Brooks-Bidlake and Whittall Ltd v Attorney General for British Columbia
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1923 |
| Year | 1923 |
| Date | 1923 |
| Court | Privy Council |
Canada (British Columbia) - Legislative Authority - Employment of Chinese and Japanese - Special Timber Licence -
The appellants were holders of licences granted in 1912 enabling them to cut timber on certain lands of the Province of British Columbia, and containing a provision that no Chinese or Japanese labour was to be employed in connection therewith. The licences were for a year, but were renewable from year to year if the terms had been complied with. The provision above mentioned was declared to be invalid by the Court of Appeal of the Province in 1920, but the Legislature of the Province in 1921 passed an Act (11 Geo. 5, c. 49) declaring that the provision had the force of law, and that a violation of it should be a sufficient ground for cancelling a licence. The appellants, who employed both Chinese and Japanese, sued for a declaration that they were entitled so to do, and that the Act above referred to was beyond the powers of the Provincial Legislature:—
Held, (1.) that the Act was not ultra vires the Provincial Legislature under the British North America Act, 1867, since although by s. 91, head 25, the Dominion Legislature had exclusive legislative authority as to “naturalization and aliens,” the functions of regulating the management of the property of a Province, and of determining whether a grantee or licensee of that property should or should not employ persons of a certain race, were assigned by s. 92, head 5, and s. 109 to the Legislature of the Province, and there was nothing in s. 91 conflicting with that view; (2.) that as the appellants had employed, and claimed the right to employ, both Chinese and Japanese, it was not necessary to determine whether the Act was repugnant to an Act of the Dominion Parliament (3 & 4 Geo. 5, c. 27) by which it was declared that a Treaty signed in 1911 between Great Britain and Japan, and dealing (inter alia) with the pursuit of their industries by subjects of Japan, should have the force of law in Canada; (3.) that the condition against the employment of Chinese having been broken the appellants had no right to renewals of the licences.
APPEAL (No. 73 of 1922) by special leave from a judgment of the Supreme Court of Canada (February 7, 1922) reversing a judgment of the Supreme Court of British Columbia.
The appellants brought an action against the respondents, the Attorney-General for British Columbia and the Minister of Lands of that Province, for a declaration that they were entitled to employ Chinese and Japanese labour notwithstanding a provision to the contrary in licences to cut timber issued to them by the Minister; for a declaration that a statute of British Columbia — namely, the Oriental Orders in Council Validation Act, 1921 (11 Geo. 5, c. 49), was insufficient in law to validate the said provision and was beyond the powers of the Provincial Legislature; they further claimed an injunction restraining the respondents from interfering with their enjoyment of their timber licences on the ground of their employment of Chinese and Japanese.
The facts of the case appear from the judgment of the Judicial Committee.
The trial judge (Murphy J.) upon an application for an interlocutory injunction, which was treated as a motion for judgment, gave judgment for the appellants; the learned judge considered that he was bound by the decision of the Court of Appeal of the Province in Re the Japanese Treaty Act.F1 He made an order substantially as claimed by the appellants.
By consent the respondents appealed direct to the Supreme Court of Canada, which heard the appeal at the same time as a reference by the Governor-General referring to that Court the question of the validity of the Act of British Columbia above mentioned.
Upon the reference the learned judges by a majority (Davies C.J. and Duff, Anglin, Brodeur, Mignault JJ.; Idington J. dissenting) held that the Act was invalid. The proceedings are reported at 63 Can. S. C. R. 293.
After delivering their opinions on the reference the learned judges gave judgment unanimously allowing the appeal in the present case. Duff and Anglin JJ. held that the validity of the Act was not material since the licences had lapsed and there...
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