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PAGE TWELVE .. ..

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CAMEO THEATRE

Running to nearly sixty type- written pages, the judgment of the Supreme Court of Canada on the marketing of Prince Edward Island potatoes. given at Ottawa on June 30, expresses diverse views on many points but in the main up- holds the validity of the potato marketing scheme and indicates that of the many attempts to draft. legislation of this kind. the scheme has been the most successful in avoiding the pitfalls of divided

ilfiCC and the Dominion. Potato Marketing Judgment

The nine judges were unanimous in holding both the Dominion Act of 1949 and Order-in-Council P. C. 5159 which gave effect to it to be completely valid. on the third question it was held by seven out of

E. E. Parkman i Kensington nine judges that the Marketing ,Scheme established by the Pro-

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One judge ialso excepted section 4 of the scheme which deals with its extent of application.

(in the fourth question, as to the validity of the Board Orders. all were held to be valid by seven ,judges ivith the exception. however. of Orders No. 2 and 6 which pro- ride for the levy of one cent per hundred pounds of potatoes. The other two judges, having held the scheme invalid, held the order made tlierundcr invalid also.

in the reference the validity of the Provincial Act Ll940 chapter 40, amended 1950 chapter 18) was not questioned. no doubt. as point- ed nut, by Estey. .1. because its pro- visions arc, in all material par- ticulars. to the same, effect as those of the act of British Colum- bia declared to be within the competence of the Provincial leg- islature in 1938."

Dominion Act l'pheld

There was unanimity ln replying "Yes" to the first question. Estey J., speaking also for Cartwright J., said that the Act "is restricted to the int,crpi'ovincial and export triirie and neither piirliorts in norl does it interfere with provincial trade as did earlier legislation de- clared to he ultra vires." It does not provide for a "delegation by the Parliament of Canada to a pro- vincial legislature, or by a pro- vincial legistaliire to the Parlia- 'mcnl. of ('a'nada.i.of their respect- ive legislative powers." which was previously held be beyond the competence of these bodies.

"The problem here presented." continued Estey .l.. ”is quite dif- ferent. in that. it. is the delegation by the Govcriior General in Coun- cil in tlie Potato Board, an agency created by the legislature of the Province." Tashereau J. pointed out that the 1951 Nova Scotia judgment merely decided that neither Parliament nor the legis- lature can delegate powers to eachl other so as to change the distribut- ion of powers provided for in sect- ions 9l and 92 of the British North America Act."

Here Federal legislation vests such power in a group of persons to be exercised in the interpre- vincial and export field. "it is im-

Symposium Views Galliereii From Markelingjid. Judgment

jurisdiction as between the Prov-I

ins GUARDIAN.

to the Parliament of (Tanada or the Legislatures to confer their powers upon the other.” .

The effect of the present enact- ment. added the Chief Justice, "is

for the Governor-in-Council to adopt as its own a board. or agency already authorized under

the law of a province. to exercise powers of regulation outside the province in interprovincisl and ex- port trade. and for such purposes to exercise all or any powers ex- ercisable by such board, or agency, ,in relation to the marketing of lsurh agricultural products locally 'within the province."

Judicial Committee Ruling

in the Agricultural Products Marketing Act of 1949 ”Parliament has granted authority to the.Gov- ernor-in-Council to employ as its own a board, or agency, for the purpose of carrying out its own legislation for the marketing of agricultural products outside the; province in interprovincial or ex- port trade, two subject-matters which are undoubtedly within its constitutional authority. Moreover. it may be added, that in doing so Parlinment was following the ad- vice of the Judicial Committee in the several judgments which it rendered on similar Acts that the proper way to carry out the dis- tribution of legislative powers un- der the British North America Act, was for Parliament and the Legis- latures to act by co-operation."

