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Property and Civil Rights

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Property and Civil Rights

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

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

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

Property and civil rights include:

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

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

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

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

Further reading

Notes

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