Dominion laws prevail direct PROPOSITION 44. 44. Before the laws enacted by the Federal authority within the scope of its powers, the provincial lines disappear; for these laws we have a quasi legislative union; these laws are the local laws of the whole Dominion, and of each and every province thereof. This Proposition is taken from the words of Taschereau, J., in Citizens Insurance Co. v. Parsons,1 and is in harmony with the statement of law in Proposition 46, that where over matters with which provincial legislatures have power to deal, in cases of provincial legislation directly conflicts with enactments of the Dominion parliament, whether strictly relating to the enumerated classes of subjects under section 91, or by way of provisions ancillary to legislation on the said classes of subjects, the provincial legislation must yield to that of the Dominion parliament.2 -conflict. At the passage referred to, Taschereau, J., proceeds :-"The Dominion as to such laws is but one 14 S.C. R. at p. 307, I Cart. at p. 326, (1880). And cf. the words of Badgley, J., in L'Union St. Jacques de Montreal v. Belisle, 20 L.C.J. at p. 31, I Cart. at p. 74. 2In Baxter v. The Central Bank of Canada, 20 O. R. at p. 214, (1890), we have a case of an Ontario Court enjoining the plaintiff in a case in a Montreal Court from proceeding in his action so far as he complained of the official conduct of liquidators appointed by an Ontario Court in certain winding-up proceedings under the Dominion Winding-up Act, then being carried on in the latter Court. the Dominion country having but one legislative power, so that a Prop. 44 contract made under these laws in Ontario, or any one of the provinces, is to be considered, territorially, or with respect to locality, as a contract in the Dominion, and as such governed by the Dominion laws, and not as a contract locally in the province, As to them governed by the provincial laws. This is why the one country. contracts to convey passengers and goods on the railways under Dominion control, for instance, the contract made by the sender of a message with a telegraph company, the contracts of a sale of bank stocks, are all and every one of them, when made anywhere in the Dominion, regulated by federal authority. And the power of the federal authority to so regulate them has never been doubted; yet are they not all local transactions and personal contracts? Undoubtedly they are; but these railway companies, these telegraph companies, these banking companies, being under the federal control, their contracts are Dominion necessarily under the same control absolutely and ex- contracts. clusively. It would be impossible for them to carry on their business if each province could impose upon them and their contracts different conditions and restrictions. A Dominion charter would be absolutely useless to them if the constitution granted to each province the right to regulate their business."1 1See, also, per Taschereau, J., S.C., 4 S.C. R. at pp. 312-4, I Cart. at pp. 331-2. Nevertheless, the cases referred to in Proposition 61 show that Dominion legislation may be in some degree interfered with by provincial legislation. And a question might perhaps be raised as to whether the exclusive power thus given to the Dominion parliament by the combined effects of section 91 and 92 of the British North America Act to make laws in relation to matters coming within the class of 'railways, canals, telegraphs, and other works and undertakings connecting the province with any other or others of the provinces, or extending beyond the limits of the province,' etc., extends to regulating the contracts and business in the different provinces of such companies. No. 15 of section 91, which was in question in Tennant v. The Union Bank, [1894] A. C. 31, specifically gives power to make laws in relation to all matters coming within the subject of banking, which obviously includes the business carried on by banks. laws as to When and when not. Prop. 44 But as the judgment of the Judicial Committee in that case shows, the learned judge omitted to draw the necessary distinction that the power of the Dominion parliament to regulate in the different provinces the contracts and other business of a corporation depends, not upon its power to incorporate Dominion companies to do business throughout the Dominion, can regulate but upon whether such power to regulate their business comes or does not come within one of the enumerated classes of section 91. As the judgment shows, the power to incorporate companies to do business throughout the Dominion belongs to the Dominion under their general residuary power of legislation, inasmuch as the only companies which the provincial legislature can incorporate are those with provincial objects, under No II of section 92.1 Thus the Dominion parliament had power to incorporate insurance companies authorized to Citizens Ins. transact their business throughout the Dominion, but the regulation of the insurance business carried on by such a company in any given province is not committed to Parliament by any of the enumerated classes of section 91, and their lordships held that such legislation did not come within what is meant by the regulation of trade and commerce in No. 2 of section 91. In such cases as the decisions in Citizens Insurance Co. v. Parsons, and Colonial Building Association v. The Attorney-General of Quebec, cited in the notes to Proposition 55, show, contracts made in a particular province are subject to the laws of that particular province, though Co. v. Parsons. 