Canadian Wheat Board v. Nolan et al.

Canadian Wheat Board v. Nolan et al.
Collection
Supreme Court Judgments
Date
1950-11-20
Report
[1951] SCR 81
Judges
Rinfret, Thibaudeau; Kerwin, Patrick; Taschereau, Robert; Rand, Ivan Cleveland; Estey, James Wilfred; Locke, Charles Holland; Cartwright, John Robert
On appeal from
Manitoba
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
Canadian Wheat Board v. Nolan et al., [1951] S.C.R. 81
Date: 1950-11-20
The Canadian Wheat Board (Plaintiff) Appellant;
and
Hallet And Carey Limited et al (Defendants) Respondents;
and
Jeremiah J. Nolan (Defendant) Respondent.
The Attorney General Of Canada (Defendant) Appellant;
and
Jeremiah J. Nolan (Plaintiff) Respondent;
and
Hallet And Carey Limited (Defendant) Respondent.
1950: May 8, 9, 10, 11, 12; 1950: November 20.
Present: Rinfret C.J. and Kerwin, Taschereau, Rand, Estey, Locke and Cartwright JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA
Constitutional law—National Emergency Transitional Powers Act, 1945, S. of C. 1945, c. 25—Order-in-Council under said Act, validity of— War Measures Act, R.S.C. 1927, c. 206.
P.C. 1292, adopted on April 3, 1947, by the Governor General in Council purporting to act under the powers conferred by the National Emergency Transitional Powers Act, 1945, after reciting that it was "necessary, by reason of the continued existence of the national emergency arising out of the war against Germany and Japan, for the purpose of maintaining, controlling and regulating supplies and prices to ensure economic stability and an orderly transition to conditions of peace", made provision for the vesting in the Canadian Wheat Board of all oats and barley in commercial positions in Canada, the closing out and termination of any open futures contracts relating to such grain and the prohibition of its export. The order also substituted for Part III of the Western Grain Regulations new Regulations which declared that all oats and barley in commercial positions in Canada, except such as were acquired by the owner from the Canadian Wheat Board or from the producers thereof on or after March 18, 1947, were thereby vested in the Board, which was directed to pay an amount equal to the maximum price at which these grains might have been sold on that date. On April 3, 1947, respondent Nolan had, in commercial positions in Canada, 40,000 bushels of barky, the warehouse receipts for which were held on his behalf by the respondents Hallet and Carey Limited.
Nolan declined to deliver his barley or the documents of title thereto to the Wheat Board and contended that the National Emergency Transitional Powers Act, 1945, did not authorize the Governor General in Council by enacting Part III of the Western Grain Regulations or otherwise to divest him of title to his barley. The trial judge and the Court of Appeal held that the order-in-council exceeded the powers conferred by the Transitional Act.
Held: (Affirming the judgment appealed from) Kerwin and Estey JJ. dissenting, that the provisions of P.C. 1292, dealing with the compulsory taking and vesting in the Canadian Wheat Board of all oats and barley in commercial positions in Canada and fixing the compensation to be paid therefor, were ultra vires of the Governor General in Council as not falling within the ambit of the powers conferred by s. 2 of the National Emergency Transitional Powers Act, 1945.
Apart from the fact that the power to appropriate property was not given in the Transitional Act, either in express terms or by plain implication from the language employed in s. 2, the omission of the provisions dealing with the subject contained in the War Measures Act from the Transitional Act, 1945, is a plain indication that it was not intended that the Governor in Council should be vested with any such power.
Chemicals reference [1943] S.C.R. 1; Co-operative Committee on Japanese Canadians v. A.G. of Can [1947] A.C. 87; Western County Ry. Co. v. Windsor and Annapolis Ry. Co. (1882) 7 A.C. 178 and A.G. v. Horner 14 Q.B.D. 245 and 11 A.C. 66 referred to.
APPEAL from the judgment of the Court of Appeal for Manitoba 1 dismissing an appeal from two judgments of Williams C.J.K.B. holding that P.C. 1292, dated April 3, 1947, was ultra vires of the Governor General in Council.
F. P. Varcoe K.C., H. B. Monk K.C. and D. W. Mundell K.C. for the appellant.
W. P. Filmore K.C. for Hallet and Carey Ltd.
John A. Macaulay K.C, G. E. Tritschler K.C. and D. C. McGavin for Nolan.
