Supreme Court of Canada
Reference
re Wartime Leasehold Regulations , [1950] S.C.R. 124
Date:
1950-03-01
In The Matter Of A Reference As To The Validity Of
The Wartime Leasehold Regulations, P.C. 9029.
1950: January 30, 31, February 1, 2; 1949: March 1.
Present:—Rinfret C.J. and Kerwin, Taschereau, Rand, Kellock,
Estey and Locke JJ.
Constitutional Law—Power of Parliament in National
Emergency to enact legislation involving Property and Civil Rights—Whether
Wartime Leasehold Regulations made under the authority of War Measures Act,
continued in force under The National Emergency Transitional Powers Act, 1945,
and The Continuation of Transitional Measures Act, 1947, ultra vires—War
Measures Act, R.S.C., 1927, c. 206—The National Emergency Powers Act, 1945, S.
of C, 1945, c. 25 and amendment, 1946, c. 60—The Continuation of Transitional
Measures Act, 1947, S. of C, 1947, c. 16 and amendments, 1948, c. 5 and 1949, c.
S.
The Wartime Leasehold Regulations were made in 1941 under the
authority of the War Measures Act and continued in force since the end
of the war in all the provinces of Canada, other than Newfoundland, under the
provisions of The National Emergency Transitional Powers Act, 1945 and The
Continuation of Transitional Measures Act, 1947 and amendments thereto and
certain Orders in Council authorized by those statutes.
[Page 125]
The following question referred by the Governor General in
Council under s. 55 of The Supreme Court Act to this Court: "Are
the Wartime Leasehold Regulations ultra vires either in whole or in part
and if so in what particulars and to what extent?"—was answered in the
negative.
Held, that Parliament, under powers implied in the
Constitution may,. for the peace, order and good government of Canada as a
whole, in " time of national emergency, assume jurisdiction over property
and civil rights which under normal conditions are matters within the exclusive
jurisdiction of the provincial legislatures.
When Parliament has enacted legislation declaring that a
national emergency continues to exist and that it is necessary that certain
regulations be continued in force temporarily in order to ensure an orderly
transition from war to peace, unless the contrary is very clear, which in this
case it was not, there is nothing to justify a contrary finding by the Court.
Fort Frances Pulp & Power Co. v. Manitoba Free
Press Co. [1923] A.C. 695; Co-Operative Committee on
Japanese Canadians v. Attorney General for Canada [1947] A.C.
87, followed.
REFERENCE by His Excellency the Governor General in
Council, pursuant to the authority of s. 55 of the Supreme Court Act R.S.C.,
1927, c. 35), to the Supreme Court of Canada, for hearing and consideration of
the question cited in full at the beginning of the reasons for judgment of the
Chief Justice of this Court.
F. P. Varcoe, K.C., D. W. Mundell and A.
J. MacLeod for the Attorney-General for Canada.
The Hon. Dana Porter, K.C., and C. R.
Magone, K.C., for the Attorney-General for Ontario.
L. E. Beaulieu, K.C., for the Attorney-General
for Quebec.
J. J. Robinette, K.C., for the Tenants
within Canada.
O. F. Howe, K.C., for The Canadian Legion of
the British Empire Service League.
R. M. W. Chitty, K.C., for the Canadian
Federation of Property Owners Association.
M. W. Wright for the Canadian Congress of
Labour.
[Page 126]
The Chief Justice: The
question referred by the Governor in Council to the Court is:—
Are The Wartime Leasehold Regulations ultra vires either
in whole or in part and, if so, in what particulars or to what extent?
After having heard arguments on behalf of the Attorney-
General of Canada, the Attorney-General of Ontario, the Attorney-General of
Quebec, The Tenants within Canada, The Property Owners' Association, The
Dominion Command of the British Empire Service League and The Canadian Congress
of Labour, I am of opinion that the question should be answered in the
negative.
These references, under Section 55 of The Supreme Court
Act, merely call for the opinion of the Court on the questions of law or
fact submitted by the Governor in Council and the answers given by the Court
are only opinions. It has invariably been declared that they are not judgments
either binding on the government, on parliament, on individuals, and even on
the Court itself, although, of course, this should be qualified by saying that,
in a contested case where the same questions would arise, they would no doubt
be followed. But precisely on account of their character the opinions are
supposed to be given on the material which appears in the Order of Reference
and the Court is not expected to look to outside evidence. It is clear that the
Court may take into consideration any fact which is of common, or public,
knowledge, or of which it could ordinarily take judicial notice. Otherwise,
however, excepting very exceptional cases, which it would be quite impossible
to enumerate and in respect of which the present Reference is not concerned,
the Court is limited to the statements of fact contained in the Order of
Reference. I would venture to say that this has been the constant practice of
this Court on References submitted under Section 55 of The Supreme Court
Act.
As to the first proposition, it was pointed out by the Lord
Chancellor, Earl Loreburn, in Attorney-General for Ontario v. Attorney-General
for Canada , that the opinions provoked by such
questions "are only advisory and would have no more effect than the
opinions of the law officers", to which Duff J. (as he then was) in Reference
re Waters and Water-Powers , after having quoted the statement of
Earl Loreburn, observed that "when a con-
[Page 127]
crete case is presented for the practical application of the
principles discussed, it may be found necessary, under the light derived from a
survey of the facts, to modify the statement of such views as are herein
expressed". As a matter of fact, in the Water-Powers Reference, following
an objection raised by Mr. Tilley, K.C., representing the Attorney-General for
Ontario, to certain material which had been included in the appendix of the
factum of the Attorney-General for Canada, the Court ordered two hundred and
forty pages stricken from the appendix and made the following observation:—
It must be obvious that any statements of facts, upon which
answers to the questions must be based, should form part of the Case submitted,
and it would be highly inconvenient and most dangerous to receive documents
such as these in question as part of the Case, unless with the full consent and
concurrence of all parties.
In that case, Smith J., concurring with Duff J., but writing
separately, at p. 233 of the Report, thought that he would explain certain
references made in his judgment to a situation which did not appear in the
record by saying:—
We might, perhaps, take judicial notice of some of the
facts, and might gather others from statutory enactments * * * I have gone
beyond the record, not to obtain material as a basis for answering the
questions, but merely to emphasize what my brother Duff has said as to the
impracticability of giving full and definite answers to all the questions that
would have general application, regardless of particular circumstances capable
of proof but not established or admitted in the record.
No doubt anybody attacking parliament's legislation as
colourable would have to introduce evidence of certain facts to support the contention,
for it can hardly be expected that the Order of Reference would contain
material of a nature to induce the Court to conclude as to the colourability of
the legislation. It may be that it would be so apparent that the Court could
come to that conclusion without extraneous evidence, and an example of that
situation might be found In the Matter of a reference as to the validity of
Section 16 of The Special War Revenue Act , where Sir Lyman Duff
C.J., delivering the judgment of the Court, found, at p. 434, that the section
was ultra vires in its entirety on the ground that, under the guise of
legislation affecting British and Foreign Companies and extra Canadian
exchanges, the enactments were really
[Page 128]
adopted in relation to the business of insurance within the
provinces and could not be upheld as alien legislation in the proper sense.
But it would seem that the constitutionality of legislation
disputed on the ground of colourability should really be brought before the
Courts not on a Reference, but in an ordinary case. It is no doubt in that
sense that we must understand the dictum of Lord Maugham in Attorney-General
for Alberta v. Attorney-General for Canada :—
The next step in a case of difficulty will be to examine the
effect of the legislation; Union Colliery Co. of British Columbia, Ld. v.
Bryden . For that purpose the Court must take
into account any public general knowledge of which the Court would take
judicial notice, and may in a proper case require to be informed by evidence as
to what the effect of the legislation will be. Clearly, the Acts passed by the
Provincial Legislature may be considered, for it is often impossible to
determine the effect of the Act under examination without taking into account
any other Act operating, or intended to operate, or recently operating in the
Province.
And again at p. 131:—
Matters of which the Court would take judicial notice must
be borne in mind, and other evidence in a case which calls for it.
In these quotations the words used by the noble Lord are
"in a proper case" and "in a case which calls for it". He
does not say "on a Reference", and I cannot see how two obiter
dicta of that character can be invoked as meaning that outside evidence may
be called on a Reference.
The Fort Frances Pulp & Power Co. Ltd. v. Manitoba
Free Press Co. Ltd. et al , was such an ordinary case between two
private litigants, and in delivering the judgment of the Judicial Committee in
that case Viscount Haldane, at p. 706, expressed the view:—
No authority other than the central Government is in a
position to deal with a problem which is essentially one of statesmanship. It
may be that it has become clear that the crisis which arose is wholly at an end
and that there is no justification for the continued exercise of an exceptional
interference which becomes ultra vires when it is no longer called for.
In such a case the law as laid down for distribution of powers in the ruling
instrument would have to be invoked. But very clear evidence that the crisis
had wholly passed away would be required to justify the judiciary, even when
the question raised was one of ultra vires which it had to decide, in
overruling the decision of the Government that exceptional measures were still
requisite. In saying what is almost obvious, their
[Page 129]
Lordships observe themselves to be in accord with the view
taken under analogous circumstances by the Supreme Court of the United States,
and expressed in such decisions as that in October, 1919, in Hamilton v.
Kentucky Distilleries Co. .
Some allusion was made to the same point In the Matter of
a Reference as to the jurisdiction of Parliament to regulate and control radio
communication . A mere glance at the Order-in-Council
reproduced at that and the following pages is sufficient to show to what extent
the facts in that matter were there stated. It is to be noted that the opinion
of Newcombe J., p. 548, starts by saying:
My trouble with this case is to know the facts. Although the
narrative of the order of reference and the printed statement of principles
were not at the hearing seriously disputed, one is apt to suspect that the
knowledge of the art of radio, which we have derived from the submissions and
what was said in the course of argument, is still incomplete and, perhaps, in
some particulars, not free from error; that some accepted theories are still
experimental or tentative, and that there may be possibilities of development
and use, not only in the Dominion but also in a provincial field, which have
not yet been fully ascertained or tested.
