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Prop. 55-7 In his dissenting judgment in this case, Taschereau, J., doubts whether the erecting of the booms.

under the Act in question was not a 'local work

Provincial in connection with this case: "It follows that the incorporation of a navigation provincial navigation company is not an interference with navigation companies. and shipping. The constitution of the company is all that is dealt

and

with. The building and working of the ships; their obligations to observe the laws of navigation with respect to each other; their liability for wrongs, and so on, would naturally fall within the jurisdiction of the Dominion." See, also, as to provincial navigation companies: Union Navigation Co. v. Couillard, 7 R. L. 215. (1875), and Re Lake Winnipeg Transportation Lumber and Trading Co., 7 M. R. at p 259, (1891), noted supra at p. 563. In Longueil Navigation Co. v. City of Montreal, M. L.R. 3 Q. B. 172, 15 S.C.R. 566, 4 Cart. 370, 388, the Quebec Act, 39 Vict. c. 52, whereby the City of Montreal was authorized to impose an annual tax on steamboat ferries was adjudged intra vires, notwithstanding the Dominion power over navigation and shipping.' It was presumably by reason of the Dominion power over 'Navigation navigation and shipping,' that by his report in 1871, as Minister of Justice, Sir J. Macdonald recommended the disallowance of a Nova shipping.' Scotia Act to regulate pilotage in the Bras d'Or Lake, on the ground that a provincial legislature has no power to regulate the fees of pilots : Hodgins' Provincial Legislation, 2nd ed., at p. 476. A Dominion Act passed in 1878 to repeal as respects all ships while in the waters of Canada,' a section of the Imperial Merchant Shipping Act of 1876 relating to deck cargoes was disallowed by the Imperial government as claiming to legislate not merely for Canadian shipping, but for all ships while in Canadian waters, "a provision," says Mr. Todd, "obviously in excess of the powers of the Canadian parliament : Parl. Gov. in Brit. Col., 2nd ed., at p. 184. But it appears from a letter from the Board of Trade to the Colonial office dated July 13th, 1878, a copy of which is on file in the Governor-General's office at jurisdiction Ottawa, but which is not referred to by Mr. Todd, that apart from over ships in questions of convenience, the ground of objection to the Canadian Canadian enactment on the strict point of power was as follows: "This Colonial Act professes to repeal a section of the Imperial Act as regards all ships in Canadian waters, and the Board presume that it is passed in pursuance of section 547 of the Imperial Merchant Shipping Act. That section, however, only applies to ships registered in Canada, and the repeal therefore seems to be ultra vires.' The reference here is to Imp. 17-18 Vict. c. 104, s. 547. It may be added that this letter of the Board of Trade also states that "whilst measurement of tonnage is an Imperial matter, local taxation of shipping is essentially a colonial matter." And as to the validity of the the Dominion Act respecting the navigation of Canadian waters, 31 Vict. c. 58, and the applicability of its provisions to collisions occurring in those waters, see Eliza Keith, 3 Q.L.R. 143. (1877); The Hibernian, L. R. 4 P.C. 511, at pp. 516-7. And see supra p. 212. And as to the extension of the powers of the Canadian parliament and the legislatures of the other self governing colonies conferred by the Imperial Act of 1869, amending the law concerning the coasting trade and colonial merchant shipping, see Todd ibid. at p. 226. See, also, ibid. at p. 229. And as to the establishment of Vice-admiralty Courts, ibid. at pp. 230-240; also, supra pp. 515 17. In 1887, Sir J. Thomp

Dominion

waters.

or undertaking' within the meaning of No. 10 of Prop. 55-7 section 92 of the British North America Act, and so the Act in question intra vires notwithstanding that the booms might interfere with navigation and shipping. But this seems to overlook what may be termed the predominance of the Dominion powers, as to which see supra p. 427, et seq., and Proposition 43 and the notes thereto.

:

