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Tolga Yalkin

on 5 December 2012

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Transcript of Doctrines

Pith and Substance Purpose of the Law Legal effect of the law
Practical effects of the law
Walter v Alberta (AG); Fletcher v Albera (AG)
[1969] SCC 383 Hutterite colonies established in Alberta
Land Sales Prohibition Act 1944 (Alta) prohibit sale and purchase of land by Hutterites
Communal Property Act RSA 1955 froze size of existing colonies, allowed no new colonies, without consent of LG. Martland J [for the Court]:
The purpose of the legislation is to "control the use of Alberta lands as communal property", not "Hutterite religious belief or worship."
The legal impact is limited to the disposition of land.
For the legislation to be, in pith and substance, in relation to religion, it must practically impact "matters of faith and worship, ... dissemination of religious faith and exercise of religious worship."
The fact that the legislation will merely affect those of a particular religion disproportionately is not sufficient to make it a law in relation to religion. 92(13) 91 Munro v NCC [1966] SCR 663 Parliament established the NCC, providing it with a power of expropriation
NCC sought to create green belt
Expropriated property from Munro, offering $200,000 compensation
Munro sought an order declaring the expropriation invalid or $420,000 on the basis that the power was ultra vires Parliament Cartwright J:
The purpose (objects) of the legislation is to "assist in development" of the "seat of Government of Canada in accordance with its national significance."
While there are legal impact on civil rights and property within the province, they do not invalidate the act.
"[O]nce it is determined that that the matter in relation to which the Act is passed falls within the power of Parliament," The fact that the legislation will merely affect the civil rights of residents "is no objection to ... validity." "Consequential effects are not the same thing as legislative subject matter." Rand J in AG (Sask) v AG (Can) "The fallacy lies in failing to distinguish between legislation affecting civil rights and legislation "in relation to" civil rights. Duff J in Gold Seal v Dominion Express R v Morgentaler [1993] 3 SCR 463 Morgentaler charged with violating Nova Scotia act that prohibited abortion outside of hospitals (within which it was strictly prohibited to emergencies).
Contravention of the Nova Scotia act exposed violators to summary convication and a fine of not less than $10,000.
The Crown argued that this fell within ss. 92(7), (13), and (16).
Morgentaler argued that this fell within s. 91(27) - criminal law. Sopinka J:
"[I]t is often the case that the legislation's dominant purpose or aim is the key to its constitutional validity." Sopinka refers to this as the legislation's "central concern."
Extrinsic evidence, not limited to those permitted for statutory interpretation, can be admitted to determine the purpose or aim of the legislation.
Practical effect (in this case, whether the legislation would actually restrict the availabiltiy of abortion) is generally used to question the genuineness of the putative purpose or aim.
In this case, the aim or purpose of the legislation was to outlaw abortions as "public wrongs or crimes" - soundly within federal jurisdiction. Any aims of protecting the "safety and security" of pregnant women was, at best, ancillary. "In the majority of cases the only relevance of practical effect is to demonstrate an ultra vires purpose by revealing a serious impact upon a matter outside the enacting body's legislative authority and thus either contradicting an appearance of intra vires or confirming an impression of ultra vires." "The true purpose, essential character, or dominant purpose of the law" Ward v AG (Can) [2002] 1 SCR 569 Economic pressure from the EU threatening other Canadian fisheries products persuaded the Malouf Commission to recommend banning the harvest and sale of bluebacks.
The Fisheries Act prohibited the sale, trade, or barter of bluebacks.
Ward challenged the prohibition as ultra vires the authority Parliament. Regulating the sale in this way had been traditionally understood as falling within s. 92(13). McLachlin CJC [for the Court]:
The question is: what is the essential character of the law? In this case, why did the regulations prohibit the sale? In other words, what was the purpose of the prohibition? What was Parliament's object in imposing the prohibition?
(1) The aim of prohibiting the sale was to control the harvest; by prohibiting the sale, the impetus for harvesting was eliminated. "[T]he prohibition we are concerned with exists in the context of a scheme that is concerned with the overall 'management and control' of the marine fisheries resource." 91(12) 92(13) (2) The means adopted seemed like the only practical solution
(3) The prohibition was contained within a scheme that clearly fell within parliamentary jurisdiction.
(4) There was nothing to suggest Parliament was trying to trying to regulate a local market.
(5) Efficacy of a policy in achieving its aims is not critical [unless it makes us think that the veracity of Parliament's stated purpose is questionable] "The method the gov't chose to curtail the commercial harvest of bluebacks and whitecoats was a prohibition on their sale, trade or barter. This, as Wells J found, was because prohibiting the killing of bluebacks simply would not have worked." In any question of this nature, there are two basic steps:
(1) What is the pith and substance of the impugned law?
