POLI SCI 3NN6 legal cases.docx

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McMaster University
Political Science
Greg Flynn

P OLITICAL S CIENCE 3 NN6 L EGAL C ASES 1 - One of the most important decisions in Canadian constitutional law C ITIZENS - FACTS: Citizens Insurance, a federally incorporated company, did not comply with provincial INSURANCE V . legislation to print variations in the provincial standard in conspicuous type, which resulted in PARSONS Parson’s failing to disclose information, which in turn made his insurance claim invalid. - Parsons hardware store was destroyed by fire; but he had insured his hardware store against loss or fire with Citizens Insurance. However, citizens insurance refused to do so. - Parsons that the condition he had failed to comply with was contrary to the fire policy act (to the provincial state) and so it did not apply and was unlawful and did not include him from being indemnified. o LEGAL TEST  PARSONS TEST  1. Section 92 of the constitution (what is the legislative manner that we are looking at and does this issue fall within section 92)  NO  FEDERAL AREA OF JURISDICTION  2. If YES is it also something that fall under section 91 – NO  Provincial  But what if YES it is up the court to reconcile;  (Overview)  T ESTS FOR JURISDICTION Section 92  No  Federal Section 91  No  Provincial If it also relies in federal jurisdiction tries to - reconcile - Following the end of the first WW; the federal government created the board of commerce whose R E: BOARD OF job was to enforce prohibitions against the hoarding of goods and prevent price gauging on the COMMERCE sale of goods; AND o Split decision at the supreme court of Canada and appealed decision to JCPC; C OMBINES o The federal government could only use its trade and commerce regulation to interfere with jurisdiction where it was ancillary to other powers used by the provincial gov’t. AND FAIR PRICES ACT The court in the Canadian temperance federation case recognized the national concern branch of O NTARIO V. POGG as separate and distinct from the emergency power. C ANADA -JCPC distinguished the emergency from the national concern doctrine -Nothing in section 91 that gives the fed government permission to introduce in provincial matters TEMPERANCE FEDERATION  RESULTS: There must be more than just the GAP or EMERGENCY powers doctrine. The proper approach is to examine the REAL SUBJECT MATTER in question! If it goes beyond provincial concerns, must be a concern of the dominion as a whole then it falls within the confidence of the Federal Government. Look at emergency powers! R E: ANTI- FACTS: Federal legislation tried to implement a temporary anti-inflation legislation that regulated INFLATION hours of work, price controls, etc. They contended it was due to a matter of national concern, or R EFERENCE national emergency, and thus fell under POGG. ISSUE: Was the legislation intra vires the federal government by virtue of the POGG branches of national concern (NOT ADDRESSED) or National emergency? YES RATIO: (found below) o MAJORITY (Laskin+3): If it can be rationally determined (by evaluating extrinsic evidence) that there was an emergency, if crisis language is used, and the legislation is temporary, the emergency branch of POGG may invoked. It is unimportant whether the word ―emergency‖ is used in the legislation, whether the legislation addresses only a small part of the emergency, if the legislation is mandatory, if the legislation is effective, or if action is delayed. o MINORITY (Beetz+1): Because the intrusion of the federal government into provincial POLITICAL S CIENCE 3NN 6 L EGAL CASES 2 territory via POGG could extinguish particular provincial powers, a narrower interpretation of the emergency branch is important; and the emergency must be specifically signaled; o BEETZ National concern test: Subject matter must be NEW, have a clear boundary & defined characteristics; and must not swallow up provincial powers  Anti Inflation Reference TEST - It can be used during times of war or peace - Can act in apprehension and does not have to wait - Temporary problem (can be resolved) - Temporary solution (has to come to an end point) - Explicit use of emergency referenced R. V. CROWN The environment is not enumerated in s.91/2, but is typically found under property and civil rights in the provinces. Z ELLERBACH * But, it’s a cross-national problem, and the feds want jurisdiction—thus enters this case. FACTS: Crown Zellerbach was charged with dumping wood waste in Beaver Cove, which was clearly N ATIONAL provincial territory. It was charged under the federal Ocean Dumping Control Act, which included C ONCERN regulation on inland waters. The statute was enacted due to an international treaty. The Feds justify the legislation under POGG.  REASONS; Le Dain: Characteristics of the National Concerns Branch: (1) Separate and distinct from the emergency branch (2) Applies to new matters that didn’t exist at confederation or have newly become a matter of national scope. (3) Single/distinctive/indivisible. Scale of impact should be reconcilable with the current division of powers. (4) Provincial inabilities Test (manner of showing indivisibility):  What would happen (functionally) if one province didn’t live up to their responsibility?  Because you can’t draw a line between provincial and sea waters, there is a level of indivisibility  The local has become national in scope, which makes this new. DISSENT: Marine pollution is an aggregate of already existing federal matters. There is no need for POGG to be applied. Also, these matters are not new. The environment, like inflation, is diffuse and broad, and using POGG would be unfair to the provinces. Furthermore, the intermingling of waters is precisely what means there is no distinctiveness. Legal Test that arises from the case - 1)Separate and distinct - 2)New matters / not thought of - 3)Single/ distinctiveness / indivisibility - 4)Provincial inability test Validity: Necessarily Incidental/Ancillary Effects Doctrine G ENERAL General: M OTORS OF A provision within intra vires legislation, which in isolation appears to be ultra vires, may be held to be constitutionally valid because of its integration into the valid legislative scheme. C ANADA V. FACTS: CNL brought a civil action against GM under S.33.1 of the combines act, which GM argued C ITY was unconstitutional because the bringing of civil causes of action was a matter of provincial N ATIONAL jurisdiction under property and civil rights. L EASING ISSUE: Can s.33.1 be tolerated despite intruding into provincial jurisdiction? YES RATIO: Because it is inevitable that there may be some legislative overlap (modern paradigm), legislation may have ancillary effects on insubstantial portions of the other government’s jurisdiction RATIO: When a provision that, in isolation, appears ultra vires is determined to be well integrated into a piece of intra vires legislation, its intrusion into the jurisdiction of the other level of government may be tolerated. o TEST*** Three criteria set out by Laskin are appropriate  Were part of a general regulatory scheme  That was monitored and had continuing oversight by a regulatory agency  Must be concerned with trade affecting the country as a whole, not just a specific POLITICAL SCIENCE 3NN 6 LEGAL C ASES 3 industry  ADDING 2 MORE: to ensure that there is a BALANCE between 91 and 92, does not want to go far to upset the balance between the two  Fourth, the legislation should be of a nature that the provinces would be unconstitutionally capable of enacting.  Fifth, that the failure to include a province within the scheme would jeopardize the successful operation of
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