June 9, 1938

LIB

Norman McLeod Rogers (Minister of Labour)

Liberal

Mr. ROGERS:

Yes. I think I should read that in the first place, because it may throw some light on the other question; the scope of the act is defined as follows:

(i) works, undertakings or business operated or carried on for or in connection with navigation and shipping, whether inland or maritime,

(ii) lines of steam or other ships, railways, canals, telegraphs and other works and undertakings connecting any province with any other or others of the provinces, or extending beyond the limits of the proyince,

(iii) lines of steamships between a province and any British or foreign country,

(iv) ferries between any province and any British or foreign country, or between two provinces,

(v) works, undertakings or business belonging to, carried on or operated by aliens, including foreign corporations immigrating into Canada to carry on business,

(vi) such works as, although wholly situate within the province, have been or may be declared by the parliament of Canada, or for the advantage of two or more of the provinces-

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

I do not think we question the "have been" but we do question the "may be."

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LIB

Norman McLeod Rogers (Minister of Labour)

Liberal

Mr. ROGERS:

Quite.

(vii) works, undertakings or business of any company or corporation incorporated by or under the authority of the parliament of Canada;

(b) Any dispute which is not within the exclusive legislative authority of any provincial legislature to regulate in the manner provided by this act;

(c) Any dispute which the governor in council may by reason of any real or apprehended national emergency declare to be subject to the provisions of this act;

(d) Any dispute which is within the exclusive legislative jurisdiction of any province and which by the legislation of the province is made subject to the provisions of this act.

The last, I take it, is the particular clause that raises the point in the mind of the right hon. leader of the opposition. Obviously the Minister of Justice, would be in a better position to express an opinion on this point than I am.

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

There have been varying views with respect to it, but I would not ask the hon. gentleman to define the legal position. That would not be fair.

3682 COMMONS

Supply-Labour-Industrial Disputes

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LIB

Norman McLeod Rogers (Minister of Labour)

Liberal

Mr. ROGERS:

Quite so, but I wonder if this is not the case. Take the province of New Brunswick, for example, before it passed recent legislation taking this authority to itself. If a dispute occurred in a public utility in that province, such as a coal mine, it is true that we would set up a board under the provisions of this act, but I would assume that such board would derive its authority from the provincial statute.

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

I would have agreed with that were it not for the fact that the federal power exercise the appointing power, and they cannot do that as delegates of the executive of a province. Do I make the point clear?

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LIB

Norman McLeod Rogers (Minister of Labour)

Liberal

Mr. ROGERS:

Yes, I understand that; but evidently, in order to remove the possibility of doubt, you also have this section in the dominion act. How far that is effective I am not in a position to say, as my right hon. friend realizes.

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CON
LIB

Norman McLeod Rogers (Minister of Labour)

Liberal

Mr. ROGERS:

The original act was passed in 1907.

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

But this is since the decision?

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LIB

Norman McLeod Rogers (Minister of Labour)

Liberal

Mr. ROGERS:

Yes, this is in the revised statutes of 1927.

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

The minister has placed upon the statute the construction that I should like to see placed upon it if it were valid, but I doubt the validity of such construction ; for I think we will all agree, layman and lawyer, that a province cannot set in motion by its legislation the exercise of its power by the federal executive, and the federal executive is exercising a discretion which cannot spring from provincial legislation but which in fact is said to owe its origin to provincial legislation. That is, the province has passed a statute which in terms confers upon the federal power a right to do something which the privy council said the federal power could not do, and the question whether or not a provincial legislature can clothe with effective executive authority a federal body, namely the governor in council of the whole dominion, is a proposition to which I am sorry to say I cannot give assent. I wish I could; for I tried to use it and failed in connection with the marketing act. We were under the impression that there should be no difficulty in getting over what seemed to be an obstacle, the one I mentioned, by suggesting that they would have

the power to make us their agents only, and thereby not involve the exercise of the executive authority; because there is a vast difference between creating an agency and authorizing the exercise of discretion. That is, the provincial legislature can hardly press a duty on the federal executive, but the provincial legislature should be able to authorize any branch of the public service in the dominion to act as agent if it would so act.

I must say I have never thought the case was put fairly before the courts. I cannot see why, if the minister, acting as a federal power, desires me as a provincial power to act as his agent, I should not do so; and, e converso, there should be no reason why I, as a provincial power, should not, if the federal power is willing, authorize and request them to act as my agent. That was the basis of what we endeavoured to do with respect to the marketing act. As I say, I hope I am not being unfair, but in reading such reports of the arguments as I was able to obtain I do not think that point was clearly put to the court, either here or in England. I cannot, I repeat, see why the minister, speaking for the parliament of Canada, should not say to me as a province, " Will you act as my agent in connection with this matter"? I say, " Yes." Nor can I see why I, acting as a province, should not say to the federal power, " Will you act as my agent in connection with this matter"? And the dominion says, "Yes."' That would ensure certain results which we were endeavouring to ensure in connection with the marketing of products.

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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

That would be inconsistent with section 94.

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

I read section 94 just now; it refers only to three provinces, and there is no provision for other provinces being included under it. Obviously it did not include Quebec, because of the civil law.

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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

I think there is strong ground for the argument that it includes all the provinces except Quebec.

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

Mr. Scott referred to that in an article published recently, and I am bound to say that I found it inconclusive, though of course that does not say the argument may not be sound. I am only-putting to the minister the difficulty I see in our utilizing this act under those circumstances; for if the proposition is sound that by this section we can amend the constitution of the dominion, obviously the theory under which we have been operating is invalid. We have always believed that it required a statute of the imperial parliament to amend the act.

Sup-ply-Labour-Employment Offices

I think it would relieve the Prime Minister, for instance, of a great deal of worry if he felt that he could amend the constitution in that way, because it does not require all the provinces to do it; it requires only three of them, those three being Ontario, New Brunswick and Nova Scotia.

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LIB

Norman McLeod Rogers (Minister of Labour)

Liberal

Mr. ROGERS:

I believe a number of the provinces, if not all, reenacted the provisions of the industrial disputes act.

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

If they did they left the executive discretion to be exercised here.

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LIB

Norman McLeod Rogers (Minister of Labour)

Liberal

Mr. ROGERS:

There is an executive

discretion.

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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

In the province as well.

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June 9, 1938