(2) Does this pith and substance come within jurisdiction? In this case, the answers to the questions were:
(1) In this case, the pith and substance of the law was found to be "concerned with the management of the Canadian fishery". [Not, as was asserted, the regulation of the sale of property.]
(2) And the fisheries power, found in s. 91(12) was found to include "general 'regulation' of the fisheries, including their management and control" (not just conservation and protection). Pith and substance s. 91(12) Fisheries s. 92(13) Property Pith and substance "Necessarily Incidental" GM v City National Leasing [1989] 1 SCR 641 GM granted preferential interest in leasing to CNL's competitors.
CNL argued that his was a violation of the Combines Investigation Act.
s. 34(1)(a) prohibited price discrimination and s. 31.1 created a civil cause of action for parties affect by price discrimination.
This was argued as valid under s. 91(2) and invalid as encroaching on s. 92(13). For "minor encroachments", the rational connection test applies.
For "major encroachments", the stricter "truly necessary" or "essential" test applies.
The more specific the federal power, the more susceptible laws enacted under that power will be to having provisions "tacked on". The more general the federal power, the less lusceptible laws unacted under that power will be to having provisions tacked on. "[C]ertain federal heads of power, for example, s. 92(10) [Navigation and Shipping], are narrow and distinct powers which relate to particular works add undertakings and are thus quite susceptible to having provisions "taked-on" to legislation which is validated under them, while other federal heads of power, for example, trade ad commerce, are broad and therefore less likely to give rise to highly intrusive provisions. s. 91(13) Civil Rights
and Property s. 92(2) Trade & Commerce Minor encroachment 91(2) 92(13) "The issue is not whether the Act as a whole is rendered ultra vires because it reaches too far, but whether a particular provision [of it] is [valid. That is,] sufficiently integrated into the Act to sustain its constitutionality." The more specific the head of power that is being encroached on by the provision, the more likely the encroachment will be considered "major". The more general the head of power that is being encroach on by the provision, the more likely the encroachment will be considered "minor". Held:
s. 31.1 does encroach, as it creates civil rights.
But, s. 31.1 is merely remedial, specific (limited to the Combines Act), and Parliament has, in the past, created civil rights.
"In sum, the impugned provision encroaches on an important provincial power; however, the provision is a remedial one; federal encroachment in this manner is not unprecedented and, in this case; encroachment has been limited by the restrictions of the Act." Dickson CJC [for the Court]:
There are essentially two questions: whether the Combines Act is intra vires, and whether s. 31.1 is a valid part of that act.
This means inquiring into the "pith and substance" of the impugned provision.
If there is a "rational, functional connection" between s. 31.1 and the act, s. 31.1 will be valid. Kitkatla Band v BC [2002] 2 SCR 146 LeBel:
Dickson CJ's test in General Motors applies:
(1) Do the impugned provisions intrude into the power of the other, and to what extent? (in other words, does the provision, in pith and substance, fall within the legislative competence of the other level of government?)
(2) If "yes", are the impugned provisions nevertheless a part of a valid provincial legislative scheme?
(3) If "yes", are they sufficiently integrated into the scheme? (1) "I thus find that there is no intrusion on a federal head of power. It has not been established that these provisions affect the essential and distinctive core values of Indianness which would engage the federal power over native affairs and First Nations in Canada."
(2) "They are part of a valid provincial legislative scheme."
(3) "The legislature has made them a closely integrated part of this scheme." 91(24) 92(13) Canadian Western Bank v Alberta [2007] SCC 22 Binnie and LeBel JJ:
Drawing on General Motors, the pith and substance of the impugned provision is the first question.
In this case, the pith and substance of the provisions requiring a license to promote insurance does not fall within the federal banking power.
The decisions of banks to participate in insurance does not mean that insurance is a matter falling within the banking power. Promotion of insurance is not an essential component of banking.
Therefore, in this case, there is not encroachment into a federal power. The provision itself is intra vires the province, the law is intra vires the province, therefore there is no encroachment and, therefore, no question of whether the provision is rational (for a minor incursion) or essential (for a major incursion). Parliament legislates banking: s. 91(15)
Insurance Act (Alta) imposed provincial licensing scheme governing insurance products
Appellants argued that this constituted regulation of banking by the province Conflicts Law Society of BC v Mangat [2001] 3 SCR 113 Legal Professions Act (BC) prohibited non-lawyers from appearing as counsel or advocate.
Immigration Act (Fed) permitted non-lawyers to appear as advocates before immigration tribunals.
