Re: Anti-Inflation Act

Re: Anti-Inflation Act
Collection
Supreme Court Judgments
Date
1976-07-12
Report
[1976] 2 SCR 373
Judges
Laskin, Bora; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; de Grandpré, Louis-Philippe
On appeal from
Ontario
Subjects
Constitutional law
Decision Content
SUPREME COURT OF CANADA
Re: Anti-Inflation Act, [1976] 2 S.C.R. 373
Date: 1976-07-12
IN THE MATTER OF Section 55 of the Supreme Court Act
and
IN THE MATTER OF a Reference by the Governor in Council concerning the validity of the Anti-Inflation Act, as set out in Order in Council P.C. 1976-581 dated the 11th day of March 1976.
1976: May 31, June 1, 2, 3 and 4; 1976: July 12.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
REFERENCE BY THE GOVERNOR IN COUNCIL
Constitutional law—Power of Parliament in National Emergency to enact legislation on matters normally within exclusive provincial authority—"national emer­gency"—"national economic emergency"—Form of legislation—Absence of word "emergency" from preamble to Act—Requirement only of rational basis for Parliament's action rather than proof of exceptional circumstances—Anti-Inflation Act, 1975 (Can.), c. 75—Supreme Court Act, R.S.C. 1970, c. S-19, s. 55—British North America Act, ss. 91, 92.
Constitutional law—Legislation—Conditional legislation—Power of Province to extend the federal legisla­tion by executive rather than legislative action—Effect of an agreement executed by authority of provincial Order in Council—Anti-Inflation Act, 1975 (Can.), c. 75, s. 4(3).
The Anti-Inflation Act, 1974-75-76 (Can.), c. 75, was passed on December 15, 1975, with some retroactive effect from October 14, 1975, to provide for the restraint of profit margins, prices, dividends and com­pensation in Canada and thereby to accomplish the containment and reduction of the current levels of infla­tion which the Parliament of Canada recognized as contrary to the interests of all Canadians. Such containment and reduction of inflation was recognized by the Parliament of Canada as a matter of serious national concern. The Act provided for the establishment by the Governor in Council of guidelines for the restraint of prices and profit margins, compensation of employees and dividends, and by s. 4(1) applied to the Government of Canada and its agents and the Territorial Govern­ments and their agents. By s. 4(2) it did not purport to apply to matters generally within the provincial public sector, but ss. 4(3) and 4(4) provided that the Minister might, with the approval of the Governor in Council, enter into an agreement with the government of a province to make the act binding in accordance with the terms of the agreement in that province and its public sector. The Act as supplemented by the Guidelines which were promulgated on February 3, 1976, estab­lished supervision, control and regulation of prices, profits, wages, salaries, fees and dividends by way of moni­toring and limiting increases in order to combat inflation. By Order in Council P.C. 1976-581 dated March 11, 1976, the Governor General in Council invoked the authority conferred by s. 55 of the Supreme Court Act, R.S.C. 1970, c. S-19 and referred for the opinion of the Supreme Court the following two questions:
I) Is the Anti-Inflation Act, Statutes of Canada 1974-75-76, Chapter 75 (a copy of which Act and the Anti-Inflation Guidelines made thereunder are attached hereto as Annex "A") ultra vires the Parliament of Canada either in whole or in part, and, if so, in what particular or particulars and to what extent?
II) If the Anti-Inflation Act is intra vires the Parlia­ment of Canada, is the Agreement entitled "Between the Government of Canada and the Gov­ernment of the Province of Ontario", entered into on January 13, 1976, (a copy of which is annexed hereto together with copies of the Orders of the Governor in Council and the Lieutenant Governor in Council as Annex "B") effective under the Anti-Inflation Act to render that Act binding on, and the Anti-Inflation Guidelines made thereunder appli­cable to, the provincial public sector in Ontario as defined in the Agreement.
Held in answer to Question I (Beetz and de Grandpré JJ. dissenting):
No. The Act is not ultra vires in whole or in part. Held in answer to Question II:
No. The agreement is not effective to render the Anti-Inflation Act binding on and the Guidelines made thereunder applicable to the provincial public sector in Ontario as defined in the agreement.
