Verbatim copy of ruling


IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Downtown Eastside Sex Workers

United Against Violence Society

v.

Attorney General (Canada),

2008 BCSC 1726

Date: 20081215

Docket: S075285

Registry: Vancouver

 

Between:

Downtown Eastside Sex Workers United
Against Violence Society and Sheryl Kiselbach {Plaintiffs}

And

Attorney General of Canada {Defendant}

Before: The Honourable Mr. Justice Ehrcke

Reasons for Judgment

Counsel for the Plaintiffs J. J. M. Arvay, Q.C.

K. E. Pacey
M. K. Kinch
E. R. S. Sigurdson
Counsel for the Defendant C. J. Tobias
K. A. Manning
G. Laird

Date and Place of Trial/Hearing: October 21, 22, 23, 27, 28, 31, 2008 Vancouver, B.C.

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Introduction
[1] The plaintiffs in this action apply for a declaration that various sections of the
Criminal Code of Canada dealing with prostitution violate ss. 2(b), 2(d), 7 and 15 of
the Canadian Charter of Rights and Freedoms (the “Charter”) and are therefore
of no force and effect.
[2] The matter is set for a six-week trial commencing February 2, 2009. Before
me now is an application by the defendant Attorney General of Canada to dismiss
the action on the basis that the plaintiffs lack either private or public interest
standing. In the alternative, the defendant applies under Rule 19(24) of the Rules of
Court to have portions of the statement of claim struck out and that part of the action
stayed on the basis that the pleadings disclose no reasonable claim. In the further
alternative, the defendant applies for particulars which it says are necessary for it to
know the case it has to meet.
[3] The defendant’s application was heard over a six-day period from October 21,
2008 to October 31, 2008. During the course of that hearing, the plaintiffs also
brought a motion to further amend the statement of claim.
Issues
[4] There are thus five issues before me:
(1) Should the plaintiffs be permitted to further amend their
statement of claim?
(2) Do either or both of the plaintiffs have private standing to bring
this action for declaratory relief?


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(3) Do either or both of the plaintiffs have public interest standing to
bring this action for declaratory relief?
(4) Should portions of the statement of claim be struck out under
Rule 19(24)?
(5) Should the plaintiffs be ordered to provide particulars?
Application to Amend the Statement of Claim
[5] In the original writ of summons and statement of claim filed August 3, 2007,
there was only a single plaintiff, the Downtown Eastside Sex Workers United Against
Violence Society (“SWUAV”). A statement of defence was filed on September 14,
2007. An amended writ of summons and statement of claim were filed on
September 29, 2008 which, among other things, added Sheryl Kiselbach as a
second plaintiff.
[6] At the hearing of the defendant’s application to dismiss the plaintiffs’ claim,
the plaintiffs applied for leave to further amend their statement of claim pursuant to
Rule 24(1) which provides:
24(1) A party may amend an originating process or pleading issued or
filed by the party at any time with leave of the court, and, subject to
Rules 15 (5) and 31 (5)
(a) once without leave of the court, at any time before delivery of
the notice of trial or hearing, and
(b) at any time with the written consent of all the parties.
[7] The proposed amendments come in response to difficulties in the pleadings
that the plaintiffs recognized during the course of the defendant’s arguments. The

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purpose of the proposed amendments is, for the most part, to reduce ambiguity and
to clarify certain expressions used in the pleadings, including the term “sex worker”.
[8] For example, in paragraph 2 of the amended statement of claim, “sex
workers” is defined as “women, including transgendered women, who are currently
or recently engaged in sex work primarily in the Downtown Eastside neighbourhood
in the City of Vancouver.” This would be replaced in paragraph 2A of the proposed
further amended statement of claim, by the following:
2A. For the purposes of this case, the term “sex worker” means a
person who is or has been primarily engaged in street based
prostitution. The term “street based prostitution” means that the seller
of sexual services attempts to engage clients or engages clients in a
public place or in a place open to public view. “Prostitution” has the
same meaning as it is interpreted and applied in the Criminal Code of
Canada.
[9] Most of the other proposed amendments are consequential on that change in
terminology. For example, in paragraphs 8, 9, 10, 12, 13, 18, 22, 24 and 41 the
word “prostitution” would be substituted for the phrase “sex work”. As well, proposed
amendments to paragraphs 33, 35, 38, 39, 41, 42 and 43 would clarify the nature of
the plaintiffs’ claim in relation to s. 15 of the Charter.
[10] In Langret Investments S.A. v. McDonnell (1996), 21 B.C.L.R. (3d) 145
(C.A.) at para. 34, our Court of Appeal held that an application for leave to amend
under Rule 24(1) ought to be granted unless the opposing party can demonstrate
prejudice or unless the amendment will be useless:
Rule 24(1) of the Rules of Court in British Columbia allows a party to
amend an originating process or pleading. Amendments are allowed

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unless prejudice can be demonstrated by the opposite party or the
amendment will be useless. The rationale for allowing amendments is
to enable the real issues to be determined. The practice followed in
civil matters when amendments are sought fulfils the fundamental
objective of the civil rules which is to ensure the just, speedy and
inexpensive determination of every proceeding on the merits. See
McLachlin and Taylor, British Columbia Practice (2nd Ed.) pp. 24-1 to
24-2-10, and the decision of this Court in Chavez v. Sundance Cruises
Corp. (1993), 15 C.P.C. (3d) 305, 309-10.
[11] In my view, no real basis has been shown for refusing to permit the proposed
amendments. The application for an order that the statement of claim be amended
in the manner set out in Appendix “A” of the plaintiffs’ notice of motion filed October
30, 2008 is granted. In the remainder of this judgment, when I refer to the statement
of claim, I am referring to the statement of claim as thus amended.
The Nature of the Plaintiffs’ Claim
[12] The only relief sought in the statement of claim is for a declaration. The
court’s jurisdiction to make declaratory judgments is found in Rule 5(22), which
provides:
5 (22) No proceeding shall be open to objection on the ground that
only a declaratory order is sought, and the court may make binding
declarations of right whether or not consequential relief is or could be
claimed.
[13] The plaintiffs’ prayer for relief is set out at the end of the statement of claim in
these terms:
The Plaintiffs claim as follows:
(a) A declaration that ss. 210, 211, 212(a), (b), (c), (d), (e), (f), (h),
and (j) and (3), and 213 of the Criminal Code individually and/or

