Decisions dealing with Trade

1
Decisions dealing with Trade Commerce 91(2)
vs. Property Civil Rights 92(13)

• Cases discussed today
• Citizens Insurance Co. v. Parsons (1881) Kit, p.
  218
• Board of Commerce Combines Fair Practices
  Acts (1922) review
• Proprietary Articles of Trade Assoc. (1931) Kit,
  p. 235
• Natural Prods Marketing Ref (1937) Kit, p. 248
• Ontario farm products marketing case (1957) not
  in kit
• Chicken and Egg Reference (1971) Kit, p. 274
• Labatt v. A.-G. Canada (1980) not in kit
• General Motors v. City National Leasing (1989)
  WebCT

2
Citizens Insurance Co. v. Parsons, 1881

• Impugned Ontario Fire Insurance Policy Act.
• Fire in Parsons warehouse. Parsons wanted
  insurance payment
• Ins Co you didnt observe the fine print.
• Parsons the fine print didnt conform to the
  Act.
• Ins Co The act is ultra vires Ontario.
• Sir Montague Smith discusses how s. 91 92
  overlap. JCPC will interpret the BNA Act as an
  ordinary statute.

• -Smith Invokes presumption that specific takes
  precedence over general. Property Civil
  Rights more specific than Trade Commerce.
• cubby hole doctrine. S. 92(13)? Yes. Also S.
  91(2)-TC? No. Feds can incorp. Cos with
  national objective, but doesnt prevent provinces
  from regulating intraprovincial transactions
• Three aspects of TC international,
  interprovincial and general.
• He doesnt define these categories. Left for
  later cases.

3
Board of Commerce Combines Fair Practices
Acts (1922) review

• Impugned fed anti-profiteering legis. after WW
  I
• Board stated case to SCC re Ottawa clothing
  stores
• Appeal from SCC Duff (BC) vs. Anglin
• Viscount Haldane wrote decision
• Pith substance combines hoarding in
  peace-time

• Cubby-hole 92(13)
• S. 91 too?
• Crim power? No not like incest
• TC no TC is supplemental to other federal
  powers
• POGG? Only in highly exceptional circumstances
  emergency doctrine
• Ultra vires
• 3 aspects of POGG nat concern, emerg, residual

4
PATA Nat Prods Marketing Ref

• Proprietary Articles Trade Assoc ref. (1931)
• Impugned federal anti-combines legislation
  (akin to Bd of Commerce case)
• Lord Atkin for JCPC
• Intra vires under fed. Criminal power (9127)
• Test penal consequences
• Bd of Commerce case distinguished. Proper due
  process safeguards in instant case
• Haldane wrong (Bd of Com Snider) that TC is
  subordinate

• Natural Products Marketing Act Ref, 1937
• Impugned fed marketing legis as part of new
  deal
• All provinces supported and had dovetailing
  legislation
• Lord Atkin ultra vires because it trenches on
  intra-provincial marketing in 92(13)
• But provincial marketing legis had also been
  struck down as trenching in interprovincial TC
  power.
• Can any marketing legislation be intra vires?

5
Ontario farm products marketing case (1957)

• Fed govt referred Ontario marketing legislation
  to SCC. Majority intra vires, if
  extra-provincial trade not affected.
• Judges explored the reality of the movement of
  produce being traded more than previous courts.
• Invoked aspect doctrine trade can be a
  provincial matter for one purpose, and a federal
  matter for another.
• Judges seemed to want to find a way out of the
  stalemate created by the Natural Products
  reference of 1937.

6
Chicken Egg Reference (1971)

• In 1970, Que govt authorized Que egg marketing
  agency to restrict import of eggs from out of
  province
• Ont and Man were suppliers of eggs to Que
• Que supplied chickens to other provinces they
  restricted Quebec chickens
• Man passed egg marketing legis identical to
  Quebecs and referred it to Mn CAp

• Man legis. struck down appealed to SCC (What if
  leg upheld?)
• 9 judges on panel 6 2 1 (all agreed ultra
  vires)
• Martland Pith and substance interprovincial
  TC.

7
Chicken Egg (2)

• Laskins first major decision.
• Annoyed that case is fabricated. Why?
• Obiter since Parsons led to attenuation of
  literal interp of TC.
• Prov. Marketing legislation OK if producers in
  other provinces treated the same a local
  producers
• Purpose of this legislation to control the
  import of eggs. Therefore it is ultra vires
  trenches in fed control over interprovincial TC
• Scholarly analysis both of case law and realities
  of trade in eggs other goods
• Not necessary to invoke s. 121

8
Labatt v. A.-G. Canada (1980)

• Impugned legis Fed food drug act regs
  setting standards for light beer.
• In several recent cases, SCC failed to allow feds
  to use general aspect of TC to regulate fair
  practice, or regulate grades of apples.

• Estey (5) impugned legis. Really local in
  character.
• Not international, and not really interprovincial
• Laskin (2) dissents. Feds can equalize
  competitive advantage under interprov TC. Also,
  S. 121 prohibits interprov trade barriers.

9
General Motors v. City National Leasing (1989)

• Impugned S. 31(1) of the federal Combines
  Investigation Act (CIA), which creates a civil
  cause of action for some infractions of the
  Combines Investigation Act. Normally, the
  subject-matter, civil causes of action, is in
  S. 92(13). The CIA prohibits discrimination or
  favouritism when selling products in Canada.
• CNL claimed that GM was giving preferential
  interest rates to CNLs competitors
• Ontario trial judge (on a motion) found s. 31(1)
  ultra vires Parliament, as it trenches on 92(13).
• Motion ruling appealed to Ontario Court of
  Appeal, which overruled trial judge and found s.
  31(1) intra vires Parliament.

10
General Motors v. City National Leasing (1989) (2)

• Supreme Court of Canada (Dickson for unanimous
  7-judge panel) S. 31(1) is intra vires
  Parliament under the second branch of S. 91(2)
  of CA 1867 (Trade Commerce) general trade and
  commerce.
• S. 31(1) does fall within 92(13). In order for
  federal legislation that falls under 92(13) to be
  valid
• Must be part of a general federal regulatory
  scheme
• Scheme must be monitored by the federal
  regulatory agency
• Legislation must be concerned with trade as a
  whole, not the regulation of a particular
  industry regulated by the provinces
• provincial incapability provinces
  constitutionally incapable of enacting similar
  legislation
• Failure to include one or more provinces or
  localities in the general regulatory scheme would
  jeopardize successful operation of scheme.