Per Laskin C.J. and Judson, Spence and Dickson JJ.: The Anti-Inflation Act is valid legislation for the peace, order and good government of Canada and does not, in the circumstances under which it was enacted and having regard to its temporary character, invade provin­cial legislative jurisdiction. The Supreme Court would have been unjustified in concluding on the submission and all the material put before it that Parliament did not have a rational basis for regarding the Act as a measure which in its judgment, was temporarily neces­sary to meet a situation of economic crisis imperilling the well-being of the people of Canada as a whole and requiring Parliament's stern intervention in the interests of the country as a whole. The form of the Act, particu­larly the provisions respecting the provincial public sector, could not be regarded as indicative that the Government and Parliament were not seized with urgen­cy, or manifested a lack of any sense of crisis, in the establishment of the programme. Provincial governmen­tal concern about rising inflation and concurrent unem­ployment was a matter of public record and only two provinces had not entered into agreements to apply the Federal guidelines. That such contracting in was envisaged underlined the national character of the programme. The preamble to the Act was sufficiently indicative that Parliament was introducing a far-reach­ing programme prompted by what was in its view a serious national condition and the absence of the very word "emergency" was not unduly significant. The validity of the Act did not stand or fall on the preamble but the preamble provided a base for assessing the gravity of the circumstances giving rise to the legisla­tion. In considering the relevancy and weight of the extrinsic evidence and the assistance to be derived from judicial notice the Court need not go so far as to look at the material in terms of proof of the exceptional circum­stances as a matter of fact but merely to pursuade [sic] itself that there was a rational basis for the legislation under the head of power invoked in support of its validity.
In enacting the challenged legislation, Parliament was proceeding from legislative power bases entitling it to wage war on inflation through monetary and fiscal policies and to embrace within the Anti-Inflation Act some of the sectors covered by the Act without relying on its general power to legislate for the peace, order and good government of Canada. The particular economic circumstances justified it in invoking that general power to extend its embrace into sectors otherwise within provincial legislative power.
Having regard to the conclusion that the Act and Guidelines were validly enacted and promulgated as temporary measures to meet a national economic crisis, it was unnecessary to decide whether they could also be supported as dealing with matters which had attained national dimensions.
The agreement between the Government of Canada and the Government of the Province of Ontario was executed on behalf of the Government of Ontario by a provincial minister to whom authority for the execution was given by a provincial Order in Council. There was no statutory authorisation for the execution by the provincial Minister. Section 4(3) of the Act does not provide that, upon consummation of an agreement with the government of a province for the application of the Act and the Guidelines, they shall take effect pursuant to their terms; rather that they shall take effect in accordance with the terms of the agreement. There is no principle in Canada that the Crown may legislate by proclamation or order in Council to bind citizens when it so acts without the support of a statute of the legisla­ture. Thus the fact that the Crown can contract carries the matter no farther than that the contract may be binding on it or that it may sue the other contracting party on the contract. The agreement in question was not a contract in that sense at all, but an agreement to have certain legislative enactments become operative as provincial law. It could not have the effect claimed for it, that is, to render the Act binding on and the Guidelines applicable to the public sector in Ontario as the provincial executive had no authority to impose by mere agreement legal obligations upon persons in the Province.
Per Martland, Ritchie and Pigeon JJ.: Whether or not the Anti-Inflation Act is ultra vires must depend on whether or not the legislation was enacted to combat a national economic emergency. There is nothing to exclude the application of the principles enunciated in Co-operative Committee on Japanese Canadians v. Attorney General of Canada, [1947] A.C. 87, and Ref­erence as to the Validity of the Wartime Leasehold Regulations, [1950] S.C.R. 124, to a situation created not by war and the aftermath of it, but by highly exceptional economic conditions in time of peace. Such conditions exist where there can be said to be an urgent and critical situation adversely affecting all Canadians presenting an emergency which can only be effectively dealt with by Parliament in exercise of the power of s. 91 of the B.N.A. Act "to make laws for the peace, order and good government of Canada". However the author­ity of Parliament in this regard is limited to dealing with critical conditions and the necessity to which they give rise and must be confined to legislation of a temporary character.