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in combination infringe ss. 7, 15, 2(b) and/or 2(d) of the Charter,
and that the impugned sections of the Criminal Code are not
justified under s. 1 of the Charter and as such are of no force
and effect.
(b) In the alternative, a declaration that ss. 210, 211, 212(a), (b),
(c), (d), (e), (f), (h), and (j) and (3), and 213 of the Criminal Code
individually and/or in combination infringe ss. 7, 15, 2(b) and/or
2(d) of the Charter, and that the impugned sections of the
Criminal Code are not justified under s. 1 of the Charter and as
such are of no force and effect, save and except for s. 212(1),
which shall be read down and replaced by the following:
Every person who lives wholly or in part on
the avails of prostitution of another person,
and who,
(a) for the purposes of profit, aids, abets,
counsels or compels the person to engage
in or carry on prostitution with any person or
generally, and
(b) uses, threatens to use or attempts to
use violence, intimidation or coercion in
relation to the person or to another person;
and/or
(c) procures a person to enter or leave
Canada for the purposes of prostitution;
and/or
(d) applies or administers to a person or
causes that person to take any drug,
intoxicating liquor, matter or thing with
intent to stupefy or overpower that person
in order thereby to enable any person to
have illicit sexual intercourse with that
person
is guilty of an indictable offence and liable
to imprisonment for a term not exceeding
ten years.
[14] The impugned sections of the Criminal Code deal with different aspects of
prostitution.

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[15] The plaintiffs seek to strike down s. 210, which makes it an offence to keep or
to be found in a common bawdy-house:
210. (1) Every one who keeps a common bawdy-house is guilty of an
indictable offence and liable to imprisonment for a term not exceeding
two years.
(2) Every one who
(a) is an inmate of a common bawdy-house,
(b) is found, without lawful excuse, in a common
bawdy-house, or
(c) as owner, landlord, lessor, tenant, occupier, agent
or otherwise having charge or control of any place,
knowingly permits the place or any part thereof to
be let or used for the purposes of a common
bawdy-house,
is guilty of an offence punishable on summary conviction.
(3) Where a person is convicted of an offence under subsection (1),
the court shall cause a notice of the conviction to be served on the
owner, landlord or lessor of the place in respect of which the person is
convicted or his agent, and the notice shall contain a statement to the
effect that it is being served pursuant to this section.
(4) Where a person on whom a notice is served under subsection
(3) fails forthwith to exercise any right he may have to determine the
tenancy or right of occupation of the person so convicted, and
thereafter any person is convicted of an offence under subsection (1)
in respect of the same premises, the person on whom the notice was
served shall be deemed to have committed an offence under
subsection (1) unless he proves that he has taken all reasonable steps
to prevent the recurrence of the offence.
[16] The plaintiffs also seek to strike down s. 211, which deals with transporting a
person to a common bawdy-house:

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211. Every one who knowingly takes, transports, directs, or offers to
take, transport or direct, any other person to a common bawdy-house
is guilty of an offence punishable on summary conviction.
[17] Section 212 deals with procuring and living on the avails of prostitution. The
plaintiffs do not attack all aspects of that section. In particular, they do not seek to
strike down those parts of the section that deal with persons under the age of
eighteen years, or with administering a stupefying substance, or with procuring a
person to enter or leave Canada for the purposes of prostitution. The impugned
parts of the section are limited to ss. 212(a), (b), (c), (d), (e), (f), (h), and (j) and (3),
which provide:
212. (1) Every one who
(a) procures, attempts to procure or solicits a person
to have illicit sexual intercourse with another
person, whether in or out of Canada,
(b) inveigles or entices a person who is not a
prostitute to a common bawdy-house for the
purpose of illicit sexual intercourse or prostitution,
(c) knowingly conceals a person in a common bawdyhouse,
(d) procures or attempts to procure a person to
become, whether in or out of Canada, a prostitute,
(e) procures or attempts to procure a person to leave
the usual place of abode of that person in Canada,
if that place is not a common bawdy-house, with
intent that the person may become an inmate or
frequenter of a common bawdy-house, whether in
or out of Canada,
(f) on the arrival of a person in Canada, directs or
causes that person to be directed or takes or
causes that person to be taken, to a common
bawdy-house,

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...
(h) for the purposes of gain, exercises control,
direction or influence over the movements of a
person in such manner as to show that he is
aiding, abetting or compelling that person to
engage in or carry on prostitution with any person
or generally,
...
(j) lives wholly or in part on the avails of prostitution
of another person,
is guilty of an indictable offence and liable to imprisonment for a term
not exceeding ten years.
...
(3) Evidence that a person lives with or is habitually in the company
of a prostitute or lives in a common bawdy-house is, in the absence of
evidence to the contrary, proof that the person lives on the avails of
prostitution, for the purposes of paragraph (1)(j) and subsections (2)
and (2.1).
[18] Finally, the plaintiffs seek to strike down s. 213, which deals with soliciting in a
public place:
213. (1) Every person who in a public place or in any place open to
public view
(a) stops or attempts to stop any motor vehicle,
(b) impedes the free flow of pedestrian or vehicular
traffic or ingress to or egress from premises
adjacent to that place, or
(c) stops or attempts to stop any person or in any
manner communicates or attempts to
communicate with any person
for the purpose of engaging in prostitution or of obtaining the sexual
services of a prostitute is guilty of an offence punishable on summary
conviction.