The Chief Justice: I concur with my brothers Taschereau, Rand, Locke and Cartwright that this appeal should be dismissed with costs. As I agree substantially with the reasons delivered by them, I do not deem it necessary or advisable to state my reasons for coming to that conclusion as this would be merely a repetition of what they have already said to my satisfaction.
Kerwin J. (dissenting): These are appeals by the Canadian Wheat Board and the Attorney General of Canada from the judgments of the Court of Appeal for Manitoba 2 affirming judgments of the Chief Justice of the King's Bench in two separate actions dealing in substance with the same matter. While in the pleadings the question was raised that The National Emergency Transitional Powers Act, 1945, (hereafter called the statute) was ultra vires the Parliament of Canada, we were advised that the point was never argued in the King's Bench or in the Court of Appeal, and certainly no such contention was advanced before us. The matter may therefore be approached on the basis that the statute is intra vires and that the sole question is whether parts of Order in Council P.C. 1292, of April 3, 1947, were within the powers conferred upon the Governor in Council by the statute. The Courts below have answered that question in the negative.
The statute came into force January 1, 1946, and section 6 provides that on and after that date the war against Germany and Japan should, for the purposes of the War Measures Act, R.S.C. 1927, c. 206, be deemed no longer to exist. It was recognized, however, that chaos would result if all the measures adopted by the Governor in Council under the War Measures Act were abrogated and if no delegation of powers to that body were made. This is shown by the recital in the statute:
WHEREAS the War Measures Act provides 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 deem necessary or advisable, for the security, defence, peace, order and welfare of Canada; And 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 and it is preferable that such tran- sitional powers be exercised hereafter under special authority in that behalf conferred by Parliament instead of being exercised under the War Measures Act; And whereas in the existing circumstances it may be 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 it is essential that the Governor in Council be authorized to do and authorize such further acts and things and make such further orders and regulations as he may deem necessary or advisable by reason of the emergency and for the purpose of the discontinuance, in an orderly manner as the emergency permits, of measures adopted during and by reason of the emergency.
Subsection 1 of s. 2 provides:
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) assisting the relief of suffering and the restoration and distribution of essential supplies and services in any part of His Majesty's dominions or in foreign countries that are in grave distress as the result of the war; or
(e) continuing or discontinuing in an orderly manner, as the emergency permits, measures adopted during and by reason of the war.
The important clauses are (c) and (e).
Jeremiah J. Nolan is a grain merchant residing in Chicago, Illinois, and is a citizen of the United States. Hallet and Carey Limited is a corporation duly incorporated under the laws of the Dominion of Canada and carries on the business of a grain merchant at Winnipeg, Manitoba. On or about July 31, 1943, that Company, as agents for Nolan, purchased 40,000 bushels of No. 3 C.W. Six-Row Barley and obtained warehouse receipts for it from various warehousemen in Port Arthur/Fort William, Ontario. From time to time, in accordance with a practice in the grain trade, the barley was loaned by Nolan but was returned to him each time, the last occasions being in December, 1946, and January, 1947. The warehouse receipts in existence at the relevant time are all dated in one or the other of these months. Prior to January 1, 1946, the date of the coming into force of the statute, various steps had been taken to regulate the price and the export of barley, oats and wheat. While we are primarily concerned with barley, its position in the general economy of Canada cannot be isolated from that of the other two products or taken from its setting in the overall picture of Canadian life under the War Measures Act and under the statute. Under the former, the Wartime Prices and Trade Board was constituted, and that Board made regulations to provide safeguards under war conditions against any undue enhancement in the prices of food, fuel and other necessities of life and to insure an adequate supply and equitable distribution of such commodities. The Canadian Wheat Board had already been created by Parliament in 1935 and it was appointed an administrative agency under the Wartime Prices and Trade Board. On March 17, 1947, the Wheat Board issued "Instructions to Trade No. 59", addressed "To all Companies and Dealers in Oats and Barley". These instructions commenced: "In accordance with the new Government policy announced in Parliament March 17, 1947, regarding oats and barley (an outline of which is attached), the Board issues the following instructions effective midnight, March 17, 1947."
