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In order to prevent the jarring of those distinct or conflicting interests, and to maintain the peace, order, and good government of the whole, it would be necessary, in any perfect measure, that provision should be made for such a contingency, that the subordinate should yield to the superior—the lesser to the greater: and that, in respect of any matter over which the several Provinces might be given any legislative authority concurrently with the Dominion Parliament, the authority of the latter, when exercised, should prevail, to the exclusion, and, if need be, to the extinction, of the provincial authority.

“The scheme therefore comprised a fourfold classification of powers. 1st. Over those subjects which are assigned to the exclusive plenary power of the Dominion Parliament. 2nd. Those assigned exclusively to the Provincial Legislatures. 3rd. Subjects assigned concurrently to the Dominion Parliament and to the Provincial Legislatures. And 4th. A particular subject, namely, education, which for special reasons is dealt with exceptionally and made the subject of special legislation.

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“ The 5th clause, out of the Dominion so created, carves four subordinate creations called Provinces, and named Ontario, Quebec, Nova Scotia, and New Brunswick, the two latter of which, although being coterminous with those of the extinguished Provinces of like names merged into the Dominion, are, notwithstanding, wholly new creations brought into existence solely by the B. N. A. Act. The executive and legislative authority of all the Provinces as at present constituted, as well as of the Dominion, are due to the B. N. A. Act, which now constitutes the sole constitutional charter of each and every of them, and which, with sufficient accuracy and precision, as it seems to me, defines the jurisdiction of each."

The Parsons Cases (4 S. C. R. 215) were appeals from the Province of Ontario. The Legislature of that Province had been active, and had passed many statutes on the undefined borderland of property and civil rights and that of trade and commerce. Great hardships had been experienced in the Province by the enforcement by fire insurance companies of conditions under which they evaded responsibility. A gross case having been brought to the attention of the Ontario Government by the Judges, a commission had been issued by the former. As a result of the report of these gentlemen a statute, was passed by the local Legislature prescribing certain uniform conditions to be applicable as against the insurers in all fire insurance contracts. These conditions the companies were required to print on all their contracts, and if they desired to vary any of them such variations were to be conspicuously printed and in different coloured ink. The natural amount of litigation followed this statute, and in the end the Privy Council had to decide, and did so, speaking broadly, in favour of the right of the Provinces to regulate the conduct of fire insurance within its bounds.

The Parsons cases were three: One against the Citizens' Insurance Co., a corporation created by the old Province of Canada, which had obtained a new charter from the Dominion, and whose origin was in the Province of Quebec. Another, the Western, domiciled in Ontario, but incorporated long before Confederation by the old Province. The third was the Queen, an English company. All three had been licensed by the Dominion Government to carry on business in Canada. It is hard to give a brief outline, but the great constitutional points of difference and the reasons for them appear in the two following extracts from the judgments of Chief Justice Ritchie, and those which follow from the judgment of Mr. Justice Gwynne. The Chief Justice said:

Ritchie, C.J. (p. 245): "In my opinion, this Act has no reference to trade and commerce in the sense in which these words are used in the British North America Act. It is simply an exercise of the power of the local Legislature for the protection of property in Ontario, and the civil rights of the proprietors thereof in connection therewith, by securing a reasonable and just contract in favour of parties insuring property, real or personal, in Ontario, and deals therefore only with a matter of a local and private nature. The scope and object of the Act is to secure to parties insuring a just and reasonable contract, to prevent the exaction of unjust and

unreasonable conditions, and to protect parties from being imposed upon by the insertion of conditions and stipulations in such a way as not to be brought to the immediate notice of the insured, or capable of being easily understood, or by the insertion of conditions calculated practically in many cases to deprive the parties paying the premiums of indemnity, though justly entitled to it, and, if the statutory conditions are omitted or varied, to compel the terms of the contract to be so plainly and prominently put on the contract that the attention of the assured may be called to them, and so that he may not be misled, judicial experience having proved that the rights of the insured, and legitimate indemnity in return for the money paid, demanded that the insured should be thus protected.