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(2) In this section, "public place" includes any place to which the
public have access as of right or by invitation, express or implied, and
any motor vehicle located in a public place or in any place open to
public view.
[19] To put these sections in context, it is useful to cite certain definitions
contained in s. 197 of the Criminal Code, although the plaintiffs do not attack those
definitions. Section 197(1) defines “common bawdy-house”, and “prostitute” as
follows:
197. (1) In this Part,
...
"common bawdy-house" means a place that is
(a) kept or occupied, or
(b) resorted to by one or more persons
for the purpose of prostitution or the practice of acts of indecency;
...
"prostitute" means a person of either sex who engages in prostitution;
[20] The allegation of the plaintiffs is that the impugned sections of the Criminal
Code, which they refer to as the “Prostitution Laws”, individually and collectively
have effects that infringe the rights of sex workers (that is, persons who are or have
been primarily engaged in street based prostitution) guaranteed by ss. 2(b), 2(d), 7,
and 15 of the Charter. Those sections provide:
2. Everyone has the following fundamental freedoms:
...

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(b) freedom of thought, belief, opinion and expression,
including freedom of the press and other media of
communication;
...
(d) freedom of association.
...
7. Everyone has the right to life, liberty and security of the person
and the right not to be deprived thereof except in accordance with the
principles of fundamental justice.
...
15.(1) Every individual is equal before and under the law and has the
right to the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical
disability.
(2) Subsection (1) does not preclude any law, program or activity
that has as its object the amelioration of conditions of disadvantaged
individuals or groups including those that are disadvantaged because
of race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.
[21] With respect to s. 2(b) of the Charter, the plaintiffs’ claim at paragraph 45 of
the statement of claim is as follows:
45. The Communication Law infringes sex workers’ rights, including
those of the members of SWUAV and Ms. Kiselbach, to freedom of
expression. The Communication Law is aimed specifically at
restricting the content of expression by prohibiting a particular
message sought to be conveyed, namely communication for the
purpose of engaging in prostitution.
[22] In relation to s. 2(d) of the Charter, the plaintiffs say at paragraph 27 of the
statement of claim:

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27. The Prostitution Laws individually and/or collectively infringe and
have infringed sex workers’ rights, including those of the members of
SWUAV and Ms. Kiselbach, to freedom of association. The Laws
prevent and/or limit sex workers from joining together in furtherance of
a common goal, namely the goal of improving and controlling working
conditions, including safety and security. The Laws prevent and/or
limit sex workers from engaging in associational activities and from
doing collectively what they may otherwise legitimately do individually.
[23] The alleged effect on sex workers’ freedom of association is further
particularized in paragraphs 28-31.
[24] The plaintiffs claim in relation to s. 7 of the Charter as set out at paragraph 20
of the statement of claim is that:
20. The Prostitution Laws individually and/or collectively subject or
have subjected sex workers, including members of SWUAV and Ms.
Kiselbach, to increased risk of physical and sexual violence,
psychological injury, kidnapping and death, and other threats to
security, health and safety. The Prostitution Laws deprive sex workers
of the ability to lawfully conduct their work safely because they are
prevented from taking steps to improve health and safety conditions in
their work (described below). Under the Prostitution Laws, taking such
steps involves committing criminal offences and increases the potential
for police detection and criminal sanction.
[25] The alleged effects are further particularized in paragraphs 21-26.
[26] With respect to s. 15 of the Charter, the plaintiffs’ claim at paragraphs 35 and
38:
35. The Prostitution Laws discriminate against sex workers, as
represented by SWUAV, and against Ms. Kiselbach personally. In
particular, the Prostitution Laws, have a severe and disproportionate
impact on those who sell sex, either on the basis of their status as sex
workers, or because they are women, as compared to people who buy
sex. The Prostitution Laws together create a situation where risk to
sex workers is increased and frequently realized, in a manner harmful

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to their persons and their dignity, because they are working in remote
places and working alone in order to avoid police detection and
contravention of the Prostitution Laws.
...
38. In addition or in the alternative, the Prostitution Laws draw a
formal distinction or, in the alternative, have a severe and
disproportionate impact on sex workers, as compared to those persons
in other occupations, by making prostitution more dangerous than it
would be if the Prostitution Laws did not exist and placing sex workers
at greater risk. Persons in other occupations are permitted to
communicate in public, are permitted to operate indoors and are
permitted to form business relationships with others for the purpose of
advancing their economic well-being. These activities are prohibited
under the Prostitution Laws.
[27] The alleged infringement of s. 15 is further particularized in paragraphs 32 to
44 of the statement of claim.
The Plaintiffs
[28] The Downtown Eastside Sex Workers United Against Violence Society is
described in paragraphs 1 and 2B of the statement of claim as a registered British
Columbia society whose objects include improving working conditions for women
working in the sex trade, and whose members are women, including transgendered
women, sex workers primarily in the Downtown Eastside neighbourhood of
Vancouver.
[29] Sheryl Kiselbach is described in paragraph 7 of the statement of claim as a
58-year-old former sex worker, who is currently a coordinator at a centre that offers
support services for sex workers.

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The Issue of Standing
[30] The defendant takes the position that the action commenced by these two
plaintiffs should be dismissed on the basis that neither plaintiff has standing to seek
the relief set out in the statement of claim.
[31] The question of standing is distinct from the question under Rule 19(24)(a) of
whether the pleadings disclose a reasonable claim. The latter question focuses on
the nature of the claim pleaded, whereas the issue of standing has to do with
whether the plaintiff is a person in a position to be making that particular claim. As
explained in T. A. Cromwell, Locus Standi: A Commentary on the Law of Standing
in Canada (Toronto: Carswell, 1986), at p. 3:
Standing is concerned with the appropriateness of the court’s dealing
with the particular issue presented at the instance of the particular
plaintiff.
[32] In Saanich Inlet Preservation Society v. Cowichan Valley (Regional
District), [1983] 4 W.W.R. 673 (B.C.C.A.) Hutcheon J.A. explained at p. 674 that
standing is "the legal entitlement of [the plaintiff] to invoke the jurisdiction of the
Court."
[33] Traditionally, standing for private individuals to litigate constitutional issues
was limited to those cases in which they had a direct interest. Where such a direct
interest in the question to be litigated can be shown, the party is said to have
personal or private interest standing. Such standing arises as of right from the
party’s direct interest in the issue and does not depend on the discretion of the court.