The validity of the Act does not rest on the "national dimension" or "national concern" doctrine. At least since the Japanese Canadians case unless such national concern is made manifest by circumstances amounting to a national emergency Parliament is not entitled under the "peace, order and good government" clause to legislate on matters reserved to the Provinces under s. 92 of the B.N.A. Act. Parliament did not derive its authority to pass the Anti-Inflation Act from any of the enume­rated classes referred to in s. 91 of the B.N.A. Act. The source of the Federal power must, therefore, be found in the "peace, order and good government" clause and the federal authority to which that clause relates can only be extended to invade the provincial area when the legislation is directed to coping with a genuine national emergency.
To determine whether the legislation in question was indeed enacted to combat such an emergency it was essential for the purpose of disclosing the antecedent circumstances to consider not only the Act but the material which Parliament had before it, principally, the White Paper tabled in the House by the Minister of Finance. While neither the preamble to the Anti-Infla­tion Act nor any of its provisions specifically declare the existence of a national emergency, the language of the preamble read in the context of the White Paper made it unnecessary for Parliament to use a particular form of words to disclose its belief that an emergency existed. The White Paper discloses the conditions with which Parliament purported to cope in enacting the legislation and when the words "serious national concern" are read against the White Paper it is apparent that they were employed by Parliament in recognition of the existence of a national emergency.
Per Beetz and de Grandpré JJ., dissenting: The Anti-Inflation Act and the guidelines thereunder direct­ly and ostensibly interfere with classes of matters which have invariably been held to come within exclusive provincial jurisdiction, more particularly property and civil rights and the law of contract. Prima facie, the Act is pro tanto ultra vires of the Parliament of Canada. Two submissions were however made in support of its validity, the first based on the "national dimension or national concern doctrine", the second on the "national emergency doctrine". If the first submission is to be accepted its constitu­tional effects on the principles which underlie the distri­bution of powers would be very far reaching. If Parlia­ment has exclusive authority in relation to the "containment and reduction of inflation", as being of national dimension or concern, a fundamental feature of the constitution, its federal nature, the distribution of powers between Parliament and the Provincial Legisla­ture would disappear not gradually but rapidly. The submission does not however express the state of the law, it goes against the persistent trend of the authori­ties, and is founded on an erroneous characterization of the Act. The submission is predicated on the proposition that the subject matter of the Act is inflation or the containment and reduction of inflation. Even accepting that inflation was the reason for the Act, inflation was not its subject matter. In order to characterize an enactment one must look at its operation, at its effects and their scale rather than at its ultimate purpose where that is practically all embracing. Parliament may fight infla­tion with the powers at its disposal but cannot, apart from a declaration of national emergency or from con­stitutional amendment, fight inflation with powers exclusively reserved to the provinces as it has attempted to do in enacting the Anti-Inflation Act. The recogni­tion of the containment and reduction of inflation as a Federal head of power would render most provincial powers nugatory.
The second submission was that the inflationary situa­tion was, in October of 1975 and thereafter, such as to constitute a national emergency. In practice the emer­gency doctrine operates as a partial and temporary alteration of the distribution of powers. It is not true to say that the national concern or national dimension doctrine and the national emergency doctrine amount to the same. The power of Parliament to make laws in a great crisis knows no limits other than those dictated by the nature of the crisis. But one of the limits is the temporary nature of the crisis. The extraordinary nature and the constitutional features of the emergency power of Parliament dictate the manner and form in which it should be invoked and exercised. In cases where the existence of an emergency may be a matter of contro­versy, it is imperative that Parliament should not have recourse to its emergency power except in the most explicit terms indicating that it is acting on the basis of that power; and while such an indication is not conclu­sive to support the legitimacy of the action of Parlia­ment, its absence is fatal. Otherwise it is the Courts which would indirectly be called upon to proclaim the state of emergency whereas it is essential that this be done by a politically responsible body. There is nothing in the Anti-Inflation Act or the Guidelines to show that they have been passed to deal with a national emergency and its lack of comprehensiveness may be indicative of its ordinary character. Parliament did not rely on its extraordinary power in enacting this legislation and it was not necessary to make a finding of fact from the consideration of extrinsic material on whether Parlia­ment was entitled to rely on that power. However if the Court was entitled to look at extrinsic material of the type suggested, a policy statement in the House of Commons, statistics, an economic study, a speech of the Governor of the Bank of Canada it was not improper to read Hansard, not to construe and apply the provisions of the Act, but to ascertain its constitutional pivot. Reliance on statements in Hansard, while not essential to the conclusions, reinforce the view that the Act was not enacted with specific reference to a national emer­gency or under the extraordinary power, because it was believed, erroneously, that Parliament had the ordinary power to enact it under the national concern or national dimension doctrine.
