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Regina v. County of Wellington (1), exhibits the difference in view which is still possible as to the scope of this sub-section, the Court of Appeal for Ontario being equally divided in opinion on the constitutional point involvedthe validity of a Dominion Act providing for certain matters in connection with the winding up of the defunct Bank of Upper Canada. The facts are sufficiently set forth in note (xi), ante, p. 354, and see also notes to section 92, sub-section 13. In the Supreme Court, Chief Justice Ritchie was alone in upholding the legislation under this sub-section.

16. Savings' Banks.

17. Weights and Measures.

18. Bills of Exchange and Promissory

Notes (i).

19. Interest (ii).

20. Legal tender.

(i) "Bills of exchange and promissory notes."-This sub-section is very frequently noted as limiting the otherwise wide scope of sub-section 13 of section 92 "property and civil rights in the province." The law upon this subject has recently been codified. See 53 Vic. c. 33.

(ii) "Interest."-In Ross v. Torrance (m), it was held that a provincial legislature has no power to authorize a municipal corporation to charge a percentage increase on over-due taxes, the so-called increase being but another name for interest. The same question came before the courts of Manitoba in the case of Schultz v. Winnipeg (n), where a similar provincial Act was also held invalid. It is difficult, however, to agree with these decisions, as there is

(2) 17 O. A. R. 421; and in Sup. Ct. (sub nom. Quirt v. Reg.) 19 S. C. R. 510.

(m) 2 Cart. 352; 2 Legal News, 186.

(n) 6 Man. L. R. 35

no necessary connection between interest and percentage, and the power to impose a penalty (by whatever name it may be called) to enforce prompt payment of municipal taxes would seem to be clearly within the power of the provincial legislature under section 92, sub-section 15.

See Royal Canadian Insurance Co. v. Montreal Warehousing Co. (9), in which it was held that a provincial legislature may give a local corporation authority to borrow money at any rate of interest already legalized as to other persons who have the right to borrow. Having reference to the views of the Privy Council as expressed in Citizens v. Parsons (p), it is submitted that this sub-section is limited to the regulation of the legal rate of interest throughout the Dominion in the absence of special contract, or to the passing of what are known as usury laws, in case, in the general interests of the Dominion, it is deemed advisable to put such laws upon the statute book. The question, however, is one of some difficulty. Dominion legislation upon the question is contained in R. S. C. c. 127.

Since the above was written, the report of the judgment of the Supreme Court of Canada in Lynch v. The Canada North-West Land Co. (q) has appeared. The cases above noted are distinctly overruled and local legislation in reference to the imposition of an additional percentage on over-due taxes held not to fall within the scope of this subsection.

In reference to the general scope of the section Chief Justice Ritchie says:

It is obvious that the matter of interest which was intended to be dealt with by the Dominion parliament was in connection with debts originating in contract, and that it was never intended in any way to conflict with the right of the local legislature to deal with municipal institutions in the matter of assessments or taxation, either in the manner or extent to which the local legis

(0) 2 Cart. 361; 3 Legal News, 155.

(g) 19 S. C. R. 204.

(p) 7 App.Cas. 96.

lature should authorize such assessments to be made; but the intention was to prevent individuals under certain circumstances from contracting for more than a certain rate of interest and fixing a certain rate when interest was payable by law without a rate having been named."

Following a number of American authorities, quoted in the judgment, the Chief Justice points out that municipal taxes are not, per se, debts or contractual obligations, and then proceeds:


Does not the collocation of No. 19 with the classes of subjects as numbered 18 and 20 afford a strong indication that the interest referred to was connected in the mind of the legislature with regulations as to the rate of interest in mercantile transactions and other dealings and contracts between individuals, and not with taxation under municipal institutions and matters incident thereto? The present case does not deal directly or indirectly with matters of contract. The Dominion Act expressly deals with interest on contracts and agreements as the first section conclusively shows."