How to resolve this conflict? Gonthier J:
Here, there is a direct conflict: Federal legislation says non-lawyers can appear in tribunals, and provincial legislation says non-lawyers cannot appear in any tribunal.
Parliament is competent to legislate on who appears before immigration tribunals; the province is competent to legislate on who can appear as legal advocates in any tribunal. "Parliament and the provincial legislatures can both legislate pursuant to their respective jursidiction and respective purpose. The federal and provincial statutes and rules or regulations in this regard will coexist insofar as there is not conflict." "To require 'other counsel' to be a member in good standing of the bar of the province or to refuse the payment of a fee would go contrary to Parliament's purpose in enacting ss. 30 and 69(1) of the Immigration Act. 92(13) 91(25) Here there is a "double aspect"
Here, however, there is a conflict.
The legislative purpose of Parliament cannot be frustrated by the provincial legislation.
Here, Parliament's purpose is to allow non-lawyers to appear on behalf of claimants. Application of provincial law would run contrary to this purpose. Therefore, there is a conflict, and paramountcy dictates that provincial law cannot apply.
Solution? Read down the provincial law such that it does not apply to immigration tribunals. "Parliament must be allowed to determine who may appear before tribunals it has created, and the provinces must be allowed to regulate the practice of law as they have always done. ... [T]he sections are validly enacted by Parliament under the double aspect doctrine. Accordingly, the three-step test set out by Dickson CJ in General Motors is not applicable since no issue of intrusion into the provincial powers arise." "There will be a conflict in operation where the application of the provincial law will displace the legislative purpose of Parliament. The test stated: 'one enactment says 'yes' and the other says 'no'; 'the same citizens are being told to do inconsistent things'; compliance with one is defiance of the other." "The Legal Profession Act is inoperative to non-lawyers who collect a fee acting under ss. 30 and 69(1) for the purposes of representation before the Adjudication Divions or Refugee Division and the provision of services to that end ." Multiple Access Ltd v McCutcheon [1982] 2 SCR 161 Duplication of causes of action for insider trading found in both the Securities Act (On) and Canada Corporations Act (Fed).
Is this duplication a clash such that paramountcy could be invoked? Dickson J:
Here provincial legislation merely duplicates those rights found in federal legislation.
Mere duplication is not sufficient for there to be a conflict worth of invocation of the doctrine of paramouncy. It must actually be impossible to comply with both laws.
Duplication is NOT a test of inconsistency. "[T]here is not true repugnancy in the case of merely duplicative provisions since it does not matter which statute is applied; the legislative purpose of Parliament will be fulfilled regardless of which statute is invoked by a remedy-seeker." Federal law Provincial law "[T]here would seem to be no good reason to speak of paramountcy ... except where there is actual conflict in operation as where one enactment says "yes" and the other "no"; "the same citizens are being told to do inconsistent things"; compliance with one is defiance of the other." Bank of Montreal v Hall [1990] 1 SCR 121 Limitation of Civil Rights Act (Sask) required a specific procedure to be followed for repossession. Failure to comply with this procedure results in the debtor being released from any financial obligation.
A bank did not comply with this, but instead complied with those procedures found in the Bank Act (Fed) La Forest J:
The question: is there a conflict?
In this case, the Bank Act acts as a complete set of rules to allow a bank to obtain security.

The application of the Limitation of Civil Rights Act (Sask) creates a direct conflict in this regime by imposing additional requirements that must be required for banks to realize their security interests. "The Bank Act provides that a lender may, on the default of his borrower, seize his security, whereas The Limitation of Civil Rights Act forbids a creditor from immediately repossessing the secured article ... There could be no clearer instance of a case where compliance with the federal statute necessarily entails defiance of its provincial counterpart." "The contrast with the comprehensive regime provided for in ss. 178 and 179 of the Bank Act could not be more striking. The essence of that regime ... is to assign to the bank, on the taking out of the security, right and title to the goods in question, and to confer, on default of the debtor, an immediate right to seize and sell those goods, subject only to the conditins and requirements set out in the Bank Act." The focus is on the intent of Parliament as embodied in the act in question.
To enforce the provincial statute would be to frustrate the intent of Parliament.
It is not a counterargument to say that both could be complied with.