It is obvious that if Newcombe J., whose experience in these
matters cannot be disputed, had thought that he was entitled to hear outside
evidence on a Reference, he would have availed himself of the opportunity. It
is true that in that Reference an article compiled by J. W. Bain, a radio
engineer of the Marine Department, was printed in the case, but, as stated by
Smith J. at p. 569:—
This document is inserted for the convenience of the court,
and it is stated that its accuracy may be verified by reference to the various
standard text-books on the subject. Its general accuracy was, I think, not
controverted, and I therefore resort to this document for a brief general
description of how radio communication is effected.
Radio communication was, of course, of a highly technical
nature and it was felt necessary that the Court should at least be informed of
how it worked.
In the Matter of a Reference as to whether the term
"Indians" in Head 24 of Section 91 of The British North. America Act,
1867, includes Eskimo Inhabitants of the Province of Quebec , in the
order fixing the date for hearing Sir Lyman Duff, C.J., appointed the Registrar
of the Court to hear and take all evidence, oral and documentary, which the
Attorney-General of Canada or any other interested parties desired to submit,
or adduce, in
[Page 130]
relation to the question referred to the Court. He ordered
further that all the evidence so adduced and submitted on behalf of each of the
interested parties be included quantum valeat and subject to all just
exceptions in the case, and printed in such groups and order as the interested
parties might agree upon, subject to the approval of the Registrar. It is to be
noted that all interested parties, including, of course, the Attorney-General
of Canada, were given the opportunity to submit relevant evidence and
particularly that such evidence was incorporated in and formed part of the
case.
I must say, therefore, that, for the purpose of my answer, I
am limiting myself strictly to the situation disclosed in the Order of
Reference and the different declarations which appear in the successive Acts
adopted by Parliament. Thus limiting my consideration of the Reference and the
extent of my answer, I have very few remarks to make.
There is no doubt that under normal conditions the subject
matter of rents belongs to the provincial jurisdiction under the Head of
Property and Civil Rights, in Section 92 of The British North America Act. There
is equally no doubt that under abnormal conditions, such as the existence of
war, parliament may competently assume jurisdiction over rents. The fact is
that, as a consequence of the last war, 1939-1945, parliament has taken over
the control of rents. The Fort Frances case supra is authority for the
proposition that, notwithstanding the cessation of hostilities, parliament is
empowered to continue the control of rents for the purpose of concluding
matters then pending, and of its discontinuance in an orderly manner, as the
emergency permits, of measures adopted during and by reason of the emergency.
It follows from the different Orders-in-Council and Acts of Parliament, recited
in the Order of Reference, that the exceptional conditions brought about by
war, which made The Wartime Leasehold Regulations necessary, are still continuing,
that the orderly transition from war to peace has not yet been completed, and
that, in such circumstances, parliament is entitled and empowered to maintain
such control as it finds necessary to ensure the orderly transition from war to
peace. The judgments of the Judicial Committee of the
[Page 131]
Privy Council in the Fort Frances Case supra and in Cooperative
Committee on Japanese Canadians v. Attorney-General for Canada ,
are conclusive on this point.
In the Reference as to the Validity of the Regulations in
relation to Chemicals , Sir Lyman Duff, C.J., stated at p. 12:—
As in respect of any other measure which the Executive
Government may be called upon to consider, the duty rests upon it to decide,
whether, in the conditions confronting it, it deems it necessary or advisable
for the safety of the state to appoint such subordinate agencies and to
determine what their powers shall be.
There is always, of course, some risk of abuse when wide
powers are committed in general terms to any body of men. Under the War
Measures Act the final responsibility for the acts of the Executive rests
upon Parliament. Parliament abandons none of its powers, none of its control
over the Executive, legal or constitutional.
The enactment is, of course, of the highest political
nature. It is the attribution to the Executive Government of powers legislative
in their character, described in terms implying nothing less than a plenary
discretion, for securing the safety of the country in time of war. Subject only
to the fundamental conditions explained above, (and the specific provisions
enumerated), when Regulations have been passed by the Governor General in
Council in professed fulfilment of his statutory duty, I cannot agree that it
is competent to any court to canvass" the considerations which have, or
may have, led him to deem such Regulations necessary or advisable for the
transcendent objects set forth. The authority and the duty of passing on that
question are committed to those who are responsible for the security of the
country—the Executive Government itself, under, I repeat, its responsibility to
Parliament. The words are too plain for dispute: the measures authorized are
such as the Governor General in Council (not the courts) deems necessary or
advisable.
In this instance, Parliament has decided that The Wartime
Leasehold Regulations should be kept in force to a limited extent and to that
extent, where necessary or advisable, to ensure an orderly transition from war
to peace; and that, if they were abandoned abruptly and suddenly, unnecessary
disruption would result.
There is nothing in the facts in the Order of Reference
which would justify this Court in deciding otherwise and thus supersede the
opinion of Parliament; and, in the circumstances, this Court may not doubt that
Parliament may competently maintain the Regulations it has adopted to meet the
emergency and its continuance. Therefore, The Wartime Leasehold Regulations are
not ultra vires either in whole or in part.
[Page 132]
Kerwin J.:—The
question referred by the Governor in Council to the Court for hearing and
consideration is:—
Are The Wartime Leasehold Regulations ultra vires either
in whole or in part and, if so, in what particulars or to what extent?
The Regulations were originally made by order of the
Governor in Council P.C. 2029 of November 21, 1941, under the War Measures
Act, R.S.C. 1927, c. 206, and a number of amendments to the Regulations
were also made by Orders in Council under the same Act, which continued in
force until December 31, 1945. By The National Emergency Transitional Powers
Act, 1945 (chapter 25 of the Statutes of 1945), which came into force on
and after January 1, 1946, it was provided that "on and after that date
the war against Germany and Japan shall for the purpose of the War Measures
Act be deemed no longer to exist." The effect of this provision was to
terminate the operation of the War Measures Act.
However, the 1945 statute also provided that the Governor in
Council might order that the orders and regulations lawfully made under the War
Measures Act or pursuant to authority granted under that Act, in force
immediately before the Act of 1945 came into force should, while the latter Act
was in force, continue in full force and effect, subject to amendment or
revocation under the latter Act. Accordingly, by P.C. 7414, of December 28,
1945, the Governor in Council so provided. The effect of this Order in Council
was to continue the Regulations in force.
The Act of 1945 provided that it should expire on December
31, 1946, if Parliament met during November or December, 1946, but, if
Parliament did not so meet, that it should expire on the fifteenth day after
Parliament first met during the year 1947. It was also provided that if at any
time while the Act was in force, addresses were presented to the Governor
General by the Senate and House of Commons, praying that it should be continued
in force for a further period, not in any case exceeding one year from the time
at which it would ordinarily expire, and the Governor in Council so ordered,
the Act should continue in force for the further period. What has been stated
in the two preceding sentences is the substance of section 6 of the Act of
1945. This section 6 was repealed and a new one enacted by chapter 60 of the
1945 Statutes
[Page 133]
and by virtue thereof and of Order in Council P.C. 1112 of
March 25, 1947, made pursuant to addresses to the Governor General by the
Senate and House of Commons, the Act of 1945 was continued in force until May
15, 1947.
The Continuation of Transitional Measures Act, 1947, being
chapter 16 of the Statutes of that year, came into force immediately on the
expiry of the 1945 Act. The recital in the 1947 statute reads as follows:—
Whereas Parliament, in view of the continuation of the
national emergency arising out of the war, by The National Emergency
Transitional Powers Act, 1945, conferred upon the Governor in Council
certain transitional powers, pursuant to which the Governor in Council has
continued in force certain orders and regulations made under the War
Measures Act and has made other orders and regulations; And whereas the
national emergency arising out of the war, in certain aspects, has continued
since the unconditional surrender of Germany and Japan and is still continuing;
And whereas provision is made for the expiry of The National Emergency
Transitional Powers Act, 1946; And whereas it is necessary by reason of the
existing national emergency that certain orders and regulations of the Governor
in Council made under the War Measures Act and The National Emergency
Transitional Powers Act, 1945, be continued in force temporarily
notwithstanding the expiry of The National Emergency Transitional Powers
Act, 1945, in order to ensure an orderly transition from war to peace:
The statute provides that the orders and regulations of the
Governor in Council specified in the Schedule shall, notwithstanding the expiry
of the 1945 Act, continue and be in force while the 1947 statute is in force,
subject to the revocation by the Governor in Council in whole or in part of any
such order or regulation. The Wartime Leasehold Regulations, that is, P.C. 2029
of 1941 and all the orders in council amending it, are listed in the schedule.
The Continuation of Transitional Measures Act, 1947, also
provided in section 7 that it should expire on December 31, 1947, if Parliament
met during November or December, 1947, but if Parliament did not so meet it
should expire on the sixtieth day after Parliament first met during 1948 or on
March 31, 1948, whichever date was earlier. If, however, while the Act was in
force addresses were presented to the Governor General by the Senate and House
of Commons praying that the Act should be continued in force for a further
period not in any case exceeding one year from the time it would otherwise
expire and the Governor in Council so ordered, the Act should continue in force
for that further period. The Act was
[Page 134]
continued in force by Order in Council P.C. 5304 of December
13, 1947, made pursuant to a joint address. It has subsequently been continued
in force by chapter 5 of the Statutes of Canada, 1948, and chapter 3 of the
Statutes of Canada 1949 (Vol. 1). These statutes amended section 7 of the Act
to extend its duration and that section at present reads as follows:—
7. Subject as hereinafter provided, this Act shall expire on
the sixtieth day after Parliament first meets during the year one thousand nine
hundred and fifty or on the thirty-first day of March, one thousand nine
hundred and fifty, whichever date is the earlier; Provided that, if at any time
while this Act is in force, Addresses are presented to the Governor General by
the Senate and House of Commons, respectively, praying that this Act should be
continued in force for a further period, not in any case exceeding one year,
from the time at which it would otherwise expire and the Governor in Council so
orders, this Act shall continue in force for that further period.
Chapter 3, Statutes of 1949, also restricted the authority
of the Wartime Prices and Trade Board to the control of goods and services
under control at the time of the enactment of that statute. The provisions of
section 7 of the 1949 Act, set forth above, show when the regulations, if
varied, may cease to operate.