REFERENCE by the Governor in Council con­cerning the validity of the Anti-Inflation Act. Act held not to be ultra vires in whole or in part, Beetz and de Grandpré JJ. dissenting; Agreement with Government of Ontario held to be ineffective.
J. Robinette, Q.C., and T. B. Smith, Q.C., for the Attorney General of Canada.
Roy McMurtry, Q.C., D. W. Mundell, Q.C., and John Cavarzan, for the Attorney General of Ontario.
Roger Thibaudeau, Q.C., and Gerald Beaudoin, Q.C., for the Attorney General of Quebec.
D. H. Vickers, H. Smith, and R. Edwards, for the Attorney General of British Columbia.
Lysyk, Q.C., and D. G. Bogdasavich, for the Attorney General of Saskatchewan.
Ross Paisley, Q.C., and W. Henkel, Q.C., for the Attorney General of Alberta. Maurice W. Wright, Q.C., P. W. Hogg and L. Soloway, for the Canadian Labour Congress.
J. W. Garrow and P. Gilchrist, for the Ontario Teachers' Federation.
A. E. Golden, W. R. Lederman, Q.C., and Paul J. Cavaluzzo, for Renfrew County Division, Dis­trict 25 Ontario Secondary School Teachers' Fed­eration and Ontario Secondary School Teachers' Federation.
Ian Scott, Q.C., S. T. Goudge and C. G. Paliare, for the Ontario Public Service Employees' Union and the Canadian Union of Public Employees and Canadian Union of Public Employees, Local 1230.
Lorne Ingle, for the United Steel Workers of America.
The judgment of Laskin C.J. and Judson, Spence and Dickson JJ. was delivered by
THE CHIEF JUSTICE—By order in Council P.C. 1976-581 dated March 11, 1976, the Governor General in Council invoked the authority con­ferred by s. 55 of the Supreme Court Act, R.S.C. 1970, c. S-19 and referred the following two ques­tions to this Court for its opinion:
1. Is the Anti-Inflation Act, Statutes of Canada 1974-75-76, Chapter 75 (a copy of which Act and the Anti-Inflation Guidelines made thereunder are attached hereto as Annex "A") ultra vires the Parliament of Canada either in whole or in part, and, if so, in what particular or particulars and to what extent?
2. If the Anti-Inflation Act is intra vires the Parlia­ment of Canada, is the Agreement entitled "Between the Government of Canada and the Gov­ernment of the Province of Ontario", entered into on January 13, 1976, (a copy of which is annexed hereto together with copies of the Orders of the Governor in Council and the Lieutenant Governor in Council as Annex "B") effective under the Anti-Inflation Act to render that Act binding on, and the Anti-Inflation Guidelines made thereunder appli­cable to, the provincial public sector in Ontario as defined in the Agreement.
Attached to the Order of Reference as annex A were a copy of the Anti-Inflation Act and a copy of the Anti-Inflation Guidelines made thereunder; and attached as annex B were a copy of the agreement involved in the second question and copies of orders of the Governor General in Coun­cil and of the Lieutenant Governor in Council approving the entry into the agreement by the Governments of Canada and of Ontario which are the respective parties thereto.. Nothing else appears in or is attached to the Order of Reference.
