1. PPAL 6100 Canadian Constitutional and Administrative Law –Russell v. the Queen –Local Prohibition Case –Board of Commerce –TEC v Snider –Employment & Soc Ins Ref (1937) –AG Ont. v. Can Temperance Federation –Johannesson v. West St. Paul –Ref re Offshore Min Rights of BC –Ref re Anti-Inflation Act –Queen v. Crown Zellerbach

2. What Does Court Look For in Constitutional Cases Involving Division of Powers? -Is the challenged law intra or ultra vires the authority of the government which enacted it? -Can the law unambiguously be assigned to one or other heading in Sections 91, 92, 93, 94 or 95 of the BNA (the so-called cubby-hole doctrine) -What is the pith and substance of the law? -purpose? -effect? -is it colourable? -Does it have more than one aspect? If so what is the dominant aspect? -Can it have a dual aspect? -Federal supremacy in cases of conflict

3. Presumption of Constitutionality and Remedies In division of powers case court presumes impugned legislation is constitutional—burden of proof lies with challenger. Remedies for laws that are ultra vires –Declare whole law unconstitutional and of no force and effect –Severance (more likely in Charter cases) –Reading Down

4. Russell v. The Queen, 1882 Impugned legislation: Canada Temperance Act, 1878 –¼ of electors in a “county or city” may petition for a plebiscite on prohibition. Fredericton went dry Charles Russell: Fredericton pub owner, convicted Previous SCC decision: City of Fr. v. Queen: intra vires under T&C (91-2) JCPC decision: Sir Montague Smith. Russell’s lawyer: delegation argument – Parliament can’t delegate its powers. JCPC says no delegation involved “cubby hole” doctrine –Is subject-matter of impugned legislation in s.92? If so, is it also in 91? –If not in s. 92, it must be in s. 91 Russell’s lawyer: argued legis. Falls in s. 92: 9, 13 or 16 “pith and substance” –Smith: Nearly anything could fall under 92(13); what is p&s? Central subject matter is public order & safety, not T&C Not local because of local option. (analogy: health orders) Therefore, not under s.92. No comment on SCC’s decision in Fredericton re s. 91(2), but seems to emphasize POGG Gap (residual) branch of POGG

5. 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 –Three aspects of T&C: international, interprovincial and general. –He doesn’t define these categories. Left for later cases

6. Local Prohibition Case, 1896 Impugned: Ont’s Local Prohibition Act (1890) –Townships, towns, villages (& cities) –Appeal from SCC ref Lord Watson Feds ( under POGG) can trench on s.92 only if incidental to a legit fed purpose –otherwise, all of s.92 falls in s. 91. –s.94 issue (unify common law in anglophone provs) Ontario argued that legis. falls under 92(8): (municipalities). Watson: not a convincing argument Pith & sub: vice of intemperance at local level 92(16): (local) yes. 92(13): no; the law prohibits rather than regulates if conflict: fed. law is paramount conflict of laws: no conflict if strict test obeyed “double aspect” doctrine: a legislative subject-matter can fall under s. 91 for one purpose, and s. 92 for another. National dimension or national concern doctrine hinted at: a subject matter can become a matter of national concern and then feds can regulate under POGG.

7. Board of Commerce & Combines & Fair Practices Acts (1922) Impugned legislation: fed anti- profiteering & anti-hoarding legis. after WW I (1919) Board stated case to SCC re Ottawa clothing stores Appeal from SCC: Duff (BC) vs. Anglin (judges evenly divided) Viscount Haldane for JCPC Pith & substance: combines & hoarding in peace-time Cubby-hole: 92(13) S. 91 too?: –Crim power? No – not like incest (important decision for those writing about criminal power in writing assignment) –T&C: no; T&C is supplemental to other federal powers –POGG? Only in “highly exceptional circumstances” [emergency doctrine] (see p. 66) Ultra vires 3 aspects of POGG: national concern (obiter in Local Prohibition), emergency (B of C), residual (Russell)

8. TEC v Snider (1925) Toronto Electric Commission v. Snider Impugned legislation: federal Industrial Disputes Investigation Act Viscount Haldane wrote for JCPC Haldane says labour legislation clearly falls under s. 92(13) In this case, the procedure is applied to a municipal electrical company Does subject-matter also fall under POGG, fed criminal power, or 91(2) (T&C)? Haldane – no. POGG can be used as residual, or emergency power. Here, can’t be residual because 92(13) applies. As well, there’s no emergency. Rule of interpretation: specific takes precedence over general. See Haldane’s discussion of specific words, p. 76. How can this decision be squared with Russell v. Queen? Haldane: there must have been an emergency in 1878: –“…evil of intemperance [was] one so great” that parliament intervened to “protect the nation from disaster”

9. Employment & Soc Ins Ref (1937) Impugned legislation: Employment & Social Insurance Act, 1935 (part of new deal legislation to get Canada out of depression). It created an unemployment insurance program in Canada, for the first time. Opposition Leader Mackenzie King: it's good legislation, but ultra vires. When he became Prime Minister later in 1935, King referred the question of the validity of the Act to the SCC, which in fact ruled the legislation ultra vires. Lord Atkin at JCPC: agreed Atkin: the subject matter, “unemployment insurance," falls under s. 92(13). Therefore, neither POGG nor T&C can be used to justify the legislation as federal. Louis St. Laurent (future PM) was the lawyer for the federal crown. He argued that the impugned legislation can be supported under fed. taxation and spending power. Atkin did not agree. Result: constitutional amendment in 1940 supported by all the provincial premiers and the federal Parliament, which gave the federal government the power to create an unemployment insurance program.

