D. The jcpc and Trade and Commerce

AuthorPatrick J. Monahan - Byron Shaw
Pages253-256

Page 253

The Jcpc’s jurisprudence on the scope of the trade and commerce power in section 91(2) followed the same pattern as the pogg jurisprudence. The leading case on section 91(2) was Citizens’ Insurance Co. v. Parsons,30 a case involving a challenge to an Ontario statute regulating the terms of insurance policies. Sir Montague Smith, who delivered judgment on behalf of the Board, began by asking whether the Act fell within any of the classes of subjects enumerated in section 92. Citing the historically broad meaning of the words "Property and Civil Rights" in section 92(13), he concluded that this provincial class of subjects must include the regulation of contracts of insurance. But this consideration was

Page 254

not sufficient to dispose of the case because the regulation of contracts could also be characterized as the "Regulation of Trade and Commerce," a class of subjects assigned exclusively to Parliament in section 91(2). Indeed, Sir Montague Smith noted: "The words ‘regulation of trade and commerce,’ in their unlimited sense are sufficiently wide, if uncontrolled by the context and other parts of the Act, to include every regulation of trade ranging from political arrangements in regard to trade with foreign governments, requiring the sanction of parliament, down to minute rules for regulating particular trades."31The Board held that such a conflict between sections 92(13) and 91(2) could not have been intended; the two sections must therefore be read together in order to avoid any apparent overlap. The result of this process of mutual modification was that the words "Regulation of Trade and Commerce" could not be given their full, literal meaning: "Construing therefore the words ‘regulation of trade and commerce’ by the various aids to their interpretation above suggested, they would include political arrangements in regard to trade requiring the sanction of parliament, regulation of trade in matters of interprovincial concern, and it may be that they would include general regulation of trade affecting the whole dominion."32

This passage remains the starting point for the judicial analysis of the federal trade and commerce power. It has been interpreted as establishing two distinct branches. Under the first branch, the dividing line between trade and commerce and property and civil rights is based on a distinction between interprovincial and export trade on the one hand and local trade on the other. The provinces have power...

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