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Dobie v. The

Temporali

PROPOSITION 68.

68. A Provincial Legislature by virtue of No. 13 of section 92 of the British North America Act has power to make laws in relation to such 'property and civil rights' [within the meaning of that clause as restricted to allow scope for the due operation of the other provisions of the said Act] as have a local position within the Province; but they have no such power in relation to property and civil rights having their local position in another Province; and if, in any case, they cannot legislate in relation to the one, without at the same time legislating in relation to the other, that is a case beyond their powers of legislation altogether.

The above Proposition is suggested, as will presties Board. ently be seen, by the judgment of the Privy Council in Dobie v. The Temporalities Board.1 But first, as to what is meant by property and civil rights' in No. 13 of section 92 of the British North America Act, whereby the provincial legislatures are given the exclusive power of making laws in relation to 'property and civil rights in the province.' In Citizens Insurance Co. v. Parsons2 where it was contended

17 App. Cas. 136, 1 Cart. 351, (1882).

27 App. Cas. at pp. 109-11, 1 Cart. at pp. 274-6, (1881).

and civil

Province,'

that 'civil rights' in this clause meant only such Prop. 68 rights as flowed from the law, as for example, the status of persons, their lordships say that 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 contracts." And they refer to section 94 of the Act, which they term 'Property "the uniformity section," whereby the parliament rights in the 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 those three provinces, if the provincial legislatures choose to adopt the provisions so made, and point out that:-" 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 cession 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 sec- No. 13, tion 92, and there seems no reason for presuming B.N.A. Act. that contracts and the rights arising from them were not intended to be included in this provision for uniformity." Otherwise, they.say," the Dominion parliament could, under its general power1, 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, 1See Proposition 26 and the notes thereto.

sect. 92,

Prop. 68 and brought into uniformity with the English law prevailing in the other three provinces, notwithstanding that Quebec has been carefully left out of the uniformity section of the Act."1

and civil

province.'

The Privy Council then refer to section 8 of the Quebec Act, 14 Geo. III., c. 83, which enacted that His Majesty's Canadian subjects within the province of Quebec should enjoy their property, usages, and 'Property other civil rights, as they had before done, and that rights in the 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, and say: "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 and narrower one."

No. 13, sect. 92,

B.N.A. Act.

It has been shown, however, in the notes to Pro

'In Dubuc v. Vallée, 5 Q.L. R. at p. 37, (1879), Caron, J. says: "Le teste précis et formel de ce paragraphe, c'est a dire les mots droits civils dans la province, ne peuvent signifier autre chose que ces droits civils conférés dans la province de Quebec par notre code civil, ou les droits qui y correspondent dans les autres provinces. Les expressions dans la province ont pour objet de restreindre le sens de la signification des mots droits civils que le précedent à cette espèce de droits qui n'embrassent que les droits privés tels qu'ils sont règlés par notre code civil, lequel, comme on sait, n'affecte pas les droits politiques des citoyens de la Puissance. Il est evident, surtout en ce qui concerne la province de Québec, qui occupé une position exceptionnelle dans la Confédération Canadienne, ainsi qu'on le voit par la section 94 de l'Acte de l'Amerique Britannique du Nord, que le but du legislateur par ce paragraphe 13 était d'empêcher le parliament du Canada de pouvoir modifier en aucune maniere quelconque la faculté d'acquerir ou de transmettre la propriété et le pouvoir de contracter."

