Section 92(13) of the Constitution Act, 1867

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Section 92(13) of the Constitution Act, 1867, also known as the property and civil rights power, grants the provincial legislatures of Canada the authority to legislate on:

13. Property and Civil Rights in the Province.

Provincial jurisdiction over property and civil rights embraces all private law transactions, which includes virtually all commercial transactions. This power is generally balanced against the federal trade and commerce power and criminal law power. With respect to the former, In the Insurance Reference,[1] Viscount Haldane noted that:

the authority to legislate for the regulation of trade and commerce does not extend to the regulation by a licensing system of a particular trade.

It is the most powerful and expansive of the provincial constitutional provisions, and is one of three key residuary powers in the Constitution Act, 1867, together with the federal power of peace, order and good government and the provincial power over matters of a local or private nature in the province.

Property and civil rights include:

  • rights arising from contract[2]
  • certain powers to prevent crime[3]
  • powers to control transactions taking place wholly within the province, even if the products themselves are imported[4] and, generally,
  • regulation of trade and industry within the province,[5] including
  • labour relations and the regulation of professions,[6]
  • trading in securities,[7] and
  • manufacturing,[8]

By themselves, incidental effects of provincial regulations on a federal sphere of influence do not change their true nature.[9] Moreover, the fact that a valid provincial regulation may affect an export trade or the cost of doing business is similarly not conclusive of determining whether it is made "in relation to" that power.[10]

If a provincial law affects rights of individuals outside the province:

  • if it is, in pith and substance, provincial, ancillary effects on the rights of individuals outside the province are irrelevant,[11] but
  • where it is, in pith and substance, legislation in relation to the rights of individuals outside the province, it will be ultra vires the province[12]

Further reading[edit]

Notes[edit]

  1. ^ The Attorney General for the Dominion of Canada v The Attorney General for the Provinces of Alberta, Manitoba, New Brunswick, Nova Scotia, Ontario, Quebec and Saskatchewan, The Canadian Insurance Federation and the Manufacturers Association of Canada and another [1916] UKPC 12, [1916] 1 A.C. 588 (24 February 1916), P.C. (on appeal from Canada)
  2. ^ Citizen's Insurance Co. v. Parsons
  3. ^ Bedard v. Dawson
  4. ^ Caloil Inc. v Attorney General of Canada
  5. ^ Ward v. Canada (Attorney General), at par. 42
  6. ^ Law Society of British Columbia v. Mangat
  7. ^ Multiple Access Ltd. v. McCutcheon
  8. ^ Reference re Agricultural Products Marketing Act
  9. ^ Attorney General of Quebec v. Kellogg's Co. of Canada
  10. ^ Carnation Co. v. Quebec Agricultural Marketing Board
  11. ^ Edgar F. Ladore and others v George Bennett and others [1939] UKPC 33, [1939] 3 D.L.R. 1, [1939] AC. 468 (8 May 1939), P.C. (on appeal from Ontario)
  12. ^ Re Upper Churchill Water Rights Reversion Act