Section 92(13) of the Constitution Act, 1867 explained
Section 92(13) of the Constitution Act, 1867, also known as the property and civil rights power, grants the provincial legislatures of Canada the authority to legislate on:
It is one of three key residuary powers in the Constitution Act, 1867, together with the federal power of peace, order and good government and the provincial power over matters of a local or private nature in the province.
Extent
Provincial jurisdiction over property and civil rights embraces all private law transactions, which includes virtually all commercial transactions. Note that "civil rights" in this context does not refer to civil rights in the more modern sense of political liberties. Rather, it refers to private rights enforceable through civil courts. This power is generally balanced against the federal trade and commerce power and criminal law power. With respect to the former, In the Insurance Reference,[1] Viscount Haldane noted that:
It is the most powerful and expansive of the provincial constitutional provisions, and is capable of being applied in general matters and in specific cases, as noted by the Judicial Committee of the Privy Council:
The power has even been used to dissolve specific injunctions, such as one issued against the KVP Company in 1948 for discharging noxious effluent into the Spanish River.[2]
Property and civil rights include:
- rights arising from contract[3]
- certain powers to prevent crime[4]
- powers to control transactions taking place wholly within the province, even if the products themselves are imported[5] and, generally,
- regulation of trade and industry within the province,[6] including
- labour relations and the regulation of professions,[7]
- trading in securities,[8] and
By themselves, incidental effects of provincial regulations on a federal sphere of influence do not change their true nature.[10] Moreover, the fact that a valid provincial regulation may affect an export trade or the cost of doing business is similarly not conclusive of determining whether it is made "in relation to" that power.[11]
If a provincial law affects rights of individuals outside the province:
- if it is, in pith and substance, provincial, ancillary effects on the rights of individuals outside the province are irrelevant,[12] but
- where it is, in pith and substance, legislation in relation to the rights of individuals outside the province, it will be ultra vires the province[13]
Further reading
Notes and References
- The Attorney General for the Dominion of Canada v The Attorney General for the Provinces of Alberta, Manitoba, New Brunswick, Nova Scotia, Ontario, Quebec and Saskatchewan, The Canadian Insurance Federation and the Manufacturers Association of Canada and another. UKPC. 1916. 12. [1916] 1 A.C. 588. 24 February 1916. P.C.. Canada. 1.
- The KVP Company Limited Act, 1950. S.O.. 1950. 33. https://archive.org/stream/statutesofprovin1950onta#page/244/mode/2up., dissolving an injunction granted in McKie v. The K.V.P. Company Limited (and four other actions). 1948. onsc. 93. canlii. 1948-04-15. auto. (subsequently upheld in K.V.P. Company Ltd. v. McKie et al.. 1948. onca. 14. canlii. 1948-11-22. auto. and K.V.P. Co. Ltd. v. McKie et al.. 1949. scc. 8. canlii. [1949] SCR 698. 1949-10-04.
- Citizen's Insurance Co. v. Parsons
- Bedard v. Dawson
- Caloil Inc. v Attorney General of Canada
- Ward v. Canada (Attorney General), at par. 42
- Law Society of British Columbia v. Mangat
- Multiple Access Ltd. v. McCutcheon
- Reference re Agricultural Products Marketing Act
- Attorney General of Quebec v. Kellogg's Co. of Canada
- Carnation Co. v. Quebec Agricultural Marketing Board
- Edgar F. Ladore and others v George Bennett and others. UKPC. 1939. 33. [1939] 3 D.L.R. 1, [1939] AC. 468. 8 May 1939. P.C.. Ontario. 1.
- Re Upper Churchill Water Rights Reversion Act
