A. Defining Property and Civil Rights

• Author: Patrick J. Monahan - Byron Shaw
• Pages: 324-330

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The most important power assigned to the exclusive jurisdiction of the provincial legislatures in section 92 of the Constitution Act, 1867,¹is "property and civil rights in the province." Virtually all legislation affects civil rights in one manner or another. In a purely grammatical sense, the subject "property and civil rights" could be thought to encompass the entire field of law-making apart from criminal law.²

In fact, this was generally the manner in which the Privy Council interpreted the property and civil rights power. In the 1881 judgment in Citizens’ Insurance Company v. Parsons,³the Board upheld an Ontario statute regulating the terms of insurance policies. Sir Montague Smith observed that section 94 of the Constitution Act, 1867 provided that Parliament could enact uniform laws relating to property and civil rights

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in the provinces of Ontario, New Brunswick, and Nova Scotia, but not in Quebec. In his view, the obvious intention underlying the exclusion of Quebec from section 94 was to ensure that matters regulated by the Quebec Civil Code would not be subject to uniform legislation enacted by the federal Parliament. Accordingly, it followed that the term "civil rights" in the Constitution Act, 1867 (including section 92(13)) must be interpreted broadly in order to ensure that the wide range of matters dealt with by Quebec’s Civil Code would be excluded from the operation of section 94. Sir Montague Smith also observed that the terms "property and civil rights" had been used in their "largest sense" in the Quebec Act, 1774 to encompass all matters apart from the criminal law. This reinforced his conclusion that the drafters of the Constitution Act, 1867 had intended that section 92(13) be interpreted in a broad and expansive manner.

In effect, the provincial authority over property and civil rights became a de facto residuary clause during the Privy Council era. The Privy Council held that any laws regulating or dealing with legal rights in a province - which, as a practical matter, encompassed all manner of laws apart from the criminal law - fell within the subject property and civil rights.⁴The specific enumerated categories in section 91 were treated as exceptions to the power of the provinces under section 92(13) to enact legislation dealing with legal rights. Federal legislation in relation to matters such as banking (section 91(15)), bills of exchange and promissory notes (section 91(18)), interest (section 91(19)), bankruptcy and insolvency (section 91(21)), patents (section 91(22)), and copyright (section 91(23)) were upheld despite their incidental impact on property or civil rights, since such matters were specifically assigned to the exclusive authority of Parliament. However, non-criminal enactments that fell outside of the specific enumerations in section 91 were generally regarded by the Privy Council as falling within provincial jurisdiction under section 92(13), rather than within Parliament’s authority to enact laws for the peace, order and good government (pogg) of Canada. Diverse fields as the regulation of contractual rights,⁵labour relations,⁶

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business activity generally in a province,⁷insurance,⁸unemployment relief,⁹securities regulation,¹⁰agricultural products,¹¹price regulation,¹²and many other diverse matters were held to be subject to exclusive provincial jurisdiction.

The term "property and civil rights" was not only interpreted broadly to cover a wide range of subjects; it was interpreted so as to authorize provincial regulation over any transaction or activity that occurred within the province.¹³Provincial enactments that affected matters outside of the province were upheld even if they had a significant impact outside the province, particularly in the area of trade. For example, in Shannon v. British Columbia (Lower Mainland Dairy Products Board),¹⁴ the Privy Council upheld a B.C. statute providing for the creation of a B.C. marketing board, with powers to control the marketing of natural products in the province. The marketing board’s powers extended to all-natural products sold in the province, whether locally produced or imported. But the Privy Council upheld the statute on the basis that it applied only to transactions that would be completed within the province: "[T]he Act is clearly confined to dealings with such products as are situate within the Province."¹⁵The Privy Council’s expansive approach to provincial jurisdiction over trade matters carried forward into the jurisprudence of the Supreme Court of Canada. For example, in Carnation Co. v. Quebec (Agricultural Marketing Board),¹⁶a Quebec statute granted a provincially appointed board the power to fix the price paid by Carnation for raw milk purchased from local dairy farmers. Carnation argued that the statute was unlawful since, after processing the milk, it shipped and/or sold most of the product outside Quebec. But the Supreme Court held that the ultimate destination of the product could not affect the validity of the provincial statute because it was directed at a transaction - the sale of the milk from the farmers to Carnation - taking place wholly

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within the province. Fixing the price to be paid by Carnation for raw milk would certainly have an impact on its export trade, in the sense that it would affect the company’s cost of doing business in the province. However, the Court noted that labour costs also affect the cost of doing business in a province. There has never been any doubt as to the...