It is apparent from the documents of which we are entitled
to take judicial knowledge that the leasehold regulations were originally part
only of various controls of enterprise and services, etc., and that this
control was loosened in various respects from time to time until it now appears
that very few controls are being exercised. So far as the leasehold regulations
are concerned, steps were taken from time to time to limit the interference
with what would otherwise be the ordinary rights of landlords and tenants
until, by Order 813 of the Wartime Prices Board, dated December 15, 1949, as
amended by Order 818, provision was made for increases in the maximum rental
that might be charged for self-contained dwellings and lodgings and making
provision for the termination of leases in certain circumstances. Board Order
814 makes further provision for the securing of possession of premises by
landlords.
Notwithstanding the argument to the contrary, the answer to
be given to the question submitted to the Court is indicated by the judgment of
the Judicial Committee in
[Page 135]
Fort Frances Pulp and Power Co. v. Manitoba Free
Press Co. . That, it should be noted, was a
decision inter partes and not an answer to a question submitted by the
Governor in Council. Where a war emergency has existed and Parliament has
enacted legislation declaring that the national emergency arising out of war,
in certain aspects, has continued and is continuing, the subject matter of the
legislation must be left to Parliament if it decides that the interests of the
Dominion are to be protected. "No authority other than the central
government is in a position to deal with the problem which is essentially one
of statesmanship"; the Fort Frances case at page 706. Only
"very clear evidence" or "clear and unmistakable evidence"
that the Government is in error in thinking that the matter is of inherent
national concern would justify a Court in so deciding: idem p. 706: Cooperative
Committee on Japanese Canadians , at pp. 101 and 108. These two decisions
dispose of the matter, and the answer to the question must be in the negative.
Taschereau J.:—His
Excellency the Governor in Council has referred to this Court the following
question:—
Are The Wartime Leasehold Regulations ultra vires either
in whole or in part and if so in what particulars or to what extent?
The War Measures Act (R.S.C. 1927, ch. 206) was
brought into operation by a Proclamation dated September 1, 1939; and on
September 11, 1940, by Order in Council P.C. 4616, The Wartime Prices and Trade
Board Regulations, made under the War Measures Act, were extended to
rentals and housing accommodation. In November, 1941, consolidated regulations
respecting leasehold, and entitled The Wartime Leasehold Regulations were
established, and on January 1, 1946, an Act of Parliament entitled The
National Emergency Transitional Powers Act was enacted, and at the same
time, all the Orders in Council respecting rentals, passed under the War
Measures Act, were continued in force.
The preamble of this Statute recalls that during the national
emergency that arose by reason of the war against Germany and Japan, measures
have been adopted under the War Measures Act for the military
requirements and the security of Canada and the maintenance of economic
[Page 136]
stability; it also stated that this national emergency has
continued and is still continuing, and that it is essential in the national
interest that certain transitional powers continue to be exercised by the
Governor General in Council during the continuation of the exceptional conditions
brought about by the war, but that it is preferable that such transitional
powers be exercised under specific authority conferred by Parliament, instead
of being exercised under the War Measures Act. The preamble further says
that it is necessary that certain acts and things done and authorized, and
certain orders and regulations made under the War Measures Act be
continued in force, and that the Governor General in Council be
authorized to do, and authorize such further acts and things, and make such
further orders and regulations deemed advisable by reason of the emergency, and
also for the purpose of discontinuance in an orderly manner, as the emergency
permits, of measures adopted during and by reason of the emergency.
Subsection 1 of section 2 of The National Emergency
Transitional Powers Act, 1945, sets out the powers of the Governor General
in Council in part as follows:—
2. (1) The Governor in Council may do and authorize such
acts and things, and make from time to time such orders and regulations, as he
may, by reason of the continued existence of the national emergency arising out
of the war against Germany and Japan, deem necessary or advisable for the
purpose of
(a) providing for
and maintaining the armed forces of Canada during the occupation of enemy
territory and demobilization and providing for the rehabilitation of members
thereof,
(b) facilitating the
readjustment of industry and commerce to the requirements of the community in
time of peace,
(c) maintaining, controlling and
regulating supplies and services, prices, transportation, use and occupation of
property, rentals, employment, salaries and wages to ensure economic stability
and an orderly transition to conditions of peace;
(d) …
(e) continuing or discontinuing
in an orderly manner, as the emergency permits, measures adopted during and
by reason of the war.
This Act was continued in force until May 15, 1947, and on
that date, an Act entitled The Continuation of Transitional Measures Act,
1947, came into force, and the preamble of this new Act recalls that in
view of the continuation of the national emergency Parliament has in 1945,
conferred upon the Governor General in Council
[Page 137]
certain transitional powers, that the
Governor General in Council has continued in force certain orders and
regulations made under the War Measures Act and has made other orders
and regulations; it also states that the national emergency arising out of the
war, in certain aspects, has continued since the unconditional surrender of
Germany and Japan and is still continuing; that it is necessary by reason of
this emergency, in order to ensure an orderly transition from war to peace, to
enact The Continuation of Transitional Measures Act, so. that certain
orders or regulations of the Governor General in Council be continued in force
temporarily, notwithstanding the expiry of The National Emergency
Transitional Powers Act.
Section 2 of The Continuation of Transitional Measures
Act, 1947, provides as follows:—
2. (1) Subject to section 4 of this Act the orders and
regulations of the Governor in Council specified in the Schedule to this Act
shall, notwithstanding the expiry of The National Emergency Transitional
Powers Act, 1945, continue and be in force while this Act is in force.
In the Schedule of this Act is Order in Council P.C.
9029, Wartime Leasehold Regulations, and by section 4 of the Act, the
Governor in Council is authorized to revoke in whole or in part any order or
regulation continued in force by or made under the Act. The Act has been
continued from year to year and will expire on the 31st of March, 1950.
It has to be decided if the Wartime Leasehold Regulations
made by Orders in Council are ultra vires either in whole or in part and
if so in what particulars or to what extent.
The Attorney General of Canada, the Attorney General for
Ontario, the Canadian Legion of the British Empire Service League, and the
Canadian Congress of Labour, have submitted that these regulations are valid in
toto, but the Attorney General for the Province of Quebec and the Canadian
Federation of Property Owners Associations, on behalf of itself, its member
associations and all the property owners of Canada, contend that they are ultra
vires the powers of the Dominion. The submission of the Attorney General of
Canada and of the others who have supported his views, is that those
regulations were valid under the War Measures Act, as well as under The
National Emergency Transitional Powers Act, and that they were validly
[Page 138]
continued in force by The Continuation of Transitional
Measures Act of 1947, (a) as legislation in relation to the
emergency arising out of the war, and (b) as legislation providing for
the withdrawal in an orderly way of measures adopted to meet the war emergency.
It is now settled law, and this question has now passed the
stage of serious controversy, that regulations passed under the War Measures
Act, in times of emergency arising out of the war, and continued in force
under The National Emergency Transitional Powers Act, are
unchallengeable. Vide: Fort Frances Pulp & Power Co. v. Manitoba
Free Press Co. ; In re Gray ; Reference
re Chemicals ; The Co-operative Committee on
Japanese Canadians v. Attorney General of Canada .
A short reference to some of these cases will conclusively
show that certain matters that normally belong to the provincial domain, become
of federal concern, when by reason of abnormal circumstances a national
emergency arises, which in order to be adequately dealt with, requires the
total efforts of the country as a whole.
In Fort Frances Pulp & Power Co. v. Manitoba
Free Press , Viscount Haldane speaking for the
Judicial Committee said at page 703:—
It is clear that in normal circumstances the Dominion
Parliament could not have so legislated as to set up the machinery of control
over the paper manufacturers which is now in question. The recent decision of
the Judicial Committee in the Board of Commerce Case , as well
as earlier decisions, show that as the Dominion Parliament cannot ordinarily
legislate so as to interfere with property and civil rights in the Provinces,
it could not have done what the two statutes under consideration purport to do
had the situation been normal. But it does not follow that in a very different
case, such as that of sudden danger to social order arising from the outbreak
of a great war, the Parliament of the Dominion cannot act under other powers
which may well be implied in the constitution. The reasons given in the Board
of Commerce Case recognize exceptional cases where such a power may be
implied.
In the event of war, when the national life may require for
its preservation the employment of very exceptional means, the provision of
peace, order and good government for the country as a whole may involve effort
on behalf of the whole nation, in which the interests of individuals may have
to be subordinated to that of the community in a fashion which requires s. 91
to be interpreted as providing for such an emergency. The general control of
property and civil rights for normal purposes remains with the Provincial
Legislatures. But questions may
[Page 139]
arise by reason of the special circumstances of the national
emergency which concern nothing short of the peace, order and good government
of Canada as a whole.
In the Reference as to the Validity of the Regulations in
relation to Chemicals , Sir Lyman Duff said:—
The War Measures Act came before this Court for
consideration in 1918 in re Gray , and a point of capital
importance touching its effect was settled by the decision in that case. It was
decided there that the authority vested in the Governor General in Council is
legislative in its character and an order in council which had the effect of
radically amending the Military Service Act, 1917, was held to be valid.
The decision involved the principle, which must be taken in this Court to be
settled, that an order in council in conformity with the conditions prescribed
by, and the provisions of, the War Measures Act may have the effect of
an Act of Parliament.
Not only are the regulations made under the War Measures
Act, valid, in case of emergency, but also must be held to be within the
powers of the Central Government, regulations to avoid economic and other
disturbances occasioned originally by the war. In the case cited supra, (Fort
Frances Pulp & Power Co. v. Manitoba Free Press) it was held:—
Held, accordingly, that the Canadian War Measures
Act, 1914, and Orders in Council made thereunder during the war for controlling
throughout Canada the supply of newsprint paper by manufacturers and its price,
also a Dominion Act passed after the cessation of hostilities for continuing
the control until the proclamation of peace, with power to conclude matters
then pending, were intra vires.
Judgment of the Appellate Division affirmed on a different
ground.