The Bill which became the Anti-Inflation Act was introduced into the House of Commons on October 16, 1975 (notice having been given on October 14), and was passed on December 15, 1975, but with effect to a degree from October 14, 1975. Its long title and preamble are as follows:
An Act to provide for the restraint of profit margins, prices, dividends and compensation in Canada
WHEREAS the Parliament of Canada recognizes that inflation in Canada at current levels is contrary to the interests of all Canadians and that the containment and reduction of inflation has become a matter of serious national concern;
AND WHEREAS to accomplish such containment and reduction of inflation it is necessary to restrain profit margins, prices, dividends and compensation;
Its scope is indicated in ss. 3 and 4. Sufficient indication of that scope for the purposes of this Reference is provided by quoting s. 3(1), (2) and s. 4 (1), (2), (3), (4). They are as follows:
3. (1) The Governor in Council may from time to time cause to be published and made known guidelines for the guidance of all Canadians in restraining profit margins, prices, dividends and compensation.
(2) The Governor in Council may, by regulation, establish guidelines for the restraint of
(a) prices and profit margins of
(i) public sector suppliers of commodities or services,
(ii) private sector suppliers of commodities or services who employ five hundred or more persons in Canada,
(iii) suppliers of services prescribed by the regula­tions to be professional services,
(iv) persons carrying on business in the construc­tion industry who employ twenty or more persons in Canada, and (v) private sector suppliers of commodities or services who are from time to time declared by order of the Governor in Council made on the recommen­dation of the Anti-Inflation Board pursuant to sub-section 12(2) after an inquiry as provided for by that subsection, to be of strategic importance to the containment and reduction of inflation in Canada;
(b) compensation of
(i) employees of suppliers and persons whose prices or profit margins are subject to restraint in accordance with guidelines established pursuant to any of subparagraphs (a)(i), (ii), (iv) or (y),
(ii) employees, who are members of a profession, of persons whose prices or profit margins are subject to restraint in accordance with guidelines estab­lished pursuant to subparagraphs (a)(iii), and
(iii) all public sector employees not described in subparagraph (i) including, without restricting the generality of the foregoing, all Ministers of the Crown, all members of the Senate or House of Commons of Canada and all other persons holding public offices; and
(e) dividends.
4. (1) This Act is binding on Her Majesty in right of Canada, agents of Her Majesty in right of Canada, the governments of the Yukon Territory and Northwest Territories and agents of those governments.
(2) Subject to subsection (3), this Act is not binding on
(a) Her Majesty in right of a province and agents of Her Majesty in right of a province;
(b) municipalities in a province and municipal or public bodies performing a function of government in a province;
(c) corporations, commissions and associations described in paragraph 149(1)(d) of the Income Tax Act that are owned or controlled by Her Majesty in right of a province or a municipality in a province; and
(d) such other bodies in a province as provide what are generally considered to be public services and as are from time to time prescribed by the regulations for the purposes of that province.
(3) The Minister may, with the approval of the Gov­ernor in Council, enter into an agreement with the government of a province providing for the application of this Act and the guidelines to
(a) Her Majesty in right of that province,
(b) agents of Her Majesty in that right, (c) bodies described in paragraphs (2)(b) and (c), and
(d) bodies prescribed by the regulations pursuant to paragraph (2)(d),
or any of such bodies, agents and Her Majesty in that right, and where any such agreement is entered into, this Act is binding in accordance with the terms of the agreement and the guidelines apply in accordance with the terms thereof with effect on and after the day on and after which the guidelines apply, by virtue of the opera­tion of this Act, with respect to Her Majesty in right of Canada.
(4) The Minister may, with the approval of the Gov­ernor in Council, enter into an agreement with the government of a province providing for the application to
(a) Her Majesty in right of that province,
(b) agents of Her Majesty in that right,
(c) bodies described in paragraphs (2)(b) and (c), and
(d) bodies prescribed by the regulations pursuant to paragraph (2)(d),
or any of such bodies, agents and Her Majesty in that right, of such of the guidelines made under subsection 3(2) as are applicable to public sector suppliers of commodities or services and public sector employees and their employers, and for the administration and enforcement of those guidelines in their application thereto in a manner provided for in the agreement or as determined by the government of the province.
