Winner v SMT (Eastern) Ltd,

• Docket Number: Case No. 73
• Court: Supreme Court (Canada)
• Date: 22 October 1951

Canada, Supreme Court.

(Rinfret C.J.C.; Kerwin, Taschereau, Rand, Kellock, Estey, Locke, Cartwright, and Fauteux JJ.)

Case No. 73

Winner

and

S.M.T. (Eastern) Ltd. and Attorney-General of New Brunswick et Al.

Aliens — Equality Before the Law — Whether Possessing a Right to Question the Constitutional Validity of Provincial Legislation — Whether in this Respect in a Position Different from that of Nationals — The Law of Canada.

The Facts.—Winner was a United States citizen. He lived at Lewiston in Maine, and operated a bus service, for the carriage of goods and passengers, under the name of Mackenzie Coach Lines. The Motor Carriage Board of New Brunswick, Canada, granted him a licence in 1949 to run public motor buses from Boston, Massachusetts, to Halifax and Glace Bay in Nova Scotia. The Board refused him permission to take on or put off passengers in the Province of New Brunswick itself.

At the time that Winner applied for the licence he challenged the validity of certain Acts of the New Brunswick Legislature, as far as they purported to affect his inter-state bus service—the Motor Carrier Act, 1937, the Motor Vehicle Act, 1934, and 13 Geo. VI. c. 47, 1949—claiming that they fell within s-s. (10) (a) of s. 92 of the British North America Act, which reserves certain classes of legislation for the Federal Parliament. It was under these Acts that Winner was forbidden to take up or put down passengers in New Brunswick.

The Board itself made no reply to his challenge. Despite the terms of the licence granted by the Board, Winner operated his bus services through the Province, picking up and putting

down passengers there. As a result, S.M.T. (Eastern) Ltd., a New Brunswick bus company, brought an action against him. It claimed, inter alia, an injunction restraining him from taking on and leaving passengers in the Province, and a declaration that his action in so doing was illegal

When the action came up for trial the parties requested that the point of law as to the validity of the Motor Carriage Act and the Motor Vehicle Act be reserved for the New Brunswick Supreme Court, Appellate Division. The Court held, in a judgment of May 1, 1950 (S.M.T. (Eastern) Ltd. v. Winner (1950), 3 D.L.R. 207), that the Acts in question were within the competence of the Legislature of New Brunswick. Two of the Judges, Richards C.J. and Hughes J., dealt with the case as a purely constitutional issue, but the judgment of Harrison J., at p. 227, contains the following statement...