Reference re Wartime Leasehold Regulations

Reference re Wartime Leasehold Regulations
Collection
Supreme Court Judgments
Date
1950-03-01
Report
[1950] SCR 124
Judges
Rinfret, Thibaudeau; Kerwin, Patrick; Taschereau, Robert; Rand, Ivan Cleveland; Kellock, Roy Lindsay; Estey, James Wilfred; Locke, Charles Holland
On appeal from
Canada
Subjects
Constitutional law
Decision Content
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. 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. 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 1, 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 2, after having quoted the statement of Earl Loreburn, observed that "when a con- 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 3, 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 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 4:—
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 5. 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 6, 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 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. 7.
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 8. 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 9, 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 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 Privy Council in the Fort Frances Case supra and in Cooperative Committee on Japanese Canadians v. Attorney-General for Canada 10, are conclusive on this point.
In the Reference as to the Validity of the Regulations in relation to Chemicals 11, 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. 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 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 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 Fort Frances Pulp and Power Co. v. Manitoba Free Press Co. 12. 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 13, 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 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 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 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. 14; In re Gray 15; Reference re Chemicals 16; The Co-operative Committee on Japanese Canadians v. Attorney General of Canada 17.
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 18, 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 19, 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 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 20, Sir Lyman Duff said:—
The War Measures Act came before this Court for consideration in 1918 in re Gray 21, 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 22 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. 23, any room for dispute. Under the British North America Act property and civil rights in the several Provinces are committed to the Provincial 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 24; Attorney General for Canada v. Attorney General for Quebec et al. 25.
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