Administration is confided to an Anti-Inflation Board, with enforcement powers vested in an Administrator from whose orders an appeal, if timely, may be taken to an Anti-Inflation Appeal Tribunal. Nothing, so far as the questions before this Court are concerned, turns on the character or powers of the agencies set up under the Act.
Section 46 of the Act fixes an immediate in force date and prescribes a termination date sub­ject to earlier termination under a prescribed procedure, and provides also for extension of its operation by order in council, but subject to the overall control of Parliament. The section reads as follows:
46. (1) This Act shall come into force on the day immediately following the day it is assented to,
(2) This Act expires on December 31, 1978, or on such earlier date as may be fixed by proclamation or a motion for the consideration of the House of Commons that is approved by the House pursuant to subsections (6) and (7) unless, before December 31, 1978 or any earlier date fixed by proclamation or any such motion for the consideration of the House that is so approved by the House, an Order in Council is made to the effect that this Act shall continue in force for such period of time as may be set out in the Order in Council.
(3) A motion for consideration of an Order in Coun­cil referred to in subsection (2) shall be laid before Parliament not later than three days after the Order is made or, if Parliament is not then sitting, within the first fifteen days next thereafter that Parliament is sitting, and each House shall, in accordance with the Rules of that House, take up and consider the motion, and all questions in connection with the motion taken up and considered by that House shall be debated without interruption and decided not later than the end of the third sitting day next after the day the motion is first so taken up and considered.
(4) If, at the conclusion of the consideration of an Order in Council pursuant to subsection (3), both Houses of Parliament do not resolve that the Order in Council be approved, it shall thereupon cease to have effect.
(5) Failure of either House or both Houses of Parlia­ment to resolve that an Order in Council referred to in subsection (2) be approved does not affect the validity of any action taken or not taken in reliance on the Order in Council prior to the conclusion of consideration thereof pursuant to subsection (3).
(6) Where, at any time after March 31, 1977 and before July 1, 1977, a motion for the consideration of the House of Commons, signed by not less than 50 members of the House, is filed with the Speaker to the effect that this Act shall expire on a date before Decem­ber 31, 1978 that is specified in the motion, the House of Commons shall, within the first fifteen days next after the motion is filed that the House is sitting, in accordance with the Rules of the House, take up and consider the motion, and if the motion, with or without amendments, is approved by the House, this Act expires on the date that is specified in the motion.
(7) All questions in connection with any motion taken up and considered by the House of Commons pursuant to subsection (6) shall be debated without interruption and decided not later than the end of the third sitting day next after the day the motion is first so taken up and considered.
The Act as supplemented by the Guidelines, which were promulgated on December 22, 1975 and amended on February 3, 1976, establishes supervision, control and regulation of prices, profits, wages, salaries, fees and dividends by way of monitoring and limiting increases in order to combat inflation. Flexibility in administration is built into the Guidelines by making allowance for such matters as cost increases and productivity factors. The Guidelines are complex in their detail as well as in their language, and it is consoling that an elaboration of their terms is not a prerequisite to the determination of the answers to the two questions referred to this Court.
The agreement, the subject of the second ques­tion and made on January 13, 1976, between (according to its designation of parties) the Gov­ernment of Canada and the Government of the Province of Ontario, each represented by a respon­sible Minister, was entered into pursuant to s. 4(3) of the Anti-Inflation Act, rather than pursuant to s. 4(4) under which it would have been open to the Province to take over or agree on separate administration and enforcement. Entry into the agreement was authorized by an Order in Council of January 12, 1976, approved by the Lieutenant Governor of Ontario and by an order of January 13, 1976, of the Governor General in Council. The agreement provides that the Anti-Inflation Act and Guidelines shall apply to the provincial public sector, save that Part I of the Guidelines dealing with restraint of prices and profit margins should apply only to those portions of the provincial public sector set out in a Schedule. The provincial public sector is defined in s. 1(d) of the agreement as follows:
(d) "provincial public sector" means
(i) Her Majesty in right of the Province and agents of Her Majesty in right of the Province,
(ii) municipalities in the Province and municipal or public bodies performing a function of government in the Province,
(iii) corporations, commissions and associations described in paragraph 149(1)(d) of the Income Tax Act that are owned or controlled by Her Majesty in right of the Province or a municipality in the Province, and
(iv) such other bodies in the Province as provide what are generally considered to be public services and as are from time to time prescribed by the regulations made under section 39 of the federal act, and as are named in Schedule A to this agreement.
