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Section 92(13) of the Constitution Act, 1867

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Section 92(13) of the Constitution Act, 1867

Section 92(13) of the Constitution Act, 1867, also known as the property and civil rights power, grants the provincial legislatures of Canada the authority to legislate on:

It is one of three key residuary powers in the Constitution Act, 1867, together with the federal power of peace, order and good government and the provincial power over matters of a local or private nature in the province.

Extent

Provincial jurisdiction over property and civil rights embraces all private law transactions, which includes virtually all commercial transactions. This power is generally balanced against the federal trade and commerce power and criminal law power. With respect to the former, In the Insurance Reference,[1] Viscount Haldane noted that:

It is the most powerful and expansive of the provincial constitutional provisions, and is capable of being applied in general matters and in specific cases, as noted by the Judicial Committee of the Privy Council:

The power has even been used to dissolve specific injunctions, such as one issued against the KVP Company in 1948 for discharging noxious effluent into the Spanish River.[3]

Property and civil rights include:

  • rights arising from contract[4]
  • certain powers to prevent crime[5]
  • powers to control transactions taking place wholly within the province, even if the products themselves are imported[6] and, generally,
  • regulation of trade and industry within the province,[7] including
  • labour relations and the regulation of professions,[8]
  • trading in securities,[9] and
  • manufacturing,[10]

By themselves, incidental effects of provincial regulations on a federal sphere of influence do not change their true nature.[11] Moreover, the fact that a valid provincial regulation may affect an export trade or the cost of doing business is similarly not conclusive of determining whether it is made "in relation to" that power.[12]

If a provincial law affects rights of individuals outside the province:

  • if it is, in pith and substance, provincial, ancillary effects on the rights of individuals outside the province are irrelevant,[13] but
  • where it is, in pith and substance, legislation in relation to the rights of individuals outside the province, it will be ultra vires the province[14]

Further reading

  • "Trade and Commerce - Property and civil rights". constitutional-law.net. Retrieved 2012-10-09. 
  • Claude Bélanger. "Residuary Powers".  

Notes

  1. ^ The Attorney General for the Dominion of Canada v The Attorney General for the Provinces of Alberta, Manitoba, New Brunswick, Nova Scotia, Ontario, Quebec and Saskatchewan, The Canadian Insurance Federation and the Manufacturers Association of Canada and another [1916] UKPC 12, [1916] 1 A.C. 588 (24 February), P.C. (on appeal from Canada)
  2. ^ Abitibi Power and Paper Company Limited v Montreal Trust Company and others [1943] UKPC 37, [1943] AC 536 (8 July) (on appeal from Ontario)
  3. ^ The KVP Company Limited Act, 1950, S.O. 1950, c. 33 , dissolving an injunction granted in McKie v. The K.V.P. Company Limited (and four other actions) 1948 CanLII 93 (15 April 1948), Superior Court of Justice (Ontario, Canada) (subsequently upheld in K.V.P. Company Ltd. v. McKie et al. 1948 CanLII 14 (22 November 1948), Court of Appeal (Ontario, Canada) and K.V.P. Co. Ltd. v. McKie et al. 1949 CanLII 8, [1949] SCR 698 (4 October 1949)
  4. ^ Citizen's Insurance Co. v. Parsons
  5. ^ Bedard v. Dawson
  6. ^ Caloil Inc. v Attorney General of Canada
  7. ^ Ward v. Canada (Attorney General), at par. 42
  8. ^ Law Society of British Columbia v. Mangat
  9. ^ Multiple Access Ltd. v. McCutcheon
  10. ^ Reference re Agricultural Products Marketing Act
  11. ^ Attorney General of Quebec v. Kellogg's Co. of Canada
  12. ^ Carnation Co. v. Quebec Agricultural Marketing Board
  13. ^ Edgar F. Ladore and others v George Bennett and others [1939] UKPC 33, [1939] 3 D.L.R. 1, [1939] AC. 468 (8 May), P.C. (on appeal from Ontario)
  14. ^ Re Upper Churchill Water Rights Reversion Act
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