CONSTITUTIONAL LAW
18 DELEGATION
Shigenori Matsui
1
Introduction


To what extent can the Parliament and
provincial legislature delegate its authority to
other branch?
What kind of mechanism does exist to
facilitate the cooperation between the federal
government and provincial government?
2
I THE PERMISSIBILITY AND LIMITS
OF DELEGATION

Hodge v. The Queen (1883)
3

“Within these limits of subjects and area the
local legislature is supreme, and has the same
authority as the Imperial Parliament, or the
Parliament of the Dominion, would have had
under like circumstances to confide to a
municipal institution or body of its own creation
authority to make by-laws or resolutions as to
subjects specified in the enactment, and with the
object of carrying the enactment into operation
and effect.”
4

A. Limits of delegation of legislative power
(Interdelegation)

Could the Parliament delegate its legislative
power to the provincial legislature? Could the
provincial legislature delegate its legislative power
to the Parliament?
5

A.G. of Nova Scotia v. A.G. of Canada,
[1951] S.C.R. 31
6

“The country is entitled to insist that legislation
adopted under section 91 should be passed
exclusively by the Parliament of Canada in the
same way as the people of each Province are
entitled to insist that legislation concerning the
matters enumerated in section 92 should come
exclusively from their respective Legislatures.”
7


“No power of delegation is expressed either in
section 91 or in section 92, nor, indeed, is there to
be found the power of accepting delegation from
one body to the other; and I have no doubt that if it
had been the intention to give such powers it would
have been expressed in clear and unequivocal
language…
Neither legislative bodies, federal or provincial,
possess any portion of the powers respectively
vested in the other and they cannot receive it by
delegation...”
8

Should the interdelegation be allowed?

For example, how about the securities regulation
or food safety regulation?
9

Alternatives to interdelegation



1)administrative delegation
2)incorporation by reference
3)conditional legislation
10
II ALTERNATIVES TO
INTERDELEGATION

A. Administrative delegation

Prince Edward Island Potato Marketing Board v.
H.B.Willis, [1952] 2 S.C.R. 392
11

“The effect of that enactment is for the Governor-inCouncil to adopt as its own a board, or agency
already authorized under the law of a province, to
exercise powers of regulation outside the province in
interprovincial and export trade, and for such
purposes to exercise all or any powers exercisable
by such board, or agency, in relation to the
marketing of such agricultural products locally within
the province. I cannot see any objection to federal
legislation of this nature.”
12
What is the difference between legislative
delegation and administrative delegation?
13

B. Incorporation by Reference

A.G. for Ontario v. Scott, [1956] S.C.R. 137
14


In carrying this out, the province has adopted provisions
which the law of England prescribes for the relief of a
deserted wife. The effect is to vest in the wife a right to
enforce the duty in Ontario in accordance with the
provisions adopted.
The action of each legislature is wholly discrete and
independent of the other, a relation incompatible with
delegation; and that it is a case of adoption is equally
clear. But it is a circumscribed adoption…There is no
attempt to permit another legislature to enact general, or
generally, laws for a province: that would obviously be
an abdication.
15

Coughlin v. Ontario Highway Transport Board,
[1968] S.C.R. 569
16


“It is well settled that Parliament may confer upon a
provincially constituted board power to regulate a
matter within the exclusive jurisdiction of Parliament.
In the case before us the respondent Board derives
no power from the Legislature of Ontario to regulate
or deal with the inter-provincial carriage of goods. Its
wide powers in that regard are conferred upon it by
Parliament. Parliament has seen fit to enact that in
the exercise of those powers the Board shall
proceed in the same manner as that prescribed from
time to time by the Legislature for its dealings with
intra-provincial carriage…”
17

“In my opinion there is here no delegation of
law-making power, but rather the adoption by
Parliament, in the exercise of its exclusive
power, of the legislation of another body as it
may from time to time exist, a course which has
been held constitutionally valid by this Court in
Attorney General for Ontario v. Scott.”
18

