FavoriteLoadingSave to briefcase | Rating: | By (2012)

  • PrintEmail Link
  • Viewed 7,802 times | Saved to 427 briefcases
Reference re Anti-Inflation Act, [1976] 2 SCR 373


Act established a system of price, profit, and income controls. Applied to private sector firms. Act only binding on the fed public sector, but applicable to prov public sector only if an agreement was made between the govs


Is the Act ultra vires, and is the ON Act purporting to make the act applicable to ON public sector valid?


There is a difference between the emergency doctrine and the national concern doctrine:
*National concern – when applied effect is permanent, but limited by the identity of the subject newly recognized to be of national dimension
*Crisis/Emergency – power to make laws knows no limit other than those dictated by the nature of the crisis, but the limits are temporary
**To invoke this the legislation must be explicit in indicating that it is an emergency situation


MAJORITY (majority is dismissed and dissent it more relevant)
Laskin goes through 4 questions that are factually specific to determine if emergency – these are not exactly what you would have to do each time:
1. Does provincial opt-in undermine the assertion that there’s an emergency?
**This question is fact specific
**The applies to a broad range of companies – and just because there are some (prov public sector) that is not compulsory on does not make the situation it was dealing w/ any less urgent.
2. Does the preamble of the AIA establish that the federal government acted in response to a perceived emergency, or does the preamble undermine this assertion?
**Doctrine of ER is that the gov is purporting to deal with an emergency, so you look at the text of the instrument to see if that it is evident in the text anywhere
**The preamble of Act indicated that Parl was introducing a far-reaching program prompted by a serious national condition
3. Does extrinsic evidence help establish a rational basis for federal action under POGG?
**Goes to whether there is rationality
*No issue to the object of the legislation – but do look at extrinsic evidence to see if Parl had a rational belief that there was an ER at the time the act was passed
**Extrinsic evidence – need go only as far as to persuade the Court that there is a rational basis for the leg, which it is attributing to the head of power invoked in this case in support of its validity
4. Can federal action under POGG be justified, to some extent, by the fact that Parliament is acting in furtherance of its regular listed powers under s. 91?

*Leg must have some sort of clear language indicating it is legislating in an emergency situation
*Don’t look at social science evidence to show that leg is going to work to combat problem – only use it to establish the Parl did or did not have a rational basis for believing there was an emergency

National Concern
*To characterize a law is but to give it a name to its content, subject matter, in order to classify it in a head of power
*It is permanent – so it closes out any idea of dual aspect, or complementary fed and prov leg – doesn’t allow overlap or duplication
*Are times when you can rely on this doctrine – this is the root of the test that is established in Crown v Zellerbach
**Distinct (separate) form matters that fall to prov jurisdiction AND limited
***New matter that is not an aggregate
***Must a degree of unity that made it indivisible
***Distinct from prov matter

*Power of Parl under national emergency doctrine is not confined to war situations or to situations of transition from war to peace
*Inflation may constitute an emergency
*Parl may validly exercise its national emergency powers before an emergency actually occurs – a state of apprehended emergency or crisis suffices to justify Parl

The use of the national emergency power enables Parl to override prov laws in potentially every field (ER temporarily overtakes prov jurisdiction), but it must be explicit
**The Acts preamble fails to pass this test – it says serious national concern, but nothing about a emergency


Act is supportable under POGG


Laskin judgment dismissed nowadays, but some important points; the Betz judgment (dissent) most influential and people assume this judgment must be followed to invoke emergency branch of POGG:
*Everyone agrees that the emergency branch exists and that it is not limited to wartime;
*Everyone agrees that the existence of an emergency is subject to judicial review
*Deference to emergency legislation
**Where existence of emergency is not evident, extrinsic evidence required to show only a rational basis for believing there is an emergency, but emergency need not be proven fact

Leave a Comment

You must be logged in to participate.

This document is a general discussion of certain legal and related issues and must not be relied upon as legal advice. This document may not have been written or reviewed by a legal practitioner. For more information, please see the website Terms of Service.