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More recently, however, courts have recognized the need in certain exceptional
cases to permit constitutional issues to be litigated by a party who does not have
such a direct personal interest. In these cases, the court has a discretion to grant
public interest standing provided certain requirements are met, most notably, the
requirement that there is no other reasonable and effective means of bringing the
matter before the court.
[34] In the present case, the plaintiffs assert both that they have private interest
standing, and also that they should be granted public interest standing.
[35] The plaintiffs also submit that if there is any doubt as to their standing, this
question should not be determined as a preliminary issue on this motion, but should
rather be deferred to trial.
[36] In Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, Le Dain J.
discussed the circumstances under which it may be appropriate to decide an issue
of standing in advance of a full hearing on the merits and concluded at p. 617 that it
depends on the nature of the issues and the sufficiency of the material before the
court on the preliminary motion:
It depends on the nature of the issues raised and whether the court
has sufficient material before it, in the way of allegations of fact,
considerations of law, and argument, for a proper understanding at a
preliminary stage of the nature of the interest asserted. In my opinion
the present case is one in which the question of standing can be
properly determined on a motion to strike. The nature of the
respondent's interest in the substantive issues raised by his action is
sufficiently clearly established by the allegations and contentions in the
statement of claim and the statutory and contractual provisions relied
on without the need of evidence or full argument on the merits.

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[37] I am satisfied that the issues raised here are clear and that the material
before me is sufficient to determine the question of standing on this preliminary
motion. For the purposes of deciding this question, I shall assume that the plaintiffs
would be able to prove the allegations of fact set out in the statement of claim. The
plaintiffs are therefore, on this motion, in as strong a position as they would be if the
issue were left to be decided at trial: District of Kitimat v. Alcan Inc. (2006), 51
B.C.L.R. (4th) 314 (C.A.) at paras. 14-16.
Private Interest Standing
[38] The issues that the plaintiffs seek to have determined on this action all relate
to the constitutional validity of various sections of the Criminal Code. They ask for
a declaration that ss. 210, 211, 212(a), (b), (c), (d), (e), (f), (h), and (j) and (3), and
213 dealing with prostitution are of no force and effect because they are inconsistent
with ss. 2(b), 2(d), 7 and 15 of the Charter.
[39] Although the statement of claim makes no mention of it, the plaintiffs
presumably rely upon s. 52(1) of the Constitution Act, 1982, which provides:
52.(1) The Constitution of Canada is the supreme law of Canada, and
any law that is inconsistent with the provisions of the Constitution is, to
the extent of the inconsistency, of no force or effect.
[40] The usual circumstance in which a person would have private interest
standing to challenge the constitutional validity of a criminal law statute is where that
person is charged with an offence under the legislation. In that case, the person
would have private interest standing to raise the constitutional question without

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having to seek leave of the court, since no one should be convicted under an
unconstitutional statute. That situation, where the person is before the court
involuntarily as an accused, is to be contrasted with a case like the present one,
where the plaintiffs on their own initiative come to court seeking a declaration that
the statute is unconstitutional.
[41] Thus, in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, the Court held at
pp. 313-314:
Section 52 sets out the fundamental principle of constitutional law that
the Constitution is supreme. The undoubted corollary to be drawn from
this principle is that no one can be convicted of an offence under an
unconstitutional law. The respondent did not come to court voluntarily
as an interested citizen asking for a prerogative declaration that a
statute is unconstitutional. If it had been engaged in such "public
interest litigation" it would have had to fulfill the status requirements
laid down by this Court in the trilogy of "standing" cases (Thorson v.
Attorney General of Canada, [1975] 1 S.C.R. 138, Nova Scotia Board
of Censors v. McNeil, [1976] 2 S.C.R. 265, Minister of Justice of
Canada v. Borowski, [1981] 2 S.C.R. 575) but that was not the reason
for its appearance in Court.
Any accused, whether corporate or individual, may defend a criminal
charge by arguing that the law under which the charge is brought is
constitutionally invalid. Big M is urging that the law under which it has
been charged is inconsistent with s. 2(a) of the Charter and by reason
of s. 52 of the Constitution Act, 1982, it is of no force or effect.
[42] Similarly, a person or corporation may have private interest standing to
challenge the constitutional validity of a compulsory legislative scheme if it is a
defendant in a civil law suit brought against them by a government agency under
that legislation. Again, the rationale for recognizing standing as of right in such a
case is that the litigant did not come before the court voluntarily seeking a
declaration, but rather is seeking to defend itself against coercive government action

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under what it claims is an unconstitutional statute. As the Supreme Court of Canada
explained in Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R.
157, at para. 44:
Our expanding the Big M Drug Mart exception to civil proceedings in
these limited circumstances is not intended to provide corporations
with a new weapon for litigation. The purpose of the expansion is to
permit a corporation to attack what it regards as an unconstitutional
law when it is involuntarily brought before the courts pursuant to a
regulatory regime set up under an impugned law. Surely, just as no
one should be convicted of an offence under an unconstitutional law,
no one should be the subject of coercive proceedings and sanctions
authorized by an unconstitutional law.
[43] In the present case, SWUAV clearly lacks private interest standing. It is not
charged under any of the impugned provisions, nor is it a defendant in a suit
instituted against it by the government. Moreover, the rights which it says are
infringed by the impugned provisions are not its own rights, but rather the rights of
some of its members. As a society registered under the Society Act, R.S.B.C.
1996, c. 433, SWUAV is a separate person, distinct in law from its members. It
cannot achieve private interest standing by purporting to act in a representative
capacity for its members: District of Kitimat v. Alcan Inc. at para. 47; Re Energy
Probe et al. and Attorney-General of Canada (1987), 61 O.R. (2d) 65 (H.C.J.) at
p. 70, reversed on other grounds (1989), 68 O.R. (2d) 449 (C.A.).
[44] Evaluating Sheryl Kiselbach’s claim to private interest standing is more
complex. Although she is not a defendant in a civil law suit and is not now charged
with an offence, she has in the past been charged and convicted of soliciting under
s. 213, and of keeping a common bawdy-house under what is now s. 210.

