Trade and Commerce [91(2)] vs. Property and Civil Rights [92(13)]

Citizens Insurance Co. v. Parsons, 1881

-Impugned legislation:  Ontario Fire Insurance Policy Act.
-There was a fire in Parsons' warehouse; Parsons wanted insurance payment to cover damages.
-Insurance Co argued that Parsons didn't observe the fine print.
-Parsons argued that the fine print didn't conform to the Act.
-The Insurance Company argued that the Act is ultra vires the legislative powers of Ontario, because only the federal government can regulate insurance companies
under the Trade and Commerce power - S. 91(2).

-Sir Montague Smith, who wrote the decision for the JCPC, discusses how ss. 91 & 92 overlap.  He indicates that the JCPC will interpret the BNA Act as an
ordinary statute.

-Smith invokes the presumption that specific parts of the law take precedence over general parts.  Which is more specific:  "property and civil rights," or "trade and
commerce."  Because property and civil rights is more specific, it takes precedence.

-Following the "cubby hole" doctrine, he askes whether the subject matter (regulation of insurance) falls under S. 92(13)?  Yes it does.  Does it also fall under S.
91(2)-T&C?  No.  The federal government can incorporate companies with national objectives?  (Why?  Because the provinces, under S. 92(11), can incorporate
companies with provincial objectives.  Because "national objectives" wasn't mentioned here, the framers must have meant that the incorporation of companies with
national objectives must be a federal power.)  But this doesn't prevent provinces from regulating the intraprovincial transactions, even of companies that are federally
incorporated, as the Citizens Insurance Co. was.

-Smith concludes that there are three aspects of T&C:  international, interprovincial and general.  He doesn't say much to define these three aspects; that will be for
later court decisions.

--Make sure you review the Board of Commerce case before class, as this case is relevant to the interpretation of the Trade and Commerce power, as well as POGG.--

Proprietary Articles Trade Assoc Reference (1931)

-Impugned:  federal anti-combines legislation (akin to Bd of Commerce case)
-Lord Atkin wrote for JCPC.
-Intra vires under fed. Criminal power (91[27])
-Test for what constitutes a "criminal" law:  are there "penal consequences"?
-Bd of Commerce case distinguished.  Proper due process safeguards in instant (current) case.
-Atkin writes that Haldane was wrong (in Bd of Com & Snider) that T&C is subordinate to other enumerated heads of power in Section 91.

Natural Products Marketing Act Reference (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.
-One is left wondering whether any marketing legislation can be found intra vires by the courts, as most products are sold both intra-provincially and extra-provincially and therefore fall under both federal and provincial jurisdiction.

Ontario farm products marketing case (1957)

(This case isn't included in the course kit, but is reviewed as part of the history of judicial interpretation of Trade and Commerce.)

-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 Quebec egg marketing agency to restrict import of eggs from out of province.
-Ont and Man were suppliers of eggs to Quebec.
-Que supplied chickens to other provinces; in retaliation, the other provinces restricted Quebec chickens.  Thus, there was a "chicken and egg war."
-Man passed egg marketing legis identical to Quebec's and referred it to Manitoba Court of Appeal.  Because Manitoba couldn't refer the Quebec legislation to its
own court, it enacted idential legislation to the Quebec legislation (even though Manitoba didn't import eggs) and referred that legislation to its Court of Appeal.  The
government hoped to lose, and then appeal the decision to the SCC.

-The Man legis was struck down, as hoped by the Manitoba government, by the Manitoba CA.  Manitoba appealed to SCC. (What could Manitoba have done if
the legislation had been upheld by the Man. Ct?  The strategy would have been foiled.)

-9 judges on panel:  three concurring decisions 6 + 2 + 1 (all agreed that the legislation is ultra vires).
-Martland:  Pith and substance:  interprovincial T&C.

-This was Bora Laskin's first major decision after his appointment to the SCC.  He is obviously annoyed that case is fabricated.  Why?  Judges need to base their
decisions on factual evidence.  For example, if Manitoba imported very few eggs, then perhaps the legislation could be described as primarily intraprovincial.

-Laskin claims that obiter in many decisions since Parsons has led to attenuation of the (from his perspective proper) 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 on fed control over interprovincial T&C.
-Laskin provides a scholarly analysis both of case law and realities of trade in eggs & other goods.  As well, he says that it's not necessary to invoke s. 121, because
Trade and Commerce settles the issue.  Why did he even mention S. 121?  Because he thinks it's important and wants to signal to lawyers that he wants to hear
arguments on S. 121 in future cases.

Labatt v. A.-G. Canada (1980)

(This case isn't included in the course kit, but is reviewed as part of the history of judicial interpretation of Trade and Commerce.)

-Impugned legis:  Fed food & drug act reg's setting standards for "light beer."
-In several recent cases, SCC failed to allows 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.