Rarotonga, 2010

simonshields@isthatlegal.ca

Online Lawyer

Most Popular
Contracts / Torts / Evidence / Limitations / Tenant Plus / welfare (ontario works) / odsp / human rights / employment / consumer / COVID Litigation
ADMINISTRATIVE LAW | SPPA / SMALL CLAIMS / SUPERIOR COURT / APPEALS / JUDICIAL REVIEW

home / about / Little Friends Lefkada (Greece) / testimonials / E-Colleagues / Conditions of Use

Civil and
Administrative
Litigation
Intake

Beta Website

Canadian Animal Law

Constitution (Non-Charter)

. Alberta (Attorney General) v. British Columbia (Attorney General)

In Alberta (Attorney General) v. British Columbia (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considered a rare intergovernmental (province-to-province) dispute, where BC sued Alberta and there were suggestions of raw politics afoot (quoting from the minority ruling):
[3] In the legislative debates leading to the passage of the Act, members of the Alberta legislature made statements suggesting that the Act’s true purpose was political retaliation. That is, the Act would allow Alberta to restrict the flow of natural resources to British Columbia as a response to the latter’s opposition to the Trans Mountain pipeline expansion. ...

[4] On May 1, 2019, the Attorney General of British Columbia (BC) commenced an action before the Alberta Court of Queen’s Bench (the Alberta Court) seeking a declaration of invalidity in respect of the Act. Alberta responded to BC’s action by filing a motion to dismiss it on the grounds that the Alberta Court had no jurisdiction to entertain the proceedings and that BC lacked standing to bring its action.

[5] Pending the resolution of the above issue, BC commenced an action, pursuant to section 19 of the Federal Courts Act, R.S.C. 1985, c. F-7 (the FCA) in the Federal Court on June 14, 2019, in which it sought a declaration that the Act was unconstitutional. ....
The case focussed on this provision of the Federal Court Rules:
Intergovernmental disputes

19 If the legislature of a province has passed an Act agreeing that the Federal Court, the Federal Court of Canada or the Exchequer Court of Canada has jurisdiction in cases of controversies between Canada and that province, or between that province and any other province or provinces that have passed a like Act, the Federal Court has jurisdiction to determine the controversies.
Quoting from the majority ruling, the case sets out the range of cases that FCA s.19 is meant to address (more than solely Crown rights disputes) - and the fact that Alberta did not dispute that the Federal Court had such jurisdiction per se (the ITO test). The majority reached this first conclusion by reviewing the provision in light of principles of statutory interpretation [paras 115-168].

. Reference re Greenhouse Gas Pollution Pricing Act

In Reference re Greenhouse Gas Pollution Pricing Act (SCC, 2021) the Supreme Court of Canada states basics of constitutional federalism in the preamble to a text-massive ruling (over 600 paras ;-):
A. Principle of Federalism

[48] Federalism is a foundational principle of the Canadian Constitution. It was a legal response to the underlying political and cultural realities that existed at Confederation, and its objectives are to reconcile diversity with unity, promote democratic participation by reserving meaningful powers to the local or regional level and foster cooperation between Parliament and the provincial legislatures for the common good: Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217 (“Secession Reference”), at para. 43; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at para. 22.

[49] Sections 91 and 92 of the Constitution give expression to the principle of federalism and divide legislative powers between Parliament and the provincial legislatures: Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837 (“2011 Securities Reference”), at para. 54. Under the division of powers, broad powers were conferred on the provinces to ensure diversity, while at the same time reserving to the federal government powers better exercised in relation to the country as a whole to provide for Canada’s unity: Canadian Western Bank, at para. 22. Importantly, the principle of federalism is based on a recognition that within their spheres of jurisdiction, provinces have autonomy to develop their societies, such as through the exercise of the significant provincial power in relation to “Property and Civil Rights” under s. 92(13). Federal power cannot be used in a manner that effectively eviscerates provincial power: Secession Reference, at para. 58; 2011 Securities Reference, at para. 7. A view of federalism that disregards regional autonomy is in fact as problematic as one that underestimates the scope of Parliament’s jurisdiction: R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342, at para. 82.

[50] As this Court observed in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, at para. 124, courts, as impartial arbiters, are charged with resolving jurisdictional disputes over the boundaries of federal and provincial powers on the basis of the principle of federalism. Although early Canadian constitutional decisions by the Judicial Committee of the Privy Council applied a rigid division of federal-provincial powers as watertight compartments, this Court has favoured a flexible view of federalism — what is best described as a modern form of cooperative federalism — that accommodates and encourages intergovernmental cooperation: 2011 Securities Reference, paras. 56-58. That being said, the Court has always maintained that flexibility and cooperation, while important to federalism, cannot override or modify the constitutional division of powers. As the Court remarked in 2011 Securities Reference, “[t]he ‘dominant tide’ of flexible federalism, however strong its pull may be, cannot sweep designated powers out to sea, nor erode the constitutional balance inherent in the Canadian federal state”: para. 62. It is in light of this conception of federalism that I approach this case.
. Reference re Greenhouse Gas Pollution Pricing Act

In Reference re Greenhouse Gas Pollution Pricing Act (SCC, 2021) the Supreme Court of Canada issues it's latest statement of the Constitution's federal peace, order and good government ('POGG') power. In a case which must be some sort of record (over 600 paragraphs), the court upholds the constitutionality of a federal greenhouse gas statute that imposes regulatory charges [paras 47-211].