The more recent case of Co-operative Committee on
Japanese Canadians v. Attorney General for Canada is very
much to the point. In that case, this Court decided that three Orders in
Council passed in 1945, after the cessation of hostilities, under the authority
of the War Measures Act, and continued in force by Order in Council
pursuant to section four of The National Emergency Transitional Powers Act, authorizing
the deportation of certain Japanese, were valid. Delivering the judgment of the
Judicial Committee, which upheld this Court, Lord Wright said at page 101:—
On certain general matters of principle there is not, since
the decision in Fort Frances Pulp & Power Co. v. Manitoba Free
Press Co. , any room for dispute. Under the British
North America Act property and civil rights in the several Provinces are
committed to the Provincial
[Page 140]
legislatures, but the Parliament of the Dominion in a
sufficiently great emergency, such as that arising out of war, has power to
deal adequately with that emergency for the safety of the Dominion as a whole.
These binding judicial pronouncements clearly hold that
regulations made under the War Measures Act and under subsequent
statutes, when there is still an emergency arising out of the war, must be held
valid. This legislation may, of course, incidentally affect provincial rights,
but as long as it is legislation directed to meet the continuing national
emergency, it is not legislation in relation to provincial rights, but in
"pith and substance", in relation to a matter upon which the Central
authority may competently legislate. Attorney General for Ontario v. Reciprocal
Insurers ; Attorney General for Canada v. Attorney
General for Quebec et al. .
Under "Property and Civil Rights", rentals are
normally of provincial concern, but as the result of an emergency, the existing
provincial laws on the matter become inoperative. The rights of the provinces
are not of course permanently suppressed, and their jurisdiction temporarily
suspended during the federal invasion, flows afresh when the field is finally
abandoned. It is only during the period of occupation that the provincial
jurisdiction is overridden. This is the reason that may justify the Dominion
Government to offer to some or to all of the provinces to legislate on rentals,
and to exercise anew their constitutional rights.
In order however to vest in the Federal Parliament the
necessary authority to deal with such matters, there must be an emergency.
There is no doubt that such an emergency existed during the war, and that
during that period, the jurisdiction of Parliament could not be impugned. But
the time that an emergency lasts is not limited to the period of actual
hostilities. War is the cause of many social and economic disturbances and its
aftermath brings unstable conditions which are settled only after a period of
necessary readjustment, during which the emergency may very well persist. As
Viscount Haldane said in the Fort Frances case:—
At what date did the disturbed state of Canada which the war
had produced so entirely pass away that the legislative measures relied on in
the present case became ultra vires?
[Page 141]
The preambles of The National Emergency Transitional
Powers Act, 1945, and of The Continuation of Transitional Measures Act,
1947, and the Order in Council submitting this Reference to this Court,
clearly declare that the emergency still exists as a result of the war,
and that by reason of that emergency and in order to decontrol in an orderly
manner, it is imperative that the Governor General in Council be authorized
to enact the necessary regulations.
Of course, these statements are not conclusive and do not
close the door to all judicial investigations, but it is only with great
caution that the courts will intervene and disregard these declarations of
Parliament and of the Governor General in Council. As Viscount Haldane said in
the Fort Frances case:—
In such a case the law as laid down for distribution of
powers in the ruling instrument would have to be invoked. But very clear
evidence that the crisis had wholly passed away would be required to
justify the judiciary, even when the question raised was one of ultra vires which
it had to decide, in overruling the decision of the Government that exceptional
measures were still requisite.
And further, also at page 707:—
It is enough to say that there is no clear and
unmistakable evidence that the Government was in error in thinking that the
necessity was still in existence at the dates on which the action in question
was taken by the Paper Control Tribunal.
In the Co-operative Committee on Japanese Canadians v.
Attorney General for Canada , at page 101, Lord Wright expressed his
views as follows:—
The interests of the Dominion are to be protected and it
rests with the Parliament of the Dominion to protect them. What those interests
are the Parliament of the Dominion must be left with considerable freedom to
judge. Again, if it be clear that an emergency has not arisen, or no longer
exists, there can be no justification for the exercise or continued exercise of
the exceptional powers. The rule of law as to the distribution of powers
between the Parliaments of the Dominion and the Parliaments of the Provinces
comes into play. But very clear evidence that an emergency has not arisen, or
that the emergency no longer exists, is required to justify the
judiciary, even though the question is one of ultra vires, in overruling
the decision of the Parliament of the Dominion that exceptional measures were
required or were still required. To this may be added as a collorary that it is
not pertinent to the judiciary to consider the wisdom or the propriety of the
particular policy which is embodied in the emergency legislation. Determination
of the policy to be followed is exclusively a matter for the Parliament of the
Dominion and those to whom it has delegated its powers.
[Page 142]
In the present instance, no evidence of any kind has been
submitted to show that the emergency has disappeared and that normal conditions
are now prevailing. On the contrary, common knowledge, to which it is surely
permissible to appeal in a case of this kind, and the very valuable exhibits in
the record which I have usefully con-suited, to test the accuracy of the
statements, lead me to the irresistible conclusion that an emergency still
exists as an aftermath of the war. Vide: The Attorney General for Ontario v.
Reciprocal Insurers, ; Attorney General for Alberta v. Attorney
General for Canada, ; Lower Mainland Dairy Products Board
v. Turners Dairy Ltd. .
The case of Russell v. The Queen
has been referred to during the argument. This case which is very frequently
cited has no application. Moreover, it has not the meaning that has been
attributed to it, as a result of the dictum of Viscount Haldane in Toronto
Electric Commissioners v. Snider . In Attorney General
for Canada v. Canada Temperance Federation ,
Viscount Simon has definitely settled the matter and removed all possible
doubts. Speaking for the Judicial Committee, he held that the Scott Act was
a permanent law and not a law, the validity of which was justified by an
emergency. It is not the existence of abnormal and transitory conditions that
justified its validity.
The present case must also be distinguished from the
Reference submitted to this Court as to the validity of the Dairy Industry
Act. The Margarine Case, . In that case, amongst other
submissions, it was contended that there was an emergency that justified the
Parliament of Canada under the "Peace, Order and good Government"
clause of section 91 of the B.N.A. Act to enact the legislation, but
this Court held that an emergency did not exist, particularly in view of the
allegation in the Order in Council, that margarine was not obnoxious to health,
and that therefore the matter was of provincial concern.
It follows that if there is unmistakable evidence to make it
clear that there is no emergency, the courts are duty bound to intervene.
Otherwise, we would reach a con-
[Page 143]
clusion that is not justified by the B.N.A. Act. Under
the guise of "Peace, Order and good Government", it would be possible
for the Parliament of Canada to enact colourable legislation, and wrongly
assume powers that belong to the provincial legislatures. Confederation has
been erected on more solid foundations.
But such is not the case. The war has created an emergency
that justified the Governor General in Council to bring the War Measures Act
in operation and pass regulations to meet such an emergency. Parliament
then enacted The National Emergency Transitional Powers Act, 1945, and The
Continuation of Transitional Measures Act, 1947, because in its opinion the
emergency that arose out of the war was still existing, and for the express
purpose of decontrolling, and to complete the orderly transition from abnormal
to normal conditions. The regulations that were passed to reach that aim are
essentially of a temporary character, and the laws from which they derive their
validity are in no way permanent. They will come to an end with the emergency.
My answer to the interrogatory is therefore in the negative.
Rand J.: The
Governor in Council has referred to this Court the following question:—
Are The Wartime Leasehold Regulations ultra vires either
in whole or in part and if so in what particulars or to what extent?
These are part of the general regulations made under the
authority of The War Measures Act which applied to virtually the entire
economic organization of the country, and which no one has seriously suggested
were not valid up to the end of actual hostilities, assuming that stage to have
been reached before say 1947. The contention before us that sought to end their
force at that moment was that of Mr. Beaulieu on behalf of the Province of
Quebec. His contention was this: once the war, as distinguished from its
aftermath, had ended, the "emergency" by which the regulations were
justified had come to an end and it was necessary to their continued validity
that the state of things immediately following should constitute, in effect, a
new emergency; the latter would be a peacetime emergency, and would necessarily
be considered apart
[Page 144]
from its cause. In that view, it would be obligatory upon
those supporting the continuance of the central power to show the existence of
such a state of things, which had not been done.
In the sense so used, the word "emergency" carries
the objectionable insufficiency which prompted the remarks of Viscount Simon in
the Temperance litigation reported in [1946] A.C. 193 at p. 206: as he there
observed, an emergency may be the occasion which calls for the legislation, but
it is the nature of the legislation itself, and not the existence of emergency,
that must determine whether it is valid or not. It is the conditions brought
about by war that justify the regulation here; and the narrow question is
whether the regulation can continue while the conditions remain.
In considering the situation at the war's end, it must be
kept in mind that the regulations themselves have played an effective part in
producing it. If, at that moment, all restrictions were to
be abandoned, no one could doubt that serious disturbances and hardship would
follow, and it would not be sufficient to say that they would become the
responsibility of the provinces.
That circumstance was emphasized in the case of Dawson v.
The Commonwealth , in which Leatham, C.J. at p. 176 says:—
The defence power does not cease instantaneously to be
available as a source of legislative authority with the termination of actual
hostilities or even with the end of the war * * * The fact that the Regulations
have been in operation itself creates an economic condition which may
reasonably be thought to require that continued operation for some further
period in order to bring about a gradual return to what might be called more normal
conditions, instead of exposing the community to the consequences of a sudden
and abrupt creation of what may be a legislative vacuum.
It seems to me to be a legitimate consideration that persons
who might directly or indirectly be affected by such drastic action would
naturally look to the government originally responsible to take or continue
reasonable measures to effect transition with as little injury to them as is
consistent with regard to others.
There is direct authority on the question asked of us. It is
now settled that for the emergency of war, on which the validity of the
regulations is rested, and within con-
[Page 145]
stitutional procedure, there is virtually no limitation to
the scope of legislative action which Parliament, considering it necessary, may
take for the defence of the country: Japanese Reference . That
means, among other things, the preservation of the constitutional structure
itself whose internal organization governs the ordinary peacetime life of the
country. To suggest that the constitutional legislative position of the
provinces presents impediments and limitations to the overriding necessity of
maintaining the foundation upon which it rests indicates a somewhat inadequate
appreciation of the realities of organized society in the world of these times,
as well as of the constitutional statute.
