to
use its trade-mark. It made the same paramountcy argument with respect to the
Canada Agricultural Products Act (the “CAP Act”), under which, it submitted, it
was entitled to use the term “icewine” in relation to its products. The applicant
sought declaratory relief.
Held, the application should be dismissed.
The taste test rule was properly enacted under s. 5(1)(d) of the Act as it served
as a quality assurance process. It did not require ministerial approval. It could not
be said that the rule was one that no reasonable and informed body in the shoes of
the VQAO would have enacted; nor could it be said that taste tests are incapable of
furthering the purpose of the Act, which is to “establish an appellation of origin
system . . . that will allow customers to identify such wines on the basis of the
areas where the grapes are grown and the methods used in making the wine”. The
taste test rule is not ultra vires the VQAO’s authority.
The by-law that requires a winemaker to obtain one new approval within a consecutive 18-month period is not ultra vires. If a winery is not producing quality
wines capable of meeting the standards set out in the regulatory scheme under the
Act, it is reasonable to exclude that winery from the scheme until it is capable
of producing wines that meet the standard.
The new Regulation is not irrelevant, extraneous or completely unrelated to the
purposes of the Act. it is not ultra vires the authority of the Lieutenant Governor
There is no operational conflict between the Trade-Mark Act and the Act. The
Trade-Mark Act does not provide a positive right to use a trade-mark. The fact
that a trade-mark user is required to use a trade-mark to maintain its registration
does not mean that the holder has a positive right to use the trade-mark in the
face of other legislation that would prohibit its use. If a manufacturer chooses to
register a term under the Trade-Marks Act that is also subject to quality control
standards under a provincial Act, it is possible to comply with both schemes by
adhering to the provincial quality control standards. Nothing in the Trade-Marks
Act suggests that winemakers should be free from the requirement to comply with
provincial quality control standards simply because they choose to register a term
under the Trade-Marks Act that is also subject to provincial regulation.
There is also no operational conflict between the Act and the CAP Act. The CAP
Act’s purpose of providing for “national standards and grades of agricultural products” is harmonious with the Act’s consumer protection purposes. The CAP Act
sets out a minimum standard, which specifically contemplates the involvement of
a provincial authority such as the VQAO.
Cases referred to
Alberta (Attorney General) v. Moloney,  3 S.C.R. 327,  S.C.J. No. 51,
2015 SCC 51, 476 N.R. 318, 85 M.V.R. (6th) 37, 2015EXP-3202, J.E. 2015-1777,
EYB 2015-258559,  12 W. W.R. 1, 29 C.B.R. (6th) 173, 22 Alta. L.R. (6th) 287,
391 D.L.R. (4th) 189, 606 A.R. 123, 259 A.C. W.S. (3d) 20; Benson & Hedges (Canada)
Ltd. v. British Columbia (Attorney General),  B.C.J. No. 417, 27 D.L.R. (3d)
257,  5 W. W.R. 32, 6 C.P.R. (2d) 182 (S.C.); Canadian Western Bank v. Alberta,
 2 S.C.R. 3,  S.C.J. No. 22, 2007 SCC 22, 281 D.L.R. (4th) 125, 362 N.R.
111,  8 W. W.R. 1, J.E. 2007-1068, 75 Alta. L.R. (4th) 1, 409 A.R. 207,