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According to paragraph 9 of the statement of claim, Ms. Kiselbach worked for 30
years as an exotic dancer, performing live sex shows, working in massage parlours,
and engaging in street-based prostitution as well as freelance indoor prostitution.
[45] Referring to the statement of claim and to Sheryl Kiselbach’s affidavit affirmed
September 25, 2008, counsel for the plaintiffs submit that Ms. Kiselbach’s Charter
rights have been affected by the impugned legislation in the following ways:
(a) Her rights under ss. 2(b) and 7 of the Charter have been
affected by s. 213 of the Criminal Code because it has restricted her
ability to communicate in public, and has caused her to engage in
dangerous work in order to avoid it (statement of claim paragraphs
22(a), 29, 45);
(b) Her rights under s. 2(b) of the Charter have been affected
because communicating in public has led to her being charged and
convicted under s. 213 of the Criminal Code (statement of claim
paragraphs 11, 45);
(c) Her rights under ss. 2(d) and 7 of the Charter have been
affected by ss. 210, 211, and 212 of the Criminal Code because they
have restricted her ability to work indoors with other sex workers to
create safer working conditions (statement of claim paragraphs 22(b),
(d));
(d) Her rights under s. 7 of the Charter have been affected
because she has been charged and convicted under what is now
s. 210 of the Criminal Code (statement of claim paragraph 11);
(e) Her charges and convictions have affected her ability to obtain
other employment, thereby infringing her rights under s. 15 of the
Charter (statement of claim paragraph 11);
(f) She has been affected by ss. 210, 211, 212 and 213 of the
Criminal Code together in their restriction of her ability to work safely
outside, work inside without fear of prosecution, and work together with
others to work more safely. All of these features of the effects of the
laws contributed to increased danger for her, leading to her being the
victim of violence on numerous occasions, which has had lasting
effects on her (statement of claim paragraphs 12, 22, 36, 38);

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(g) She has been affected by ss. 210, 211, 212 and 213 of the
Criminal Code together in their deprivation of her ability to safely do
an otherwise legal activity (statement of claim paragraphs 38, 39, 43);
(h) She has been affected by ss. 210, 211, 212 and 213 of the
Criminal Code together, due to their isolating effect on a class of
people (sex workers) who are treated with less worth and dignity by the
laws as a result. This isolation of sex workers as being deserving of
criminal sanction has caused or contributed to their general exclusion
from society and the negative or insufficient treatment they receive,
and Ms. Kiselbach has experienced those effects directly (statement of
claim paragraphs 13, 14, 15, 38, 39, 41, 43).
[46] The critical impediment to Ms. Kiselbach now claiming to have personal or
private interest standing to challenge the impugned provisions in the current action is
that the effects which she says she has experienced are a result of her past
activities as a sex worker and the way the legislation impacted on those activities.
[47] Paragraph 10 of the statement of claim states that Ms. Kiselbach is not
currently engaged in prostitution and does not at present intend to re-enter the sex
trade. The fact that she cannot rule out the possibility that she may change her mind
and may want to engage in sex work in the future does not distinguish her from any
other member of the general public. Private interest standing cannot be founded on
hypothetical possibilities: Canadian Council for Refugees v. Canada (2008), 74
Admin. L.R. (4th) 79, 2008 FCA 229 at paras. 99-102.
[48] The impugned laws do not presently cause Ms. Kiselbach to work in unsafe
conditions because she is not currently engaged in sex work. For the same reason,
she is not currently in jeopardy of being charged or convicted, because she is not
doing any of the activities that the impugned laws prohibit.

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[49] Ms. Kiselbach says that her past convictions under the impugned laws
continue to stigmatize her, but that cannot be a basis for now claiming personal
interest standing to bring this declaratory action, because that would be akin to a
collateral attack on her previous convictions. The rule against collateral attack holds
that a court order made by a court having jurisdiction to make it may not be attacked
"in proceedings other than those whose specific object is the reversal, variation, or
nullification of the order or judgment": Wilson v. The Queen, [1983] 2 S.C.R. 594 at
p. 599; R. v. Litchfield, [1993] 4 S.C.R. 333 at p. 349.
[50] All of the constitutional arguments Ms. Kiselbach now seeks to raise could
have been advanced by her, as of right, in the context of the criminal trials that
resulted in her convictions. If she did raise those arguments then and they failed,
her remedy was to take an appeal. If she did not raise them then, she cannot argue
now that she is unfairly stigmatized: Grenon v. Canada (Attorney General) (2007),
76 Alta. L.R. (4th) 346 (Q.B.) at para. 40; Zeyha v. Canada (Attorney General)
(2004), 246 D.L.R. (4th) 631 (Sask. C.A.).
[51] The fact that the plaintiffs have framed their action as a request for a
declaratory judgment does not relieve them from the requirement of demonstrating
that they have standing: Fraser v. Houston, [1996] B.C.J. No. 2096 (S.C.). As
Finch C.J. observed in delivering the judgment of the Court of Appeal in District of
Kitimat v. Alcan Inc., at para. 92:
A simple claim to declaratory relief, in the absence of some adversely
affected legal interest does not give the Court an overriding discretion