Solution? Read down the Limitation of Civil Rights Act to be inapplicable to security taken under the Bank Act. "[D]ual compliance will be impossible when application of the provincial statue can fairly be said to frustrate Parliament's legislative purpose. In this instance, Parliament's legislative purpose ... was manifestly that of creating a security interest susceptible of uniform enforcement by the banks nationwide ..." "[T]he determination that there is no repugnancy cannot be made to rest on the sole consideration that, at the end of the day, the bank might very well be able to realize on its security if its defers to the provisions of the provincial legislation. ... [T]he broader question is whether operation of the provincial Act is compatible with the federal legislative purpose." Rothman's v Saskatchewan [2005] 1 SCR 188 Federal law imposed advertising restrictions for tobacco products, but Saskatchewan law placed even stricter restrictions, bannign all advertising, display and promotion of tobacco or tobacco-related products anywhere where people under 18 are permitted. Major J:
Impossibility of dual compliance, pursuant to Multiple Access, while it is certainly sufficient, is not the only "sole mark of inconsistency"
"Provincial legislation that displaces or frustrates Parliament's legislative purpose is also inconsistent for the purposes of the doctrine."
In this case, Parliament could not have granted retailers a positive entitlement to display tobacco products. (1) The law was enacted under s. 91(27) - the criminal law. This is "essentially prohibitory in character" and does "not ordinarily create freestanding rights to limit the ability of the provinces to legislate in the area more strictly than Parliament"
(2) Such an assertion would go contrary to the intent of the Act, which is a "legislative response to a national public health problem of substantial and pressing concern." "[D]ual compliance will be impossible when application of the provincial statue can fairly be said to frustrate Parliament's legislative purpose. In this instance, Parliament's legislative purpose ... was manifestly that of creating a security interest susceptible of uniform enforcement by the banks nationwide ..." " A retailer can easily comply with both the [Federal and Saskatchewan Act] in one of two ways; by admitting no one under the age of 18 years of age on premises or by not displaying tobacco or tobacco-related products." The question is two fold:
(1) Is dual compliance impossible?
(2) Does the provincial statute frustrate Parliament's intent?
The answer to both of these questions must be "no":
(1) Dual compliance is possible
(2) Parliament's intend would not be frustrated but, rather, advanced. "[The Saskatchewan Act] appears to further at least two of the stated purposes in the [Federal Act], namely "to protect young persons and others from inducements to use tobacco products" and "to protect the health of young persons by restricting access to tobacco products." Canadian Western Bank v Alberta [2007] SCC 22 Alberta required registration of agents promoting insurance products.
This provincial requirements was imposed upon chartered banks. Binnie and LeBel JJ:
Mere duplication is not inconsistency such that paramountcy should be invoked.
Impossibility of complying with the two enactments surely results in inconsistency such that paramountcy should be invoked.
However, there are inconsistencies between these two extremes. Their existence will turn on whether or not the provincial law is "incompatible with the purpose of the federal law." "[T]he federal legislation at issue in this case, while permitting the banks to promote authorized insurance, contains references that assume the relevant provincial law to be applicable." In this case, there is no impossibility: the banks can comply both with the federal and provincial laws.
In this case, the federal law is permissive. "To sum it up, the onus is on the party relying on the doctrine of federal paramountcy to demonstrate that the federal law and provincial laws are in fact incompatible by establishing either that it is impossible to comply with both laws or that to apply the provincial law would frustrate the purpose of the federal law." Ref re Assisted Human Reproduction Act [2010] 3 S.C.R. 457 91(27) 92(7) The Assisted Human Reproduction Act regulates assisted human reproduction (IVF, cloning, etc)
Quebec challenged SOME of the provisions. McLachlin C.J. and Binnie, Fish and Charron JJ:
The Act, in pith and substance, is a matter falling within federal jurisdiction over criminal law s. 91(27), as the provisions contain a number of prohibitions.
The administrative, organizational, and enforcement provisions, while not in pith and substance, matters falling within criminal law, are nonetheless valid.
As the encroachment is "minor" the "rational" or "functional" test is applicable. Provisions of a valid enactment that, on their own, would not be constitutional, but, because they are part of a valid law, are constitutional. Quebec (Attorney General) v Canada (HRSD) [2011] 3 S.C.R. 635 Section 126(4) permitted garnishment orders to be made by the Canada Employment Insurance Commission.
Section 144 of the Quebec Act prohibited garnishment of remittances.
The Commission issued an order for garnishment of the remittance. This was challenged. Held:
There is not here an operational conflict: the federal act permits and the provincial act prohibits.
However, the provincial act does frustrate the intent of federal act. "The purpose of this measure is to ensure the integrity of the employment insurance system by making it possible to recover amounts owed, including benefit overpayments, in a simple and summary fashion, without regard for the provincial rules respecting exemption from seizure. This purpose would be frustrated if the Commission were to comply with the provincial provision creating an exemption from seizure." Challenging the WHOLE act? Challenging select provision(s)? Is there a clash? Federal Act Provincial Act An act must, at its heart, be valid. BC legislation provided for the protection of cultural heritage generally - this included CMTs.
