Trade and Commerce

-s91(2)(Trade and commerce power) is mutually exclusive with s92(13) (Property and Civil Rights)-2 branches of s91(2) : intraprov/intl T&C and “general” T&C

since Citizens Insurance Co v Parsons – 92(13) – intraprovincial trade (ie. w/in the province) and s91(2) – interprovincial trade (ie btw provinces / intl)

since R v Klassen the SCC started to uphold fedl regulation that covered some transactions occuring entirely w/in a province's boundaries (aka intraprovincial trade)Caloil v AG Can – SCC upheld fedl prohib on transportation or sale of imported oil – purpose of the Act was to protect the domestic industry in the West – prohib caught many transactions occuring solely w/in a province but upheld as “incidental to the administration of an extra-provincial marketing scheme” and “an integral part of the control of imports in extraprovincial trade policy”.

cpLabatt Breweries – Fedl T&C power not able to support compositional standards for Beer under the FDA – standards imposed w/o regard for the product's movement across provl boundaries. Reaffirmed insur cases that T&C does not authorize reg of a single trade or industry (even if it is dominated by a handful of large firms on a nationwide basis)

GM v City National – Court unanimously upheld the Competition Act as a valid exercise of the (previously denied) “general” trade and commerce power. Per Dickson – Competition could not be regulated successfully if restr to interprovl trade

Validity of the ActVapor Test for a valid exercise of the “General” T& C Power: 1.presence of a “general regulatory scheme”2.oversight by a regulatory agency3.concern with trade as a whole rather than a particular industryand GM added 2 elements:4.under the constitution, provinces would be incapable of enacting that type of legislation5.failure to incl 1/more provinces in the scheme would jeopardize its success in other parts

The Competition Act was valid under this test. But s31.1 of that Act also gave rise to a civil right of action (which is a s92(13) power – was s31.1Constitutionally valid for being functionally related to the Act?

Validity of the ProvisionFuntional Connection/Integration Test GM Motors : Step 1: does impugned provison intrude on provision powers?Step 2: If so, Is the Act (or a severable part containing the provision) valid? (see test above)Step 3: If valid, is the provision sufficiently integrated w/ the scheme so as to be upheld on that basis?

if major intrusion – is provision essential to the scheme?If minor intrusion – is there a functional rel'p w/ the scheme?