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such an undertaking may be affected by provincial legislation touching property and civil rights or other subjects within the jurisdiction of the provincial legislatures. In Canada Southern Railway v. Jackson (v), before the Supreme Court of Canada, it was held that the Workmen's Compensation for Injuries Act of Ontario (49 Vic. c. 28), applied to the appellant company, notwithstanding that it had been brought under the operation of the Government Railways Act of the Dominion. Mr. Justice Patterson
"It is not legislation respecting such local works and undertakings as are excepted from the legislative jurisdiction of the province by article 10 of section 92 of the B. N. A. Act. It touches civil rights in the province. The rule of law which it alters was a rule of common law in no way depending on or arising out of Dominion legislation, and the measure is strictly of the same class as Lord Campbell's Act, which, as adopted by provincial legislation, has been applied without question to all our railways."
The difference in opinion which is still possible upon this question is made manifest in McArthur v. N. and P. Junction Ry. Co. (17 O. A. R. 86) in which the Court of Appeal was evenly divided upon the question of the validity of the clause in the Dominion Railway Act limiting the time within which an action may be brought for injury sustained "by reason of the railway.—R. S. C. c. 109, s. 27. Hagarty, C.J.O. and Osler, J.A. upheld the enactment as being an almost essential part of railway legislation, while Burton and Maclennan, JJ.A. considered it an unnecessary interference with "property and civil rights in the province." The injury complained of, we should perhaps state, was trespass to timber in connection with the construction and operation of the road.
As to the applicability of the Dominion Winding-up Acts to companies incorporated under provincial legislation,
(v) 17 S. C. R. 316.
see Shoolbred v. Clarke (w) and other cases under section 91, sub-section 21, ante, p. 394.
In like manner, companies incorporated under provincial legislation, for the purpose of carrying on these "local works and undertakings," have without hesitation been held to be subject to the provisions of Dominion law and legislation upon the subject of "navigation and shipping." See Queddy River Boom Co. v. Davidson (r) and other cases noted under section 91, sub-section 10.
As to the power of a provincial legislature over a corporation existing prior to Confederation, see Dobie v. Temporalities Board (y) cited in the notes to section 129, post.
In Jones v. Canada Central (2) it was held that provincial legislation in reference to the bonds of a railway company falling within this sub-section 10 is operative to govern bonds held out of the province. Mr. Justice Osler
"I am of opinion that where debts and other obligations arise out of, or are authorized to be contracted under, a local Act which is passed in relation to a matter within the powers of the local legislature, such debts or obligations may be dealt with or affected by subsequent Acts of the same legislature in relation to the same matter, and this notwithstanding that by a fiction of law such debts may be domiciled out of the province."
12. The Solemnization of Marriage in the Province.
This sub-section will be found noted, so far as is necessary, in the notes to sub-section 26 of section 91. We may also refer to chapter V., ante, page 116, et seq., as to the ex
(w) 17 S. C. R 265.
(x) 10 S. C. R. 222.
(y) 7 App. Cas. 133; see ante, p. 200.
(z) 46 U. C. Q. B. 250. See Redfield v. Corporation of Wickham, 13 App. Cas. 467, as to the right of an execution creditor to sell under fi, fa., a Canadian railway as a whole, and the difference, in this respect, between English and Canadian law.
tent to which English marriage law is in force in Upper Canada. Owing to the decided religious convictions of Roman Catholics upon this question, there has been no general legislation by the Dominion parliament upon the subject of marriage and divorce; and its jurisdiction under sub-section 26 of section 91, has been limited to the passage of private Divorce Acts.
13. Property and Civil Rights in the Province.
In what may be termed the leading case as to the meaning to be attached to this sub-section, and the range of matters embraced therein-Citizens v. Parsons (a)-it was contended that "civil rights" should be limited to such rights only as flowed from the law, e.g., the status of persons, and should not be interpreted to cover rights arising from contract. Had this contention prevailed, the provinces would have been driven out of the larger part of the field of activity, which now, by the authoritative deliverance of the Judicial Committee of the Privy Council in that case, they are undoubtedly entitled to occupy.