The outline of Government policy referred to in this statement and which as indicated was attached thereto, announced that the previous system of advance equalization payments would be discontinued and that the Wheat Board would stand ready to buy all oats and barley offered to it at new support prices, which in the case of barley would be based on 90c for One Feed Barley in place of the former support price of 56c in store Fort William/Port Arthur, and other grades at appropriate differentials to be fixed from time to time by the Wheat Board. The support prices would remain in effect until July 31, 1948. At the same time price ceilings for all grades would be raised, in the case of barley to 93c and in the case of oats to 65c basis in store Fort William/Port Arthur or Vancouver. These ceiling prices corresponded with the support prices for the highest grades of barley and oats. In order to avoid discrimination against producers who had already delivered barley during the current crop year, provision was made for an adjustment payment. By paragraph 4 of the outline of Government policy:
4. In order to avoid the fortuitous profits to commercial holders of oats and barley that would otherwise result from the action that has been described, handlers and dealers will be required to sell to the Wheat Board on the basis of existing ceilings of 64¾c. per bushel for barley and 51½c. per bushel for oats, all stocks in their possession at midnight tonight, March 17. Under certain conditions these stocks will be returned to the holder for resale. Allowances will be made for the purpose of taking care of such items as carrying charges in terminal positions, special selection premiums, etc., which are considered in the judgment of the Board fair and reasonable.
For the time being, because of the continuation of price ceilings on animal products, subsidies were provided for all oats and barley within the same conditions as a payment already authorized on wheat purchased for feed purposes, and it was stated that the payment of these subsidies would have the effect of leaving the cost of these feed grains to the feeder approximately at their present levels. The Wheat Board would become the sole exporter of oats and barley and any exports by the Board would be from grain acquired by it under the price support plan and the net profits therefrom would be paid into Equalization Accounts for the benefit of producers for distribution. It was pointed out that producers would have an additional return on their oats and barley, in addition to which they would continue to receive any net profits realized by the Board as an additional payment at the end of the season. On the other hand, feeders would be protected against any important increase in costs of the oats and barley.
Reverting now to the instructions to the trade, these followed the outline of Government policy in all important respects and, while it may be said that so far no authority for any action by the Wheat Board existed, this was remedied by the Order in Council 1292 passed April 3, 1947. It recited:
WHEREAS it is necessary, by reason of the continued existence of the national emergency arising out of the war against Germany and Japan, for the purpose of maintaining, controlling and regulating supplies and prices to ensure economic stability and an orderly transition to conditions of peace, to make provision for
(a) the vesting in the Canadian Wheat Board of all oats and barley in commercial positions in Canada and products of oats and barley in Canada; (b) the closing out and termination of any open futures contracts relating to oats or barley outstanding in any futures market in Canada; and
(c) the prohibition of the export of oats or barley by persons other than the Canadian Wheat Board until otherwise provided; and other matters incidental thereto as set forth in the Regulations set out below;
The Governor General in Council, under the powers conferred by the statute, amended the existing Western Grain Regulations by substituting a new Part III. While both oats and barley are dealt with by the Order in Council, it will be sufficient from this time on to refer particularly to barley. By the new Part III barley means barley grown in a designated area, and barley in commercial positions means barley which was not the property of the producer and was in store in warehouses, elevators or mills, etc. (It should be here interpolated that it is common ground that the barley in question in these actions came from a designated area as defined in an earlier part of the Western Grain Regulations and that it was in commercial positions). All barley in commercial positions, except such as was acquired by the owner from the Wheat Board or from the producer thereof, on or after March 18, 1947, was vested in the Wheat Board, which was directed to pay a person who was the owner at midnight on March 17, 1947, an amount equal to the previous maximum price, subject to adjustment and storage or handling charges, etc. Other provisions are included to take care of cases other than those similar to that of Nolan. The Board was directed to sell and dispose of all barley vested in it at such prices as it might consider reasonable. Net profits arising from such operations were to be paid into the Consolidated Revenue Fund.
While it is said on behalf of Nolan that there was no possibility of loss, the Order in Council provided that the Board should be reimbursed in respect of any net losses arising from its operations in respect of barley vested in it out of moneys provided by Parliament. Additional clauses provided that there should be no export of barley except by the Wheat Board or with its permission.
