Attorney General for Canada v Attorney General for Alberta
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1916 |
| Date | 1916 |
| Court | Privy Council |
Canada - Legislative Authority of Dominion - Insurance - “Regulation of trade and commerce” -
By s. 4 of the Insurance Act, 1910, enacted by the Parliament of Canada, “In Canada, except as otherwise provided by this Act, no company or underwriters or other person shall solicit or accept any risk, or issue or deliver any receipt or policy of insurance, or grant any annuity on a life or lives, or collect or receive any premium, or inspect any risk, or adjust any loss, or carry on any business of insurance, or prosecute or maintain any suit, action or proceeding, or file any claim in insolvency relating to such business, unless it be done by or on behalf of a company or underwriters holding a licence from the Minister.” Sect. 70 provided that any contravention of s. 4 should be punishable for a first offence by fine, and for a second or subsequent offence by imprisonment with hard labour:—
Held, that the above legislation was ultra vires of the Parliament of Canada, since the authority conferred by the British North America Act, 1867, s. 91, head (2.), to legislate as to “the regulation of trade and commerce” does not extend to the regulation by a licensing system of a particular trade in which Canadians would otherwise be free to engage in the provinces, and since it could not be enacted under the general power conferred by s. 91 to legislate for the peace, order, and good government of Canada as it trenched upon the legislative authority conferred on the provinces by s. 92, head (13.), to make laws as to “civil rights in the province.”
The principle illustrated by Russell v. The Queen (
Held, further, that it would be competent to the Parliament of Canada, under s. 91, heads (2.) and (25.), by properly framed legislation, to prohibit an insurance company incorporated by a foreign State from carrying on business in Canada if the company did not hold a licence from the Minister, even if the business carried on was confined to a single province.
APPEALF1, by special leave, from opinions of the Supreme Court of Canada (October 14, 1913).
The Governor-General in Council by an Order under the Supreme Court Act (R. S. Can., 1906, c. 139), s. 60, referred to that Court the two following questions: (1.) Are ss. 4 and 70 of the Insurance Act, 1910, or any or what part or parts of the said sections, ultra vires of the Parliament of Canada? (2.) Does s. 4 operate to prohibit an insurance company incorporated by a foreign State from carrying on the business of insurance within Canada if such company does not hold a licence under the said Act and if such business is confined to one province?
The terms of s. 4 of the Insurance Act, 1910, and the effect of s. 70 appear from the head-note.
The questions were argued in November, 1912, before the Supreme Court, consisting of Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff, Anglin, and Brodeur JJ. On October 14, 1913, the learned judges delivered opinions (reported at 48 Can. S. C. R. 260) in the majority of which it was held that the answer to the first question was that the two sections were ultra vires, and to the second “Yes, if intra vires.” The Chief Justice and Davies J. dissented, being of opinion that the questions should be answered respectively “No” and “Yes.”
The following counsel appeared:– Newcombe, K.C., and Barrington-Ward (for R. Asquith, serving with His Majesty's Forces), for the appellant; Sir R. Finlay, K.C., Nesbitt, K.C., Geoffrion, K.C., and Hon. M. Macnaghten (for G. Lawrence, serving with His Majesty's Forces), for the Attorneys-General for Ontario, Quebec, and New Brunswick; Lanctot, K.C., for the Attorney-General for Quebec; Parlee, K.C., for the Attorneys-General for Alberta and Saskatchewan; Bayly, K.C., for the Attorney-General for Ontario; all the above-named Attorneys-General being respondents; Upjohn, K.C., Bennett, K.C., and Gaudet, K.C., for the respondents the Insurance Federation; H. Douglas (for Sir H. Greenwood, serving with His Majesty's Forces), for the intervening Attorney-General for British Columbia.
In the following report of the arguments only those counsel who addressed the Board are named.
1915. Dec. 8, 9, 10. Newcombe, K.C., for the appellant. Sect. 4 has to be considered in connection with the whole Insurance Act, 1910; that Act is one regulating the trade of insurance and is within the authority conferred upon the Parliament of Canada by the British North America Act, 1867, s. 91, head (2.), to legislate for the “regulation of trade and commerce.” The Canada Temperance Act, held to be valid in Russell v. The QueenF2, like the legislation now in question, affected a single trade carried on throughout Canada. In Attorney-General for Ontario v. Attorney-General for the DominionF3, known as the Prohibition Case, Lord Watson, in delivering the judgment of the Board, said that the legislation in Russell v. The QueenF2 did not come within s. 91, head (2.), because its character was not regulative but prohibitive. It follows that had it been regulative legislation it would have come within that enumeration and that there is power thereunder to regulate a particular trade. Insurance is a trade: Bristow v. Towers.F4 It is referred to as a trade in Adam Smith's Wealth of Nations (bk. 5, ch. 1, part 3), it is dealt with in England by the Board of Trade, and comes within the recent Proclamations against trading with the enemy. In Citizens Insurance Co. of Canada v. ParsonsF5 it was assumed that insurance was a trade. Express authority is given to the Dominion as to certain trades, banking for instance. That, however, is to give a wider power as to those trades in relation to s. 92, head (13.), than is conferred by s. 91, head (2.). A provincial Legislature cannot set up a bank to operate wholly within the province. The...
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