Referring to the rule that the true nature and character of the legislation in the particular instance under discussion must be considered (r), he points out that the Act there in controversy had for its "primary matter" municipal taxation and not "interest." It will be seen that the Chief Justice founds the jurisdiction of a provincial legislature to pass the Act in question upon section 92, sub-section 8. He speaks of municipal matters as "necessarily" embracing the levying of taxes for municipal purposes. We shall have to refer to this again when dealing with that sub-section. Here we have to note that the Chief Justice clearly points out that the percentage increase is in reality an extra tax and not "interest." Mr. Justice Taschereau characterizes the addition as a "penalty," and Mr. Justice Patterson


"We find that article associated with others numbered from 14 to 21, all of which relate to the regulation of the general com(1) See ante, p. 212.

mercial and financial system of the country at large. We must see what the thing really is. It is clearly something which the Manitoba tax-payer who does not pay his taxes when due is made liable to pay as an addition to the amount originally assessed against him or his property. It is a direct tax within the province in order to raise a revenue for provincial purposes, and as such is indisputably within the legislative authority of the province.


The imposition may, not improperly, be regarded as a penalty for enforcing the law relative to municipal taxation, and in that character it comes directly under article 15 of section 92."

The question whether such an imposition can in any sense be properly called interest is referred to and it is pointed out that under the impugned Act the addition is of an arbitrary percentage not accruing de die in diem; but, without expressing a decisive opinion upon this point, the opinion of the court, Mr. Justice Gwynne dissenting, was, that such an imposition does not, at all events, fall within the scope of this sub-section 19.

21. Bankruptcy and Insolvency.

The extent to which the Dominion parliament, by legislation under this sub-section, is empowered to interfere with "property and civil rights in the province," or with “ procedure" in the courts of a province, came up for consideration before the Judicial Committee of the Privy Council, in the case of Cushing v. Dupuy (s), and was disposed of in the judgment of that tribunal in these words:

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It was contended for the appellant that the provisions of the Insolvency Act interfered with property and civil rights, and was therefore ultra rires. This objection was very faintly urged, but it was strongly contended that the parliament of Canada could not take away the right of appeal to the Queen from final judgments of the Court of Queen's Bench, which, it was said, was part of the procedure in civil matters exclusively assigned to the legislature of the province. The answer to these objections

(s) 5 App. Cas. 409.

is obvious. It would be impossible to advance a step in the construction of a scheme for the administration of insolvent estates without interfering with and modifying some of the ordinary rights of property, and other civil rights, nor without providing some special mode of procedure for the vesting, realization, and distribution of the estate, and the settlement of the liabilities of the insolvent. Procedure must necessarily form an essential part of any law dealing with insolvency. It is therefore to be presumed, indeed it is a necessary implication, that the Imperial statute, in assigning to the Dominion parliament the subjects of bankruptcy and insolvency, intended to confer on it legislative power to interfere with property, civil rights, and procedure within the provinces, so far as a general law relating to those subjects might affect them.”

The words italicised are important as indicating the view of the Committee as to the scope of the sub-section, as authorizing, namely, a general insolvency or bankruptcy law. There is now no such law in existence in Canada, and the power of a provincial legislature, in the absence of Dominion legislation, to pass laws for the equitable distribution of the estate of a man whose assets are insufficient to meet his liabilities, has necessarily arisen, and with this question has also arisen the larger one as to the existence of “ concurrent" powers of legislation in the Dominion parliament and provincial legislatures; as to which see chapter X., ante, p. 216, and note (xi) to section 91, ante, p. 350. Quirt v. Reg. (t), in which a special Act in reference to the winding up of the affairs of a particular bank was upheld by the Supreme Court of Canada as within the scope of this subsection, is sufficiently referred to in the note last mentioned.

The Privy Council had had occasion to consider this sub-section in an earlier case-L'Union St. Jacques v. Bélisle (u) which came before them in 1874. The scope of the sub-section is clearly indicated in the judgment, where, speaking of the various sub-sections of section 91, and of

(t) 19 S. C. R. 510.

(u) L. R. 6 P. C. 31.

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