Nolan was directed to deliver his barley and the documents of title thereto to the Wheat Board but declined, and the two actions followed. Since the Governor in Council deemed it necessary or advisable by reason of the continued existence of the national emergency arising out of the war against Germany and Japan to promulgate P.C. 1292, for the purpose of maintaining, controlling and regulating supplies (s. 2, subsection 1(c) of the statute) and for the purpose of continuing or discontinuing in an orderly manner as the emergency permits, measures adopted during and by reason of the war (s. 2, subsection 1(e) of the statute), I am of opinion that looking only at the statute, the powers conferred by subsection 1 of s. 2 were sufficient to authorize what was done. Taking the words in their ordinary and natural meaning, they include a power to appropriate barley (inter alia) and pay the price fixed by the Governor in Council. The action taken was in the opinion of the Governor in Council, necessary or advisable and it is not for the judiciary to question that decision; Fort Frances Pulp and Power Co. v. Manitoba Free Press Co.3; Co-operative Committee on Japanese Canadians v. Attorney General of Canada 4.
But it is said that a power to appropriate and fix compensation could never have been contemplated by Parliament if one looks at the provisions of the War Measures Act, which had been superseded by the statute. Under s. 3 of the former appears clause (f) "Appropriation, control, forfeiture and disposition of property and of the use thereof"; and by s. 7, whenever any property or the use thereof has been appropriated and compensation is to be made therefor and has not been agreed upon, the claim is to be referred by the Minister of Justice to a named Court or a judge thereof. It was pointed out that in the Chemicals Reference 5, it was decided that paragraph 4 of the Order in Council there under consideration was in conflict with section 7 of the War Measures Act as it provided for a method of fixing compensation other than that specified in section 7.
That was an entirely different case. In the statute here under consideration, the recital states that it is essential that the Governor in Council be authorized to do and authorize such further acts and things and make such further orders and regulations as he may deem necessary or advisable by reason of the emergency and for the purpose of the discontinuance in an orderly manner as the emergency permits, of measures adopted during and by reason of the emergency. In view of this, I find it impossible to read the words of subsection 1 of s. 2 and particularly clauses (c) and (e) as withholding from the Governor in Council the power to appropriate barley and pay the price fixed by him. The fortuitous profits envisaged by the Government policy actually emerged in Nolan's case and the means adopted to capture them were within the powers conferred by the statute.
The appeals should be allowed and the judgments of the Court of Appeal and King's Bench set aside. Under an order of December 7, 1948, the barley was sold and the proceeds paid into Court. By another order of February 1, 1949, there were paid out of these proceeds the charges of the warehousemen, parties to the action brought by the Wheat Board, which warehousemen were by the same order, on consent dropped from the proceedings. According to the orders of the Court of Appeal of March 10, 1949, disposing of the appeals in the two actions, there was in Court the sum of $38,454.70 and accrued interest. Of this amount Nolan would be entitled, at the most, to $25,900 (being 64¾c per bushel for 40,000 bushels of barley), and accrued interest from the date of the payment into Court. The Wheat Board is entitled to the balance with accrued interest.
The action by Nolan against Hallet and Carey Limited is dismissed with costs, payable by him to the Company. Upon motion by the Attorney General of Canada, he was added as a party defendant in that action by an order of the Chief Justice of the King's Bench, dated October 15, 1948, and was thereby ordered to pay the costs of the other parties of and incidental to the motion. The Attorney General is entitled to his costs since that date as against Nolan, including the costs of the appeals to the Court of Appeal and to this Court. Since Hallet and Carey Limited were acting as agents for Nolan, they are entitled to their costs of those appeals against him. The Wheat Board is entitled as against Nolan to its costs of its action against him and Hallet and Carey Limited and of the appeals to the Court of Appeal and this Court. Hallet and Carey Limited are entitled as against Nolan to their costs of that action and of the appeals to the Court of Appeal and to this Court. They are also entitled as against Nolan to the amounts proper to be paid them by him for interest and storage.
All of the appropriate costs above referred to shall be taxed without regard to the limit fixed by s. 31 of the Manitoba Court of Appeal Act or by King's Bench Rule No. 630. All the costs and the interest and storage charges directed to be paid by Nolan may be paid out of his share of the money in Court. If there is any difficulty in working out the order, the matter may be spoken to.
Taschereau J.:—The main question that has to be decided, and which is sufficient to dispose of these two appeals, may be briefly stated as follows: "Does P.C. 1292 of April 3, 1947, fall within the ambit of the powers conferred by Section 2(1) (c) of the National Emergency Transitional Powers Act? (9-10 Geo. VI c. 25)."
This Order-in-Council made provision for the vesting in the Canadian Wheat Board of all oats and barley in commercial positions in Canada, and determined what compensation the Board should pay to the owners. The relevant section of the National Emergency Transitional Powers Act, which it is submitted on behalf of the appellant, purports to give the necessary powers to the Governor in Council to enact P.C. 1292, reads 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 recessary or advisable for the purpose of
(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;
The validity0 of the National Emergency Transitional Powers Act has not been challenged before this Court, but it is submitted that the words "maintain", "control" and "regulate", are not wide enough to authorize the compulsory transfer of property to the Wheat Board, and the ex parte fixing of compensation to be paid.
There can be no doubt that under the War Measures Act, which ceased to be in force in Canada on the 1st of January, 1946, much wider powers were conferred upon the Governor in Council. For instance, section 3(f) of the War Measures Act read as follows:
3. 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; and for greater certainty, but not so as to restrict the generality of the foregoing terms, it is hereby declared that the powers of the Governor in Council shall extend to all matters coming within the classes of subjects hereinafter enumerated, that is to say:
(f) Appropriation, control, forfeiture and disposition of property and of the use thereof.
The power to appropriate and dispose of property was clearly given to the Governor in Council, and it was further provided in section 7 of the Act that:
7. Whenever any property or the use thereof has been appropriated by His Majesty under the provisions of this Act, or any order in council, order or regulation made thereunder, and compensation is to be made therefor and has not been agreed upon, the claim shall be referred by the Minister of Justice to the Exchequer Court, or to a superior or county court of the province within which the claim arises, or to a judge of any such court. 1914 (2nd session), c. 2, s. 7.
It is because this clause was in conflict with section 4 of the Order-in-Council, authorizing the controller of chemicals in certain cases to determine the compensation payable for chemicals of which he had taken possession, that it was held by this Court, that such a power could not be exercised. (In Re Chemicals 6).
These powers to appropriate property which were given to the Governor in Council by the War Measures Act, have been deleted from the National Emergency Transitional Powers Act, and I think that it is fair to assume that it was the clear intention of Parliament, that such powers would not exist in the future. The National Emergency Transitional Powers Act is to my mind without doubt a clear curtailment of the powers that the Governor in Council could validly exercise during the war under the War Measures Act. As Estey J. said in the Japanese Reference 7, in regard to the Transitional Powers Act:
Parliament did recognize that the intensity and magnitude of the emergency had changed and diminished, and under the provisions of this Act curtailed the extensive powers exercised by the Governor in Council under the War Measures Act.
This statement is quite in harmony with the preamble of the Act which, by section 14 of the Interpretation Act (R.S.C. 1927, c. 1), is deemed a part of the Act, intended to assist in explaining the purport and object of the Act. The preamble states that it is essential in the national interest that certain transitional powers continue to be exercisable by the Governor in Council; that in the existing circumstances certain orders and regulations made under the War Measures Act be continued in force, and that it is also essential that the Governor in Council be authorized to do and authorize such further acts and things and make such further orders and regulations as he may deem necessary or advisable by reason of the emergency and for the purpose of the discontinuance, in an orderly manner as the emergency permits, of measures adopted during and by reason of the emergency. Section 2(1) (c) above quoted, which authorizes the Governor General to make from time to time orders and regulations as he may deem necessary or advisable, for the purpose of maintaining, controlling, and regulating prices to ensure economic stability and an orderly transition to conditions of peace, show as well as the preamble, the clear intention of Parliament to curtail the extensive powers that the Governor General in Council exercised during the war under the War Measures Act.
Furthermore, the War Measures Act gave general powers to pass regulations deemed necessary or advisable, "for the security, defence, peace, order and welfare of Canada"; and "for greater certainty, but not so as to restrict the generality of the foregoing terms", it is declared that the powers of the Governor in Council shall extend to certain matters specifically enumerated, among which the appropriation and forfeiture of property. Despite the generality of the terms of the War Measures Act, Parliament thought it necessary to deal specifically with appropriation and forfeiture of property. The National Emergency Transitional Powers Act does not contain the words "for the security, defence, peace, order and welfare of Canada" nor "for greater certainty, but not so as to restrict the generality of the foregoing terms", so that it seems clear that the powers of the Governor General are limited to subsections (a), (b), (c) and (d) of section 2. The National Emergency Transitional Powers Act is enacted for five purposes and it is consequently in one of these purposes that the power to appropriate and fix compensation must be found.
I cannot find in this section 2 any words, general or specific, that can lead me to the conclusion that maintain, control and regulate, include compulsory taking and fixing the compensation to be paid. If it had been the intention of Parliament to give such a wide power to the Governor General in Council, this power would have been specifically mentioned, as it has been in the War Measures Act, or it would be found in the opening words of the section. It would surely not have been deleted as it has been in the statute now under consideration.
The War Measures Act is a general Act but the new Act is limited in its purposes, and cannot be extended. As Chief Justice Sir Charles Fitzpatrick said in the Gray case 8:
Parliament cannot indeed, abdicate its functions, but within reasonable limits at any rate it can delegate its powers to the Executive Government. Such powers must necessarily be subject to the termination at any time by Parliament, and needless to say the acts of the Executive, under its delegated authority, must fall within the ambit of the legislative pronouncement by which its authority is measured.
I have therefore reached the conclusion that under the guise of maintaining, controlling and regulating prices, the Governor General in Council cannot compulsorily appropriate property and arbitrarily fix the compensation to be paid. The exercise of such powers would be beyond the authority conferred by statute.
For these reasons, I think that the provisions of P.C. 1292, dealing with the compulsory taking and vesting in the Canadian Wheat Board of all oats and barley in commercial positions in Canada, and fixing the compensation to be paid, are ultra vires of the Governor in Council.
I would dismiss the appeal with costs. Rand J.:—This appeal challenges the power of the Dominion Government by order-in-council under the Transitional Powers Act of 1945 to appropriate barley in commercial elevator storage or in transit at Fort William and western points on March 17, 1947 not owned by producers or by malsters or manufacturers of pot and pearl barley at the then existing controlled price of 64¾c a bushel. On the following day, March 18, the price was raised to 93c and in October of the same year the control was removed. The open price in the United States during this period was considerably higher than in this country, and upon the release in October the price on the Grain Exchange at Winnipeg led off at over $1.20. The barley here in question was sold in October, 1948, at the price of $1.24. Although by the order-in-council all barley vested in the Wheat Board, the latter offered it back to the former owners at the new price of 93c, and in all cases apparently except that of the respondent the offer was accepted. The result of this was that the increase permitted by the operation of the control was appropriated by the Government, leaving the benefit of any subsequent uncontrolled increase, such as actually took place in October, 1947, to the owner.
The Transitional Powers Act retained to the Governor in Council certain of the powers exercised under the War Measures Act; the latter, subject to such limitations as are contained in the Act itself and in the British North America Act, and except such acts as could not be deemed by the Governor in Council in good faith to be relevant to war, cover virtually the entire legislative field of both the Dominion and the Provinces. The reason is obvious: the political and social existence of the country is at stake; that interest rises above all distribution of legislative jurisdiction, and the fundamental duty of preservation is cast upon Parliament, by which those powers have been entrusted to the Executive.
Under the War Measures Act, the purposes of the powers granted were the "security, defence, peace, order and welfare of Canada" including trade, production, and the appropriation, control, forfeiture and disposition of property and the use of it; and the acts, things, orders and regulations authorized to be done or made were such as the Governor in Council should deem "necessary or advisable" to effect those ends. The corresponding objects of the Transitional Powers Act were specifically enumerated, and those relevant to this controversy are:
(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;
* * *
(e) continuing or discontinuing in an orderly manner, as the emergency permits, measures adopted during and by reason of the war;
and the Governor in Council was empowered likewise to do whatever, for such purposes, he deemed "necessary or advisable."
The aftermath of war presents abnormal conditions which similarly are of national interest and concern and which likewise transcend the ordinary plane of legislation; but they are of lessened scope and somewhat changed in character. Parliament, therefore, passed the Act of 1945 as a truncated War Measures Act in which the jurisdiction enjoyed by the Executive under the former Act was reduced. As these continued powers are in the nature of a residue from the previous investment, we may properly look at both statutes to ascertain precisely the extent of authority continued.
The appropriation of property of individuals was specifically mentioned as a power conferred in item (f) of section 3 of the War Measures Act; and section 7, in the absence of agreement, submits the ascertainment of compensation to the courts.
It is significant, then, that neither the latter provision nor mention of appropriation or forfeiture appears in the later statute: and neither, in the same sense, can, in my opinion, be implied. There is also the specific mention of the "use and occupation of property" as distinguished from the "appropriation, control, forfeiture and disposition" of property. I find no evidence of an intention to enlarge any power continued beyond its scope under the former statute, and it would be inconsistent with the declared purpose of Parliament to imply in the continued authority what was express in the original enactment. The appropriation of property for which the statutory compensation was provided means, I think, the absolute appropriation of the beneficial interest, for objects of the Government with which the individual has no private concern. But appropriation as a device for effecting an object validly incidental to price control presents a different question.
The object here, specifically set forth in the instructions to the trade issued by the Wheat Board on April 7, 1947 and by the declaration of Government policy in Parliament, was to capture the profit "fortuitously", as it was stated, resulting from the increase of price directly effected by the order. The appropriation or limitation of profit so arising was not a new incident in fact in price control; the requirement that authorized increases in price should not apply to existing stocks was a matter of common knowledge; the method followed here had been authorized by order-in-council No. P.C. 3223 in force from 1939 to at least 1947, in relation to sugar; order-in-council No. P.C. 7942, issued October 12, 1943 brought about a regulation of wheat of the most drastic sort: except with the permission of the Wheat Board, no person could buy wheat from a producer for resale; the Board could require any person to offer wheat owned by him for sale to any other person on terms prescribed by the Board; all futures contracts were voided; and any surplus resulting from the exclusive dealings in this grain by the Board went into the Consolidated Revenue Fund. These measures were well known to Parliament. The function of neither the Wheat Board nor the Sugar Controller was to acquire property as an immediate object in itself; it was to administer the commodity in the broadest sense as part of the total regulation of the country's economy in which equality of incidence was a working principle; and the decision of the Government that control of or elimination of other than actual service profit, as distinguished from capital profit, was "necessary or advisable," and the selection of the mode by which that was to be effected, as for instance by way of a charge, possessory or not, were, I think, clearly within the powers of price control committed to it under the War Measures Act: The Japanese Reference 9. Price control was continued under the Transitional Act in the broadest terms; and as the subsidiary object of profit limitation was a recognized measure in the total regulation, and the device of vesting title a known means of accomplishing it, in the absence of some indication to the contrary in the Transitional Act both should be taken to be continued: to change principles in bringing controls to a conclusion would give legitimate grounds for protest from those to whom they had been applied in the heat of the day. What, then, is the effect upon either or both of them of the omissions in the Transitional Act of the powers mentioned?
As a striking illustration of a circumstance frequently met, the conclusion on that question depends upon the extent to which the background facts are taken into account. If we look at the acquisition of the grain as an isolated act, detached from its context, it does seem to bear the countenance of a despotic exercise of power over which individualists may Wax lyrical and which Parliament cannot be taken to have intended to confer; but if we envisage it in the body of the economic life of Canada, regulated in varying degrees from 1939 to the present time, the transaction becomes in reality a minor item of a vast, complex and consistent administration, of which, as observed, the operative principles incorporated in the earlier stages ought to be, and certainly could be, carried through to the end. It was under that control that Nolan was able to buy the barley in 1943 at the price he did; and who can say what the conditions in the trade would have been without it? What is complained against is the law of Parliament and the policy of government; but to the total interests of the Dominion in such an emergency and its aftermath that of the individual must be subordinated: and so long as he is dealt with on the basis of a rationally justifiable principle, he has no ground to object on moral, much less, legal considerations.
Set against the price increase and the appropriation of profit, and as elements in the body of regulation, were the increase of 10c in the subsidy to producers and the subsidy of 25c to stock owners of feed in the East. That producers and consumers should be specially dealt with, even at the expense, by restriction, of the respondent's normal activi