What is the difference between delegation
and incorporation by reference?
19

C. Conditional legislation

Lord’s Day Alliance v. A.G. of British Columbia,
[1959] S.C.R. 497

20

“The Act is laying down for the whole of Canada
regulations for the observance of Sunday. Some things
on that day are everywhere prohibited; others are
everywhere allowed. But there is an intermediate class
of activities -- Sunday excursions are amongst them -with reference to which the Act recognizes that differing
views may prevail in the respective Provinces of the
Dominion, so varying in these Provinces are the
circumstances, usages and predominant religious beliefs
of the people. The Act proceeds to provide accordingly,
putting it generally, that with reference to these matters,
Provincial views shall within a Province prevail.”
21


“It is not a case of delegation where the
Dominion Parliament attempts to authorize a
provincial legislature to do something beyond
the latter's power, but within the competence of
Parliament…”
“Section 6 of the Lord's Day Act merely provides
that if a provincial legislature chooses to permit a
certain occurrence, then that section does not
apply to the particular province.”
22

What is the difference between
interdelegation and conditional legislation?
23
III COOPERATION ATTEMPTS AND
SPENDING POWER

Cooperation attempts between the federal
government and provincial government



Direct payments to individual citizens
Shared-cost program
Equalization payment
24

What is the source of spending power?



There is no explicit textual provision for
government spending
S. 91(3)?
S. 106?
25

Limits of spending power

Unemployment Insurance Reference [1937]
26

“That the Dominion may impose taxation for the
purpose of creating a fund for special purposes, and
may apply that fund for making contributions in the
public interest to individuals, corporations or public
authorities, could not as a general proposition be
denied. ... But assuming that the Dominion has
collected by means of taxation a fund, it by no
means follows that any legislation which disposes of
it is necessarily within Dominion competence.”
27

“It may still be legislation affecting the classes of
subjects enumerated in s. 92, and, if so, would be
ultra vires. In other words, Dominion legislation,
even though it deals with Dominion property, may
yet be so framed as to invade civil rights within the
Province, or encroach upon the classes of subjects
which are reserved to Provincial competence. … If
on the true view of the legislation it is found that in
reality in pith and substance the legislation invades
civil rights within the Province, or in respect of other
classes of subjects otherwise encroaches upon the
provincial field, the legislation will be invalid.”
28

Reference re Canada Assistance Plan [1991]
29

“The simple withholding of federal money which had
previously been granted to fund a matter within
provincial jurisdiction does not amount to the
regulation of that matter. Still less is this so where,
as in this case, the new legislation simply limits the
growth of federal contributions. In oral argument,
counsel said that the Government Expenditures
Restraint Act "impacts upon [a] constitutional
interest" outside the jurisdiction of Parliament. That
is no doubt true, but it does not make the Act ultra
vires. "Impact" with nothing more is clearly not
enough to find that a statute encroaches upon the
jurisdiction of the other level of government.”
30
IV INTERGOVERNMENTAL
AGREEMENT

Agreement between the federal government
and provincial governments


Is it legally binding?
Is it judicially enforceable?
31

Reference re Canada Assisted Plan [1991]
32

“It is conceded that the government could not bind
Parliament from exercising its powers to legislate
amendments to the Plan. To assert the contrary
would be to negate the sovereignty of Parliament. …
In these circumstances the natural meaning to be
given to the words "authorized to pay ... under the
Act" in clause 3(1)(a) is that the obligation is to pay
what is authorized from time to time. The
government was, therefore, not precluded from
exercising its powers to introduce legislation in
Parliament amending the Plan…”
33

“The result of this is that the Government of
Canada, in presenting Bill C-69 to
Parliament, acted in accordance with the
Agreement and otherwise with the law which
empowers the Government of Canada to
introduce a money bill in Parliament.”
34

What is the holding of the Supreme Court?



It is binding but there is no violation of the
agreement since the federal government was
allowed to submit the bill to the Parliament to
amend the plan?
Is CAP legally not binding?
Is it not judicially enforceable?
35