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Committee held that the Act could not properly be said to be a law in relation to property and civil rights in the sense in which the words are used in section 92, but related to the public order and safety, and therefore fell within the authority of the Dominion Parliament to make laws for the order and good government of Canada1.
This power of the Dominion Legislature does not prevent a province from making regulations in the nature of police or municipal regulations of a local character for the good government of taverns licensed for the sale of liquors by retail, and such as are calculated to preserve in the municipality peace and public decency and repress drunkenness and disorderly and riotous conduct, nor are such regulations any interference with the general regulations of trade and commerce2.
As an example of a Dominion Act held invalid as affecting civil rights reference may be made to the 42 Vic. c. 48 applying to all building societies, whether solvent or not.
Bankruptcy and Insolvency. The effect of these words was considered in L'Union St Jacques v. Belisle.
The scheme of enumeration in section 91 is "to mention various categories of general subjects which may be dealt with by legislation. There is no indication in any instance of anything being contemplated except what may be properly described as general legislation: such legislation as is well expressed by Mr Justice Cawn when he speaks of the general laws governing faillite, bankruptcy and insolvency, all which are well-known legal terms expressing systems of legislation with which the subjects of this country and probably of most other civilized countries, are perfectly
1 Russell v. Regina, L. R. 7 App. Cas. 829; 2 Cart. 12. Griffith v. Rioux, Q. 6 Legal News, 211.
2 Hodge v. The Queen, L. R. 9 App. Cas. 117, see also Ex parte Pillow, 27 L. C. Jurist 216.
3 McClanaghan v. St Ann's Mutual Building Society, 24 L. C. Jurist 162; 2 Cart. 237.
familiar. The words describe in their known legal sense provisions made by law for the administration of the estates of persons who may become bankrupt or insolvent according to rules and definitions prescribed by law, including of course the conditions in which that law is to be brought into operation, the manner in which it is to be brought into operation and the effect of its operation'." Hence an Act of the Dominion providing for the liquidation of building societies in the province of Quebec only was held ultra vires2.
A provision that claims by and against assignees in insolvency may be disposed of by a County Court Judge on petition is within the jurisdiction of the Dominion Government, and the clause in the Insolvent Act of 1875 which enacted that a person who purchased goods on credit knowing himself unable to meet his engagements and concealing the fact with intent to defraud should be liable to two years' imprisonment, was held valid by the Ontario Court of Appeal, though such enactment was connected with property and civil rights as well as with the administration of justice*.
The following provincial Acts have been held invalid, as Acts held infringing on the Dominion rights regarding bankruptcy and insolvency :
An Act of New Brunswick providing for the examination of a debtor before a judge and authorizing the judge to grant the debtor a discharge from gaol on proof that he is unable to pay his debts and had made no fraudulent transfer or undue preference".
The Quebec License Act 1870 in so far as it imposed a tax on the sum realized from the sale of an insolvent's effects.
1 L'Union St Jacques v. Belisle, L. R. 6 P. C. 31; 1 Cart. p. 53.
2 McClanaghan v. St Ann's Society, Q. 24 L. C. J. 162.
A portion of an Act of Nova Scotia, 1874, to facilitate arrangements between Railway Companies and their auditors'.
The power to legislate on bankruptcy and insolvency is not only a limitation of the provincial power of legislating on "property and civil rights" but also of provincial powers relating to "procedure in civil matters."
In Cushing v. Dupuy it was contended that an Act of the Dominion Parliament which made the judgment of the Court of Queen's Bench in Quebec final in matters of insolvency was ultra vires, as interfering with property and civil rights and as dealing with procedure in a civil matter.