3 1See 7 App. Cas. at pp. 116-7, I Cart. at pp. 282-3. As to what are companies with provincial objects, see the notes to Proposition 55. 27 App. Cas. 96, 1 Cart. 265, (1881). 39 App. Cas. 157, 3 Cart. 118, (1883). made by a company operating under a Dominion Prop. 44 charter, even though statutory. 2. 66 report of Minister of the subject. As Mr. Dickey says in his report as Minister of Justice, of March 12th, 1896, recommending the disallowance of a certain Manitoba statute requiring Dominion and other corporations " duly authorized to carry out or effect any of the purposes or objects to which the legislative authority of the legislature of Recent Manitoba extends" to obtain a license from the pro- Mr. Dickey, vincial Lieutenant-Governor before carrying on its Justice, on business in the province,1-the recent decisions of the Privy Council in Tennant v. The Union Bank of Canada, and Attorney-General of Ontario v. Attorney-General of Canada,3 show "that the legislative powers of the parliament of Canada depending upon section 91 may be fully exercised, although with the effect of modifying civil rights in the province; also that the Dominion parliament, in legislating with regard to a subject enumerated in section 91, has power to enact ancillary provisions, relating to the enumerated subjects, and affecting rights, which but for the enactment of such provisions by Parliament would have been within the legitimate range of provincial legislation." 5 And so In re Canadian Pacific R. W. Co. and 1Hodgins' Provincial Legislation, 2nd ed. at pp. 1009-10. [1894] A.C. 31. 3[1894] A. C. 189. That is upon the enumerated classes of section 91, to which the Minister would seem to be referring. See, however, supra pp. 435-8. 'See Proposition 37 and the notes thereto, especially at pp. 431-2; also Proposition 46 and the notes thereto. The question of the right of provincial legislatures to require foreign corporations to take out licenses before carrying on business is of course a different one from that under discussion here, namely, under what laws their business must be carried on, whether Dominion or provincial,—and will be found discussed in the notes to Proposition 55, infra. .deals with ion as a whole. Prop. 44 County and Township of York,1 Rose, J., says in reference to certain provisions of the Dominion Railway Act, 1888, which empowered the Railway Committee of the Privy Council to make orders for the necessary protection of railway crossings, and to apportion the costs thereof between the company, "and any person interested therein," which the Committee had interpreted to include municipalities :-" It Parliament must be borne in mind that when the parliament the Domin- of Canada is legislating respecting any subject within its exclusive legislative authority, its jurisdiction and powers cannot be affected, limited, or controlled by any provincial legislation; it deals with the Dominion as a whole, irrespective of any territorial divisions, municipal or otherwise. Therefore, if a provincial legislature sees fit to create a municipal corporation and to vest in such corporation highways or lands, such legislation manifestly cannot prevent the parliament of Canada from dealing with such lands so vested in such corporation, and the corporation in which they are vested, in the same way and manner as if such lands had been in the hands of private citizens." And a curious instance of the way in which the legislative scope open to the provinces may depend upon Dominion legislation is suggested by a passage in the judgment of Gwynne, J., in Lynch v. The Canada North-West Land Co., R.S.C., c. 127, sec 127 O.R. 559, at p. 569, (1896). 2 219 S.C. R. at p. 223, (1891). Cf. per Dubuc, J., in Schultz v. City of Winnipeg, 6 M. R. at p. 45. And as to legislative power as to interest, and No. 19 of section 91 of the British North America Act generally, see supra pp. 388 90. In a report as Minister of Justice on some Quebec Acts, on February 12th, 1894, (Hodgins' Provincial Legislation, 2nd ed., p. 461), Sir J. Thompson says:- The provincial legislature has, of course, no power to authorize any Act which has been constituted an offence by Parliament." |