In Fort Frances Pulp & Power Co. v. Winnipeg
Free Press the Judicial Committee, speaking through
Viscount Haldane, held that an order issued in 1920 by the Paper Controller
fixing prices which the Pulp Company should charge the Free Press for a period
up to December 31, 1919, was within the authority of Parliament under the power
to legislate for the peace, order and good government of the Dominion; and in
the course of the reasons, at p. 706, this language is used:—
At what date did the disturbed condition of Canada which the
war had produced so entirely pass away that the legislative measures relied on
in the present case became ultra vires?
And at p. 707:—
Their Lordships find themselves unable to say that the
Dominion Government had no good reason for thus temporarily continuing the
paper control after actual war had ceased, but while the effects of war
conditions might still be operative.
Viscount Haldane does not consider the question whether the
regulations could be justified by the power of the Dominion to legislate for
defence, on which the Australian legislation was upheld, but with that it is
not necessary now to deal.
By what means, then, is it to be determined that economic
disturbances caused by the war have not yet "entirely" disappeared? A
conclusion of this sort is to be gathered from an appreciation of conditions
throughout the country. Evidence of that is furnished to Parliament by the
representatives in both the Houses: it is gathered by the agencies of the
Dominion government charged
[Page 146]
with country-wide enquiry, which are at the same time
receiving centres of complaints and communications from all districts. There is
also the common knowledge of which the Court can take judicial notice.
Of matters of that sort we have the following. In the latest
legislative enactment, that of The Continuation of the Transitional
Measures Act, 1947, these recitals appear:—
Whereas Parliament, in view of the continuation of the
national emergency arising out of the war, by The National Emergency
Transitional Powers Act, 1945, conferred upon the Governor in Council
certain transitional powers * * *
And whereas the national emergency arising out of the war,
in certain aspects, has continued since the unconditional surrender of Germany
and Japan and is still continuing; * * *
And whereas it is necessary by reason of the existing
national emergency that certain orders and regulations * * * be continued in
force temporarily * * * in order to ensure an orderly transition from war to
peace;
They were followed in 1948 by an address of both Houses of
Parliament provided for by the Act, by which its life was extended for a
further year; and a similar address in 1949 for the same purpose. These are
express and implied affirmations by the two legislative bodies to the effect
that the abnormal conditions attributable to the war are still to some extent
present, and that in the opinion of Parliament an appropriate degree of
regulation is still required for the surrender, without too great shock or
violence, of segments of the country's economy to the normal operation of
economic forces. With those declarations and the matters of general public
knowledge, at least not inconsistent with them, before us, and with nothing
seriously challenging them, it would be quite impossible for this Court to find
that the war conditions had in fact entirely disappeared, that the declarations
of Parliament were not made in good faith, and that its legislation, for some
purpose other than that of an orderly accommodation of the regulations to the
last stages of the economic derangement, was a colourable device for dealing
with matters beyond its jurisdiction.
My answer to the question is, therefore, that the regulations
are not, in whole or part, ultra vires.
Kellock J.:—By
s. 3 of the War Measures Act, R.S.C., 1927, c. 206, brought into
operation by proclamation on September 1, 1939, "the Governor-in-Council
may do and
[Page 147]
authorize such acts and things and make from time to time
such orders and regulations as he may by reason of the existence of real or
apprehended war * * * deem necessary or advisable for the security, defence,
peace and welfare of Canada". While the section goes on to provide that this
authority shall extend to certain enumerated classes of subjects, it is
expressly enacted that this enumeration is merely for greater certainty and not
so as to restrict the generality of the earlier language; Co-operative
Committee on Japanese Canadians v. Attorney-General for Canada .
Under the authority of this statute wartime economic
controls, including measures respecting prices and rents, were by
Order-in-Council introduced in Canada gradually during the earlier years of the
war. Those earlier controls were directed to the meeting of specific
difficulties of supply resulting from conditions brought about by the war.
Later, and toward the end of 1941, when a broad inflationary
rise in prices generally began to develop, more comprehensive measures designed
to maintain economic stability were put into effect, including the
establishment of a general price "ceiling". Limitation of rents was
also extended so as to include all real property, with the exception of farms.
In the great majority of cases rents in effect in October, 1941, were
"frozen". Control of wages and salaries also, which, up to that time,
had been limited to "war industries", was extended to all industries.
By the end of 1942 a fairly complete and integrated system of economic controls
had been established and this continued with little change until the summer of
1945.
Following cessation of active hostilities with Germany,
these controls began to be eased in the summer of 1945, the first steps being
with respect to the use of metals and other materials no longer required for
active war purposes. By the end of the year 1946, controls over these
particular materials had disappeared. During 1946 wage controls were at first
relaxed and later abolished and in that year also there began the easing of the
control of prices generally, which continued at an accelerated rate during 1947
and 1948, while rationing of consumers came to an end during 1947.
[Page 148]
The respondents accept the accuracy of the statement placed
before the court on behalf of the federal government that:
Both price controls and subsidies were withdrawn in steps
and stages, with a view to easing the Canadian price structure up toward the
world price level in an orderly manner. At times it was necessary to slow down
the process of decontrol and occasionally to retrace a few steps when, for
example, a long series of protracted industrial disputes in 1946 interrupted
the improvement of supplies, and late in 1947 when severe exchange conservation
measures required the reimposition of price controls on
certain fruits and vegetables. But there was a steady and progressive
contraction of the area under control.
The pace of rent decontrol has been slower for a variety of
reasons.
The effect of demobilization of the members of the Armed Forces
accentuated the already existing shortage of houses. Demobilized persons again
took up family residences. Many of them married to form new families. Thus the
end of hostilities did not, as in the case of other controls, immediately
change the conditions that led to the application of controls to accommodation
but in fact for the time being intensified these conditions.
Again wartime conditions brought about a significant change
in the balance between the demand and supply for houses in Canada. Wartime economic
activities increased the demand for housing because of higher incomes which
have continued after the war. On the other hand, increases in the supply of
houses which might have been expected in these circumstances was cut down by
restrictions on civilian construction to release materials and labour for war
purposes. This lack of balance between demand and supply takes longer to adjust
than in the case of the supply of other goods or services.
As to the nature of the controls affecting real property, the
Wartime Prices and Trade Board had been authorized, in addition to the fixing
of maximum rents, from time to time, to prescribe the manner in which rentals
should be ascertained and what should constitute or be included in any rental.
The Board was also authorized to prescribe the grounds on which and the manner
in which leases might be terminated and to prohibit termination of leases or
eviction otherwise. Every order made in pursuance of the regulations was to
apply throughout Canada unless the contrary was specified therein but might be
localized to an area or areas or to a class or classes of persons or to types
of property.
On the 18th of December, 1945, 9-10 Geo. VI, c. 25, which
came into force on January 1, 1946, was passed. By s. 5 it was provided that on
and after that day the war against Germany and Japan should, for the purposes
of the War Measures Act, be deemed no longer to exist.
[Page 149]
By s. 4 it was provided that the
Governor-in-Council might order that orders and regulations lawfully made under
the War Measures Act, or pursuant to authority created under that Act,
in force immediately before the statute came into force, should, while it
remained in force, continue in full force and effect, subject to amendment or
revocation under its provisions. By s. 6 the statute was to expire on December
31, 1946, if Parliament should meet during November or December of that year,
and if not, then on the fifteenth day after Parliament should first meet in
1947. The section also provided that upon addresses presented to the Governor
General by the Senate and the House of Commons at any time while the statute
remained in force, praying that the Act should be continued in force for a
further period not exceeding in any case one year, it should so continue.
By P.C. 7414 of December 28, 1945, the power conferred by s.
4 was exercised with respect to all orders and regulations lawfully made under
the War Measures Act, or pursuant to authority created under that Act
and in force immediately before the Act of 1945 came into force. Section 12 of
the Interpretation Act made this Order-in-Council effective.
By 10 Geo. VI, c. 60, assented to on the 31st of August,
1946, a new section 6 was enacted and provision was made for the continuation
of the statute until the 31st day of December, 1946, on essentially the same
terms as had been provided by the original section. Further, by P.C. 1112 of
the 25th of March, 1947, which recited that addresses of the Senate and House
of Commons had been presented praying for the continuation of the 1945 statute
until the 15th day of May, 1947, it was provided that the Act should remain in
force until that date.
By 11 Geo. VI, c. 16, assented to on the 14th of May, 1947,
which, by s. 6, was to come into force immediately after the expiry of the 1945
statute, certain Orders-in-Council, including the Wartime Leasehold
Regulations, were to continue in force during the term of the new statute
subject to revocation in whole or in part by the Governor-in-Council. Provision
for the continuation of the Act was also made by s. 7 in terms similar to s. 6
of the
[Page 150]
earlier statute. By P.C. 5304 of December 30, 1947, the 1947
statute was continued in (force to March 31, 1948, addresses for the purpose by
the Senate and House of Commons having been presented. This legislation has
been continued in force by 11-12 Geo. VI, c. 5 and 13 Geo. VI, c. 3. Unless
further extended it will expire on March 31, 1950.
It was not suggested by anyone on the argument that
conditions did not exist justifying the bringing into force of the War
Measures Act, nor that under its provisions regulations could not properly
have been enacted which would affect landlords and tenants. But it was
contended that the conditions which constituted the basis for the continued
exercise of this legislative jurisdiction by the federal authority had either
passed away or that the particular regulations which are here in question had
never been enacted in relation to that jurisdiction but had been at all times
enactments purely in relation to property and civil rights in the provinces and
therefore at all times beyond the jurisdiction of Parliament.
As will be seen from the above summary of its terms, the
legislation outlined above is temporary legislation, having its inception in the
extraordinary conditions consequent upon the magnitude of the war which
commenced in September, 1939. As has been frequently laid down, subjects which
would normally belong exclusively to provincial jurisdiction under classes of
subjects specifically assigned by s. 92 of the British North America Act may,
in time of war, assume a significance of paramount importance and of dimensions
that give rise to a standard of necessity calling for the exercise of powers
vested only in the federal authority. In such circumstances it is, as Viscount
Haldane pointed out in the Fort Frances case , that:
It is proprietary and civil rights in new relations, which
they do not present in normal times, that have to be dealt with; and these
relations, which affect Canada as an entirety, fall within s. 91, because in
their fullness they extend beyond what s. 92 can really cover. The kind of
power adequate for dealing with them is only to be found in that part of the
constitution which establishes power in the State as a whole. For it is not one
that can be reliably provided for by depending on collective action of the
Legislatures of the individual Provinces agreeing for the purpose.