legislation

deprive

power to

Passing to Proposition 56, it is based upon the Prop. 56. judgment of the Privy Council in The Colonial Building and Investment Association v. The Attorney-General of Quebec. The question before their lordships in that case was in part the validity of the Dominion Act incorporating the said association. At the place cited they say "Chief Provincial Justice Dorion appears to be of opinion that cannot inasmuch as the legislature of the province Dominion of had passed Acts relating to such societies, and incorporate. defined and limited their operations, the Dominion parliament was incompetent to incorporate the present association, having for one of its objects. the erection of buildings throughout the Dominion.. Their lordships at present fail to see how the exist ence of these provincial Acts, if competently passed for local objects, can interfere with the power of son, as Minister of Justice, recommended the disallowance of a Nova Scotia Act concerning collection of freight and wharfage and warehouse charges, as ultra vires as infringing the exclusive jurisdiction of the Dominion over navigation and shipping, and trade and commerce : Hodgins' Provincial Legislation, 2nd ed., p. 558. In 1888, he says in another report: "The undersigned is of opinion that a provincial legislature cannot give to a town council power to make regulations for the discharging and depositing of ballast, rubbish, or refuse in harbours or rivers : Hodgins' ibid. p. 573; and in 1889, in another report, he says of a New Brunswick Act giving a town council "power to regulate the anchorage, lading and unlading of vessels and other craft arriving at the said town," that this is "clearly beyond the competency of a provincial legislature, having undoubted reference to navigation and shipping, and the management and control of harbours, those being subjects exclusively assigned to the Dominion parliament;" Hodgins ibid. p. 751.

19 App. Cas. at p. 167, 3 Cart. at p. 130, (1883).

But the
Dominion

Prop. 55-7 the Dominion parliament to incorporate the Association in question." They, however, add: "If the association by its operations has really infringed the Building Societies Acts, a proper remedy may doubtless be found adapted to such a violation of corporation the provincial law. . . . If the company is really holding property in Quebec without having complied with the law of that province, or is otherwise violating the provincial law, there may be found proceedings applicable to such violations, though it is not for their lordships to anticipate them or to indicate their form."

may be

subject to

the

provincial

law.

Prop. 57.

companies

their

to one

province.

Proposition 57 is clearly laid down by the Privy Council in the same case. The Colonial Building and Investment Association had been incorporated with power to carry on its business, consisting of various kinds, throughout the Dominion. It was, however, contended that inasmuch as the Association Dominion had confined its operations to the province of Quemay confine bec, and its business had been of a local and private operations nature, it followed that its objects were local and provincial, and consequently that its incorporation belonged exclusively to the provincial legislature. Their lordships overruled this contention laying down the above Proposition, and adding:1 parliament of Canada could alone constitute a corporation with these powers; and the fact that the exercise of them has not been co-extensive with the grant cannot operate to repeal the Act of incorporation, nor warrant the judgment prayed for, viz., that the company be declared illegally constituted." They, however, add: "It is unnecessary to consider what remedy, if any, could be resorted to if the incorporation had been obtained from Parliament with a fraudulent object.""

1See supra at p. 374, et seq.

29 App. at p. 165, 3 Cart. at p. 128, (1883).

"The

PROPOSITION 58.

58. In determining the validity of a Provincial Act, the first question to be decided is, whether the Act impeached falls within any of the classes of subjects enumerated in section 92 of the British North America Act, and assigned exclusively to the Legislatures of the Provinces; for, if it does not, it can be of no validity, and no further question would then arise. It is only when an Act of the Provincial Legislature primâ facie falls within one of these classes of subjects that the further question arises, namely, whether, notwithstanding this is so, the subject of the Act does not also fall within one of the enumerated classes of subjects in section 91, [and so does not belong to the Dominion Parliament].

1

Ins. Co. v.

The above Proposition is in the words of the Privy Citizens Council in Citizens Insurance Co. v. Parsons, Parsons. excepting that the concluding words there are "and whether the power of the provincial legislature is or is not thereby overborne," as to which see supra p. 498; and Proposition 43 and the notes thereto should be read in connection with it. Their lord

17 App. Cas. at p. 109, 1 Cart. at p. 273, (1881).

Prop. 58 ships repeat and apply the rule in substantially the

Rule for testing provincial Acts applied.

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same words in Dobie v. The Temporalities Board1; while they again apply it in Bank of Toronto v. Lambe. There the question before the Board was, whether a certain Act of the Quebec legislature, passed in 1882, entitled An Act to impose certain direct taxes on certain commercial corporations,' was valid. Their lordships say: "To ascertain whether or not the tax is lawfully imposed, it will be best to follow the method of enquiry adopted in other cases. First, does it fall within the description of taxation. allowed by class 2 of section 92 of the Federation Act, namely, 'direct taxation within the province in order to the raising of a revenue for provincial purposes? Secondly, if it does, are we compelled by anything in section 91 or in the other parts of the Act so to cut down the full meaning of the words of section 92, that they shall not cover this tax." It must be remembered, however, that the exercise of provincial legislative powers, and the operation of provincial Acts, may be sometimes more or less restricted by reason of existing Dominion legislation, as to which see Propositions 37 and 62 and the notes thereto; also supra pp. 357-8.

17 App. Cas. at p. 149, 1 Cart. at pp. 367-8, (1882).
212 App. Cas. 575 at p. 581, 4 Cart. 7 at p. 14, (1887).

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