"Their Lordships cannot think that the latter construction is the correct one. They find no sufficient reason in the language itself, nor in the other parts of the Act, for giving so narrow an interpretation to the words 'civil rights.' The words are sufficiently large to embrace, in their fair and ordinary meaning, rights arising from contract; and such rights are not included in express terms in any of the enumerated classes of subjects in
"It becomes obvious, as soon as an attempt is made to construe the general terms in which the classes of subjects in sections 91 and 92 are described, that both sections and the other parts of the Act must be looked at to ascertain whether language of a general nature must not by necessary implication or reasonable intendment be modified and limited. In looking at section 91, it will be found not only that there is no class including,
(a) 7 App. Cas. 96.
generally, contracts and the rights arising from them, but that one class of contracts is mentioned and enumerated, viz: '18.bills of exchange, and promissory notes,' which it would have been unnecessary to specify, if authority over all contracts, and the rights arising from them, had belonged to the Dominion parliament.
"The provision found in section 94 of the Act, which is one of the sections relating to the distribution of legislative powers, was referred to by the learned counsel on both sides, as throwing light upon the sense in which the words 'property and civil rights' are used. By that section, the parliament of Canada is empowered to make provision for the uniformity of any laws relative to 'property and civil rights' in Ontario, Nova Scotia and New Brunswick, and to the procedure of the courts in these three provinces, if the provincial legislatures choose to adopt the provisions so made. The province of Quebec is omitted from this section for the obvious reason that the law which governs property and civil rights in Quebec is, in the main, the French law as it existed at the time of the session of Canada, and not the English law which prevails in the other provinces. The words 'property and civil rights' are, obviously, used in the same sense in this section as in No. 13 of section 92, and there seems no reason for presuming that contracts, and the rights arising from them, were not intended to be included in this provision for uniformity. If, however, the narrow construction of the words, 'civil rights' contended for by the appellants were to prevail, the Dominion parliament could, under its general power, legislate in regard to contracts in all and each of the provinces, and, as a consequence of this, the province of Quebec, though now governed by its own Civil Code, founded on the French law, as regards contracts and their incidents, would be subject to have its law on that subject altered by the Dominion legislature, and brought into uniformity with the English law prevailing in the other three provinces, notwithstanding that Quebec had been carefully left out of the uniformity section of the Act.
"It is to be observed that the same words 'civil rights' are employed in the Act of 14 Geo. III, chapter 83, which made provision for the government of the province of Quebec. Section 8 of that Act enacted that His Majesty's Canadian subjects,
within the province of Quebec, should enjoy their property, usages, and other civil rights as they had before done, and that in all matters of controversy relative to property and civil rights, resort should be had to the laws of Canada, and be determined agreeably to the said laws.' In this statute, the words, 'property and civil rights' are plainly used in their largest sense; and there is no reason for holding that in the statute under discussion, they are used in a different or narrower one."
The Quebec Act, 1774, referred to in the last paragraph of this quotation, draws a sharp distinction between the criminal and the civil law (b), the two branches together being treated as inclusive of the whole field; and the Committee, in holding that the same wide meaning must be given to the term "property and civil rights" in this subsection, have, it may be thought, decided that the various other sub-sections of section 92 are to be treated as unnecessary surplusage. A reference, however, to those other sub-sections will show that with one or two exceptions, they treat, not of civil rights as between subject and subject, but of what may be called political rights, as between the subject, on the one hand, and the provincial government and bodies organized for the purposes of local self-government throughout the various sections of the province, on the other. The judgment of the Committee does, however, indicate a very wide range of subjects as included within this sub-section-a range subject only to the territorial limitation indicated by the words "in the province," and subject also, as the cases show, to be cut down to the extent necessary to give proper play to the powers of the Dominion parliament under the various sub-sections of section 91. It would seem as if this sub-section really throws the largest "residuum" to the provinces.
As to the first limitation, reference may be had to Re Goodhue (c), in which it was held by some of the judges
(b) See ante, p. 105.
(c) 19 Gr. 366. See Jones v. Canada Central, 46 U. C. Q. B. 250, for some observations by Osler, J. (now J.A.), upon Re Goodhue.