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the right in another to preserve (McCulloch v. Maryland). The Court of Appeal of Ontario goes so far as to say that an insurance company, created and authorized by the Dominion of Canada to do business throughout the whole Dominion, can be excluded from making contracts in the Province of Ontario by the Provincial Legislature; and there is no doubt that it is so, if the Provincial Legislatures, have, as held by the Ontario Courts, the power to regulate the insurance trade. This demonstrates conclusively that the Provincial Legislatures have not, and cannot have, such a power of regulation. If the Ontario Legislature can exclude an insurance company from the Province of Ontario, it must be conceded that all the other Provincial Legislatures have the same right in their respective Provinces. So that, according to this theory, if all the Provincial Legislatures should exercise this right, a company created and authorized by the Federal Parliament to do business all through the Dominion, could not then do business anywhere in the Dominion.
What would be the use of a Dominion charter Has the Imperial Parliament granted to the Federal authority a power so entirely useless and unsusceptible of any practical effect 2 The Constitutional Act does not bear an interpretation leading to such anomalous consequences; the powers of the Federal authority cannot, to such an extent, be dependent upon the consent and good-will of the Provincial authorities.
It is of the very essence of supremacy, to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments as to exempt its own operations from their influence, and it cannot be, that the framers of our constitution who determined to give to the Central power of this Dominion the supremacy and strength, which, in the hour of trial were found to be so much wanting in the Federal power of the United States, have thus given to a Province, or to all the Provinces uniting in a common legislation, the power to annihilate—either directly or indirectly—the corporation which the central power is authorized by the Act to create; it cannot be, that they have thus rendered inevitable in this Dominion, that conflict of powers under which a federation must always, sooner or later, crumble and break down.
These companies cannot be controlled and governed by as many different regulations as there are Provinces in the Dominion. It is by the comity of the Dominion that they are admitted here, and under the Dominion laws and power that they remain. One of the great benefits of Confederation would be lost if the rules on trade and commerce were not uniform all through the Dominion—if the Provincial Legislatures had the power to tamper with the grants and privileges conferred by the Federal authority on the trading and commercial bodies authorized to do business in this country. I have not lost sight of certain enactments of the Federal Parliament, in which it seems to be admitted that the Provincial Legislatures have the right to incorporate insurance companies. But the Federal Parliament cannot amend the British North America Act, nor give, either expressly or impliedly, to the Local Legislatures, a power which the Imperial Act does not give them. This is clear, and has always been held in this Court to be the law. I have also not failed, as it was my duty to do, to give due consideration to the fact that the respondent appears to have in his favor the weight and authority of the opinions of the learned judges of the Province of Ontario, though I may here remark that the judges of the Court of Queen's Bench, in one of these cases (Western Assurance Co. v. Johnston), distinctly stated that they did not express their individual opinions on this constitutional question, but yielded to the judgments already given.
Gwyn NE, J., also dissenting :
It is contended that the Act under consideration is ultra vires of the Provincial Legislature of Ontario which passed it, as interfering with the regulation of a branch of trade and commerce—control over which, is, by the 2nd item of Sec. 91 of B. N. A. Act, vested exclusively in the Dominion Parliament. The question thus raised is, undoubtedly, one of a very grave character, as became developed in the argument of the several cases now before us wherein this point was raised; one of which, namely, The Western Assurance Co. v. Johnston, was argued by the Attorney-General, who is also the Premier of the Province of Ontario, in support of the constitutionality of the Act. The question before us is not one merely affecting the particular Act in question, but, our judgment in this case, although the Dominion Parliament is not represented, and has not been heard in the matter, will logically affect some thirty Acts of the Dominion Parliament— whose constitutionality has not heretofore been questioned—and which must be ultra vires of the Parliament, if the Act now before us be ultra vires of the Provincial Legislature; and, on the contrary, if this Act be ultra vires of the Provincial Legislature, a number of Acts passed by the Legislature of the Province of Ontario must be equally so. It is clear, that the subject matter of the Act in question is not one over which jurisdiction is by the B. N. A. Act given concurrently
to the Provincial Legislatures and to the Parliament. If it were, no doubt the Act would be valid “as long and as far only as it is not repugnant to any Act of the Parliament of Canada.” The subject not being one over which concurrent jurisdiction is given to the Provincial Legislatures and to the Parliament, must be placed exclusively either under the one or the other. The question, therefore, is determinable by the Rule which I adopted in the City of Fredericton v. The Queen, as appearing to me to furnish an unerring guide in determining whether any given subject of legislation is within the jurisdiction of the Provincial Legislatures, or of the Parliament; namely: “All “subjects of whatever nature, not exclusively assigned to the Local “Legislatures, are placed under the supreme control of the Dominion “Parliament, and no matter is exclusively assigned to the Local “Legislatures unless it be within one of the subjects expressly enu“merated in sec. 92, and at the same time does not involve any “interference with any of the subjects enumerated in sec. 91.”
The contention in support of the claim that the Act is within the jurisdiction of the Local Legislature, is, that the subject matter of the Act comes within item 13 of sec. 92 of the B. N. A. Act; namely “Property and Civil Rights in the Province.”