This L'ourt eiirlier decided. said Kerwin J., concurred with 1))” Fateux J., that it would be "ob- noxious to the tenor and scheme of the British North America Act" to hold that Nova Scotia could "delegate to and withdraw from the Parliiinieiil. of Criiiadn author- ity to make laws in any matter re- lating to employment in any in- dustry. work or iiiidertakilig" ex-,

clusively within the legislative jurisdiction of the Legislature. "Adffllttllig . . . that the lsl a ii if

Board was ll0l inzide ii corporation, ...it is a legal entity. llaving beeni validly established by the Legislat- ure it has the capacity to receive and accept the authority authoriz- ed by Parliament to be conferred upon it by the Govrriior General in Council."

"What. the law in this case has done," pointed out. Rand .l.. "has been to give legal significance call- ed incidents to certain group act- ions of five men. That to the some men. acting in the some formality, another co-ordinate jurisdiction in. a federal constitution cannot give other legal incidents to other joint actions is negated by the admis-

sion that the Dominion by ap- propriate, words could create a similar board. composed of the

'served for two and a half

Cl-IARLOTTETOWN lied Gross chairman

John Alexander

MacAulay, Q. C., of Winnipeg. has been pleated chairman of the, Xvlllth Interns; tional Red Cross Conference at Toronto. Mr. MacAulay is former chairman of the Central Council of the Canadian Red Cross Society

and past president of the Manl- toba Division of the Society. He years with the Canadian Army Medical Corps. -

similarity of the British Columbia and Prince Edward Island statutes.

it should not be held that the Lieutenant Governor in Council exceeded the powers conferred

upon him by statute and attempt- ed something beyond provincial jurisdiction."

Rand .l., a minority of one, said. "1 find it diificiilt to limit this huigiiage (section 4b to local busi- ness, but to answer the question finally I take it in its application to the' substantive provisions." "These are to be found in clause 16: para. inl which enables the Potato Board to prescribe the manner of marketing generally; (bl to designate the agencies through which potatoes may be marketed: and (c) prohibiting the buying, selling, etc.. of potatoes which do not conform to quality standards set by the Potato Board. So considered. there is clearly a regulation of external trade whlcj renders clause 4 ultra vlres."

Required

"ill so far as the l.iriitrlii;n'i (finvcriior in Council in para. 16 tn) and lei. aiitliorized the Potato Board to require licenses and to impose fees therefor". . said Estey J., "the act was within the com- petence of the province."

Chief Justice Riufret said, "As to the valnic sugizestion that the levy provided for in section 1t?.(ki of the Scheme. might be looked upon as a measure of indirect taxation'. it has not. been made a point for the decision appealed from. but it would seem to have

Licenses

same. persons, bearing the same name, and with a similar formall organization, to execute the same Dominloii functions. Twin phan- toms of this nature must. for: practical purposes. give way to realistic necessities.,.No question. of disruption of provincial powers

arises: both legislatures have recognized the value of a single body to carry out one jointi

though limited, administration ofl trade. At any time the Province: could withdraw the whole or any- part of its authority. The delcgat-i ion was, then eficctivc." ,

empowered by the legislature to

control and regulate the marketingl . ma-Agricultural Products Marketing

I imaterial that the same persons be

of Natural Products within Province. It is true that the Board is a creature of the Lieutenant- Governor-ln-Council. but this does not prevent it from exercising dut- ies imposed by the Parliament of Canada."

Capacity To Aer-opt Power:

On the same point Kellock J., speaking also for Locke J, dealt with the objection that the board. although not it corporation. might he considered an entity apart from its members. one which the pro- vincial lcglslatiiro might be with- out, legislative conipetcnro to en- dow with capacity to accept pow- ers from Parliament. exercisable with respect. to international and lnlcrprnvincial trade. liis opinion was that the hoard "is but a name for the individiials that, compose it." and that possible limitations of

provincial incorporation did not, apply. Rinfrr-,t C. J. pointed out. that

the 1951 case held "that. each leg- islature could only exercise the legislative powers respectively giv- on to them by sections 91 and 92 of the l';.N.A. Act, that these sect- ions indicated ii settled line of demarcation and it did not belong

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Order-in-Council P. C. 5159 Having decided that the Federal

Act was valid the Court had no difficulty in also unanimously de- cidinll the Order-in-Council was valid. In the words of l-Zstey J., "The Governor Gcncrai's Order-in- Counoil P.C. 5l5i'i appears to be within the provisions of the Agri- ciiltural Products Marketing Act as enacted by the Parliament of Canada in 1949 and. therefore. the answer to question No. 2 should be .in the affirmative."