Provision is made for retroactive effect of the agreement from October 14, 1975, and also for termination, which may be coincident with the termination or expiration of the Anti-Inflation Act or may be effected unilaterally by either party by notice any time after January 15, 1977, termina­tion in such case to occur 90 days later.
Pursuant to an order made on March 18, 1976, upon an application by the Attorney General of Canada for directions, the Attorneys-General of British Columbia, Manitoba, Ontario and Sas­katchewan as well as the Attorney-General of Canada were given status as interested parties, as were the Canadian Labour Congress, the Ontario Teachers' Federation, the Renfrew County Divi­sion, District 25 Ontario Secondary School Teachers' Federation, the Ontario Public Service Employees' Union, the Canadian Union of Public Employees, and the Canadian Union of Public Employees, Local 1230. Subsequently, pursuant to the terms of a supplementary order of April 6, 1976, the Attorney-General of Alberta, the Attor­ney-General of Quebec and the United Steelworkers of America were added as interested parties. The Attorney-General of Manitoba later filed a notice of withdrawal. All the other parties afore-mentioned filed factums and were represented by counsel at the hearing.
The Attorney-General of Canada, having the carriage of the Reference, included in the Case (1) the Order of Reference and the Annexes thereto; (2) the federal Government's White Paper, entitled Attack on Inflation, being the policy statement of the Minister of Finance tabled in the House of Commons on October 14, 1975, as a prelude to the introduction of the bill, which became the Anti-Inflation Act, and to the Guidelines promulgated thereunder; and (3) the monthly bulletin of Statistics Canada for October 1975 containing, inter alia, various consumer price indices showing the index positions for certain periods up to and including September, 1975. Leave was given in the order for directions of April 6,1976, to other interested parties to file additional materials, and the Canadian Labour Congress included as an appendix to its factum an untitled study by Professor Richard G. Lipsey, now a professor of economics at Queen's University, Kingston, Ontario, in which he dealt with (1) the harm caused by inflation, (2) Canadian inflation­ary experience, (3) the state of the Canadian economy in 1975 and (4) various policy options in dealing with inflation, among them a prices and incomes policy. Telegrams from a large number of economists supporting the analysis made by Professor Lipsey were also submitted by the Canadian Labour Congress. The Attorney-Gener­al of Canada, following the filing of Professor Lipsey's study and as permitted by the order for directions, filed in answer a transcript of a speech delivered on September 22, 1975, by the Governor of the Bank of Canada, Mr. Gerald Bouey. The Attorney-General of Ontario filed, after the per­mitted period for submitting answering material, a comment, prepared by the Ontario Office of Eco­nomic Policy, on the 1975 Economic Environment and the Anti-Inflation Program, designed to show the need for national action; and it also submitted a critique of Professor Lipsey's study, directed to the emphases of that study and to its interpretation of the historical context in which the federal anti-inflation programme was instituted.
All extrinsic materials filed in this Reference were subject to reserve by the Court as to their relevancy and as to their weight. They were addressed not to the construction of the terms of the Anti-Inflation Act but to its constitutional characterization, what was it directed to and was it founded on considerations which would support its validity under the legsilative power to which it was attributed. The material offered by the Attorney-General of Canada concerned the social and eco­nomic circumstances under which the Anti-Infla­tion Act was passed and the evils with which it purported to deal. The Canadian Labour Congress also related its material to the circumstances under which the Anti-Inflation Act was passed, but advanced that material as showing that the evils which prompted the Parliament of Canada to enact it did not provide a constitutional base for the legislation, especially when regard was had to its probable ineffectiveness to accomplish its alleged purpose. Arguments were addressed by parties contesting the validity of the Anti-Inflation Act that not only the extrinsic material but the terms of the Act as well disclosed that, far from dealing with a matter within exclusive federal competence, the Act invaded exclusive provincial legislative jurisdiction.
