Decisions dealing with Trade & Commerce [91(2)] vs. Property & Civil Rights [92(13)] and Treaty-Making Cases Cases discussed today: –Citizens Insurance Co. v. Parsons (1881) –Board of Commerce & Combines & Fair Practices Acts (1922) –Proprietary Articles of Trade Assoc. (1931) –Natural Prod’s Marketing Ref (1937) [ –Ontario farm products marketing case (1957) –Chicken and Egg Reference (1971) –Labatt v. A.-G. Canada (1980) [ –General Motors v. City National Leasing (1989) –Nova Scotia Interdelegation Case (1951) –PEI Potato Marketing Board vs. Willis (1952) –Labour Conventions case (1937)

Citizens Insurance Co. v. Parsons, 1881 Impugned: Ontario Fire Insurance Policy Act. Fire in Parsons’ warehouse. Parsons wanted insurance payment –Ins Co: you didn’t observe the fine print. –Parsons: the fine print didn’t conform to the Act. –Ins Co: The act is ultra vires Ontario. Sir Montague Smith discusses how s. 91 & 92 overlap. JCPC will interpret the BNA Act as an ordinary statute. -Smith Invokes presumption that specific takes precedence over general. “Property & Civil Rights” more specific than “Trade & Commerce”. –“cubby hole” doctrine. S. 92(13)? Yes. Also S. 91(2)-T&C? No. Feds can incorp. Co’s with national objective, but doesn’t prevent provinces from regulating intraprovincial transactions –Two aspects of T&C: international + interprovincial and general. –He doesn’t define these categories. Left for later cases.

Board of Commerce & Combines & Fair Practices Acts (1922) [review] Impugned: fed anti- profiteering legis. after WW I Board stated case to SCC re Ottawa clothing stores Appeal from SCC: Duff (BC) vs. Anglin Viscount Haldane wrote decision Pith & substance: combines & hoarding in peace-time Cubby-hole: 92(13) S. 91 too?: –Crim power? No – not like incest –T&C: no; 2nd branch of T&C is supplemental to other federal powers –POGG? Only in “highly exceptional circumstances” [emergency doctrine] Ultra vires 3 aspects of POGG: nat concern, emerg, residual

PATA; Nat Prods Marketing Ref Proprietary Articles Trade Assoc ref. (1931) –Impugned: federal anti- combines legislation (akin to Bd of Commerce case) –Lord Atkin for JCPC –Intra vires under fed. Criminal power (91[27]) –Test: penal consequences –Bd of Commerce case distinguished. Proper due process safeguards in instant case –Haldane wrong (Bd of Com & Snider) that T&C is subordinate Natural Products Marketing Act Ref, 1937 –Impugned: fed marketing legis as part of “new deal” –All provinces supported and had dovetailing legislation –Lord Atkin: ultra vires because it trenches on intra- provincial marketing in 92(13) –But provincial marketing legis had also been struck down as trenching in interprovincial T&C power. –Can any marketing legislation be intra vires?

Ontario farm products marketing case (1957) Fed gov’t referred Ontario marketing legislation to SCC. Majority: intra vires, if extra-provincial trade not affected. Judges explored the reality of the movement of produce being traded more than previous courts. Invoked “aspect” doctrine: trade can be a provincial matter for one purpose, and a federal matter for another. Judges seemed to want to find a way out of the stalemate created by the Natural Products reference of 1937.

Chicken & Egg Reference (1971) In 1970, Que gov’t authorized Que egg marketing agency to restrict import of eggs from out of province Ont and Man were suppliers of eggs to Que Que supplied chickens to other provinces; they in turn restricted Quebec chickens Man passed egg marketing legis identical to Quebec’s and referred it to Mn CAp Man legis. struck down; appealed to SCC (What if leg upheld?) –9 judges on panel: (all agreed ultra vires) –Martland: Pith and substance: interprovincial T&C.

Chicken & Egg (2) Laskin’s first major decision. –Annoyed that case is fabricated. Why? –Obiter since Parsons led to attenuation of literal interp of T&C. –Prov. Marketing legislation OK if producers in other provinces treated the same as local producers –Purpose of this legislation: to control the import of eggs. Therefore it is ultra vires; trenches in fed control over interprovincial T&C Scholarly analysis both of case law and realities of trade in eggs & other goods

Labatt v. A.-G. Canada (1980) Impugned legis: Fed food & drug act reg’s setting standards for “light beer.” In several recent cases, SCC failed to allow feds to use “general” aspect of T&C to regulate fair practice, or regulate grades of apples. Estey (+5): impugned legis. Really local in character. Not international, and not really interprovincial Laskin (+2): dissents. Feds can equalize competitive advantage under interprov T&C. Also, S. 121 prohibits interprov trade barriers.