The Scheme

in the iudlzmeiit. of Est:-y J. it is pointed out. that "if the Lieuten- ant Govornor in Council has estab- lished the scheme within the lim- tits of the act. of 1940, the compet- icnce of which is here not. question- led. if. is Valid." Para. 4 reads: "This Scheme shall apply to all persons who grow, pack. slnre. hiiy or sell llottitnvs..." Pnra. Is. "The Potato Board shall have the following ,powers exercisable in Prince Ed- ward Island in relation to the mar- ketiig of potatoes therein."

” hen. therefore." said Fatey J., "the general language of para, 4 is read in relation to the powers as vested in the Board under para. 16, t. becomes clear that, it was in- ten ed para. 4 should be construed and ought to be construed to ap- ply only wlthin the field of com- petent provincial Jurisdiction."

Kellock J., dissenting on the point, said ''In my view. the pow. 611 80 given go beyond the mere regulation of the potato trade within the province or carriage thereof from one provincial point to another, and encroach upon the sphere of the regulation of inter- provlncisl and export trsde...and it is to be remembereu that the business of marketing potatoes ln the province is preponderently an export business."

Chief Justice Rinfret comment; that. "Far from there being any intention on the part of the Log. lslature of Prince Edward Iglgnd to extend its scope to transactions outside the Province. the Act itself and the Scheme took particular care to limit it to the local trade. and under all canons of construct- ion, including. of course, Tho 1n. terpretation Act (section 31) they must be so understood."

Kerwin J., said, "In view of the

lost. its weight-and I do not con- sider that it ever had any weight- since the adoption of the Board by the Governor-in-Council."

its nuthority...all but Orders Nos. 1 and 6 are within the auth- ority or the board. Under Order No. It the board imposed. for the purpose of establishing a fund in connection with the scheme. upon every dealer a charge or levy for the purpose of establishing a fund in connection with the scheme. upon every dealer 9. charge or levy at the rate of one cent for every 100 pounds of potatoes shipped or exported by such dealer. This order was repealed by Order No. 8. but.it was provided that -any amount due or accruing due and unpaid under order No. 2 remain- ed an outstanding liability.

Order No. 6 then proceeded to impose a similar charge or levy of one cent per 100 pounds of potatoes upon every producer in respect of all potatoes sold or mar- keted by such producer.

It might be sufficient to say that neither the act nor the scheme authorizes the Potato Board to make alevy of the sort contemplat- ed by these Orders. but there in s further objection to their validity This charge or levy is in relation to a sale of potatoes and its nat- ure and character is such that it would be passed on by the dealers as part of. and therefor would enter into, the price of the com- modity. it is. therefor, in substance an indirect tax and cannot be competently enacted by the prov- ince or any agency thereof."

"The charge or levy." said Taschereau J., "seems in either case to be clearly lndirect...it fol- lows that both must be held invalid."

As noted above, Chief Justice Rinfret held that, ”the vague sug- gestion that the levy..might be looked upon as ts measure of in- direct tsxation'...would seem to have lost its weight---and I do not consider that it ever had any iveightrsince the adoption of the

Board by the Governor-in-Coum cil." Rand .l.. however, said that.

”neither para. (e) of clause 16. which authorizes license fees nor (kl which permits the establish- ment of a fund.,.w.-is adopted by the Dominion order-in-council. and I cannot take it that the express omission can be supplied by either (oi or 4p) which authorize gener- ally such acts as may be consider- ed necessary to the execution of the scheme...'i'he assessment is clearly A mode of indirect taxation effecting primarily a regulation of trade; and as the cases examined indicate. its application to trade beyond the province puts it ultra the powers of thc Board."