"The answer to these objections," said Sir Montague Smith in delivering the judgment of the Privy Council, “is obvious. It would be impossible to advance a step in the construction of a scheme for the administration of insolvent estates without interfering with and modifying some of the ordinary rights of property and other civil rights nor without providing some mode of special procedure for the vesting, realisation and distribution of the estate and the settlement of the liabilities of the insolvent. Procedure must necessarily form an essential part of any law dealing with insolvency. It is therefore to be presumed, indeed it is a necessary implication, that the Imperial Statute in assigning to the Dominion Parliament the subjects of bankruptcy and insolvency intended to confer on it legislative power to interfere with property, civil rights and procedure within the provinces so far as a general law relating to these subjects might affect them. Their Lordships therefore think that the Parliament of Canada would not infringe the exclusive powers given to the Provincial Legislatures by enacting that the judgment of the Court of Queen's Bench in matters of insolvency
1 Murdoch v. Windsor & Annapolis Ry. Co., Russell's Eq. Rep. 137, and Re Windsor & Annapolis Ry.; 4 Russell & Geldert 312.
2 L. R. 5 App. Cas. 409.
should be final and not subject to the Appeal as of right to Her Majesty in Council allowed by Art. 1178 of the Code of Civil Procedure1."
The following provincial Acts have been held valid :
An Act of N. B. providing that as against the assignee of the grantor under any law relating to insolvency, a bill of sale should take effect only from the time of filing thereof.
An Act of New Brunswick abolishing imprisonment for debt as respects a person not shewn to be a trader or subject to the Dominion Insolvent Act3.
An Act of N. B. for the imprisonment of a person making default in payment of a sum due on a judgment in certain cases1.
11. TRADE AND COMMERCE.
To the Dominion are assigned
The regulation of Trade and Commerce. s. 91 (2).
The words 'regulation of trade and commerce' in their unlimited sense are sufficiently wide if uncontrolled by the context and other parts of the Act, to include every regulation of trade ranging from political arrangements in regard to trade with foreign Governments requiring the sanction of Parliament down to minute rules for regulating particular trades. But a consideration of the Act shews that the words were not used in this unlimited sense. In the first place the collocation of No. 2 with classes of subjects of national and general concern affords an indication that regulations relating to general trade and commerce were in the mind of the Legislature when conferring this power on the
1 It was also held that the Statute did not affect the right of Her Majesty to allow an appeal as of Grace.
2 In re De Veber, 21 N. B. R. 401; 2 Cart. 552.
3 Armstrong v. McCutchin, N. B. 2 Pugsley, 381; 2 Cart. 494.
4 Ex parte Ellis, N. B., 1 Pugsley & Burbidge, 593; 2 Cart. 527.
Dominion Parliament. If the words had been intended to have the full scope of which in their literal meaning they are susceptible, the specific mention of several of the other classes of subjects enumerated in section 91 would have been unnecessary, as 15, banking; 17, weights and measures; 18, bills of exchange and promissory notes; 19, interest; and even 21, bankruptcy and insolvency."
"Regulation of trade and commerce' may have been used in some such sense as the words 'regulations of trade,' in the Act of Union between England and Scotland (6 Anne c. 11), and as these words have been used in Acts of state relating to trade and commerce. Article V. of the Act of Union enacted that all the subjects of the United Kingdom should have "full freedom and intercourse of trade and navigation" to and from all places in the United Kingdom. and the Colonies, and Article VI. enacted that all parts of the United Kingdom from and after the Union should be under the same prohibitions, restrictions and regulations of trade. Parliament has at various times since the Union passed laws affecting and regulating specific trades in one part of the United Kingdom only without its being supposed that it thereby infringed the Articles of Union. Thus the Acts for regulating the Sale of Intoxicating Liquors notoriously vary in the two kingdoms. So with regard to Acts relating to bankruptcy and various other matters."
"Construing therefore the words 'regulations of trade and commerce' by the various aids to their interpretation above suggested, they would include political arrangements in regard to trade requiring the sanction of Parliament, regulations of trade in matters of inter-provincial concern, and it may be that they would include general regulations of trade affecting the whole Dominion."
The above remarks of Sir Montague Smith in the important case of Citizens' Insurance Co. v. Parsons' indicate the 1 L. R. 7 App. Cas. p. 112.