Decisions dealing with Trade & Commerce [91(2)] vs. Property & Civil Rights [92(13)]

• Cases discussed today:– Citizens Insurance Co. v. Parsons (1881) [Kit, p. 218]– Board of Commerce & Combines & Fair Practices Acts

(1922) [review]– Proprietary Articles of Trade Assoc. (1931) [Kit, p. 235]– Natural Prod’s Marketing Ref (1937) [Kit, p. 248]– Ontario farm products marketing case (1957) [not in kit]– Chicken and Egg Reference (1971) [Kit, p. 274]– Labatt v. A.-G. Canada (1980) [not in kit]– General Motors v. City National Leasing (1989) [WebCT]

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.

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; 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 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.

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 a 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

• Not necessary to invoke s. 121

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.