. British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia

In British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia (SCC, 2020) the Supreme Court of Canada set out the major institutional players in Canadian constitutional law:
[65] Canadian constitutional law has long recognized that sovereign power in this country is divided not only between Parliament and the provincial legislatures, but also among the executive, legislative and judicial branches of the state: Fraser v. Public Service Staff Relations Board, 1985 CanLII 14 (SCC), [1985] 2 S.C.R. 455, at pp. 469‑70; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1993 CanLII 153 (SCC), [1993] 1 S.C.R. 319, at p. 389; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 33. Although there are limited areas of overlap, the branches play fundamentally distinct roles and have accordingly developed different core competencies: Provincial Judges Reference, at para. 139; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 29.

[66] As this Court underscored in Criminal Lawyers’ Association, at para. 29, “each branch will be unable to fulfill its role if it is unduly interfered with by the others”. Several doctrines work to prevent undue interference, including the secrecy afforded judicial deliberations (MacKeigan v. Hickman, 1989 CanLII 40 (SCC), [1989] 2 S.C.R. 796), and the recognition of the privileges, powers and immunities enjoyed by the Senate, the House of Commons and the legislative assemblies: Constitution Act, 1867, preamble and s. 18; New Brunswick Broadcasting Co.; Canada (House of Commons) v. Vaid, 2005 SCC 30, [2005] 1 S.C.R. 667; Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687. These doctrines are a corollary to the separation of powers because they help to protect each branch’s ability to perform its constitutionally‑assigned functions.

[67] The executive, too, benefits from a degree of protection against undue interference. Deliberations among ministers of the Crown are protected by the constitutional convention of Cabinet confidentiality. Constitutional conventions do not have direct legal effect: Reference re Resolution to Amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 S.C.R. 753, at pp. 880‑83; Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at para. 98. However, as I will explain in greater detail, the common law respects the confidentiality convention and affords the executive public interest immunity over deliberations among ministers of the Crown: see Carey; Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, at paras. 18‑19 and 60.
. Reference re Genetic Non‑Discrimination Act

In Reference re Genetic Non‑Discrimination Act (SCC, 2020) the Supreme Court of Canada considered whether a criminal law that prohibited the collection and use of genetic information was valid under the federal constitutional criminal division of powers. In doing this the court determined the 'pith and substance' of the law by a two-step 'characterization and classification' procedure [at paras 20-103]. The case is interesting for the genetic issue and for it being an example of the division-of-powers analysis.

. Club Resorts Ltd. v. Van Breda

In Club Resorts Ltd. v. Van Breda (SCC, 2012) the Supreme Court of Canada commented on little-discussed constitutional law between provinces:
(3) Constitutional Underpinnings of Private International Law

[21] Conflicts rules must fit within Canada’s constitutional structure. Given the nature of private international law, its application inevitably raises constitutional issues. This branch of the law is concerned with the jurisdiction of courts of the Canadian provinces, with whether that jurisdiction should be exercised, with what law should apply to a dispute, and with whether a court should recognize and enforce a judgment rendered by a court of another province or country. The rules of private international law can be found, in the common law provinces, in the common law and in statute law and, in Quebec, in the Civil Code of Québec, S.Q. 1991, c. 64, which contains a well-developed set of rules and principles in this area (see Civil Code of Québec, Book Ten, arts. 3076 to 3168). The interplay between provincial jurisdiction and external legal situations takes place within a constitutional framework which limits the external reach of provincial laws and of a province’s courts. The Constitution assigns powers to the provinces. But these powers are subject to the restriction that they be exercised within the province in question (see P. W. Hogg, Constitutional Law of Canada (5th ed. 2007), vol. 1, at pp. 364-65 and 376-77; H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (5th ed. 2008), at p. 569; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, at paras. 26-28, per Major J.), and they must be exercised in a manner consistent with the territorial restrictions created by the Constitution (see Castillo v. Castillo, 2005 SCC 83, [2005] 3 S.C.R. 870, at para. 5, per Major J.; Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40, [2003] 2 S.C.R. 63, at para. 51, per Binnie J.).
. R. v. Comeau

In R. v. Comeau (SCC, 2018) the Supreme Court of Canada considered the constitutional provision that holds that "All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces." [s.121, Constitution Act, 1867] at paras 44-116.

. 3510395 Canada Inc. v. Canada (Attorney General)

In 3510395 Canada Inc. v. Canada (Attorney General) (Fed CA, 2020) the Federal Court of Appeal considered an appeal of CRTC orders under Canada's Anti-Spam Legislation dealing with email spam, with one of the issues relating to the constitutional division-of-powers trade and commerce allocation [paras 77-129].

CC0

The author has waived all copyright and related or neighboring rights to this Isthatlegal.ca webpage.