[Page 151]
Dealing first with the question as to whether the conditions
which justified the initial legislation by Parliament have now completely
passed away so as no longer to justify the particular regulations here in
question, it was pointed out in the Fort Frances case that the question
as to the extent to which provision for such circumstances may have to be
continued is one on which a court of law is loath to enter. It may be, as their
Lordships said in that case, that it has become "clear" that the
crisis which arose is "wholly" at an end and that there is "no"
justification for the continued exercise of an exceptional interference which
becomes ultra vires when no longer called for, but very clear evidence
that the crisis has "wholly" passed away would be required to justify
a court in overruling the decision of the government that exceptional measures
were still requisite.
Their Lordships asked the question as to when, in the case
before them, it was to be said that the necessity "altogether" ceased
for maintaining the exceptional measure of control there in question. At what
date did the disturbed state of Canada which the war had produced so
"entirely" pass away that the legislative measures in question became
ultra vires? Their Lordships found that there was "no clear and
unmistakable evidence" in that case that the government was in error in
"thinking" that the necessity was still in existence and they found
themselves unable to say that the Dominion Government had "no good
reason" for temporarily continuing the control after actual war had
ceased, but while the effects of war conditions might still be operative.
In the Japanese reference ubi cit, the Judicial
Committee reaffirmed the principles laid down in the Fort Frances case.
The statute there in question provided by s. 2 that the Governor-in-Council
might do ,and authorize such acts and things, and make from time to time such
orders and regulations, as he might, by reason of the continued existence of
the national emergency arising out of the war against Germany and Japan, deem
necessary or advisable for the purpose of
(c) maintaining, controlling and regulating * * *
prices * * * use and occupation of property, rentals * * * to ensure economic
stability and an orderly transition to conditions of peace;
[Page 152]
(e) continuing or discontinuing in an orderly manner,
as the emergency permits, measures adopted during and by reason of the war.
In the Japanese Canadian reference it was contended that at
the date of the passing of the Act of 1945 there did not exist any such
emergency as justified Parliament in empowering the Governor-in-Council to pass
the orders there in question, as the emergency which had dictated their
making—namely, active hostilities, had come to an end. It was said that a new
emergency justifying exceptional measures might indeed have arisen, but it was
by no means the case that measures taken to deal with the emergency which led
to the proclamation bringing the War Measures Act into force were
demanded by the emergency which faced Parliament at the time of the passing of
the Act. This contention however, was rejected by the Privy Council as it had
been by this court. After pointing out that the statute in its preamble clearly
stated the view of Parliament as to the necessity of imposing the powers which
were exercised, Lord Wright, who delivered the judgment, added:
The argument under consideration invites their Lordships, on
speculative grounds alone, to overrule either the considered decision of
Parliament to confer the powers or the decision of the Governor in Council to
exercise them. So to do would be contrary to the principles laid down in Fort
Frances Pulp & Power Co. v. Manitoba Free Press Co.
and accepted by their Lordships earlier in this opinion.
In the preamble to the statute of 1947 which is still in
force, it is recited that:
* * * the national emergency arising out of the war, in
certain aspects, has continued since the unconditional surrender of Germany and
Japan and is still continuing * * * And whereas it is necessary by reason of
the existing national emergency that certain orders and regulations of the
Governor in Council made under the War Measures Act and The National
Emergency Transitional Powers Act, 1946, be continued in force temporarily
notwithstanding the expiry of The National Emergency Transitional Powers
Act, 1945, in order to ensure an orderly transition from war to peace * * *
While a recital in an act of Parliament cannot be conclusive
on a question such as is here involved, it at least furnishes evidence that, in
the mind of Parliament, legislation was directed to a continuing condition.
There is no suggestion in the present case of bad faith on the part of
Parliament.
[Page 153]
In my opinion the undoubted legislative power of Parliament
in respect of conditions arising out of an emergency such as that created by a
war of the proportions of the late war, as established by the authorities
referred to, includes, not only the power to prosecute the war and to do
everything necessary to that end, but also the power to effect the restoration
of conditions of peace by gradual process if that is thought wise and "not
necessarily immediately by the crude process of immediate abandonment of all
Eederal control", to borrow language used by Latham C.J. in Dawson v.
The Commonwealth , at 176. The fact that certain
conditions have been created by the exercise of the defence power is itself a
fact which is relevant to the validity of a continued exercise of that power.
The former Chief Justice of Canada, Sir Lyman Duff, (with
whom the present Chief Justice concurred) expressed the same idea in other language
in The King v. Eastern Terminal Elevator Co. , at 443,
where he said:
Regarded as legislation essential to prevent such a
financial crisis as would be not unlikely to ensue upon the relinquishment,
voluntary or forced, of Dominion control over the grain trade, the Canada Grain
Act might well withstand the test of validity suggested in the Board of
Commerce , the Fort Frances
and the Lemieux Act cases.
Applying the above principles, it is, in my opinion, clear
that the court is not in a position, any more than it was in the case of the
1947 Reference, to overrule the decision of Parliament expressed as late as the
25th of March, 1949, that the rental regulations here in question are still
necessary to meet conditions initially arising out of war but still continuing.
The kind of evidence necessary to establish that the emergency calling for the
exercise of the federal power has "entirely" passed away, is wholly
lacking.
The only matter relied upon by the respondents as evidence
to that end, was the statement in the Order of Reference that on October 23,
1948, the Minister of Finance had advised the premiers of each of the
provincial governments that the Dominion government
was prepared to vacate the field to any province which might
decide to undertake rent control.
[Page 154]
This, however, is not to be taken alone, as it is
immediately followed 'by the statement that:
In offering to vacate the field to the provinces a year ago
the federal government was not seeking to relieve itself of responsibility for
rent control. It was motivated solely by concern for the situation that would
arise should rent control be held to be beyond the constitutional powers of the
federal authorities. It believed at that time that the sudden end of rent
control would result in unnecessary disruption and hardship, and it offered to
put the matter beyond doubt by giving the provinces an opportunity to introduce
legislation that could not be successfully challenged in the courts.
At the time of the above "offer" there was in
effect Dominion-wide legislation designed to deal with a Dominion-wide problem.
If it had developed t'hait that problem could have been
dealt with by common action agreed upon by the provinces, it might have been
that any further justification for the exercise of federal legislative
jurisdiction would have ceased. On the contrary, however, "none of the
(then existing provinces was prepared to undertake rent control" and the
problem did not become one that could be "reliably provided for by
depending on collective action of the legislatures of the individual provinces
agreeing for that purpose", to quote again from the Fort Frances case
at 704. As the provinces could not in fact agree, the Dominion considered it
necessary that this legislation should remain. I do not think that, in the
existing circumstances, had one or more of the provinces undertaken to exercise
"rent control" within their respective limits so
as adequately to form the necessary links with Dominion legislation elsewhere
in the country wide system of control, the powers of the Dominion Government to
maintain its legislation would have been affected.
If clear evidence had been adduced of the disappearance of
any conditions justifying the continued operation of the federal legislation,
it would, of course, be not only within the power but the duty of the court to
declare the legislation invalid, but in the present case there is nothing of
the kind. Such facts as are common knowledge, and of which the court may take
judicial notice, indicate the contrary. To this may be added what is obvious,
namely, that in such circumstances it is not for the court to consider the
wisdom or propriety of the particular policy embodied in the residual emergency
legislation. That is matter exclusively for Parliament.
[Page 155]
With respect to the second objection to the validity of the
regulations, namely, the contention that, from a perusal of the
Orders-in-Council, the court could say that their provisions were not enacted
with relation to the Dominion field of legislative jurisdiction in time of war,
but purely in relation to property and civil rights, in my opinion this
contention cannot be sustained. I think it is sufficiently clear that the
measures here in question were enacted from the point of view of what was
considered called for in the conditions then prevailing. In that view they are
valid. Their continuing validity I have already dealt with.
My answer, therefore, to the question referred, is that the
Wartime Leasehold Regulations are intra vires.
Estey J.:—His
Excellency the Governor General in Council under s. 55 of The Supreme Court
Act referred to this Court the question:
Are The Wartime Leasehold Regulations ultra vires either
in whole or in part and if so in what particulars or to what extent?
The Wartime Leasehold Regulations were enacted by Order in
Council P.C. 9029, November 21, 1941, under the authority of the War
Measures Act, R.S.C. 1927, c. 206. In 1945 Parliament, after the conclusion
of actual hostilities, deemed it desirable that legislation in respect to the
emergency arising out of the war should be dealt with under special authority
and as a result The National Emergency Transitional Powers Act, 6. of C.
1945, c. 25, was enacted which continued these Wartime Leasehold Regulations in
force. This statute remained in force until May 15, 1947, when The
Continuation of Transitional Measures Act, S. of C. 1947, c. 16, became
effective and continued in force such of these Wartime Leasehold Regulations as
had not been repealed.
The validity of the War Measures Act was upheld in Fort
Frances Pulp v. Manitoba Free Press , and The
National Emergency Transitional Powers Act, 1945, in The Co-operative
Committee on Japanese Canadians v. The Attorney-General of Canada .
The power of the Governor in Council to legislate under the War Measures Act
by Order in Council was upheld in In re Gray , and Reference
re Chemicals, .
[Page 156]
The National Emergency Transitional Powers Act, 1945, was
held to be valid Dominion legislation in the Japanese Reference, supra, and
in the course of the judgment of their Lordships of the Privy Council, Lord
Wright at p. 101 stated:
Again if it be clear that an emergency has not arisen, or no
longer exists, there can be no justification for the exercise or continued
exercise of the exceptional powers. The rule of law as to the distribution of
powers between the Parliaments of the Dominion and the Parliaments of the
provinces comes into play. But very clear evidence that an emergency has not
arisen, or that the emergency no longer exists is required to justify the
judiciary even though the question is one of ultra vires, in overruling
the decision of the Parliament of the Dominion that exceptional measures were
required or were still required.