In order to assess how relevant and, if relevant, what weight should be assigned to the extrinsic material, it is necessary to examine the ambit of the legislative power under which the Anti-Infla­tion Act was enacted. It is my opinion that only in such a context can the Court be urged, whether through a doctrine of judicial notice or through an adaptation to constitutional purposes of the rules in Heydon's case, to consider extrinsic materials as bearing on the validity of challenged legislation. It may well be that in most situations it is unneces­sary to go beyond the terms of the impugned legislation to determine its validity. Yet, even where this has been deemed sufficient Courts have thought it proper to consider the operation and effect of the legislation as providing a key to its purpose, especially where the allegation is that the legislation has been cast in a colourable form. This was done by this Court in Reference re Alberta Legislation[1], and the Privy Council, on appeal, sub. nom. Attorney-General of Alberta v. Attor­ney-General of Canada[2], at p. 130, supported this approach. There, Lord Maugham speaking for the Judicial Committee, pointed out that a necessary step in a case of difficulty is to examine the effect of the legislation and "for that purpose the Court must take into account any public general knowl­edge of which the Court may 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". This Court supported such an approach to extrinsic evidence in Lower Mainland Dairy Prod­ucts Board v. Turner's Dairy Ltd.[3], at p. 583, where Taschereau J., as he then was, speaking for the majority of the Court said that "in certain cases, in order to avoid confusion extraneous evi­dence is required to facilitate the analysis of legis­lative enactments, and thus disclose their aims which otherwise would remain obscure or even completely concealed". The references by Lord Maugham to the admissibility of extrinsic evidence "in a proper case" and by Taschereau J. to admis­sibility of such evidence "in certain cases" support my view that no general principle of admissibility or inadmissibility can or ought to be propounded by this Court, and that the questions of resort to extrinsic evidence and what kind of extrinsic evi­dence may be admitted must depend on the consti­tutional issues on which it is sought to adduce such evidence.
This view is strengthened by the fact that this Court and the Privy Council have recognized that in some kinds of cases the effect of legislation has no bearing on its constitutional validity. Hence, extrinsic evidence as to its effect has no weight. Thus, in Attorney-General of Saskatchewan v. Attorney-General of Canada[4], the Privy Council, adopting a proposition of Rand J. in this Court in that case (see [1947] S.C.R. 394, at p. 413) said that "consequential effects are not the same thing as legislative subject matter. It is the 'true nature and character of the Legislation'—not its ultimate economic results—that matters", and cited Russell v. The Queen[5], at pp. 839-40 in support.
Taxing legislation provides, in my opinion, an apt illustration of the dangers of generalization so far as extrinsic material is concerned. Since the provincial taxing power is a limited one, namely a power to legislate in relation to "direct taxation within the Province in order to the raising of a revenue for provincial purposes", the operation and effect of what is in form provincial taxing legislation are relevant matters on which extrinsic evidence may be helpful to enable a Court to decide whether the legislation masks an imper­missible purpose or object. This was the view taken in the Alberta Bank Taxation case above-mentioned. On the other hand, this Court in its judg­ment in Texada Mines Ltd. v. Attorney-General of British Columbia[6], held, when concluding that certain provincial taxing legislation was invalid as imposing an export tax upon iron ore mined in the Province, that extrinsic evidence in the form of ministerial statements would not have been admis­sible, even if proved to have been made, to show that the legislation was ultra vires. The Court was able to come to that conclusion without the aid of such evidence. Another illustration, also in respect of provincial taxing legislation, where certain eco­nomic evidence was held by the majority of the Saskatchewan Court of Appeal to be inadmissible, is Cairns Construction Ltd. v. Government of Saskatchewan[7], affirmed on the merits by this Court. Culliton J.A., as he then was, noted that a legal test had been adopted of the meaning of a direct tax, which was not subject to variation by economic criteria applicable to the incidence of the tax in particular cases. Again, it was his view there that oral evidence relating to the method of administration of the Act was of no relevance on the issue of its constitutionalit