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to grant that relief, and to ignore the legal principles governing private
interest standing.
[52] Neither of the plaintiffs has shown any proper basis for claiming private
interest standing to bring the present action. Accordingly, the action must be
dismissed unless at least one of them is able to persuade the court that they should
be granted public interest standing, the topic to which I next turn.
Public Interest Standing
[53] Until the mid-1970s it was generally held that an individual has no standing to
challenge the constitutional validity of a statute unless he or she is specially affected
or exceptionally prejudiced by it. This was known as the rule in Smith v. Attorney
General of Ontario, [1924] S.C.R. 331. A typical formulation of the rule is found in
Mercer v. Attorney General of Canada (1972) 24 D.L.R. (3d) 758 (Alta. S.C. App.
Div):
The rule that one who seeks to question the validity of federal or
provincial statutes must either be placed in jeopardy by its provisions
or be affected by them in a manner different from the ordinary citizen,
has its origin in Smith v. A.-G. Ont.
[54] What we now speak of as public interest standing was introduced into
Canadian law in a series of Supreme Court of Canada cases starting with Thorson
v. Canada (Attorney General), [1975] 1 S.C.R. 138. In that case, the Court
exercised a discretion to grant Mr. Thorson standing as a taxpayer to seek a
declaration that Canada’s Official Languages Act, R.S.C. 1970, c. O-2 was

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unconstitutional, even though he could not show private interest standing under the
rule in Smith.
[55] Next, in Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265, a
member of the public was granted standing to challenge Nova Scotia’s Theatres
and Amusements Act, R.S.N.S. 1967, c. 304 on the basis that it was ultra vires the
provincial legislature and therefore improperly affected what he, and all other
members of the public, could and could not see in the theatre. The Court exercised
its discretion to grant Mr. McNeil standing, even though he was not a theatre owner
and was therefore not directly subject to the regulatory effect of the Act.
[56] Then, in Canada (Minister of Justice) v. Borowski, [1981] 2 S.C.R. 575,
the Court granted standing to an anti-abortion activist seeking a declaration under
the Canadian Bill of Rights that sections of the Criminal Code permitting
therapeutic abortion were invalid and inoperative. At p. 598, the Court set out three
principles governing the discretion to grant public interest standing to a litigant
seeking declaratory relief: the litigant must demonstrate that he is directly affected or
has a genuine interest in the validity of the legislation, that there is a serious
constitutional issue involved, and that there is no other reasonable and effective way
to bring the issue before the court.
[57] A few years later, in Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R.
607, the Supreme Court extended the discretion to grant public interest standing to
include cases involving a challenge to the exercise of administrative authority.
Speaking for the Court, Le Dain J., at p. 631, reaffirmed the three criteria for granting

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public interest standing articulated in Borowski, and explained the judicial concerns
underlying them:
The traditional judicial concerns about the expansion of public interest
standing may be summarized as follows: the concern about the
allocation of scarce judicial resources and the need to screen out the
mere busybody; the concern that in the determination of issues the
courts should have the benefit of the contending points of view of those
most directly affected by them; and the concern about the proper role
of the courts and their constitutional relationship to the other branches
of government. These concerns are addressed by the criteria for the
exercise of the judicial discretion to recognize public interest standing
to bring an action for a declaration that were laid down in Thorson,
McNeil and Borowski.
[58] The principles for granting public interest standing were again reviewed in
Canadian Council of Churches v. Canada (Minister of Employment and
Immigration), [1992] 1 S.C.R. 236. Speaking for the Court, Cory J. remarked at
p. 252 that “the principles for granting public standing set forth by this Court need not
and should not be expanded” and then rearticulated the test at p. 253:
It has been seen that when public interest standing is sought,
consideration must be given to three aspects. First, is there a serious
issue raised as to the invalidity of legislation in question? Second, has
it been established that the plaintiff is directly affected by the legislation
or if not does the plaintiff have a genuine interest in its validity? Third,
is there another reasonable and effective way to bring the issue before
the court?
Serious Issue to be Tried
[59] The plaintiffs take the position that the defendant’s application under Rule
19(24)(a) ought to be determined first, before the issue of standing is decided. The
defendant takes the opposite view.

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[60] The plaintiffs’ position seems to be based on the proposition that the first
requirement for public interest standing, namely, that there is a serious issue to be
tried, is equivalent to the question under Rule 19(24)(a) of whether the pleadings
disclose a reasonable cause of action.
[61] While those two questions are obviously related, I do not agree that the
question of whether there is a serious issue can only be determined by first ruling on
the Rule 19(24) application. In Canadian Council of Churches, the Supreme Court
of Canada was able to conclude that there was a serious issue as to the validity of
the legislation without engaging in the detailed analysis that would have been
necessary to reach a conclusion on all the points that had been raised about the
adequacy of the pleadings. At pp. 253-254, after noting that some of the allegations
in the statement of claim were “so hypothetical in nature that it would be impossible
for any court to make a determination with regard to them”, Cory J., speaking for the
Court, went on to find that for the purpose of standing “some aspects of the
statement of claim could be said to raise a serious issue as to the validity of the
legislation.” Then at p. 256, after deciding the plaintiff lacked standing, he concluded
it was not necessary to review the statement of claim in detail to determine if it
disclosed a cause of action:
In light of the conclusion that the appellant has no status to bring this
action, there is no need to consider the statement of claim in detail.
[62] In the present case, as part of its argument under Rule 19(24), the defendant
made detailed submissions about numerous alleged inadequacies in the statement