The recital and the provisions of The Continuation of
Transitional Measures Act set forth that the emergency arising out of the
war still continued but only "in certain aspects" and that certain
orders and regulations then existing should "be continued in force
temporarily * * * in order to ensure an orderly transition from war to
peace". Of even greater significance is that by s. 4 the power vested in
the Governor in Council is restricted to the revocation either in whole or in
part of any existing order or regulation. Parliament here indicates a clear
(intention that this legislation is of a temporary character, which is further
emphasized by the amendments made in 1948 (S. of C. 1948, c. 5) and in 1949 (S.
of C. 1949, c. 3). In the latter amendment sec. 7 reads:
7. Subject as hereinafter provided, this Act shall expire on
the sixtieth day after Parliament first meets during the year one thousand nine
hundred and fifty or on the thirty-first day of March, one thousand nine
hundred and fifty, whichever date is the earlier: Provided that, if at any time
while this Act is in force, Addresses are presented to the Governor General by
the Senate and House of Commons, respectively, praying that this Act should be
continued in force for a further period, not in any case exceeding one year,
from the time at which it would otherwise expire and the Governor in Council so
orders, this Act shall continue in force for that further period.
The true nature and character of The Continuation of
Transitional Measures Act, 1947, is that those orders and regulations
necessary because of the continuation of the emergency arising out of the war
should, so far as it may be necessary, be continued but that they might
gradually and in an orderly manner be repealed as the conditions of emergency
continue to diminish. It is in principle legis-
[Page 157]
lation similar to The National Emergency Transitional Powers
Act and valid under the authority of the Japanese Reference, supra.
The Attorney-General of Canada submitted that The Wartime
Leasehold Regulations as continued in the Schedule of The Continuation of
Transitional Measures Act, 1947, were valid legislation in relation to the
emergency arising out of the war and for the withdrawal in an orderly manner of
measures adopted to meet the emergency. In this he was supported by counsel for
the respective parties appearing in support of these regulations.
In this submission the essential question is, therefore,
does the emergency arising out of the war still exist. This is primarily a
matter that the representatives of the people in Parliament must determine.
They are not only familiar with the conditions that obtain throughout the
various parts of the Dominion, but they have available to them the records and
statistics upon which such a question may be determined. The position of the
Courts in the consideration of this question is indicated by Viscount Haldane
in the Fort Frances case, supra, at p. 706:
* * * the effect of the economic and other disturbance
occasioned originally by the war may thus continue for some time after it is
terminated. The question of the extent to which provision for circumstances
such as these may have to be maintained is one on which a Court of law is loath
to enter. No authority other than the centra. Government is in a position to deal
with a problem which is essentially one of statesmanship * * * But very clear
evidence that the crisis had wholly passed away would be required to justify
the judiciary, even when the question raised was one of ultra vires which
it had to decide, in overruling the decision of the Government that exceptional
measures were still requisite.
Parliament in 1947 by the recital and provisions contained
in The Continuation of Transitional Measures Act and the inclusion of
The Wartime Leasehold Regulations in the Schedule thereto declared that the
emergency in relation to which the regulations were passed still continued. It
was clear, however, from the provisions of that statute that the conditions
were changing to the point that no longer was it necessary that the 'Governor
in Council should be authorized to pass new orders and regulations. In fact
many of these Leasehold Regulations had already been repealed and at the time
of this reference only housing and shared accommodation were subject thereto.
All this indicates that the Dominion has been pursuing
[Page 158]
a course of gradual decontrol and when the emergency no
longer exist its legislation will be completely repealed. It was no doubt in
appreciation of these facts that the Province of Ontario supported the
submission on behalf of the Dominion and stated "Parliament must be left
with a reasonable time (which has not yet expired) to decontrol in an orderly
manner" and "which is being done as rapidly as circumstances
warrant". This position was also supported by all of counsel appearing in
support of the validity of these regulations.
It was contended that the statement of the Minister of
Finance in 1948 embodied and made a part of Order in Council P.C. 5840
submitting this reference should be construed to mean "that the
circumstances were such that it was no longer essential for Canada as a whole
for the Dominion to continue to deal with the landlord and tenant
relationship". This submission does not, except by implication, contend
that the emergency no longer exists. As already intimated, the Dominion so long
as the emergency continues possesses the authority to legislate in relation
thereto and how far it should do so is a matter of statesmanship, in regard to
which the following is pertinent:
It is enough to say that there is no clear and unmistakable
evidence that the Government was in error in thinking that the necessity was
still in existence at the dates on which the action in question was taken by
the Paper Control Tribunal. Viscount Haldane in the Fort Frances case, supra,
at p. 706.
The Minister made the statement because the constitutional
validity of these Leasehold Regulations had been challenged in the Courts and
because in his opinion the emergency still continued. He was, in these
circumstances, concerned that Should the Courts declare these regulations
invalid that the provinces would be prepared to deal with the problem of rent
control and by way of assistance and on behalf of the Government he offered to
each province its records, information, experience, staff and "subject to
Parliament's approval, to pay the cost of any provincial rental administration
for one year". Emphasis was placed upon that portion of the statement
intimating that the Federal Government was "ready at any time to vacate the
field of rent control to any province which makes a formal request to that
effect". This portion must be read and construed as part of the statement
as a whole. When so
[Page 159]
read it indicates that the emergency still continues and is
consistent with the position taken throughout by the Dominion that as the scope
of the emergency narrows its legislation will be repealed. It can mean no more
than that while the emergency still exists, it has so far eased or narrowed
that if a province "makes a formal request" the Dominion will not
prevent it operating "in the field of rent control". The Minister's
statement does not support either a conclusion that the emergency no longer
continues or that it is within the authorities no longer essential for the
Dominion to deal therewith.
In considering some of the other objections to the validity
of these regulations, it is important to keep in mind that the emergency
arising out of the war with Germany and Japan was of such magnitude and extent
that it imperilled the existence of the Dominion as a nation; that within the
terms of the B.N.A. Act the Dominion is authorized to deal effectively
with this emergency and in that aspect to legislate in relation thereto. That
such legislation may involve provisions that under normal circumstances would
be classified as in relation to matters which under s. 92 are assigned
exclusively to the provinces does not impair its validity. That as enacted it
may affect property and civil rights or other matters enumerated under s. 92 must
be admitted. If, however, it be legislation in relation to the emergency, so
long as that emergency may continue it must be held to override or suspend the
provincial legislation, and, indeed, any Dominion legislation with which it may
be in conflict. In re Gray, supra.
It is unnecessary to set forth the scope and far reaching
effects of the national effort. It is sufficient to observe, and it was not
contended otherwise, as part thereof it was necessary that as large a measure
of economic stability as possible should be maintained. Legislation toward the
attainment of that end was unquestionably legislation in relation to the
emergency and therefore competent on the part of the Dominion. Neither this nor
the fact that such involved legislation for the control of prices, wages,
salaries and industry was contested. Any suggestion that this did not include
the control of rent cannot be accepted. Rent, in an important respect, is but
the price of building and housing accommodation. When prices, wages and
[Page 160]
salaries are controlled the omission to
control rent would at least in part nullify the effectiveness of these controls
in the attainment of economic stability. Indeed, these Leasehold Regulations
cannot be considered separate and apart from but rather as a part of that body
of legislation enacted toward the attainment of economic stability which
included prices and trade regulations, control of industries, wages and
salaries.
It is equally important toward the attainment of this end
that building and housing accommodation should be utilized to the best possible
advantage and security of tenure made possible. It was therefore not only
necessary that rents be fixed but the termination of the leases should also be
subject to control. In this regard it is only necessary to recall that building
materials during the period of combat had to be largely directed to other than
the construction of commercial and housing accommodation and that this made the
situation particularly difficult at those points where population had to be
concentrated. Any suggestion therefore that these Leasehold Regulations as
originally enacted were not in relation to the emergency arising out of the war
cannot be maintained.
That the conditions of the emergency arising out of the war
continue after cessation of actual combat has been recognized in both the Fort
Frances case, supra, and the Japanese Reference, supra. It
was submitted, however, on behalf of the Province of Quebec that under the
authorities legislation in relation to the emergency, once the actual combat
has ceased, must be confined to the completion of that which had been commenced
during the period of hostilities. It was suggested that the Fort Frances case
supported that view. The statute there in question was S. of C. 1919, 9 &
10 Ceo. V, c. 63. This statute does not appear to justify so limited a
construction. The Order in Council was passed July 8, 1920. Viscount Haldane
stated at p. 707:
It will be observed that this Order in Council deals only
with the results following from the cessation of actual war conditions. It
excepts from repeal certain measures concerned with consequential conditions
arising out of war, which may obviously continue to produce effects remaining
in operation after war itself is over.
In the Japanese Reference, supra, the Orders in
Council were made originally on December 15, 1945, under The
[Page 161]
War Measures Act. They were continued as valid
legislation in relation to the emergency which still continued under The
National Emergency Transitional Powers Act which came into force January 1,
1945. These Orders in Council were therefore enacted in the first instance
after actual combat had ceased and were held to be valid legislation in
relation to the emergency.
Neither of these oases support the limited view here
contended for but rather indicate that their Lordships in the Privy Council
rested their decisions on the broad basis that Parliament has authority to deal
adequately with the emergency so long as it may continue after actual combat
has ceased.
It was also submitted on behalf of the Province of Quebec
that "the dislocations in changing from a wartime economy to conditions of
peace are not by themselves sufficient to justify the invasion by the Dominion
Parliament of the exclusive field of competency assigned to the
provinces." Support for' this submission was sought in the Board of
Commerce case , in which the validity of two statutes
enacted by the Parliament of Canada—The Board of Commerce Act and The
Combines and Fair Prices Act (respectively 9 & 10 Geo. V, c. 37 and c.
45) was in question. These statutes were enacted in the postwar period but
whether they arose out of dislocations in changing from a
wartime to a peacetime economy need not be determined. They were not in
relation to any emergency arising out of the First Great War but rather were
enacted in respect of other matters and as permanent Dominion legislation.
Because they were statutes in relation to matters upon which, under s. 92, the
provinces have exclusive power to legislate, they were held to be invalid. It
is quite conceivable that dislocations in the postwar period may exist which
are not in any proper sense part of the emergency arising out of the war. The
jurisdiction, however, of the Dominion is restricted to legislating in relation
to the emergency arising out of the war as discussed in the Fort Frances case.