2In the despatch from the Lieutenant-Governor of Ontario to the Secretary of State, of January 22nd, 1886, on the subject of the power to appoint Queen's Counsel (as to which power see supra pp. 87-9, 133-6, 178-9, and In re Queen's Counsel, 23 O. A. R. 792, since affirned by the Privy Council, July 30th, 1897), section 8 of the Quebec Act is also referred to, to show the extensive purport of the words 'property and civil rights'; and it is added: "Under the same words, in the Upper Canada Act, 33 George III. c. 1, the whole law of England, except the criminal law (which was the subject of another enactment) was held to be introduced:" Ont. Sess. Pap., 1888, No. 37, at p. 17. See, also, supra pp. 18-20.

position 37, (and it is not necessary to repeat here Prop. 68 what is there set out), that the interpretation of the clause of section 92 under consideration, must be restricted sufficiently to allow scope for the full exercise of Dominion powers1; and it has also been pointed out that an Act may interfere with and affect the use of property, or civil rights, and yet not be legislation in relation to 'property and civil rights in the province' within the meaning of No. 13 of section 92, these not being the primary matters dealt with.2

and civil

province.'

Such, then, being the meaning of 'property' Property and civil rights' in No. 13 of section 92, it rights in the remains to consider what is the effect of the limitation in the province' in that clause. In the recent Liquor Prohibition Appeal 1895," the Privy Council say:-"A law which prohibits retail transactions and restricts the consumption of liquor within the ambit of the prov

1See Proposition 37 and the notes thereto, and especially supra PP. 433-4; and as to 'property,' Proposition 54 and the notes thereto, supra p. 590 et seq. In the recent argument in the case of Fielding v. Thomas, [1896] A. C. 600, Lord Watson is reported as saying:-"This Board have had to consider in more than one case the overlapping of the classes. For instance, the province

has got by the terms of section 92, exclusive power to deal with civil rights. If you are to read that enactment of the sub-section

of section 92 in its strictest sense it would exclude the legislative Over-lapping jurisdiction of the Dominion and accordingly we have held here powers. that there is a sort of neutral field, and if the province occupies that and regulates a civil right it may very well be that the parliament of the Dominion may legislate on bankruptcy or on libel in such a way as to over-ride the provincial legislation on the subject, and it may be that whilst the amendment of their own Constitution is conceded to the province they might as an unnecessary incident of amending their Constitution enact some things which might be abrogated by a Canadian law. It does not necessarily follow that they have no jurisdiction :" Manuscript transcript from Cock and Kight's shorthand notes, pp. 29-30. As to Fielding v. Thomas, see further supra pp. 746-50.

2See supra pp. 396-7; and Proposition 36 and the notes thereto. See, too, as to laws against gambling, Regina v. Keefe, 1 N. W. 1, (No. 2) 86, (1890); Regina v. Fleming, 15 C.L.T. 242, (1895).

3[1896] A. C. at p. 364.

Prop. 68 ince, and does not affect transactions in liquor between persons in the province, and persons in other provinces or in foreign countries, concerns property in the province, which would be the subject matter of the transactions, if they were not prohibited, and also the civil rights of persons in the province"; and they imply that in their opinion such a law might well be authorized by No. 13 of section 92, as a law in relation to property and civil rights in the province. But it would seem to be by reason of the limitation contained in the words 'in the province,' that later on in the same judgment, when alluding to the provision in the Canada Temperance Act 1886, which permits wholesale dealers in liquors to sell for delivery anywhere civil rights beyond the district wherein they carry on business, province'? unless such delivery is to be made in an adjoining

What are

property and

' in the

district where the Act is in force, they say: “If the adjoining district happened to be in a different province, it appears to their lordships to be doubtful whether, even in the absence of Dominion legislation, a restriction of that kind could be enacted by a provincial legislature." It would seem, especially in the light of the former passage, that their lordships mean that such a legislative restriction, affecting, as it would do, transactions in liquor between persons in the province, and persons in other provinces or in foreign countries, would be legislation in relation to property and civil rights out of the province, as well as in the province, and therefore would not be authorized by No. 13 of section 92.1

1 At the same time it seems a little hard to understand why a provincial legislature should not have power to enact with regard to any property locally situate in the province, that it shall not be taken out of the proprovince. In Cooley's Constitutional Limitations it is said: "The legislative authority of every State must spend its forces within the territorial

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