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of claim. Many of the alleged defects, if found to exist, could no doubt be remedied
by further amendments to the statement of claim, or through the delivery of
particulars.
[63] For the purposes of the inquiry into whether public interest standing ought to
be granted, I am prepared to find (in the words of Cory J.) that “some aspects of the
statement of claim could be said to raise a serious issue as to the validity of the
legislation.”
[64] For one thing, although the defendant has applied to strike out portions of the
statement of claim dealing with ss. 2(b), 2(d), and 15 of the Charter, it does not
argue that the portions dealing with s. 7 should be struck. Thus, even if the
defendant were entirely successful on its application under Rule 19(24)(a), there
would still remain some aspects of the claim that raise a serious issue as to the
validity of the legislation.
[65] Moreover, many of the defendant’s arguments in respect of ss. 2(b), 2(d), and
15 of the Charter have more to do with the improbability of success of the plaintiffs’
position than with actual defects in the pleadings. For example, the defendant
submits that the predecessor of s. 213(1)(c) of the Criminal Code has already been
upheld in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, [1990] 1
S.C.R. 1123, and therefore it is plain and obvious that the plaintiffs’ attack on that
section under s. 2(b) of the Charter is bound to fail. The plaintiffs, on the other
hand, submit that it is open to the Supreme Court of Canada to reverse its position,
particularly if new and different evidence is led on the issue of whether a violation of

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s. 2(b) can be saved under s. 1 of the Charter. They refer to Health Services and
Support – Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2
S.C.R. 391 as a recent example where the Supreme Court of Canada reversed the
position it had earlier adopted in Reference re Public Service Employee Relations
Act (Alta.), [1987] 1 S.C.R. 313 and Professional Institute of the Public Service
of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367 on the
scope of the protection offered by s. 2(d) of the Charter.
[66] I agree with the plaintiffs that their claim should not be struck out under Rule
19(24)(a) simply on the basis that it is unlikely to succeed. As Wilson J. noted in
Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at pp. 990-991, the fact that a
pleading reveals a difficult but arguable point of law should not justify striking it out,
as otherwise the law would be unable to develop and evolve.
[67] I conclude, therefore, that the first requirement for public interest standing is
met; the plaintiffs have raised a serious issue as to the validity of the legislation.
Genuine Interest
[68] The second requirement a plaintiff must establish for public interest standing
is that he or she is directly affected by the legislation or has a genuine interest in its
validity.
[69] As I understand it, the defendant does not argue that the plaintiffs lack a
genuine interest in the validity of the legislation. The thrust of their argument is
rather on the third component of the public interest test.

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Other Reasonable Means
[70] The third question that must be answered before granting public interest
standing is whether, if standing is denied, there exists another reasonable and
effective way to bring the issue before the court.
[71] As Major J. noted in Hy and Zel's Inc. v. Ontario (Attorney General); Paul
Magder Furs Ltd. v. Ontario (Attorney General), [1993] 3 S.C.R. 675, at p. 692, it
is this component that lies at the heart of the discretion to grant public interest
standing:
The third criteria, that there be no other reasonable and effective way
to bring the issue before the court, lies at the heart of the discretion to
grant public interest standing. If there are other means to bring the
matter before the court, scarce judicial resources may be put to better
use. Yet the same test prevents the immunization of legislation from
review as would have occurred in the Thorson and Borowski situations.
[72] In Canadian Council of Churches at pp. 252-53, Cory J. said this about the
rationale for the third component:
The increasing recognition of the importance of public rights in our
society confirms the need to extend the right to standing from the
private law tradition which limited party status to those who possessed
a private interest. In addition some extension of standing beyond the
traditional parties accords with the provisions of the Constitution Act,
1982. However, I would stress that the recognition of the need to grant
public interest standing in some circumstances does not amount to a
blanket approval to grant standing to all who wish to litigate an issue. It
is essential that a balance be struck between ensuring access to the
courts and preserving judicial resources. It would be disastrous if the
courts were allowed to become hopelessly overburdened as a result of
the unnecessary proliferation of marginal or redundant suits brought by
a [sic] well-meaning organizations pursuing their own particular cases
certain in the knowledge that their cause is all important. It would be

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detrimental, if not devastating, to our system of justice and unfair to
private litigants.
The whole purpose of granting status is to prevent the immunization of
legislation or public acts from any challenge. The granting of public
interest standing is not required when, on a balance of probabilities, it
can be shown that the measure will be subject to attack by a private
litigant. The principles for granting public standing set forth by this
Court need not and should not be expanded. The decision whether to
grant status is a discretionary one with all that designation implies.
Thus undeserving applications may be refused. Nonetheless, when
exercising the discretion the applicable principles should be interpreted
in a liberal and generous manner.
[Underlining Added]
Those comments were referred to with approval by Major J. in Hy and Zel's Inc. at
p. 689.
[73] The defendant submits that there are other reasonable and effective means
for the constitutional validity of the impugned sections of the Criminal Code to come
before the court and has filed a number of affidavits to establish that there is
currently other litigation underway in Canada in which the same issues are being
raised.
[74] Bedford, Lebovitch and Scott v. Attorney General of Canada, No. 07-CV-
329807PD1 is an application filed in the Ontario Superior Court of Justice seeking a
declaration that ss. 210, 212(j) and 213(1)(c) of the Criminal Code violate s. 7 of the
Charter and that s. 213(1)(c) violates s. 2(b) of the Charter and that the sections are
therefore of no force and effect. According to the affidavit material before me, a
hearing date has not yet been set, but it is expected to be some time in the summer
of 2009.

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[75] The fact that there is another civil case in another province which raises many
of the same issues would not necessarily be sufficient reason for concluding that the
present case in this province should not proceed. What is noteworthy, however, is
that one of the plaintiffs in the Ontario case has deposed that she is currently
engaged in prostitution. It thus appears that she may have a more direct interest in
the constitutional challenge than do the plaintiffs in the case at bar. If nothing else,
the Bedford case illustrates that if public interest standing is not granted to SWUAV
and Ms. Kiselbach, there may nevertheless be potential plaintiffs with personal
interest standing who could, if they chose to do so, bring all of these issues before
the court.
[76] In answer to this, the plaintiffs argue that the members of SWUAV currently
engaged in prostitution are a particularly vulnerable group, who are unable to come
forward as personal plaintiffs for fear of reprisal from clients, partners, family,
community members, and the police. I do not find that to be a persuasive argument
for granting public interest standing to SWUAV and Ms. Kiselbach. If this matter
were to proceed to trial, there is every likelihood that members of SWUAV would be
called to testify in court in support of the plaintiffs’ case. It may be that applications
would be made to protect their identity. I cannot see how their vulnerability makes it
impossible for them to come forward as plaintiffs, given that they are prepared to
testify as witnesses.
[77] In addition to the Bedford case, the defendant points to the fact that there are
hundreds of criminal prosecutions every year in British Columbia under the

