| Labour Conventions Reference | |
| Court: | Judicial Committee of the Privy Council |
| Full Name: | The Attorney General of Canada v The Attorney General of Ontario and others |
| Date Decided: | 28 January 1937 |
| Citations: | [1937] UKPC 6 (BAILII), [1937] AC 326, 156 LT 302, [1937] 1 DLR 673, [1937] 1 WWR 299 |
| Judges: | |
| Number Of Judges: | 5 |
| Decision By: | Lord Atkin |
| Prior Actions: | Reference re legislative jurisdiction of Parliament of Canada to enact the Minimum Wages Act (1935, c. 44). 1936. scc. 24. canlii. [1936] SCR 461. 1936-06-17. |
| Appealed From: | Supreme Court of Canada |
| Keywords: | |
Canada (AG) v Ontario (AG). UKPC. 1937. 6. [1937] A.C. 326. 1., also known as the Labour Conventions Reference, is a landmark decision of the Judicial Committee of the Privy Council concerning the distinct nature of federal and provincial jurisdiction in Canadian federalism.
As part of the British North America Act, 1867, the Parliament of Canada was granted power to implement certain treaties:
During the 1920s, as a result of the growing political and diplomatic independence of the various Dominions of the Empire, the Balfour Declaration of 1926 stated that the United Kingdom and the Dominions were:
When Canada subsequently gained full independence following passage of the Statute of Westminster 1931, s. 132 was not amended to reflect its changed status.
As a consequence of the Treaty of Versailles, the International Labour Organization was established, in which Canada became a member. Between 1919 and 1928, the ILO adopted several conventions, including:
Their ratification and implementation were not carried out, following a 1925 reference to the Supreme Court of Canada which declared that only the provincial legislatures had the competence to do so with the first two conventions, except with respect to federal civil servants and workers in those parts of Canada not within the limits of a province.[1] The decision in that ruling was unanimous.
In 1935, the Parliament of Canada ratified the conventions, and subsequently passed:
This change in position followed the Privy Council's decision in the Aeronautics Reference, which declared:
As there was debate as to whether the Parliament had the competence to pass these Acts, reference questions were given to the Supreme Court as to in what particular or to what extent each of them was ultra vires.
The Court was evenly divided, 3-3, on each of the questions.
Duff CJ, holding that all Acts were intra vires, as the conventions arose from the Treaty of Versailles, said:
In his dissent, Rinfret J (as he then was) argued that the conventions were separate and did not arise as a consequence of the Treaty, the 1925 Reference was binding, and moreover that they were not properly ratified at all, declaring:
The Board held that all Acts were ultra vires. In his ruling, Lord Atkin held:
Even though the Statute of Westminster 1931 had made Canada fully independent in governing its foreign affairs, the Board held that s. 132 did not accordingly evolve to take that into account. As noted at the end of the judgment,
The scope of the federal jurisdiction with respect to labour relations, as determined by the 1925 reference, continued to apply until 1955, when the Stevedores Reference[5] held that it extended to all works and undertakings falling under it. In that judgment, Abbott J declared:
The Reference served to promote the concept of dual federalism, where the provinces could act as separate communities within a wider political union. As a result, spillover effects by an Act passed by one level of government onto the other level are not tolerated, and are dealt with by the courts through declaring the measure to be ultra vires, or "read down" so that it remains within the jurisdiction of the originating legislature.
As to its general effect on federal and provincial jurisdiction, it has been suggested that the "watertight compartments" doctrine, generally construed as stating that nothing can be added or taken away, may be more properly described as meaning that a head of power can encompass more than it did at the beginning of Canadian Confederation in 1867, but it should not encompass less. The Supreme Court in 2011 summarized its present approach in Reference re Securities Act:
[56] The Judicial Committee of the Privy Council, which was the final arbiter of Canada’s Constitution until 1949, tended to favour an exclusive powers approach. Thus, Lord Atkin in 1937 famously described the respective powers of Parliament and the provincial legislatures as "watertight compartments"....[6] However, the Judicial Committee recognized that particular matters might have both federal and provincial aspects and overlap....[7] Privy Council jurisprudence also recognized that the Constitution must be viewed as a "living tree capable of growth and expansion within its natural limits"....[8] This metaphor has endured as the preferred approach in constitutional interpretation, ensuring "that Confederation can be adapted to new social realities"....[9][57] The Supreme Court of Canada, as final arbiter of constitutional disputes since 1949, moved toward a more flexible view of federalism that accommodates overlapping jurisdiction and encourages intergovernmental cooperationan approach that can be described as the "dominant tide" of modern federalism...
The Reference expressly left undecided the question as to the extent of the federal power to negotiate, sign and ratify treaties that deal with areas falling within provincial jurisdiction.
After 1949, the Supreme Court tended to side more with the federal government; subsequently, in 1955, it ruled that international agreements between provinces and foreign governments were allowed only if they did not involve treaty obligations but merely reciprocal or concurrent legislative action.[10]
This judgment has generated extensive debate about the complications that were introduced in implementing Canada's subsequent international obligations,[11] [12] and it has been condemned for being out of touch with Canadian economic and political realities.[13] The Supreme Court of Canada has indicated in several dicta that it may be ready to revisit the issue in an appropriate case.[14]
An indication that that may eventually happen came in a comment by Dickson CJ in 1987: