Interprovincial Co-operatives Ltd. et al. v. R.

Interprovincial Co-operatives Ltd. et al. v. R.
Collection
Supreme Court Judgments
Date
1975-03-26
Report
[1976] 1 SCR 477
Judges
Laskin, Bora; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Beetz, Jean
On appeal from
Manitoba
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
Interprovincial Co-operatives Ltd. et al. v. R., [1976] 1 S.C.R. 477
Date: 1975-03-26
Interprovincial Co-Operatives Limited (Defendant) Appellant;
and
Dryden Chemicals Limited (Defendant) Appellant;
and
Her Majesty The Queen in right of the Province of Manitoba (Plaintiff) Respondent.
1974: March 8, 11, 12; 1975: March 26.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon and Beetz JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA
Constitutional law—Contaminant discharged into Ontario and Saskatchewan rivers carried into Manitoba waters—Damage to Manitoba fisheries—The Fishermen’s Assistance and Polluters’ Liability Act, 1970 (Man.), c. 32 (Continuing Consolidation F100)—Whether statute ultra vires the Legislature of Manitoba.
In an action brought by the respondent as assignee of 1590 persons who received financial assistance under The Fishermen’s Assistance and Polluters’ Liability Act, 1970 (Man.), c. 32, it was alleged that the appellants caused damage to Manitoba’s fisheries by allowing mercury to be discharged from their respective chlor-alkali plants in Saskatchewan and Ontario which mercury was carried into Manitoba by the natural flow of the rivers in which the discharge took place.
In addition to the common law, Manitoba relied on The Fishermen’s Assistance and Polluters’ Liability Act, in which it is provided that Manitoba may recover as damages caused by pollution the amount of assistance payments made to fishermen or the actual loss, whichever is greater (s. 3(3)). A statutory liability was created against any person having discharged a contaminant either “into waters in the province or into any waters whereby it is carried into waters in the province” (s. 4(1)). It was also provided that it is not a lawful excuse “to show that the discharge of the contaminant was permitted by the appropriate regulatory authority having jurisdiction at the place where the discharge occurred, if that regulatory authority did not also have jurisdiction at the place where the contaminant caused damage to the fishery” (s. 4(2)). On a motion to strike out the allegations related to the Act, Matas J. held that the Act was beyond the powers of the Manitoba Legislature. On appeal, the majority of the Court of Appeal upheld the validity of the Act. From that decision the defendant companies appealed to this Court.
Held (Laskin C.J. and Judson and Spence JJ. dissenting): The appeal should be allowed.
Per Martland, Pigeon and Beetz JJ.: A province, as owner of inland fisheries in its territory, is entitled to legislate for the protection of its property. However, in respect of injury caused by acts performed outside its territory, this cannot be treated as a matter within its legislative authority when those acts are done in another province any more than when they are accomplished in another country. Although the injurious acts cannot be justified by or under legislation adopted in the province or state where the plants are operated, by the same token, Manitoba is restricted to such remedies as are available at common law or under federal legislation.
The acts of the appellants necessarily have an inter-provincial effect and hence are a subject‑matter within the exclusive authority of Parliament in accordance with its residual power over matters of interprovincial concern not specifically allocated to either federal or provincial authority under the B.N.A. Act, 1867. Therefore the Provinces of Ontario and Saskatchewan were without authority to license the appellants’ acts of contamination.
It followed that the legislation in question is ultra vires the province as involving the exclusively federal field of the pollution of interprovincial rivers.
Cowen v. A.G. British Columbia, [1941] S.C.R. 321; Royal Bank of Canada v. The King, [1913] A.C. 283; A.G. Ont. v. Scott, [1956] S.C.R. 137; Board of Trustees of Lethbridge Irrigation District v. Independent Order of Foresters, [1940] A.C. 513; A.G. Alta. v. A.G. Canada, [1943] A.C. 356; R. v. National Trust Co., [1933] S.C.R. 670; K.V.P. Co. v. McKie, [1949] S.C.R. 698; C.A.P.A.C. v. International Good Music, Inc., [1963] S.C.R. 136; British Coal Corp. v. The King, [1935] A.C. 500; Valin v. Langlois (1879), 3 S.C.R. 1, aff’d. 5 App. Cas. 115; Citizens Insurance Company of Canada v. Parsons (1881), 7 App. Cas. 96; Burns Foods Ltd. v. A.G. Man., [1975] 1 S.C.R. 494; Campbell-Bennett Ltd. v. Comstock Midwestern Ltd., [1954] S.C.R. 207; The “Atlantic Star”, [1974] A.C. 436; Bank of Montreal, Royal Bank of Canada and C.F.I. Operating Co. v. Metropolitan Investigation & Security (Canada) Ltd., [1975] 2 S.C.R. 546; Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393; Ross v. Registrar of Motor Vehicles, [1975] 1 S.C.R. 5, referred to.
Per Ritchie J.: The contention of the appellants to the effect that the impugned legislation is ultra vires as trespassing on the exclusive jurisdiction of Parliament under s. 91(27) of the B.N.A. Act, 1867 (criminal law) cannot be sustained, and the legislation is not in conflict with federal legislation having to do with control of pollution of inter-provincial rivers. Provincial legislation dealing exclusively with the effect of pollution has controlling effect within the territorial limits of the province by which it is enacted, whereas legislation in respect of the control of pollution in interprovincial rivers is clearly within the exclusive legislative authority of Parliament under s. 91 (12) of the B.N.A. Act, 1867.
However, the provincial legislature, in enacting s. 4(2), purported to nullify the effect of permission duly granted by the regulatory authority of another jurisdiction. In so doing it purported to legislate with respect to conduct and rights of the appellants outside the territorial limits of the Province of Manitoba with the result that the statute of which it forms part has no application to the appellants.
R. v. Robertson (1882), 6 S.C.R. 52; A.G. Canada v. A.G. Ont., [1898] A.C. 700; Carr v. Fracis Times & Co, [1902] A.C. 176; Walpole v. Canadian Northern Railway Co., [1923] A.C. 113; McMillan v. Canadian Northern Railway Co., [1923] A.C. 120; Canadian National Steamships Co. v. Watson, [1939] S.C.R. 11, McLean v. Pettigrew, [1945] S.C.R. 62; C.A.P.A.C. v. International Good Music, Inc., [1963] S.C.R. 136; Jenner v. Sun Oil Co., [1952] O.R. 240; Phillips v. Eyre (1870), L.R. 6 Q.B. 1; Royal Bank of Canada v. The King, [1913] A.C. 283; Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393, referred to.
Per Laskin C.J. and Judson and Spence JJ., dissenting: There is nothing in the impugned Manitoba Act that trespasses on federal legislative authority in relation to fisheries. Federal power in relation to fisheries does not reach the protection of provincial or private property rights in fisheries through actions for damages or ancillary relief for injury to those rights. Rather, it is concerned with the protection and preservation of fisheries as a public resource, concerned to monitor or regulate undue or injurious exploitation, regardless of who the owner may be, and even in suppression of an owner’s right of utilization. It could not be accepted that the Act denies to the appellants any legal rights they acquired in Saskatchewan or in Ontario in respect of the operation there of their respective chlor-alkali plants. The appellants’ contention of constitutional invalidity based on alleged deprivation or divestment of a “right” outside Manitoba proceeded upon a misconception. What the appellants were claiming was an immunity in Manitoba based on a licence to pollute granted outside. That licence was not granted as against the respondent or against any of the assignor fishermen, nor could it be. Manitoba, in enacting s. 4(2), simply took care to exclude any possible contention that a licence granted in another province could provide a defence against liability for injury to Manitoba property.
A.G. Ont. v. Scott, [1956] S.C.R. 137; C.P.R. v. Parent, [1917] A.C. 195; Royal Bank of Canada v. The King, [1913] A.C. 283; R. v. Robertson (1882), 6 S.C.R. 52; A.G. Canada v. A.G. Ont., [1898] A.C. 700; R. v. National Trust Co., [1933] S.C.R. 670; Phillips v. Eyre (1870), L.R. 6 Q.B. 1; Chaplin v. Boys, [1971] A.C. 356; Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393; Desharnais v. C.P.R, [1942] 4 D.L.R. 605; Ottawa Valley Power Co. v. Hydro-Electric Power Commission of Ontario, [1937] O.R. 265; Beauharnois Light, Heat and Power Co. v. Hydro-Electric Power Commission of Ontario, [1937] O.R. 796; Crédit Foncier Franco-Canadien v. Ross, [1937] 3 D.L.R. 365, referred to.
APPEALS from a judgment of the Court of Appeal for Manitoba[1], allowing an appeal from a judgment of Matas J. Appeals allowed, Laskin C.J. and Judson and Spence JJ. dissenting.
D.E. Gauley, Q.C., and P. Foley, for the defendant, appellant, Interprovincial Co-operatives Ltd.
A.K. Twaddle, Q.C., and E.W. Olson, for the defendant, appellant, Dryden Chemicals Ltd.
D.W. Moylan, Q.C., for the Crown, plaintiff, respondent.
T.B. Smith, Q.C., for the Attorney General of Canada. D.W. Mundell, Q.C., for the Attorney General of Ontario.
R. Langlois and C.H. Blondeau, for the Attorney General of Quebec.
The judgment of Laskin C.J. and Judson and Spence JJ. was delivered by
THE CHIEF JUSTICE (dissenting)—These appeals, by Interprovincial Co-operatives Limited and by Dryden Chemicals Limited, are here by leave of this Court, and they raise constitutional questions which, pursuant to directions for notice to be served on the Attorney General of Canada and on the Attorneys General of the Provinces, were formulated as follows:
1. Is The Fishermen’s Assistance and Polluters’ Liability Act ultra vires the Legislature of the Province of Manitoba in that it is legislation in relation to “sea coasts and inland fisheries” and hence within the exclusive jurisdiction of the Parliament of Canada under Section 91(12) of the British North America Act or is otherwise outside the competence of the Legislature of Manitoba?
2.(a) Is the Fishermen’s Assistance and Polluters’ Liability Act ultra vires the Legislature of the Province of Manitoba for the reason that its provisions are not limited in their application, (either expressly or by implication) to property and civil rights within the province nor directed solely to matters of a merely local or private nature within it? Or, alternatively;
2.(b) Are the provisions of the Fishermen’s Assistance and Polluters’ Liability Act inapplicable insofar as they purport to regulate acts done by the Appellants, Interprovincial Co-operatives Limited and Dryden Chemicals Limited, outside the Province of Manitoba for the reason that the power of the Legislature of the Province of Manitoba and therefore the application of The Fishermen’s Assistance and Polluters’ Liability Act is limited to the regulation of conduct within the Province?
Interventions were lodged by the Attorney General of Canada, the Attorney General of Ontario and the Attorney General of Quebec, all of whom filed factums and appeared by counsel in support of the position of the respondent, the Attorney General of Manitoba, who initiated, in the name of Her Majesty in right of Manitoba, the litigation out of which these appeals arise.
The litigation is founded directly upon The Fishermen s Assistance and Polluters’ Liability Act, 1970 (Man.), c. 32, effective as of June 1, 1970. Her Majesty in right of Manitoba brought action on December 10, 1970, against the two defendants, hereinafter referred to as Ipco and Dryden, suing them as assignee, pursuant to the Act, of 1,590 persons who received financial assistance under the Act in a total amount of about $2,000,000 and who were then or formerly engaged in various capacities in the commerical fishing industry in Manitoba. Both Ipco and Dryden are Dominion companies, the former having its head office in Manitoba and carrying on business there, and the latter having its head office in Ontario but carrying on business in Manitoba as well as in Ontario. Ipco has a chlor-alkali plant situate in Saskatchewan close to the South Saskatchewan River and Dryden operates a chlor-alkali plant in Ontario situate near the Wabigoon River. Each plant uses mercury, in both elemental form and as a compound, in its industrial processes, and the allegations of the statement of claim were that Ipco and Dryden permitted quantities of mercury to escape into the named rivers which carried it into Manitoba waters where it was ingested into the tissues of fish frequenting the plaintiffs fishery in those waters. It was further alleged that by reason of this ingestion, the fish became unsafe for human consumption and unmarketable, with the result that the regulatory authority under the federal Manitoba Fishery Regulations has refused to permit fishing for commercial purposes, with resultant loss to the plaintiff and to its assignors.
Negligence is alleged against Ipco and Dryden, and as well nuisance and trespass, as at common law, and then there are allegations in paras. 13 to 20 of the statement of claim which are at the heart of this litigation. Ipco and Dryden each brought a motion to strike out paras. 13 to 18 inclusive, and the words “and to the assignors herein described” in para. 19, and also para. 20(d), as disclosing no reasonable cause of action by reason of alleging a wrongful act under a statute, The Fishermen s Assistance and Polluters’ Liability Act, which was either ultra vires or had no application to the defendants.
For the purpose of the motion, the facts set out in the impugned paragraphs are taken to be as therein stated. It will be convenient to set out not only the paragraphs attacked but the whole of paras. 13 to 20 inclusive. They are as follows:
13. Pursuant to Section 2 of The Fishermen’s Assistance and Polluter’s Liability Act, S.M. 1970 C.32 (hereinafter called the Assistance Act) the Minister therein mentioned has, since 1st June, 1970, made assistance payments totalling $2,000,000.00 more or less, to 1590 persons then or formerly engaged in various capacities in the commercial fishing industry in Manitoba who, in the opinion of the Minister, had suffered or would suffer, financial loss by reason of the prohibition of the taking of fish from the Manitoba waters because of the contamination of those fish resulting in whole or in part from activities of Interprovincial and Dryden Chemicals respectively, hereinbefore described.
14. Pursuant to subsection (1) of Section 3 of the Assistance Act, the Plaintiff has received from each of the 1590 persons referred to in paragraph 13 (herein called the assignors), an assignment in writing of his right to sue any person, including the Defendants, in respect of the hereinbefore recited pollution of the Manitoba waters, in regard to his loss in the year 1970.
15. The assignors comprise any person who:—
(a) was engaged in the years 1968 and/or 1969 in the commercial fishing industry in the open water seasons in the Manitoba waters, either as an operator or a hired man, on a whitefish boat, trap net boat or skiff, and who intended to be so engaged in the 1970 open water seasons; or
(b) had an interest in a whitefish boat, trap net boat or skiff whether as owner, purchaser under an agreement for sale or lessee with option to purchase, which boat or skiff was utilized in the year 1969 and was intended to be utilized in the year 1970, in the open water seasons in the Manitoba waters; or (c) in the year 1969 in respect of the Manitoba waters, acted as a fish station agent for the Freshwater Fish Marketing Corporation, and his employees engaged in fish packing or similar station duties.
16. Each of the assignors had a sufficient interest in the fishery described in paragraph 1 and was sufficiently dependent upon its continued well-being for his livelihood, to fall within the class of persons to whom Inter-provincial and Dryden Chemicals respectively owed a duty to take reasonable care, as alleged in paragraphs 10 and 11, and to entitle him to compensation in respect of the breach of that duty and for the nuisance and trespass alleged in paragraph 12.
17. Each of the Assignors has suffered financial loss in excess of any assistance payment received by him referred to in paragraph 13, particulars of which the Plaintiff craves leave to present at the trial.
18. The Plaintiff has incurred and will continue to incur costs and expenses and loss of revenue in respect of the underlisted items, none of which would have been, or would be, incurred, had Interprovincial and Dryden Chemicals respectively constructed and operated their respective plants in such a way as to prevent the escape of mercury and mercury compounds therefrom:—
Costs and Expenses in 1970
(a) Continued monitoring of mercury levels in the Manitoba waters, bottom sediments, aquatic organisms and fish;
(b) Administration of the assistance payments programme authorized by Section 2 of the Assistance Act;
(c) Informing the public by the news media and other means, of the occurrence of mercury pollution and its significance as a health hazard; and
(d) Re-training for other occupation, persons who were formerly engaged in the commercial fishing industry, in respect of the Manitoba waters, but whose engagement in that industry has terminated with the cessation of that industry consequent upon the contamination of the fish in those waters, hereinbefore described.
Loss of Revenue in 1970
(a) Reduction in number of commercial fishing and angling licenses issued and consequent loss of license fees totalling $61,109.03 more or less;
(b) Reduction in number of angling visitors to Manitoba and consequent loss of revenue tax and other consumption taxes. 19. With respect to the escape of mercury referred to in paragraph 6 and the accumulation thereof on the river bed referred to in paragraph 7, the Plaintiff fears that unless prompt steps are taken to cease the former and remove or permanently neutralize the latter, pollution of the Manitoba waters and contamination of the fish therein, will continue for a lengthy period, with the attendant loss to the Plaintiff and to the assignors herein described.
20. The Plaintiff therefore claims against the Defendants and each of them:—
(a) An injunction restraining each from continuing to discharge mercury or mercury compounds from their respective chlor-alkali plants into the two aforementioned rivers respectively, or into any other watercourse directly or indirectly draining into or connecting with the Manitoba waters;
(b) A mandatory order requiring each to remove or permanently neutralize the accumulation of mercury on the respective river beds referred to in paragraph 7;
(c) In lieu of the relief claimed in (b) supra, damages in an amount sufficient to enable the Plaintiff to effect removal or permanent neutralization of the said mercury deposits;
(d) Payment of the sum of $2,000,000.00 more or less, referred to in paragraph 13;
(e) Payment of a sum equal to the excess referred to in paragraph 17;
(f) Payment of a sum sufficient to cover the costs and expenses and loss of revenue, referred to in paragraph 18;
(g) Interest at the legal rate on all sums of money claimed hereunder;
(h) Such further and other relief as to this Honourable Court may seem just;
(i) Costs.
A full understanding of the submissions of the parties and intervenants requires consideration of the first four sections of the impugned Manitoba statute which consists in all of eight sections, the last four dealing, respectively, with authority for agreements with Canada, with provisions for the cost of administration, with identification of the Act in the continuing consolidation of Manitoba statutes and with its in force date. The first four sections read as follows: Definitions.
1. In this Act
(a) “contaminant” means any substance whether gaseous, liquid or solid
(i) that is foreign to or in excess of the natural constituents of water; or
(ii) that affects the natural, physical, chemical, or biological quality of water;
and that is, or may be, injurious to health or safety of a person, or injurious or damaging to property or to plant and animal life;
(b) “minister” means that member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act.
Authority to make payments.
2. The minister may make payments, whether by way of loan or otherwise, in such amounts and upon such terms and conditions as he considers appropriate, to any person then or formerly engaged in any capacity in the commercial fishing industry who, in the opinion of the minister, has suffered, or will suffer, financial loss by reason of the prohibition of the taking of fish from waters in the province because of the contamination of fish resulting from pollution of those waters.
Assignment of right to sue.
3.(1) The government may receive from any person to whom a payment is made under section 2, an assignment in writing of that person’s right to sue any person responsible, or allegedly responsible, for pollution of the waters referred to in that section.
Government as assignee may sue in its own name.
3.(2) Notwithstanding that the subject matter of the assignment is a bare right to sue in tort or that the assignor assigns the right to sue in respect of a part of his loss only, upon execution of an assignment made under subsection (1), the government is the absolute owner of the right to sue, and of the proceeds thereof, and may enforce the right to sue in its own name.
Damages recoverable.
3.(3) In any suit brought by the government as assignee under an assignment made under subsection (1), in addition to any other item of damages properly recoverable the government, upon establishment of liability, may recover from the defendant the actual loss suffered by the assignor, or so much thereof as was assigned to the government, or the payment made to the assignor by the minister under section 2, whichever is the greater.
Government may re-assign.
3.(4) The government may at any time, upon such terms and conditions as the Lieutenant Governor in Council may approve, re-assign to the assignor a right to sue assigned to the government under subsection (1).
Facts to be proved and circumstances not constituting a defence.
4.(1) In any suit in which the government is a plaintiff wherein the pollution of water is in issue, if it is established by the degree of proof required in a civil suit that the defendant has without lawful excuse, the proof whereof lies on him, discharged or permitted the discharge of any contaminant from premises occupied by him, into waters in the province or into any waters whereby the contaminant is carried into waters in the province, and that thereafter fish in those waters have suffered death, disease or injury, or contamination rendering them unfit or unsafe for human consumption, or any adverse effect whereby they are rendered less marketable, the defendant is liable for all financial loss occasioned thereby to any person whose loss is a subject matter of the suit, notwithstanding any one or more of the following circumstances:
(a) At no time did that person have any proprietary interest in the fishery containing the affected fish.
(b) A regulatory authority has forbidden or refused to permit the taking of fish from that fishery by reason of the pollution of the waters thereof.
(c) Those waters have been, or are being, polluted from any other cause or by any other person.
(d) It cannot be established that the contaminant affecting the fish derived from the actual volume of contaminant which the defendant discharged or permitted to be discharged from premises occupied by him, provided the deleterious effect on the fish is of a nature consistent with a contaminant of that kind being the total or partial, immediate or mediate cause.
Permit in one jurisdiction only no excuse.
4.(2) For the purposes of subsection (1) it is not a lawful excuse for the defendant to show that the discharge of the contaminant was permitted by the appropriate regulatory authority having jurisdiction at the place where the discharge occurred, if that regulatory authority did not also have jurisdiction at the place where the contaminant caused damage to the fishery. Place of action.
4.(3) The statement of claim in any suit under this Act may be issued in any judicial district.
Matas J. (as he then was), before whom the motion to strike out was argued at first instance, concluded, in reasons for judgment delivered on June 16, 1972, that because s. 4(2) of the challenged Act purported to preclude the defendants from raising a defence of lawful authority to discharge mercury into waters in Saskatchewan and Ontario it derogated from civil rights of the defendants outside Manitoba. It was beyond the powers of the Manitoba Legislature to deprive them of the extraterritorial civil rights, and consequently the Act was inapplicable to the defendants and unenforceable against them. Although he granted their motion on this ground he rejected their contentions that (1) the Manitoba Act was ultra vires as being in relation to the criminal law or (2) it was in conflict with any applicable federal legislation forbidding pollution of fish-frequented waters, or alteration of water quality as that quality affects fish; rather, since in his view provincial power to legislate in respect of pollution generally and in respect of Manitoba’s proprietary interest in fisheries was not in issue, he found the legislation under review supportable under s. 92(5), (13) and (16) of the British North America Act, were it not for its reach outside the province. Again, he rejected a contention that the general power of Parliament to legislate for the peace, order and good government of Canada was invaded where an interprovincial river was concerned, and he held on this point that it was open to a province to legislate on the effect of pollution within the province, although an interprovincial river was involved. Further, he held that the province was entitled to legislate in respect of tortious liability, subject to constitutional limitations, and to bring action in the province, whether or not the tort be regarded as one respecting injury to real property. Since damage was done in Manitoba where the defendants had assets, it was the view of Matas J. that Manitoba could assert its legislative authority in respect of tortious liability, and that it was unnecessary to determine the place of occurrence for all purposes as being either where the tortious act was initiated or where the damage occurred.
The judgment of Matas J. was set aside by the Manitoba Court of Appeal, with Guy J.A. alone in dissent in the five-man Court. Freedman C.J.M., with whom Dickson J.A. (as he then was) concurred, rejected submissions against the validity of the challenged Act, submissions which had also been rejected by Matas J., and accepted the latter’s conclusion that there was no conflict with federal pollution legislation. But he differed from Matas J. on the latter’s assessment of the Manitoba Act as derogating from or denying to the appellants any extraterritorial civil rights. In particular, Freedman C.J.M. focused on s. 4(2) of the Manitoba Act whose scope was wide enough to deny to the appellants a defence based on a lawful, even licensed conduct of their business in Saskatchewan and in Ontario where the water contamination originated.
On the assumption that Ipco and Dryden were licensed in Saskatchewan and in Ontario to carry on their business as they had done, albeit with resulting injury to a Manitoba fishery, Freedman C.J.M. examined the effect which their respective licences had, from the standpoint of the conflict of laws, upon the constitutional issue which was before him. His reasons indicate that the choice of law question, raised by the occurrence of damage in Manitoba through a lawful activity under the law of Saskatchewan and Ontario, did not admit of an easy answer. The answer, for him, depended on where the tort was committed since, for constitutional purposes, if it was committed in Manitoba, it would be Manitoba law that would govern. There was, in his opinion, an arguable case that the tort was committed in Manitoba; and it would be wrong, on a motion to strike out parts of a statement of claim, to grant the motion except in the clearest case. In short, to quote his reasons, “[if] constitutional invalidity depends on a finding that the tort occurred outside Manitoba, that find- ing cannot be made and therefore invalidity cannot be established”.
The conclusion of the learned Chief Justice of Manitoba was that the impugned Manitoba Act was concerned with the protection of that province’s right of fishery and with the regulation of the enforcement of the common law tort of injury to that fishery. That was its pith and substance, and it was supportable under s. 92(5), (13), (14) and (16) of the British North America Act. The validity of the statute was not impeachable because it may adversely affect rights arising outside the province when those rights fall to be determined in Manitoba and in accordance with its laws. What Manitoba had done was to impose on persons within the jurisdiction of its Courts liability for damage by them to property interests in Manitoba resulting from acts originating outside the province and justified in Saskatchewan and Ontario by permits from their appropriate regulatory authorities. In fine, the Manitoba Act was concerned not with the existence of a right outside the province but rather with the assertion and exercise of a right within the province.
Hall J.A., with whom Monnin J.A. concurred, found it unnecessary to determine where the tort was committed. In his view, it was open to the province to attach legal consequences in its territory to tortious activity, whether occurring within or without the boundaries of the province, at least where the defendants were in the province and the liability was based upon damage in Manitoba to a Manitoba resource. Founding himself in the main on cases relating to the extraterritorial competence of the Parliament of Canada, Hall J.A. did not think that there was any territorial limitation which precluded a province from imposing liability upon persons in Manitoba for acts committed outside and to define the conditions upon which damages may be awarded for such extra-provincial torts where the matter related to property and civil rights in the province or to matters of a local and private nature therein. In his dissent, Guy J.A. agreed with Matas J. in his assessment of the legal effect of the Manitoba Act; the vice of the Act was in depriving the appellants of all possible defences to actions against them for polluting Manitoba waters. Guy J.A. was of the opinion that a province could not, in the guise of legislation in relation to property and civil rights in the province, take away civil rights enjoyed by the affected persons in other provinces or in other countries. What was in issue was not the jurisdiction of the Manitoba Courts, but the reach of Manitoba law to deprive persons subject to those Courts of rights enjoyed by them in respect of acts done outside Manitoba, and, indeed, to deprive them of defence for acts done outside of Manitoba where damage occurs in Manitoba, even of the defence that the damage was not a direct result of the extra-provincial act.
I have summarized the views of the Manitoba judges in this case to show the range of the matters canvassed by them, but not their details. What emerges from the reasons in the Courts below is a concern about the interaction of conflicts of laws questions with the territorial limits of provincial legislative power. This issue was touched upon, in a situation different from the present one, in Attorney General of Ontario v. Scott[2], and there is slight reference to it in C.P.R. v. Parent[3], a judgment of the Privy Council reversing a judgment of this Court[4]. But the main reliance of the appellants in challenging the validity of the Manitoba Act on the basis of its extraterritorial impact was on Royal Bank of Canada v. The King[5], which did not come here but went directly to the Privy Council from the Alberta Appellate Division. Before turning to examine the foregoing cases and others bearing on the issue of provincial competence, if any, to legislate with extraterritorial effect, I wish to deal with submissions made by Ipco and Dryden on the alleged invasion by Manitoba of federal legislative authority in relation to “seacoast and inland fisheries” under s. 91(12) of the British North America Act. None of the other submissions of the appellants as to encroachment on federal legislative authority, whether in relation to the criminal law or other heads of federal power need be considered; as to them, I am in agreement with both Matas J. and with the Manitoba Court of Appeal.
No attack was made in this Court upon the validity of any federal legislation or regulations thereunder, whether dealing with fisheries or with water quality as it affects fisheries. On this footing, the appellants’ position was that not only did the Manitoba Act invade the exclusive legislative authority of Parliament in relation to fisheries, but it was also in conflict with federal legislation and hence must yield to it (or, alternatively, federal legislation has pre-empted the field in which the Manitoba Act purported to operate). The starting point for this double submission was the judgment of this Court in The Queen v. Robertson[6], where the distinction between legislative power and property rights was first adumbrated, becoming later a staple of constitutional interpretation as a result of the judgment of the Privy council in Attorney General for Canada v. Attorney General for Ontario[7]. Particular emphasis was laid by the appellants upon what Ritchie C.J. said in The Queen v. Robertson, at pp. 120-1 as follows:
I am of opinion that the legislation in regard to “Inland and Sea Fisheries” contemplated by the British North America Act was not in reference to “property and civil rights”—that is to say, not as to the ownership of the beds of the rivers, or of the fisheries, or the rights of individuals therein, but to subjects affecting the fisheries generally, tending to their regulations, protection and preservation, matters of a national and general concern and important to the public, such as the forbidding fish to be taken at improper seasons in an improper manner, or with destructive instruments, laws with reference to the improvement and increase of the fisheries; in other words, all such general laws as enure as well to the benefit of the owners of the fisheries as to the public at large, who are interested in the fisheries as a source of national or provincial wealth; in other words, laws in relation to the fisheries, such as those which the local legislatures were, previously to and at the time of confederation, in the habit of enacting for their regulation, preservation and protection, with which the property in the fish or the right to take the fish out of the water to be appropriated to the party so taking the fish has nothing whatever to do, the property in the fishing, or the right to take the fish, being as much the property of the province or the individual, as the dry land or the land covered with water.
The words in this passage, “tending to their regulation, protection and preservation”, and the same words appearing in a passage on p. 123, were relied on by the appellants as excluding provincial competence to deal with nuisance or negligence or, indeed, with any civil liability in respect of interference with a right of fishery. The submission was that provincial competence was limited to determining ownership of fisheries, or other property interests therein, but no more. For the reasons that follow, I am unable to accept these submissions.
The right to fish in Manitoba is within the class of profits à prendre, being a real property interest which may exist either in gross or as appurtenant to a dominant tenement. The record in the present case does not disclose the nature of the rights of fishery which were involved in the present case, but it may be safely taken that they were rights of fishery in gross since, if appurtenant, they would be limited to the needs of the dominant tenement. Moreover, although it does not clearly appear whether any private rights of fishery were involved, as opposed to rights of fishery vested in the Crown in right of Manitoba, the authority of the province over property therein and its legislative right to assume ownership thereof make it unnecessary, in the light of the nature of the proceedings out of which this appeal arose, to determine whether private rights of fishery existed in any of the waters alleged to have been polluted. There is also the fact that the statement of claim asserts Manitoba’s ownership of all rights of fishery in its waters, and further asserts a sufficient interest of the erstwhile 1590 commercial fishermen in those fisheries to give substance to their assignments of their right to sue the appellants for damages.
That it was open to the federal Parliament to prohibit or regulate the use of rights of fishery, in the sense, inter alia, of limiting the permissible catch and determining open and closed seasons, was not disputed; and equally not disputed that it could do this by a licensing system. In Manitoba, the federal Manitoba Fishery Regulations, SOR/ 54-365, as amended, passed under the authority of the Fisheries Act, R.S.C. 1952, c.119 (repealed and replaced by the Manitoba Fishery Regulations, SOR/71-264, effective June 8, 1971, made pursuant to the Fisheries Act, R.S.C. 1970, c.F-14) provided for the licensing of commercial fishing in the waters of Manitoba. As a result of the pollution of those waters resulting in the ingestion of mercury by fish therein, fishing for commercial purposes was stopped as of April 1, 1970, in certain waters of Manitoba, and as of July 17, 1970, in other waters, and the number of sports fishing permits was decreased. It appears that it was either the provincial Minister in Manitoba or other Manitoba official who enjoined the commercial fishing but, in doing so, he was acting as the appropriate federal authority under the federal fishery regulations applicable to Manitoba. The legality of the prohibition of commercial fishing by the 1590 persons who obtained financial assistance under the Manitoba Fishermen’s Assistance and Polluters’ Liability Act is not challenged, nor can there be any challenge to the right of Manitoba to provide them with financial assistance. What is challenged as an encroachment on exclusive federal authority in relation to fisheries is the conferment by the Manitoba Act of the right of action in the Government of the province in the particular terms and with the particular advantages given to it as plaintiff. Since, for the purposes of the present case, it must be taken that the Crown in right of Manitoba both owned the fisheries in the waters of the province and was proper assignee of such interests in those fisheries as the 1590 assignors had, the question that arises under the appellants’ contention in respect of the federal fisheries power is whether the liability imposed under the Manitoba Act, and the recoverable loss where liability is established, go beyond the limits of provincial competence and invade that federal power. It is plain enough to me that a province having rights in proper