October 25, 2012 - Lecture 8 (Trade and Commerce)
Trade and Commerce:
- Begins with an analysis of S.91 (2) of the Constitution Act, 1867:
○ The regulation of Trade and Commerce?
It's clearly a federal priority?
- Clearly falling within federal powers.
- How was this power interpreted by the JCPC?
- How has it changed under the SCC?
- The insurance company argued that the Act is ultra vires in the province of Ontario.
- Montague Smith suggests that there is a significant overlap between 91(2) and 92(13).
○ Property and civil rights are far morespecific to the case at hand.
○ T&C powers by contrast are far too broad.
○ According to legal scholars, Smith's analysis of the "Cubby Hole Doctrine" finds that the
issue falls under 92(130because it is more specific to local, provincial issues.
- Not surprisingly, given the ambiguity of the bright clear lines test, it begins to break down
Canada (A.G.) vs. Alberta (A.G.) (1916):
- Regulation of insurance, which by 1916had become a national industry.
- Monahan suggests surely that such an industry and that it was a matter for national concern.
JCPC's logic on T&C:
- Distinguishes between:
○ "Interprovincial" and "international" grade (91(2))
○ Local trade (92(13))
Supreme Court of Canada (post-1949):
Parliament clearly has jurisdiction over international and interprovincial trade.
Can Parliamenthave any role in regulating local trade?
Margarine Reference (1949):