Dominion powers over civil procedure. Prop. 37 vincial legislatures, under No. 14, section 92, of the British North America Act, to make laws respecting the administration of justice in the province, etc. And, in Pineo v. Gavaza,1 Thompson, J., referring to the view thus expressed by Wilson, J., in Crombie v. Jackson, says :-" The Dominion parliament probably had no power to enact that every one who has a cause of action against a certain class of persons must resort to a certain tribunal, and that all other Courts must be closed against him." And he held that the corresponding section in the Insolvent Act of 1875, 38 Vict., c. 16, D., s. 125, had no such general application; that for the performance of those duties which arise from the Insolvent Act, and for the enforcement of those rights which are created by that Act, the remedy was that pointed out in the section; but that where an assignee in insolvency had taken possession of goods mortgaged, shortly before the insolvency, to the plaintiff, the latter might bring replevin for them in the County Court, and was not driven to his remedy under the section.2 16 R. & G. (18 N.S.) at p. 489, (1885). See this case commented on 22 C.L.J., N.S., at pp. 70-2. 2It is quite in consonance with the above decisions and dicta that in McDonald v. McGuish, 5 R. & G. 1, (1883), followed in The Queen v. Wolfe, 7 R. & G. 24, (1886), it was held that there was no appeal to the Supreme Court of the province from a judgment of the County Court quashing a conviction by a magistrate under the Canada Temperance Act, as none was expressly given by the latter Act, although the provincial Acts creating and organizing the County Courts gave a general appeal to the Supreme Court of the province. It would indeed be ultra vires of a provincial legislature to confer a right of appeal from a judgment on certiorari quashing a conviction under the Canada Temperance Act: per Osler, J. A., in Regina v. Eli, 13 O.A. R. at p. 533, (1886), cited per Moss, C.J.A., in In re Boucher, 4 O.A.R. 191, as to rights of appeal in habeas corpus, who says that to extend the provisions of the provincial Act under discussion as argued "would be to alter criminal procedure over which the provincial legislature has no jurisdiction." Cf. Regina v. Lake, 43 U.C.R. 515, 2 Cart. 616; Regina v. Toland, 22 O.R. 505. ,, powers over civil procedure. So, again, in In re Bell Telephone Co.,1 Osler, Prop. 37 J.A., decided upon the leading principle which we are now considering, that section 28 of the Patent Act of 1872, 35 Vict., c. 26, D., which, after specifying certain cases in which patents are to be null and void, provided that in case dispute should arise under that section such disputes should be settled by the Minister of Agriculture or his deputy, whose Dominion decision should be final, was not ultra vires, "for,' he observes, "though property and a civil right, it,' (sc., the patent), "is yet one of parliamentary creation, and I see no reason why the same power which gives it birth and limits the term of its existence should not also, as a matter of policy and for the purpose of effectual legislation on the subject, also provide a special mode of enquiring into and deciding upon the question whether the conditions. upon which it was granted, to which it is expressed to be subject, and on which its existence depends, have been complied with." And he declares that on principle he cannot distinguish this legislation from a number of cases in which by Dominion Acts judicial powers are conferred in some cases on individual judges, in others on provincial Courts, to administer relief arising under Dominion Acts; such cases as are referred to by Ritchie, C.J., in Valin v. Langlois. 17 O.R. 05, at p. 612, 4 Cart. 618, at p. 626, (1884). See per Henry, J., in Smith v. Goldie, 9 S. C. R. at pp. 68-9, (1882). 23 S.C. R. at pp. 23-4, I Cart. at p. 178, et seq., (1879). Perhaps, however, the ratio decidendi of the above decision, as expressed in the passage quoted from the judgment of Osler, J. A., may seem to be Dominion not so much the principle of our leading Proposition, as that illus- power to trated and acted upon in the cases of Aitcheson v. Mann, 9 P.R. attach con253, 473, (1882-3), Wilson v. Codyre, 26 N.B. 516, (1886), and rights conFlick v. Brisbin, 26 O.R. 423, (1895), namely, that in conferring ferred. some benefit or creating some right the Dominion parliament may impose as a condition upon those who avail themselves of that benefit or that right something which it would be ultra vires for it to enact ditions to powers over Prop. 37 So, in Doyle v. Bell,1 it was held that the jurisdiction of the provincial legislatures over property and civil rights does not preclude the parliament of Canada from giving to an informer the right to Dominion recover by a civil action a penalty imposed as a civil rights. punishment for bribery at an election, Patterson, J.A., observing that the provision is a recognized, though not an absolutely necessary, incident of the authority to deal with the subject of elections, and referring to the decisions of the Privy Council on the British North America Act as enforcing the duty of reading that Act, and particularly sections 91 and 92, "as embodying a scheme of general legislation, and not to be construed in the narrow sense, or without reading one part of the Act or the section with another."'s Again, in Ward v. Reed, it was held by the Supreme Court of New Brunswick that the provision of 32-33 Vict., c. 31, s. 78, D., that penalties against