There was a power of the Minister to grant exemptions to the Act.
The appellant argued that the provision allowing the minister to do so was unconstitutional. "As the seriousness of the encroachment on provincial powers varies, so does the test required to ensure that an appropriate constitutional balance is maintained." Major encroachment (1) Pith and substance of provisions
(2) Pith and substance of legislative scheme
(3) If minor encroachment, rational test. If major encroachment essential test. "[T]he mere fact that the banks now participate in the promotion of insurance does not change the essential nature of the insurance activity, which remains a matter generally falling within provincial jurisdiction. "The question is whether the bank in promoting optional insurance is engaged in an activity vital or essential to banking. The answer, as found by the courts in Alberta, is no. We agree with that conclusion. ... [As such,] there is no reason why the banks should be shielded from the consequences of non-compliance with the provincial Insurance Act. " "The dominant purpose and effect of the legislative scheme is to prohibit practices that would undercut moral values, produce public health evils, and threaten the security of donors, donees, and persons conceived by assisted reproduction. " "While not criminal law in pith and substance, the administrative, organizational, and enforcement provisions in ss. 14 to 68 are integrated into the prohibition regime set up by ss. 5 to 13. ... They generally fall under the provincial powers over property and civil rights and matters of a merely local or private nature. However, since these are very broad heads of power, the intrusion is less serious." LeBel, Deschamps, Abella and Rothstein JJ:
First, the pith and substance of the provisions must be assessed.
If the provisions, in pith and substance, fall outside of legislative competence, the court must confirm that the pith and substance of the act itself falls within competence, determine the extent of the encroachment, and apply the applicable test "functionality" or "necessity".
The purpose and effects of the impugned provisions indicates that they fall within provincial jurisdiction.
The encroachment is significant, therefore the correct test is one of necessity, and the provisions cannot be thought to be necessary to the prohibitory provisions under the criminal law. "It is [...] important to identify the pith and substance of the impugned provisions as precisely as possible, since a vague characterization could lead not only to the dilution of and confusion with respect to the constitutional doctrines, but also to an erosion of the scope of provincial powers as a result of the federal paramountcy doctrine. If the pith and substance of the provisions falls within the jurisdiction of the other level of government, it is necessary first to assess the extent of the overflow in light of the purpose of the provisions and to weigh their effects. It must then be determined whether the provisions form part of an otherwise valid statute." "Finally, the impugned provisions must be considered in the context of the entire statute in order to determine whether they are sufficiently integrated with the other provisions of the otherwise valid statute. This review must make it possible to establish a relationship between the extent of the jurisdictional overflow and the importance of the provisions themselves within the statute of which they form a part. There are two applicable concepts: functionality and necessity. The more necessary the provisions are to the effectiveness of the rules set out in the part of the statute that is not open to challenge, the greater the acceptable overflow will be. Care must be taken to maintain the constitutional balance of powers at all stages of the constitutional analysis." "The impugned provisions, viewed from the perspective of their pith and substance, are not connected with the federal criminal law power. The impugned provisions, viewed from the perspective of their pith and substance, are not connected with the federal criminal law power. " "Given the extent of the overflow in this case, it cannot be found that an ancillary power has been validly exercised unless the impugned provisions have a relationship of necessity with the rest of the statute. However, the scheme established by the prohibitory provisions does not depend on the existence of the regulatory scheme. As well, it is clear from the legislative history that the prohibitory provisions were in fact always considered to stand alone and that the regulation of certain activities did not depend on the prohibition of other activities. " The provisions of an act, if not valid on their own, must be "rational/functional" if they encroach minimally or "necessary" if they encroach maximally. Where there is a clash between federal and provincial law, federal law prevails. This is paramountcy. The difficult question is determining what constitutes a clash. Actual conflict Duplication Frustrated intentions Frustrated intentions Frustrated intentions Incompatible with purpose "[I]n a federal system it is inevitable that, in pursing valid objectives, the legislation of each level of government will impacd occasionally on the sphere of power of the other level of government; overlap of legislation is to e expected and accommodated in a federal state." The law, itself, in pith and substance, falls outside the jurisdiction of the body that enacted it. A specific provision falls, in pith and substance, outside of the jurisdiction of the body that enacted it, but the legislative scheme, of which it is a part, is otherwise valid, the clause will be valid where: (1) when the encroachment into the jurisdiction of the other body is minor, the provision is rationally connected to the purpose of the legislative scheme; or (2) when the encroachment into the jurisdiction of the other body is major, the provision is essential or necessary to the purpose of the legislative scheme.
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