General Motors v. City National Leasing (1989) Impugned: S. 31(1) of the federal Combines Investigation Act (CIA), which creates a civil cause of action for some infractions of the Combines Investigation Act. Normally, the subject-matter, “civil causes of action,” is in S. 92(13). The CIA prohibits discrimination or favouritism when selling products in Canada. CNL claimed that GM was giving preferential interest rates to CNL’s competitors Ontario trial judge (on a motion) found s. 31(1) ultra vires Parliament, as it trenches on 92(13). Motion ruling appealed to Ontario Court of Appeal, which overruled trial judge and found s. 31(1) intra vires Parliament.

General Motors v. City National Leasing (1989) (2) Supreme Court of Canada (Dickson for unanimous 7-judge panel): S. 31(1) is intra vires Parliament under the “second branch” of S. 91(2) of CA 1867 (Trade & Commerce): general trade and commerce. S. 31(1) does fall within 92(13). In order for federal legislation that falls under 92(13) to be valid: –Must be part of a general federal regulatory scheme –Scheme must be monitored by the federal regulatory agency –Legislation must be concerned with trade as a whole, not the regulation of a particular industry regulated by the provinces –“provincial incapability”: provinces constitutionally incapable of enacting similar legislation –Failure to include one or more provinces or localities in the general regulatory scheme would jeopardize successful operation of scheme.

Delegation Legislation can be primary (created by a sovereign legislature) or subordinate –Subordinate powers can be delegated to cabinets, reg. agencies, municipalities in same jurisdiction –Delegation outside judisdiction (eg. To another sovereign legislative body) called interdelegation Judicial rule: avoid overbroad delegation Depression: all gov’ts wanted old-age pensions Rowell-Sirois Report 1939: recommendated interdelegation Nova Scotia first prov to pass necessary interdelegation legislation. Referred to SCC.

Nova Scotia Interdelegation Case (1951) 7 judges wrote separate opinions. Rinfret: we have a right not to be subjected to laws unless passed by appropriate legislature. (Also, specificity rule: interdelegation not specifically mentioned in BNA Act.) Lord Atkin in Labour Conventions: “ship of state…watertight compartments.” Taschereau: if interdelegation were possible, everything might get interdelegated. This would turn confederation on its head. A constitutional amendment gave feds the right to enact old age pension legislation concurrently with provinces, with provincial paramountcy.

PEI Potato Marketing Bd v Willis (1952) Fed Ag Products Marketing Act (1949) –Feds could delegate power to reg interprov marketing to a prov bd OC in 1950 delegated interprov power to reg PEI pot’s to PEI PMB PEI ref’d Q of validity to PEI Sup Ct Conclusion: ultra vires, following NS InterDel. In SCC: NS InterDel disginguished.9 js, 6 dec’s. –Rinfret: Act clearly in fed juris (T&C interprov, Ag) –NS Case just applies to del to legislatures. –Feds can choose own board or agency (precedents) –Praises fed-prov cooperation

PEI Potato Marketing Bd cont’d Rand: would be valid if Feds created a separate interprov marketing bd, and appointed same people to it as on PEI Bd. “Twin phantoms of this nature must, for practical purposes, give way to realistic necessities.” Last JCPC decision: Winner (1954) declared that only feds can license vehicles for interprovincial purposes. Feds delegated interprov transport regs to prov. transport boards. Couglin (1968): Fed transport del upheld. No need for const amen’t re interdelegation

Treaty-Making Cases Treaty-signing power, and treaty- implementation power, are two different powers. The feds had them both until 1926, under S. 132 of the BNA Act. In 1926, Canada became equal to Great Britain in handling foreign affairs (Balfour Declaration, later confirmed by Statute of Westminster, 1931), and so S. 132 became obsolete. Aeronautics Case (1932) Canada was implementing a British Empire Treaty, but federal gov't has the power to implement a treaty on aeronautics under several heads of S. 91, such as defence, post office. Radio Case (1932) Section 132 is now obsolete. Therefore, the treaty-making and treaty- implementation powers are new, and fall under POGG.

Labour Conventions Case (1937) –Lord Atkin - wrote decision –Distinguished Aeronautics and Radio cases. He said that the Radio case decided that power to regulate radio transmissions is new, and therefore falls under POGG. (Is that what you think was decided?) The treaty-signing power falls to the feds under POGG, but the treaty-implementation power depends on the subject-matter of the treaty. Matters that fall under S. 92 can only be implemented by the provinces. Extraterritoriality –Federal –Provincial Treaty-making powers –Head of states –Intergovernmental –Exchange of notes