Canadian Industrial Gas and Oil [Kit, p. 303] Central Canada Potash [Kit, p. 306] O’Harra v. B.C. [Kit, p. 397] CN v. Courtois [Kit, p. 398] AGT v. Canada [Kit, p. 399]. Friends of Oldman River v. Canada [Kit, p. 403] Ont. Hydro v. Lab. Rel’s Broad [Kit, p. 407]
Canadian Industrial Gas and Oil [Kit, p. 303]
Central Canada Potash [Kit, p. 306]
O’Harra v. B.C. [Kit, p. 397]
CN v. Courtois [Kit, p. 398]
AGT v. Canada [Kit, p. 399]
Friends of Oldman River v. Canada [Kit, p. 403]
Ont. Hydro v. Lab. Rel’s Broad [Kit, p. 407]
Stevenson article on federalism & intergovernmental relationsPublic Law I: Nov. 11/05The Regulation and Taxation of Natural Resources, The Environment and Other Division of Powers Issues
Windfall gains by oil companies in Canada
Sask gov’t wanted diff between old price and new price
Expropriated oil & gas land tracts, and imposed royalty surcharge equal to diff
7-2: Sask leg ultra vires
Martland + 6:
Indirect tax, because paid for by consumers
Tax really an export tax; 98% of Sask oil exported to US, E Can
Dickson: S. 109
Price sets the tax, so tax paid by the companies, not consumers
Decision led to S. 92A (amendment in 1982)Can. Ind Gas & Oil v. Sask, 1977 (CIGOL)
All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick
in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.Section 109, CA 1867
1960s: potash mines developed in Sask; Sask can supply world for 1500 years.
Other major producer: New Mexico, but mines less efficient
By 1967, Sask potash selling in US at well below NM prod price
Most NM companies had interests in Sask mines
NM and Sask worked out a pro-rationing scheme to restrict Sask output so that NM mines could operate Gov’t in Ottawa not opposed, so no court challenge
1971: Sask changed pro-rationing formula;
Cent Can Potash tried to force gov’t to honour old plan through mandamus.
CCP went to court; Ottawa intervenedCent Can Potash & AG Can v Sask, 1979
All 7 judges on panel, led by Chief Justice Laskin, found the Sask scheme unconstitutional.
Provinces own natural resources, but this does not give them the power to control interprovincial or international trade and commerce.
Any legislation that is in pith and substance an attempt to regulate interprovincial and international trade and commerce is ultra vires provincial powers.
These two decisions led to a great deal of resentment on the part of the Western provinces, and led directly to the demand to include S. 92A in the constitutional package agreed to in November, 1981.
(See Section 92A on web page under "Constitution Acts, 1867 to 1982.")Cent Can Potash continued
Impugned: a prov cabinet order under the B.C. Inquiry Act appointing a prov commission to inquire into injuries sustained by a man while in custody at a police station.
Issue: does the inquiry invade federal jurisdiction over criminal law?
Police officers thought it did, and petitioned B.C. Sup Ct to declare order ultra vires. Police lost in BC Sup Ct, BC CA, and appealed to SCC.
inquiry does not invade federal jurisdiction
Inquiry’s purpose to “get to the bottom”of alleged police misconduct for disciplinary purposes.
If inquiry had been to determine criminal liability, or to inquire into a federal institution, or had violated rights, it would be ultra vires.
Estey (dissenting): real purpose of inquiry is to identify wrongdoers preliminary to prosecution. Therefore, order is ultra vires.
This decision is a precedent for the Westray decision of 1995.O’Harra v. British Columbia (1987)
Impugned: Quebec Occupational Health and Safety Act, as it applies to an investigation of an accident involving two CN trains.
Issue: Can a province investigate an industry under federal jurisdiction, and make recommendations for changes to ensure safety?
Quebec CA: an investigation by a provincial body might be OK if recommendations not binding on fed. Undertakings.
SCC (Beetz + 6, unanimous): the real issue is whether the province has the constitutional authority to investigate a federal undertaking. Provinces do not have this power. The federal Occupational Health and Safety Act applies, not the provincial one.
(summons duces tecum – a summons to attend with particular documents)CN v. Courtois (1988)
Impugned: authority of CRTC over Alberta Government Telephones (AGT)
AGT (now Telus) was a provincial crown corp, provincially regulated. CNCP telecommunications wanted an order from CRTC in 1982 to facilitate interchange of communications. AGT objected, claiming crown immunity.
Questions: a) is AGT an interprovincial undertaking under 92(10)(a)? B) If so, is AGT subject to CRTC regulations?
Dickson + 4: AGT falls under federal jurisdiction under 92(10)(a). Although AGT does not have services outside Alberta, its customers can all make long-distance calls, and so the services it sells are really interprovincial in nature. AGT can claim crown immunity, but CRTC regulations can be changed to include it.
This decision astounded many lawyers, according to Hogg.
Wilson (dissenting): AGT cannot claim crown immunity.AGT v. Canada (CRTC) (1989)
A society of employees of Ont Hydro applied for certification to represent employees to Ont Lab Rels Bd; opposed by a coalition of employees. Coalition argued that because nuclear power plants are federal undertakings under 92(10)(c), they must be certified under Canada Labour Code. Ont LRB agreed. Decision challenged by Society (supported by unions), and Ont Hydro.
La Forest + 2, & Lamer: an industry under 92(10)(c) is under federal jurisdiction for labour relations.
Sopkina +2 (dissenting): Parliament’s jurisdiction over a “declared” work extends only to what is integral to the federal interest in the work. Parliament is interested in regulating nuclear power, not labour relations. (La Forest, however, argues that the two subjects are intricately connected.)Ontario Hydro v. Ontario (Labour Relations Board) (1993)
Is decentralization only a result of JCPC? certification to represent employees to Ont Lab Rels Bd; opposed by a coalition of employees. Coalition argued that because nuclear power plants are federal undertakings under 92(10)(c), they must be certified under Canada Labour Code. Ont LRB agreed. Decision challenged by Society (supported by unions), and Ont Hydro.
Since 1949, SCC balanced
5.9% of GNP (1960)
17.1% GNP (1995)
Feds: 16.5 – 19.1%
Causes of decentralization:
Immigration, pensions, fisheries, ab land claims, prosecutions, training programsGarth StevensonFed’ism & IntGov Rels
Fiscal conflict certification to represent employees to Ont Lab Rels Bd; opposed by a coalition of employees. Coalition argued that because nuclear power plants are federal undertakings under 92(10)(c), they must be certified under Canada Labour Code. Ont LRB agreed. Decision challenged by Society (supported by unions), and Ont Hydro.
Free trade, tax collection, cond grants, energy, trans payments
Intergovernmental mechanisms for dispute resolution
Cooperative federalism (WWII – 1960)
Executive federalism (1960 – present)
Intergovernmental affairs departments
First Ministers Conferences
Why is Canada the most decentralized country in the industrialized world?Stevenson continued