justices of the peace for the non-return of convic otherwise. The first of those three cases held intra vires, on the above principle, section 24 of the Patent Act of 1872, 35 Vict., c. 26, D., which required holders of patents under that Act, in the event of their rights being invaded, to litigate the matter in that Court of which the place of holding should be closest to the place of residence or of business of the defendant. See per Boyd, C., at p. 254. And the other two held intra vires those enactments now included in sections 865 and 866 of the Criminal Code, (1892), which gives one who is assaulted the option to proceed by complaint in a summary way before a magistrate, but provides that if he elects to take his remedy by this method, and if the defendant obtains a certificate of the justice that the charge against him is dismissed, or that he has paid the penalty or suffered the imprisonment awarded, the plaintiff loses his right of action in respect of the same assault in order to recover damages as a civil wrong. See per Allen, C.J., in Wilson v. Codyre, 26 N. B. at p. 520. 132 C.P. 632, 11 O.A.R. 326, 3 Cart. 297, (1884). 211 O.A. R. at p. 331, 3 Cart. at p. 304. 3See Propositions 3, 39, and the notes thereto. 422 N.B. 279, 3 Cart. 405, (1882). powers over civil procedure. tions, etc., might be recovered by an action of debt Prop. 37 by any person suing for the same in any Court of Record in the province in which such return ought to have been made, was intra vires of the Dominion Dominion parliament, because "it is a matter connected with the administration of the criminal law which belongs exclusively to the Dominion parliament, which has the right, in legislating upon a matter within its control, to give authority to the existing Courts in the province to try such matters."1 2 laws as to crossings. And it is in accordance with the leading principle under discussion that in Credit Valley R.W. Co. v. Great Western R.W. Co., Proudfoot, V.C., declares that in his view there can be no question that the Dominion Act, 40 Vict., c. 45, extending the provisions of the Consolidated Statutes of Canada, Dominion c. 66, s. 130, as to the crossing powers of railways railway to railways incorporated under provincial Acts, in any case in which it was proposed that they should cross a railway under the legislative control of Canada, was quite within the competence of the Dominion parliament, as necessary to and essential for the protection of the Dominion railways within. their control. And so Killam, J., held the same thing as to a similar provision in the general Railway Act of the Dominion, 51 Vict., c. 29, in Canadian Pacific R.W. Co. v. Northern Pacific, etc., R.W. Co. And in Re Canadian Pacific R.W. Co. and 122 N.B. at p. 283, 3 Cart. at p. 407. And so in Clemens v. Bemer, 7 C.L.J. 126, (1871), Hughes, C.J., upheld the power of the Dominion parliament to legislate as to returns of convictions in criminal cases. And see Proposition 45 and the notes thereto. 225 Gr. 507, 1 Cart. 822, (1878). 35 M.R. at p. 313, (1888). And see also In re Portage Extension of the Red River Valley R. W., December 22nd, 1888, Cas. Sup. Ct. Dig. 487. But when, in 1888-9, the legislature of Manitoba passed an Act (52 Vict., c. 19) to provide for the crossing of one railway Dominion laws as to railway crossings. Prop. 37 County and Township of York,1 Rose, J., held intra vires and within the scope of necessary legislation the sections of the Dominion Railway Act, 1888, whereby the Railway Committee are empowered to order that gates and watchmen be provided and maintained by railways under Dominion control, under No. 10 of section 92 of the British North America Act, at crossings and highways traversing different adjacent municipalities, to decide which municipalities are interested in the crossings, and to fix the proportion of the cost to be borne by the different municipalities. Preservation Acts. A somewhat peculiar application of the principle of our Proposition may be found in Keefer v. Todd,* in which the Peace Preservation Acts, 32-33 Vict., The Peace C. 24, D., and 33 Vict., c. 27, D., being Acts for the better preservation of the peace in the vicinity of public works in which large bodies of labourers are congregated and employed, and which forbid the possession of firearms and other lethal weapons, and also the sale and possession of intoxicating liquors within the districts in which they were duly proclaimed in force, were held intra vires by Begbie, J., as being really laws in relation to and confined to by another, which provided that no railway company, whether incorporated by the Dominion parliament or otherwise, should cross, intersect, join, or unite its railway with any railway subject to the provincial legislative authority without first obtaining the approval of the Railway Committee of the Executive Council of the province as to the place and mode of crossing, etc., Sir John Thompson as Minister of Justice, by his report to the Governor-General of March 3rd, 1890, (Hodgins' Provincial Legislation, 2nd ed., at pp. 912-3), said that he entertained doubt "as to whether a provincial legislature may by legislation of this character interfere with the construction of a railway which is authorized to be built by the parliament of Canada." However, he did not recommend disallowance. See, further, as to legislative power over railways, Proposition 54, and the notes thereto, and see also p. 399, n. 1, supra. 127 O.R. 559, (1896). 22 B.C. (Irving) 249, (1885). See at p. 255. |