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impugned legislation, and the accused in each one of those cases would be entitled,
as of right, to raise the constitutional issues that the plaintiffs seek to raise in the
case at bar. According to the affidavit evidence, the total number of charges under
ss. 210-213 in British Columbia were 347 in 2002, 324 in 2003, 315 in 2004, 448 in
2005, 336 in 2006, and 281 in 2007. Over these years, approximately 60% of the
accused were women, and 40% were men.
[78] The plaintiffs argue that it is unreasonable to expect persons charged with
prostitution-related offences to undertake the expense and responsibility of mounting
a challenge to the legislation in the context of their criminal prosecution. The force
of that argument is undermined by the fact that Charter challenges have been
mounted by accused persons in numerous prostitution-related criminal trials. One
case currently underway is R. v. Blais, Port Coquitlam Provincial Court Registry No.
76644. An issue in respect of that case was recently heard in the British Columbia
Court of Appeal: R. v. Blais, 2008 BCCA 389.
[79] Other criminal cases in which the impugned legislation has been challenged
on the basis of alleged infringements of ss. 2(b), 2(d), 7, and 15 of the Charter
include: R. v. DiGiuseppe; R. v. Cooper (2002), 161 C.C.C. (3d) 424 (Ont. C.A.);
R. v. Hamilton, Vancouver Provincial Court Registry No. 114267; R. v. W.(S.D.),
[1995] C.R.D. 350.70-01 (N.S.C.A.); R. v. Skinner, [1990] 1 S.C.R. 1235; R. v.
Stagnitta, [1990] 1 S.C.R. 1226; R. v. Smith (1988), 44 C.C.C. (3d) 385 (Ont.
H.C.J.); R. v. Jahelka (1987), 43 D.L.R. (4th) 111 (Alta. C.A.); R. v. Kazelman
(1987), 10 C.R.D. 525.100-08 (Ont. P.C.); R. v. McLean; R. v. Tremayne (1986), 28

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C.C.C. (3d) 176 (B.C.S.C.); R. v. Bailey (1986), 9 C.R.D. 525.20-02 (Ont. P.C.); R.
v. Renner (1986), 29 C.C.C. (3d) 138 (N.S.S.C.); R. v. Bear (1986), 54 C.R. (3d) 68
(Alta. P.C.); and R. v. Gudbrandson (1985), 14 W.C.B. 298 (B.C.P.C.).
[80] The plaintiffs submit that if their action is allowed to proceed to trial, they will
argue not only that each individual impugned section of the Criminal Code violates
the Charter, but also that the combined effect of the sections is unconstitutional.
[81] There is no reason, however, why such arguments could not also be raised in
the context of a prosecution, as was done in R. v. Banks (2007), 84 O.R. (3d) 1
(C.A.), where the court observed at para. 27:
Of course, the appellants may rely on all the provisions of the Act in
the course of reading the Act as whole with a view to discerning the
purpose and effects of the particular sections at issue in the appeal.
[82] Similarly, in R. v. Cunningham (1986), 31 C.C.C. (3d) 223 (Man. P.C.), in the
context of a criminal trial on charges of soliciting under what was then s. 195.1(1)(c)
of the Criminal Code [now s. 213(1)(c)], the various accused were permitted to
challenge the constitutionality of that section by arguing that the combined effect of
that section along with the other provisions of s. 195.1 and the bawdy-house
provisions in s. 193 [now s. 210] resulted in an infringement of their rights under s. 7
of the Charter.
[83] The plaintiffs are therefore incorrect in asserting that the case at bar
represents the only effective venue in which to advance their arguments about the
combined effect of the various impugned sections of the Criminal Code. In

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particular, they are incorrect in their assertion that their arguments could not be
advanced in a criminal trial unless the accused was charged under all of the
impugned sections at once.
[84] In their written submissions at paragraph 180, the plaintiffs argue that:
The most reasonable and effective way to bring litigation challenging
the constitutionality of the criminal law provisions regulating sex work is
for that society [SWUAV], working together with and in support of an
individual plaintiff [Ms. Kiselbach], who is able to present to the Court
evidence about the factual scenarios in which their members’ rights
have been breached by the effect of the Prostitution Laws.
[85] That submission, however, misstates the test that I am bound to apply. As
articulated in the Supreme Court of Canada cases that have been discussed above,
the test is not whether granting public interest standing to a proposed litigant would
be “the most reasonable and effective way to bring litigation challenging the
constitutionality of the criminal provisions”; rather, the test, in its third component, is
whether there is no other reasonable and effective way to bring the issue before the
court.
[86] The rationale of the Supreme Court of Canada in expanding the rules of
standing to permit the granting of public interest standing on a discretionary basis
was to ensure that no constitutionally suspect legislation would be immune from
judicial scrutiny.
[87] I am not persuaded that it is necessary or desirable to grant public interest
standing to either SWUAV or Ms. Kiselbach. The constitutional challenges that they
seek to raise can be brought in the context of a case where the applicant has private

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interest standing. Refusing to grant public interest standing to SWUAV and I
Kiselbach will not result in the legislation being effectively immune from judicial
scrutiny.
Conclusion
[88] I find that neither of the plaintiffs has standing to seek the relief set out in the
statement of claim. For that reason, the claim is dismissed. In light of this
conclusion, it is not necessary to consider in further detail the defendant’s
application under Rule 19(24) or its application for the plaintiffs to deliver further and
better particulars.

The Honourable Mr. Justice W. F. Ehrcke