Kerwin J. said of paragraphs 2. J, 4 and 5 of Order No. 6: "These paragraphs are clearly referable to export trade and cannot be sup- ported."

In summary: All nine judges agreed that the Dominion Act is valid and the court: consequently ruled that question No. 1 should be answered in the affirmative.

All agreed that the Dominion Order-in-Council conferring pow- ers in the inter-Provincial market- ing field on the local Board was valid. The court ruled that quest- ion No. 2 should be answered in the affirmative.

"The assessment." said Rand .l.. "is clearly a mode of indirect tax-l ation effecting primarily a regu-I, lation of trade: and as the casesl examined indicate. its application! to trade beyond the province puts it ultra the powers of the Board.”

'"l'his section 5 (cl) is the same as...thc British Columbia statute (as to license) ...and is therefor valid. Clause (kl authorizes Board. to establish a fund...and may stand as it is comparable to section 4A ij) of the British Col- umbia Statute”.

Sutidelegatlon

"Para. 19 of the scheme." said Estey .l.. "provides for an inter- provincial committee "to regulate

and co-ordinate the marketing of potatoes produced' in the Prov- ince of Prince Edward Island. Nova scotia. New Brunswick and Newfoundland and provides that. subject to the approval of the Prince Edward island Marketing Board, the Potato Board may dele- gate to that. committee 'siich of its powers as it may deem advisable.' This provision contemplates the provinces dealing with interpro- vlnclsl and export trade and is be- yond tho competence of the prov- ince to enact."

"Section lit". said Taschereaii "is not. authorized by the Act. We find in section ti of the Act the necessary authority given to the Board to co-operate with other Provincial Marketing Boards to regulate the Il'Ifil'kf!il'll! of natural, products, but nowhere do we find that the Potato Board is empower- cd to appoint a committee and delegate to it. subject. to the ap- proval of the Board. such of its powers, as it. may deem advisable." "In my view." said Kclloek .l.. as quoted above. "the powers so given (by para. 19) go beyond the mere regulation of the potato trade within the province."

on the other hand Chief Justice Rlnfret said. "With deference. i am unable to see how the word 'regulal.e' in section 19 of the Scheme indicates an intention on the part of the Provincial Legis- lature to extend the scope of this ivhole enactment beyond the con- fines of provincial Jurisdiction. on the contrary, it seems to me that section 19 should be 'regial'ded as harmless authority to confer and collaborate informallyi with repro- sentatives (of other Boards)...and for those Boards to 'act conjolntly' with the representatives . of the Prince Edward Island Potato Mar- keting Board." . i

"Co-operative action," said Rand J., "between boards of different provinces having the same admin- istrative objects is quite unob- Jectionable; but I find nothing in the statute permitting a sub-dele- gation of powers of this nature." Kerwin J., declared. "No authority can be found for the kind of sub- ” ' " therein provided for

3W'fe4- K E i.lO GG'S

A3fIVMA BEZMT

iii.

and. in my opinion. this clause is not within the Jurisdiction and competence of the Lieutenant Governor in council."

hoard orders (The Levy)

"The scheme." laid Estey .l.. "u constituted by r the Lieutenant Governor in Council. may be vaud. and yet. the board. in adopting

Seven out of nine judges agreed that the Provincial, Marketing scheme was valid (with the ex- ception of Section 19) and the

llowlan 'Anil Vicinity-

Peter Gallant was in Howlui on Monday. July am. on business.

Mrs. Anthony Finnan recently spent r day in summer ” .

Mrs. Lao Arsenault spent a re- cent afternoon at the home of Mrs. Jerry Gallant.

Mr. and Mrs. Frank Richard of Duvar spent a recent evening in I-fowlan.

Frank Gallant was in Lot 7' on Monday night, July am, on busi- H058.

Mrs. Tenis Peters has as her guest her sister, Mrs. Joseie Ar- sonsult, of Borden.

Harry Macwilliarns of O'Leary was in Howian on business re- cently.