Section 92 of the act assigns to the provincial legislatures property and civil rights in the province and "generally all Matters of a merely local and private Nature in the Province." Legislation respecting education is vested in the provinces by Section 93.

3

It was thought at first that the federal government could regulate labor conditions through its control of the criminal law. In 18831 and 1884 Sir Leonard Tilley introduced in the House of Commons an elaborate factory act under the title, "A bill to define certain offences against persons employed in factories." At the sessions of 1885 and 1886 Dr. Darby Bergin introduced a bill "to regulate the employment of children and young persons and women in the workshops, mills and factories of the Dominion of Canada.” But in the meantime the Ontario Government passed, in 1884, a factory act which was in effect a replica of the proposed federal act with the addition of some clauses of the English factories law. Quebec followed with a similar

measure in 1885.

At the end of the decade the question of jurisdiction was still in doubt. The Royal Commission on the Relations of Labor and Capital, reporting in 1889, said, "Your Commissioners cannot venture to determine where, in legislation affecting labor and capital, the authority of the Dominion Parliament ends and that of the Provincial Legislatures begins." 5 And again, "We would strongly urge the desirability of a Dominion Factory Act, wherein uniformity of laws can be obtained. If there be a doubt as to the powers of the Federal Government in the premises there

Report of the Royal Commission on the Relations of Labor and Capital in Canada (Ottawa, 1889), p. 7.

ought to be a way provided for removing that doubt."1 The commissioners were of the view that the competition between municipalities to secure new industries, the lack of uniformity in enforcement and the expense of enforcement for the smaller provinces argued for a Dominion law.2 They said, "The protection which is given to manufacturers against outside competition proceeds from the Federal Government, and is enjoyed by all in common, and equally all should be placed on the same footing in the matter of restrictions." a

The secretary of the Ontario Manufacturers' Association also favored a federal factory act and stated in his report of 1885, "Should the authority ultimately be found to rest with the provincial governments, it would be a matter to be regretted as varying legislation by which the manufacturers of one province might be given an advantage over another, would be disastrous to business." " The Trades and Labor Congress of 1887 also was unanimously in favor of a Dominion factories act. The Congress resolved:

That inasmuch as the passage and enforcement of more stringent laws for the regulation of factories in some Provinces than in others is calculated to prejudicially affect the manufacturers of the Province having the stricter laws, it is desirable that the Dominion Parliament shall pass a Factory Act which shall apply to the whole Dominion. Should it be found that under the terms of the British North America Act such legislation is not within the jurisdiction of the Dominion Parliament, steps should be taken to amend the Constitution in that respect.5

A similar resolution was adopted in 1890.

6

1 Royal Commission on the Relations of Labor and Capital, op. cit., p. 89. 2 Ibid., p. 89.

3 Ibid., p. 89.

Canadian Manufacturer, February 6, 1885, p. 939.

Report of the Proceedings of the Trades and Labor Congress of Canada, 1887, p. 40.

Ibid., 1890, p. 26.

The Royal Commission on the Relations of Labor and Capital reported with regard to a Dominion law that, "The feeling in its favor is general; it has been frequently and strongly expressed, and the working classes are confidently looking forward with the hope that in the not far distant future their wishes will be met." We cannot say what consideration the government gave to this point of view, but the Ontario act of 1884 and the Quebec law of 1885 were left in possession of the field.

As late as 1895 the Commissioner appointed by the Dominion Government to enquire into the sweating system reported:

That it is necessary that either there should be one Factories Act for the Dominion, or that in their main provisions, at any rate, the Factories Acts of all the provinces should be similar, is the unanimous opinion of all employers as well as employees with whom I have spoken on the subject.2

3

The Dominion's inaction on the proposed factories legislation of the eighties would seem to have been justified by decisions of the Privy Council. A decision of 1882 in Russell v. The Queen held that the Dominion Parliament had the right to restrict intemperance under its "peace, order and good government" powers and it has been argued that as this legislation infringed on property and civil rights the decision afforded a precedent for federal labor legislation. But according to more recent opinion, the Canada Temperance Act was held not to be one in relation to property and civil rights but one dealing with public wrongs and so drawn into direct relation with criminal law." Or, again,

4

1 Royal Commission on the Relations of Labor and Capital, op. cit., p. 90. 2 Sessional Papers (No. 61) 1896, p. 17.

3 [1882] 7 A. C. 829.

Cf. opinion of Mr. Justice Hodgins in Industrial Disputes Investigation Act case. 55 O. L. R. 454 at p. 485.

that at the time intemperance must have been considered "a menace to the national life of Canada so serious and pressing that the national Parliament was called on to intervene to protect the nation from disaster." 1

The Judicial Committee of the Privy Council indicated in City of Montreal v. Montreal Street Railway Company 2 that while provincial power was limited by the clause at the end of Section 91 of the British North America Act, expressly stating that none of the enumerated Dominion powers should be deemed matters of a local or a private nature assigned exclusively to the provinces, a limitation applying only to these subjects, the Dominion on the other hand could not, by virtue of its "peace, order and good government powers in the introductory clause, trench on subjects exclusively assigned to the provinces by section 92.

The decision in Fort Frances Pulp and Power Co. v. Manitoba Free Press Company indicated that the regulation of the price of newsprint paper was within these residuary powers of the Dominion, but the judgment states: “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." "

Referring to this decision, Mr. Justice Hodgins stated in the Industrial Disputes Investigation Act case that it was justified by special conditions of emergency, a view concurred in by Viscount Haldane. And Mr. Justice Duff, in the Board of Commerce case, said:

There is no case of which I am aware in which a Dominion statute not referable to one of the classes of legislation included in the enumerated heads of section 91 and being of such a

1Cf. opinion of Viscount Haldane in Industrial Disputes Investigation Act case. [1925] 2 D. L. R. 5.

[1912] A. C. 333.

3 [1923] A. C. 695, at p. 706.

[1920] 60 S. C. R. 456, at p. 508.

character that, from a provincial point of view, it should be considered legislation dealing with "property and civil rights," has been held competent to the Dominion under the introductory clause.

In the Industrial Disputes Investigation Act case Viscount Haldane presented a formula for determining the Dominion's powers under the "peace, order and good government" clause as follows:

The Dominion Parliament has, under the initial words of section 91, a general power to make laws for Canada. But these laws are not to relate to the classes of subjects assigned to the Provinces by section 92, unless their enactment falls under heads specifically assigned to the Dominion Parliament by the enumeration in section 91. When there is a question as to which legislative authority has the power to pass an Act, the first question must therefore be whether the section falls within section 92. Even if it does, the further question must be answered, whether it falls also under an enumerated head in section 91. If so, the Dominion has the paramount power of legislating in relation to it. If the subject falls within neither of the sets of enumerated heads then the Dominion may have power to legislate under the general words at the beginning of section 91.

1

There is evidence of similar limitation of the trade and commerce power. It was held in 1881 in Citizens Insurance Company v. Parsons that the trade and commerce clause of Section 91 of the British North America Act included political arrangements in regard to trade requiring the sanction of Parliament, regulation of trade in matters of interprovincial concern and, it might be, general regulation of trade affecting the whole Dominion; but did not include the regulation of the contracts of a particular business.

2

In Hodge v. The Queen the decision in Russell v. The 17 App. Cas. 96. 29 App. Cas. 117.