I have already, in City of Fredericton v. The Queen, expressed my opinion, that the plain meaning of the closing sentence of sec. 91 is that (notwithstanding anything in the Act), any matter coming within any of the subjects enumerated in the 91st section shall not be deemed to come within the class of subjects enumerated in the 92nd section, however much they may appear to do so. Jurisdiction, therefore, “over Property and Civil Rights in the Province” is not vested absolutely, but only qualifiedly, in the Local Legislatures.
In so far as jurisdiction over “Property and Civil Rights,” in every Province, may be deemed necessary for the perfect exercise of the exclusive jurisdiction given to the Dominion Parliament over the several subjects enumerated in sec. 91, it is vested in the Parliament, and what is vested in the Local Legislatures by item 13 of sec. 92, is only jurisdiction over so much of Property and Civil Rights as may remain, after deducting so much of jurisdiction over those subjects as may be deemed necessary for securing to the Parliament exclusive control over every one of the subjects enumerated in sec. 91—the residuum, in fact, not so absorbed by the jurisdiction conferred on the Parliament.
The only question therefore before us substantially, is: are or are T
not joint stock companies, which are incorporated for the purpose of carrying on the business of Fire Insurance, traders ? and is the business which they carry on—a trade 2 If this question must be answered in the affirmative, the Act under consideration must be ultra vires of the Provincial Legislature as much as was the Act which in Severn v. the Queen was pronounced so to be, and, as the Act under consideration in City of Fredericton v. the Queen would have been, if passed by a Local Legislature; indeed, it seems to me to be difficult to conceive what greater assertion of jurisdiction to Regulate Trade and Commerce there could be, than is involved in the assumption and exercise of the right to prescribe by Act of the Legislature in what manner only, by what form of contract only, by what persons only, and subject to what conditions only, particular trades, or a particular trade, may be carried on, and to prohibit their being carried on otherwise than is prescribed by the Act. If this may be done in one trade, obviously it may be done in every trade, and so all trades must be subject to the will of the Legislature having jurisdiction so to legislate as to whether it shall be carried on at all or not. As to the Act under consideration, if it be open to the construction put upon it by the Courts below, it seems to be impossible to conceive any stronger instance of the assertion of Supreme Sovereign Legislative power to regulate and control the trade of Fire Insurance, and of Fire Insurance Companies, if the business of those companies be a trade. Now, among all the items enumerated in sec. 92, it is observable, that not one of them in terms indicates any or the slightest intention of conferring upon the Local Legislatures the power to interfere in any matter relating to Trade or Commerce, or, in any matter which in any manner affects any commercial business of any kind, unless it be item No. 10, whereby the Local Legislatures are empowered exclusively to make laws in relation to “local works and undertakings” subject to this qualification, namely, “other than such as are of the following classes: ” “1stly.—Lines of steam or other ships, railways, canals, telegraphs, and “other works and undertakings connecting the Province with any other or others “of the Provinces, or extending beyond the limits of the Province; “2ndly.—Lines of steamships between the Province and any British or “foreign country; and “3rdly.—Such works as, although wholly situate within the Province, are “before or after their execution, declared by the Parliament of Canada to be for
“the general advantage of Canada, or for the advantage of two or more of the “Provinces.”
All these excepted subjects are, by item 29 of sec. 91, placed under the exclusive legislative authority of the Parliament of Canada, and so, by this closing paragraph of sec. 91, are, in effect, pronounced not to be Local or Provincial works or undertakings. Works. and undertakings within each Province, other than these so excepted, are all, therefore, which can come within the description of “local works and undertakings” comprehended in item 10.
It is to be observed, also, that when power to incorporate Companies is given, no mention is made of trading companies. The power is expressly limited by item No. 11, sec. 92, to “The Incorporation of Companies with Provincial objects.”
It is, perhaps, easier to say what the term does not comprehend, than to define it precisely. Such local works and undertakings as are by item 10 placed under the Local Legislatures may properly be termed Local or Provincial objects. So may the subjects enumerated in item No. 7, viz.: “The establishment, maintenance and management of hospitals, asylums, charities and eleemosynary institutions in and for the Province, other than marine hospitals,” and so likewise the item specified in sec. 93, namely, “Education,” and beyond these, I cannot say that I see any other. But, when we regard the whole scope and object of the B. N. A. Act, and bear in mind that the scheme of Constitutional Government, which it was designed to create, was to vest in the Dominion Parliament—consisting of Her Majesty herself (the Supreme Executive authority) as one member, and a Senate and House of Commons, as the other members of the Legislative body—the Supreme Sovereign Jurisdiction to legislate upon all subjects whatsoever, excepting only certain specific matters, particularly enumerated, purely of a local, domestic and private nature, which were assigned to the Provinces; and, when we find that for greater certainty, to expel doubt as it were, the exclusive legislative jurisdiction of Parliament is expressly declared to extend to all matters coming within “the regulation of trade and commerce;” (words which, in perfect character with the general supreme jurisdiction, intended to be conferred upon the Parliament—excepting only the particularly excepted subjects—are comprehensive enough to include and must be construed to include every trade and every thing relating to every trade, and to all branches of commerce and to the persons by whom, and to the manner in which, the same in every branch thereof, may be carried on) we can, I think, with great confidence, assert that no jurisdiction to incorporate any Trading Company, or to restrain or control any Trading Company in the