It is significant that the Fort Frances case was decided in the year
following the Board of Commerce case and Viscount Haldane, Lord
Buckmaster and Lord Phillimore were members of the
[Page 162]
Judicial Committee in both cases and Viscount Haldane wrote
both judgments. As already stated, in the former the Judicial Committee was
dealing with legislation that was not, while in the latter it was dealing with legislation
that was in relation to the emergency.
It was also contended that these Leasehold Regulations were
as originally enacted invalid because the War Measures Act did not
"authorize the exercise of the power of delegation in the case of the
matters dealt with by P.C. 9029 and the Rental Regulations." In support of
this it was contended that the delegated powers had to be found in
sub-paragraphs (a) to (f) of subsection 3 of the War Measures
Act. This submission is contrary to the express words of the section in
which, after providing in clear and comprehensive terms that the Governor in
Council may within the terms thereof do whatever he deems "necessary or
advisable for the security, defence, peace, order and welfare of Canada,"
continues "and for greater certainty, but not so as to restrict the
generality of the foregoing terms," and then sets out sub-paragraphs (a)
to (f). This section was formerly s. 6 and the foregoing submission was
rejected in In re Gray, supra. In that case at p. 168 it is pointed out
that the enumerated portions instead of qualifying the general terms of the
section "emphasizes the comprehensive character of it and pointedly
suggests the intention that the words are to be comprehensively interpreted and
applied".
The contention that P.C. 9029 "ceased to be valid as
soon as Parliament declared the War Measures Act as no longer the
statute upon which authority therefor was based" is completely answered in
the Japanese Reference, supra. If that contention had been correct the
decision in the Japanese case would have been otherwise.
In my opinion The Wartime Leasehold Regulations neither in
whole nor in part are ultra vires.
Locke J.:—By
s. 3 of the War Measures Act, 1914 (2nd Session, c. 2) it is provided, inter
alia, that the Governor in Council may do and authorize such acts and
things and make from time to time such- orders and regulations as he may, by
reason of the existence of real or apprehended war, invasion or insurrection,
deem necessary or advisable for the security, defence, peace, order and welfare
of Canada.
[Page 163]
Without restricting the generality of this language, the
section further declares that the powers of the Governor in Council shall
extend to all matters coming within certain enumerated classes of subjects
which include the appropriation, control, forfeiture and disposition of
property and of the use thereof. Under these powers a great variety of
regulations were made during the second World War, virtually taking charge of
and directing the economic life of Canada, and various boards set up to
administer them. These included the Wartime Prices and Trade Regulations, the
Wartime Industries Control Board Regulations, the Wartime Wages Control Order,
the Wartime Salaries Order, the Mobilization Regulations and the Selective
Service Regulations, in addition to the Wartime Leasehold Regulations. The
necessity for measures such as these in time of war is apparent and the
Leasehold Regulations were merely part of the general control which it was
considered necessary to exercise in the interest of the country as a whole.
The War Measures Act continued in effect until
December 31, 1945. On January 1, 1946, The National Emergency Transitional
Powers Act, 1945, came into force. That statute contained a declaration
that as of the last mentioned date the war against Germany and Japan should for
the purposes of the War Measures Act be deemed no longer to exist. The
preamble to the statute, after reciting the powers vested in the Governor in
Council by the War Measures Act to make orders and regulations deemed
necessary or advisable for the security, defence, order and welfare of Canada,
recited in part that:—
Whereas during the national emergency arising by reason of
the war against Germany and Japan measures have been adopted under the War
Measures Act for the military requirements and security of Canada and the
maintenance of economic stability; And whereas the national emergency arising
out of the war has continued since the unconditional surrender of Germany and
Japan and is still continuing; And whereas it is essential in the national
interest that certain transitional powers continue to be exercisable by the
Governor in Council during the continuation of the exceptional conditions
brought about by the war * * *
By s. 2 the Governor in Council was authorized to make such
orders and regulations "as he may, by reason of the continued existence of
the national emergency arising out of the war against Germany and Japan, deem
necessary or
[Page 164]
advisable for the purpose of continuing or discontinuing in
an orderly manner, as the emergency permits, measures adopted during and by
reason of the war".
By Order-in-Council of December 28, 1945, all orders and
regulations lawfully made under the War Measures Act and in effect on December
31, 1945, were continued in force, subject to amendment or revocation under The
National Emergency Transition Powers Act, 1945. The last mentioned statute
which by its terms was stated to expire on December 31, 1946, was continued in
force until May 15, 1947, pursuant to c. 50 of the Statutes of Canada 1946. The
Continuation of Transitional Measures Act, 1947 continued the Leasehold
Regulations in force for a further period.
The preamble to that Act, after reciting the circumstances
under which the 1945 statute had been passed, recited that the national
emergency rising out of the war in certain aspects had continued and was still
continuing and that it was necessary "by reason of the existing national
emergency" that certain orders and regulations of the Governor in Council
made under the War Measures Act and the 1945 Act should be continued in
force temporarily, notwithstanding the expiry of The National Emergency
Transitional Powers Act, 1945, in order to ensure an orderly transition
from war to peace. These included the Wartime Leasehold Regulations then in
effect. By c. 25, Statutes of 1948, and c. 3, Statutes of 1949, the 1947 Act
was amended and continued in force so that, as matters now stand, it will
expire on the sixtieth day after Parliament first meets during the present year
or on March 31, whichever date is the earlier, provided that if at any time
while the Act is in effect addresses are presented to the Governor General by
the Senate and House of Commons respectively, praying that the Act should be
continued in force for a further period not in any case exceeding one year, and
the Governor in Council so orders, it shall continue in force for such further
period.
By the order of reference, we are informed that the
exceptional conditions brought about by the war which made the Wartime
Leasehold Regulations necessary are still continuing and that the orderly
transition from war to peace had not yet been completed. In addition to this
[Page 165]
information there is included in the
order an announcement made in the House of Commons by the Minister of Finance
on November 3, 1949, stating that the purpose of the Government was to proceed
in an orderly way towards the eventual withdrawal of all wartime controls. We
are further informed that the controls imposed by orders made under the
authority of the War Measures Act and the Acts of 1945 and 1947 have
been largely rescinded or relaxed. In the case of the Wartime Leasehold
Regulations, the orders now in effect apply to the rentals for and the leasing
of housing accommodation and shared accommodation only.
That the War Measures Act was intra vires Parliament
has been long since settled (Fort Frances Pulp and Power Co. v. Manitoba
Free Press Co. ). Counsel for the Canadian Federation of
Property Owners' Associations contends, however, that the Rental Regulations
were outside of the powers vested in the Governor in Council by that statute.
As to this, it is my opinion that these regulations fell clearly within the
general language of the opening clause of s. 3 as well as within the
enumeration in clause (f) as dealing with the appropriation, disposition
and use of property.
The main ground of objection to the present regulations is
that it is said that they trench upon the powers of the Legislatures of the
Provinces to exclusively make laws in relation to property and civil rights
within their boundaries. That these regulations affect property and civil
rights in all of the provinces of Canada, other than Newfoundland, is not open
to doubt. For those who attack their validity, it is said that, whatever
justification there may have been for the making of the regulations during the
period of the war, no present justification exists for their continuance.
While the question we are required to determine is as to
whether the Wartime Leasehold Regulations are ultra vires, either in
whole or in part, since it is not contended that these are not authorized by The
Continuation of Transitional Measures Act, 1947 as amended, the matter
involves also the question as to whether that statute and the amending Acts are
within the powers of Parliament. It is of importance to note at the outset that
the statute
[Page 166]
is temporary in its nature, a fact which is made clear from
the language of the preamble. This distinguishes the legislation from that
which was considered in Re The Board of Commerce Act , where,
as pointed out in the judgment of Viscount Haldane, the Act was not confined to
any temporary purpose but was to continue without limit of time. We are to inquire
into and determine what is the true nature and character of this legislation
and it is, of course, true that in considering this question the matter is not
determined by the language used in the preamble or elsewhere in the statute (Attorney-General
for Ontario v. Reciprocal Insurers , Attorney-General for
Manitoba v. Attorney-General for Canada . There
is, however, in the present case no suggestion that the legislation is
colourable in the sense that Parliament might be said under the guise of legislation
to authorize measures deemed necessary for the peace, order and good government
of Canada as a whole, of attempting to usurp provincial powers in respect of
property and civil rights, or that the regulations are continued in force with
any such object. There is nothing here to suggest that the recital in the Act
that the national emergency arising out of the war in certain aspects has
continued and still continues, making it necessary to continue the regulations
in force temporarily, is not the considered opinion of Parliament, and the
statement in the order of reference that the exceptional conditions brought
about the war which made the Wartime Leasehold Regulations necessary are still
continuing must, on a reference of this nature, be accepted as expressing the
opinion of the Executive Government. This is not to say that, in other
circumstances, regulations enacted to cope with a situation resulting from a
lengthy war under a temporary statute of this nature might not, in the course
of time, be found to be beyond the powers of Parliament, but it would be
necessary that it should be very clear that the condition of emergency which
necessitated their maintenance had passed away before the Court could properly
be asked to overrule the decision of the Government that these exceptional
measures were still necessary: Fort Frances Pulp and Power Company v. Manitoba
Free Press .
[Page 167]
In my opinion, upon the material before us in the present
matter, the question submitted is determined in favour of the validity of The
Continuation of Transitional Measures Act, 1947 as amended and of the
regulations by the decisions of the Judicial Committee in the Fort Frances case
and in Co-Operative Committee on Japanese Canadians v. Attorney-General
for Canada .
My answer to the question, therefore, is:—The Wartime
Leasehold Regulations are not ultra vires, either in whole or in part.
Solicitor for the Attorney-General of Canada: F.
P. Varcoe.
Solicitor for the Attorney-General of Ontario: C.
R. Magone.
Solicitor for the Attorney-General of Quebec: L.
E. Beaulieu.
Solicitor for the Tenants within Canada: J. J.
Robinette.
Solicitors for the Canadian Legion of the British
Empire Service League: Howe & McKenna.
Solicitors for the Canadian Federation of Property
Owners Associations: Chitty, McMurty, Ganong & Keith.
Solicitor for the Canadian Congress of Labour: M. W. Wright.
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