B. The Emergency Branch

AuthorPatrick J. Monahan - Byron Shaw
Pages263-267

Page 263

The leading case on the scope of the emergency branch of pogg is Reference Re Anti-Inflation Act, 1975 (Canada).3The Anti-Inflation Reference arose out of the decision by the federal government in the fall of 1975 to impose a comprehensive program of controls on wages, prices, and profits. The program applied to the federal public sector, to provincial government employees where the province had opted in to the scheme, and to large private-sector firms.4If firms or employees fell within the

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Anti-Inflation Act, all of their activities - including transactions or activities occurring entirely within a single province - were subject to the limits established by the legislation. The regulation of such intraprovincial activities or transactions had always been regarded by the courts as falling within exclusive provincial jurisdiction, pursuant to the property and civil rights power in section 92(13). A number of public sector unions launched a constitutional challenge to the legislation on the basis that it regulated matters coming within the exclusive jurisdiction of the provinces. The provinces themselves did not initiate a court challenge, since they all supported the program. To resolve any doubts about the validity of the legislation, the federal government decided in March 1976 to refer the matter to the Supreme Court.

The federal government’s main constitutional argument was that inflation was a problem of inherent national concern and, therefore, the legislation could be justified under the national dimensions branch of the pogg power. A majority of the Court rejected this argument, as discussed later in this chapter. However, the Court held by a seven to two majority that the legislation could be supported on the basis of the emergency branch of the pogg power. Laskin C.J., who wrote the leading opinion on this aspect of the case, appeared to assume that the burden was on the parties challenging the legislation to establish that inflation did not constitute a national emergency. Moreover, Laskin C.J. indicated that, in order to overturn the legislation, it would be necessary to find that Parliament did not have a "rational basis" for regarding inflation as a national emergency. He also gave little weight to a brief before the Court supported by thirty-nine of the country’s leading economists denying the existence of an emergency. Laskin C.J. held that the fact that inflation had exceeded 10 percent in 1974 and 1975 supported the conclusion that Parliament had a rational basis for deciding there was a national emergency. Laskin C.J. also noted that the legislation was temporary - it automatically ceased to have effect after three years unless extended by a Cabinet order approved by the Senate and the House of Commons. This limitation supported the validity of the Act as an emergency measure.

One of the controversial aspects of Laskin C.J.’s decision in Anti-Inflation Reference was that Parliament did not appear to rely on the emergency power in enacting the legislation. Speeches made by federal ministers in the House of Commons seemed to indicate that Parliament was enacting the legislation under the national concern branch, rather than...

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