Supreme Court of Canada
Cowen v. The Attorney-General for British Columbia ex rel. College of Dental Surgeons for
B.C., [1941] S.C.R. 321
Date: 1941-04-22
David Cowen and
News Publishing Company, Limited (Defendants) Appellants;
and
The Attorney-General
For British Columbia Ex Rel. College of Dental Surgeons For British Columbia (Plaintiff)
Respondent.
1941: March 31; 1941: April
22.
Present: Duff C.J. and
Rinfret, Crocket, Davis, Kerwin, Hudson and Taschereau JJ.
ON APPEAL FROM THE COURT OF
APPEAL FOR BRITISH COLUMBIA
Constitutional law—Dentistry
Act—Section 63 enacting prohibitions affecting unregistered dentists—Validity—Whether
intra vires as to foreign
[Page 322]
Dentists—Prohibitory
advertisement by the latter in the province—Holding out "as being qualified
or entitled" to practice—Injunction—Section 63 of the Dentistry Act,
R.S.B.C., 1936, c. 72, as enacted in the statute of 1939, c. 11, s. 3.
Subsection (2) of section 63
of the Dentistry Act, R.S.B.C., 1936, c. 72, added thereto by 1939, c.
11, s. 3, which provides that "no person "not registered under this
Act shall *** hold himself out as "being qualified or entitled to practise
the profession of dentistry "either within the province or elsewhere, ***
or circulate or "make public anything designed or tending to induce the
public to "engage or employ as a dentist any person not registered under
this "Act," is intra vires the powers of the legislature.
Prima facie this legislation is within the provincial
legislative sphere and there is no circumstance in this case which would have
the effect of rebutting this prima facie conclusion. The statute does
not profess to prohibit people going beyond the limits of the province for the
purpose of getting the benefit of the services of a dentist, or to regulate their
conduct in doing so; nor does it prohibit the sending into the province from
abroad of newspapers and journals containing the advertising cards of
practising dentists; nor does it prohibit any communication with the province
from abroad.
Union Colliery Company of British Columbia v. Bryden, [1889] A.C. 580 dist.
Judgment of the Court of
Appeal (55 B.C.R. 506) affirmed.
APPEAL from the judgment of
the Court of Appeal for British Columbia,
affirming the judgment of the trial judge, Murphy J.
and maintaining an action for an injunction to prevent publication of
advertisements in the daily paper of the appellant, the News Publishing
Company, Limited, at Nelson, B.C., on behalf of and by the authority of the
appellant Cowen, who is not a member of the College of Dental Surgeons, holding
him out as a dentist practising in the city of Spokane, in the State of
Washington, U.S.A.
J. W. de B. Farris K.C.
for the appellants.
R. L. Maitland K.C. for
the respondent.
The judgment of the Court was
delivered by
THE CHIEF JUSTICE—This appeal
raises the question of the validity of an amendment to the British Columbia Dentistry Act, R.S.B.C., 1936, chap. 72, s. 63, which was
enacted in 1939 by chap. 11, s. 3, of the statutes of that year. The section as
amended reads as follows:—
[Page 323]
No person not registered
under this Act shall, within the Province, directly or indirectly offer to
practise, or hold himself out as being qualified to practise, the profession of
dentistry either within the Province or elsewhere, and no person shall, within
the Province, directly or indirectly, hold out or represent any other person
not registered under this Act as practising or as qualified or entitled or
willing to practise the profession of dentistry in the Province or elsewhere, or
circulate or make public anything designed or tending to induce the public to
engage or employ as a dentist any person not registered under this Act.
Prior to the passing of this
amendment the Dentistry Act had established certain prohibitions
affecting persons not registered under the statute in respect of the practice
of dentistry in British Columbia. In effect, it forbade such persons to offer to
practise dentistry in British Columbia, and prohibited anybody from holding out any such
person as entitled or qualified to practise dentistry in that province.
The result of the amendment is to
bring under the ban of these prohibitions cases where the offer to practise or
the holding out, relates to the practice of dentistry outside the province, and
the capacity of a provincial legislature to pass such legislation is challenged
by the appeal.
The decisive consideration, in my
opinion, is that the prohibitions are directed against acts done within the
province. Prima facie the legislation is within the provincial
legislative sphere. Nor do I think (subject to an observation to be made upon
one feature of the amending statute) there is any circumstance present here
which has the effect of rebutting this prima facie conclusion. The
statute does not profess to prohibit people going beyond the limits of British
Columbia for the purpose of getting the benefit of the services of a dentist,
or to regulate their conduct in doing so; nor does it prohibit the sending into
British Columbia from abroad of newspapers and journals containing the
advertising cards of practising dentists; nor does it prohibit any
communication with British Columbia from abroad. Such prohibitions would
present an entirely different question.
There is one feature of the
statute to which it is desirable to advert. By section 63 of the principal Act,
which is now section 63, subsection (1), there is a definition of
"practising the profession of dentistry within the meaning of this
Act." By section 2 of the amending Act of
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1939, section 63 is amended by
bringing within the category of persons who are deemed to be practising
dentistry within the meaning of the Act
any person *** who supplies
or offers to supply to the public artificial teeth, dentures or repairs
therefor.
It would seem to be at least
arguable that the statute as amended in 1939 prohibits the publication in British Columbia by persons carrying on business outside the Province of advertisements
stating that they are manufacturers of or dealers in dental supplies of the
description or descriptions mentioned. It is unnecessary to consider this
aspect of the amendments of 1939. It might be argued, not without plausibility,
that any prohibition of the publication in British Columbia of such
advertisements in respect of articles of commerce is legislation in relation to
a matter that is not a local British
Columbia matter, within the
contemplation of sections 91 and 92 of the British North America Act.
Assuming the amending legislation to be pro tanto invalid by reason of
this particular feature of it, the offending parts seem to be plainly
severable; and no such question is raised by the advertisements before us.
The argument of Mr. Farris was
largely based upon Bryden's case. There
it was held that the statute (having regard to its necessary effect) invaded
the legislative field assigned exclusively to the Dominion by section 91(25)
"naturalization and aliens." Subject to what has just been said, the
principle of the judgment in that case does not apply here.
The appeal should be dismissed
with costs.
Appeal dismissed with
costs.
Solicitors for the
appellants: Farris, Farris, McAlpine, Stultz, Bull & Farris,
Solicitors for the
respondent: Maitland, Maitland, Remnant & Hutcheson.
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