10. AG Ont. v. Can Temperance Federation (1946) Impugned: Canada Temperance Act, 1927 Ont Referred question of validity of Act to Ont CA. Lost there and in SCC. Appeal to JCPC by Ont (supported by AB & NB) Issue: given Snider decision, should JCPC overrule Russell (1882)? 1927 Canada Temperance Act essentially same as 1882 Canada Temperance Act. In Snider, Haldane wrote that there must have been an emergency in 1882. Ontario argued that there was no emergency in 1946. Viscount Simon: Russell "decision firmly embedded in Canadian constitutional law." Simon wrote that Haldane's explanation in Snider was "too narrowly expressed." The 1878 Act was permanent, not emergency legislation. Subject of legislation was really a matter of inherent national concern. This case represents the revival of the national concern branch of POGG.

11. Johannesson v. West St. Paul, 1952 (SCC) Impugned: the part of the Man. Municipal Act allowing municipalities to regulate aerodromes. Johannesson needed a particular location on Red River to repair his bush planes. Mun. of West St. Paul opposed his proposed aerodrome: would be too noisy. Aeronautics case (1932) upheld fed regulation under S. 132 of BNA Act (feds re Br Empire treaties) Current fed reg’s are under Chicago Convention (1947), not a Br Empire Treaty Five decisions: Kerwin, Locke, Rinfret, Kellock & Estey (seriatim), all reaching the same conclusion: the impugned legislation is ultra vires the province (ratio). Two other judges concurred, but didn’t write separate decisions. Does aeronautics fall under S. 92 (13) or (16)? Yes, but aeronautics transcends them as a matter of national concern under POGG. This case further strengthens the national concern branch of POGG.

12. Ref re Offshore Min Rights of BC (1967) Reference to SCC from fed cabinet: who owns & can exploit the ocean floor below the low water mark to a 3 mile limit? A hot political issue in the 1960s; feds hoped this reference would settle the issue in their favour. Opinion of "the court." (Why are some opinions per curiam?) S. 109: provinces own "lands, mines & minerals." Where was BC boundary in 1871? Did it extend beyond low water mark? Conflicting precedents existed. SCC: British Crown retained control over Canada's territorial sea until Statute of Westminster Now territorial sea part of territory of Canada, not BC. Also added that POGG (nat concern) justifies fed 1972-1980: Quebec & Atl prov's applied pressure on Ottawa for undersea resource royalties. 1984: SCC ruled that Canada owns Hibernia. Mulroney gov’t negotiated "Atlantic accord:" Nfld offshore treated like land-based resources by feds.

13. Ref re Anti-Inflation Act (1976) Trudeau campaigned against wage & price controls during 1974 election. After his election victory, he reversed his position. 1975: federal Anti-Inflation Act enacted. All prov's cooperated. Ont public employee unions challenged in court, so the feds sent a ref question to the SCC to settle the issue. AG of Canada defended Act under nat concern branch of POGG, and also argued that an economic crisis equals an emergency. There were two decisions for the majority, by Laskin and Ritchie. However, the dissenters agreed with Ritchie’s interpretation of POGG, leaving the Court’s interpretation of POGG unclear. Laskin (+3 judges): Laskin had been a law prof, and wrote the leading text (before Hogg) on Can. const. law. Reviewed history of POGG –Const must adapt to change. –If judges can defend as crisis, not nec to look at national concern argument.

14. Anti-Inflation Reference continued Evidence shows there is a rational basis for believing a crisis exists (Stats Can) Lipsey & 39 economists in an affidavit argued that 1975 inflation is not a crisis. Laskin: there is disagreement amongst economists, and it’s not up to SCC to decide. (Beginning of use of soc sci evidence in court.) Fed power supported by 91 (14-21 except 17), & T&C, so it’s intra vires. Ont. order-in-council is ultra vires; needs primary legislation. Ritchie (+2 judges), separate concurring decision: Rejects Laskin's “rational basis for apprehending crisis” doctrine. There is evidence of an emergency (white paper). An emergency can occur in peace time. Therefore, impugned anti-inflation act intra vires.

15. Anti-Inflation Reference continued Beetz (+1 judge), dissenting: Anti-inflation act invades 92(13). Parliament has not declared an emergency, so there's no emergency. Stick with Haldane’s emergency doctrine. Inflation is not a matter of national concern. Legislation is ultra vires.

16. Queen v. Crown Zellerbach (1988) Impugned: federal Ocean Dumping Control Act, pursuant to int. treaty of 1972. CZ dumped wood waste in "internal" salt waters in a strait on Van. Island CZ claims fed legislation is overbroad because the wood waste did not “pollute.” Feds: defend under POGG "national concern" doctrine Feds won 4-3 Le Dain (+3 judges): Created "provincial inability" test. Ocean pollution is a matter of national concern. It can't be regulated effectively by provinces. If coordinated provincial regulation were possible, there would be no “provincial inability.” Fed regulator should decide what does or does not pollute. La Forest (+2judges): dissents; agrees with CZ. No evidence that it's necessary to monitor everything dumped.

17. Decisions dealing with Trade & Commerce [91(2)] vs. Property & Civil Rights [92(13)] Cases to discuss: –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)

18. 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.

19. Board of Commerce & Combines & Fair Practices Acts (1922) 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

20. PATA; Nat Prods Marketing Reference 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 –Obiter: 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 92(13) –But provincial marketing legis had also been struck down in earlier case as trenching in interprovincial T&C power. Can any marketing legislation be intra vires?

21. 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.

22. 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: 6 + 2 + 1 (all agreed ultra vires) –Martland: Pith and substance: interprovincial T&C.

23. Chicken & Egg 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

24. 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

25. 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.

26. General Motors v. City National Leasing 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.