*

As to the construction which my brother Gwynne has put on section 3 of the Act, in the case of Geraldi v. Provincial Insurance Company, 29 C. P. 321, though the arguments used by him in that

in that case, and in the judgment he is about to deliver, which he has kindly afforded me the opportunity of reading, and which I have most attentively considered, are very cogent and plausible, yet I have been unable to arrive at the same conclusion that he has. I think the history and phraseology of the Act shews it was passed for the protection and benefit of the insured, and “as against the insurer” that the insured may insure without conditions if he pleases, except those conditions which the law implies, but that in such a case, as against the insurer. the insured may claim the benefit of these conditions (p. 249).

I can hardly condense Mr. Justice Gwynne's judgment, but the following portions sufficiently shew the bias of his convictions upon this vital constitutional issue.

Mr. Justice Gwynne said in part (4 S. C. R. p. 329): The question thus raised is, undoubtedly, one of a very grave character, for, as became developed in the argument of the several cases now before us wherein the point is raised, one of which, namely, Western Assurance Co. v. Johnston, was argued by the Attorney-General, who is also the Premier of the Province of Ontario, in support of the constitutionality of the Act, the question before us is not one merely affecting the particular Act in question, but our judgment in this case, although the Dominion Parliament is not represented, and has not been heard in the matter, will logically affect some thirty Acts of the Dominion Parliament, whose constitutionality has not heretofore been questioned, and which must be ultra vires of the Parliament, if the Act now before us be intra vires of the Provincial Legislature, and, on the contrary, if this Act be ultra vires of the Provincial Legislature, a number of Acts passed by the Legislature of the Province of Ontario must be equally so. It is clear that the subject matter of the Act in question is not one over which jurisdiction is by the B. N. A. Act given concurrently to the Provincial Legislatures and to the Parliament. If it were, no doubt the Act would be valid “as long and so far only as it is not repugnant to any Act of the Parliament of Canada.” (4 S. C. R. p. 329.)

There can, therefore, in my judgment, be no doubt that in the contemplation of the B. N. A. Act all insurance, whether of lives or of real or personal property, and whether against risk by fire on land or on sea, or by storm on land or sea, or by any other casualty, must be equally regarded as branches of trade and commerce, and must all alike be under the jurisdiction of the Dominion Parliament. There can, I think, be no doubt that the object of the B. N. A. Act in placing “all matters coming within ” the term "regulation of trade and commerce” under the exclusive control of the Dominion Parliament, was to secure a perfect uniformity in all the Provinces of the Dominion, as to all matters whatsoever affecting all trades, as an essential condition to the prosperous carrying on of trade and to prevent all possible interference or intermeddling with any trade, which diverse local views entertained in the different Provinces of the Dominion might be disposed to attempt, if the subject was placed under local jurisdiction, whether by prescribing a particular form of contract and prohibiting any other being used, or by prescribing a particular mode of execution of the contract, or by assuming to dictate in any other manner as to the manner in which, or the terms subject to which, trading companies or other persons engaged in any particular trade should be permitted to carry on such trade. (1 S. C. R. 311-2.)

An Act of exclusion, equally with an Act to control and regulate the manner in which a trade shall be carried on, can only be vindicated upon the principles governing what is called the comity of nations, the administration of which belongs exclusively to supreme national sovereignty. (+ S. C. R. 346.)

“ Now the Provinces of the Dominion of Canada, by the wise precaution of the founders of our constitution, are not invested with any attribute of national sovereignty. The framers of our constitution, having before their eyes the experience of the United States of America, have taken care that the B. N. A. Act should leave no doubt upon the subject.

“Within this Dominion the right of exercise of national sovereignty is vested solely in Her Majesty, the supreme sovereign head of the State, and in the Parliament of which Her Majesty is an integral part; these powers powers are,

within this Dominion, the sole administrators and guardians of the comity of nations. To prevent all possibility of the local legislatures creating any difficulties embarrassing to the Dominion Government, by presuming to interfere in any matter affecting trade and commerce, and by so doing violating, it might be, the comity of nations, all matters coming within those subjects are placed under the exclusive jurisdiction of the Dominion Parliament; that the Act in question does usurp the jurisdiction of the Dominion Parliament, I must say I entertain no doubt. The logical result of a contrary decision would afford just grounds to despair of the stability of the Dominion. The object of the B. N. A. Act was to lay in the Dominion constitution the foundations of a nation, and not to give to Provinces carved out of, and subordinated to,

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