POLS 3135 Lecture 6 2007

POLS 3135 Lecture 6 2007 - Decisions dealing with Trade&...

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Unformatted text preview: Decisions dealing with Trade & Commerce [91(2)] vs. Property & Civil Rights [92(13)] and Treaty­Making Cases • 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) [not in kit] – Nova Scotia Interdelegation Case (1951) – PEI Potato Marketing Board vs. Willis (1952) 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 peace­time • Cubby­hole: 92(13) • S. 91 too?: – Crim power? No – not like incest – T&C: no; 3rd 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 extra­provincial 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 • Man legis. struck authorized Que egg down; appealed to marketing agency to SCC (What if leg restrict import of eggs upheld?) from out of province – 9 judges on panel: 6 + • Ont and Man were 2 + 1 (all agreed ultra suppliers of eggs to Que vires) • Que supplied chickens to – Martland: Pith and other provinces; they substance: restricted Quebec chickens interprovincial T&C. • Man passed egg marketing legis identical to Quebec’s and referred it to Mn CAp 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 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 subject­matter, “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 7­judge panel): S. 31(1) is intra vires Parliament under the “third 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 old­age pensions • Rowell­Sirois 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. Decisions of Rinfret and Taschereau presented in course kit • 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 ...
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