COMMENTS
COMMENTAIRES
Legal Theory and the Paramountcy Rule
I. Introduction
Under the constitutional rule of federal paramountcy, provinoial
enactments or orders will be inoperative to the extent that they
conflict with federal enactments or orders. In addition, there have
been some suggestions that simple duplication, as well as conflict,
will lead to the suspension of provincial law. However, the para-
mountcy rule is controversial both in its theoretical formulation
and in its practical application. It is difficult to interpret the
pattern of the cases because there is confusion regarding the mean-
ing of and relationship between the various tests for the invocation
of the rule. Recent cases have done little to dispel this confusion,
and it seems unlikely that substantial progress can be made without
greater attention being given to the theory of legal conflict. The
purpose of this article is to clarify the competing tests through a
theoretical analysis of the conflict of law and to assess the present
support for each test.
Two differing views of the scope of the paramountcy rule can
be discerned in the cases. The broader view is that the rule will
apply to situations of conflict between not only the express provi-
sions of federal and provincial enactments or orders but also certain
legislative intentions which are implicit. This is often described as
the test of “the occupied field”. It
is satisfied whenever it is
concluded that, in relation to some matter, a pronouncement of
Parliament, or of an agency or court acting under federal jurisdic-
tion, leaves no room for the operation of any pronouncement of
a provincial legislature, or of an agency or court acting under pro-
vincial jurisdiction. This may be because the federal and provincial
provisions are contradictory. It may also be because Parliament has
implicitly intended that the federal provision be a full determina-
tion of the legal position in relation to the matter and that pro-
vincial regulation be excluded. In this aspect, the occupied field
test is sometimes described as the test of “negative implication”.
The narrower view of the scope of the paramountcy rule is that
it will only apply to conflict between the express provisions of
19791
COMMENTS – COMMENTAIRES
federal and provincial enactments or orders. This is sometimes
described as the test of “express contradiction” or of “operational
incompatibility”. Martland J. seems to have been referring to this
test when he suggested that legislative provisions can operate con-
currently where there is “no conflict in the sense that compliance
with one law involves breach of the other”.’ This refers to a conflict
of law in the sense that the duties imposed by the provisions are
logically contradictory.
The same kind of legal conflict is involved in the occupied field
test, but with the difference that the imposition of duties may also
be inferred from implicit legislative intention. The theory of this
extension is that Parliament, by its pronouncement, has sometimes
implicitly intended to prohibit recognition of a provincial pronounce-
ment on the same matter. It is impossible for a legal official (such
as a judge) to comply with this negative implication without breach-
ing the requirement necessarily embodied in the provincial legisla-
tion that it be put into effect. This, like the express contradiction
test, is a test of operational incompatibility. The alternative descrip-
tion of the express contradiction test as the test of “operational
incompaibility” will, therefore, be misleading unless it is borne in
mind that it is concerned only with incompatibility in the terms of
the provisions.
It will be contended that it only makes sense to speak of a true
conflict of law where duties are contradictory. It will be argued that
this theory of legal conflict provides the foundation for both para-
mountcy tests. The difference between the tests relates to the origin
of the contradictory duties which produce operational incompatibi-
lity.
I. A theory of legal conflict
It has sometimes been -suggested that, with regard to the para-
mountcy rule, the nature of legal conflict may be more complex.
For example, Hogg has claimed that, in relation to express contra-
diction, a test of the impossibility of dual compliance will only be
relevant to laws which are designed to operate directly upon human
conduct, and that a different approach will be required for other
laws:
For laws which operate at one remove from human conduct, that is to
say, which operate only indirectly upon human conduct, the test of
possible compliance with both laws may not be appropriate. But an
1Smith v. The Queen [1960] SiC.R. 776, 800 (separate majority opinion).
McGILL LAW JOURNAL
[Vol. 25
express contradiction will occur if one law says x and the other law
says not-x. 2
The suggestion that the question of compliance is inappropriate
to the paramountcy problems raised by some legal rules has also
been made by Seaton J.A. in Hughes v. Hughes.3 The issue there
was whether a family maintenance order, which had been made
under provincial legislation, could remain operative after a divorce.
It was held that the making of a maintenance order with respect
to the same persons under section 11(1) of the federal Divorce
Act 4 would suspend the operation of the provincial orderY However,
Seaton J.A. appeared to indicate that, in any event, the question of
compliance was irrelevant to the type of rule at issue:,
Some statements that might appear to clash with what I say are not
applicable to s. 11 of the Divorce Act because it does not require or
prohibit specific conduct but provides machinery whereby an order
governing specific conduct is made.0
When Hogg and Seaton J.A. speak of rules to which the notion
of compliance is inappropriate, they presumably have in mind some-
thing like Hart’s jurisprudential category of “secondary” or “power-
conferring” rules.1 This is contrasted with a category of “primary”
or ‘duty-imposing’
rules:
Under rules of the one type, which may well be considered the basic
or primary type, human beings are required
to do or abstain from
certain actions, whether they wish to or not. Rules of the other type
are in a sense parasitic upon or secondary to the first; for they provide
that human beings may by doing or saying certain things introduce new
rules of the primary type, extinguish or modify old ones, or in various
ways determine their incidence or control their operations. Rules of the
first type impose duties; rules of the second type confer powers, public
or private. Rules of the first type concern actions involving physical
movement or changes; rules of the second type provide for operations
which lead not merely to physical movement or change, but to the
creation or variation of duties or obligations.8
Hart draws examples of primary rules from substantive criminal
and delictual law and of secondary rules from contractual, consti-
tutional and jurisdictional law.’ This distinction is important to an
2 Hogg, Constitutional Law of Canada (1977), 103.
3 (1977) 72 D.L.R. (3d) 577 (B.C.CA.).
4R.S.C. 1970, c. D-8.
5 Otherwise, the provincial order would have remained in effect; the test
of negative implication, rather than that of express contradiction, is being
applied here.
6 Supra, note 3, 581.
“See Hart, The Concept of Law (1961).
8 Ibid., 78-79.
9Ibid., 27-33.
19791
COMMENTS – COMMENTAIRES
understanding of the conflicts which may give rise to federal para-
mountcy since, as Hart asserts, the form of primary rules is to
prescribe conduct whereas the form of secondary rules is to confer
powers.
It is, however, a mistake to confine the analysis to the surface
appearance of rules. Deeper examination indicates that secondary
rules do not lack prescriptive or “duty-imposing” character.10 The
reason why they are different from primary rules is that they are
“procedural” rules in relation to other rules. Their role is to
regulate procedural activities in relation to the operation of rules.
These are activities which cannot take, place independently of the
existence of rules ‘because they are concerned with the management
of rules: activities such as identifying rules, making and changing
them, determining their application to concrete cases, and enforcing
them.
Directly or indirectly, secondary rules usually prescribe conduct
for legal officials, including judges. For example, there is direct
prescription when a rule confers jurisdiction, within certain limits,
to make an order. The -rule does not merely confer a power on the
judge; it prescribes that these limits should be observed in making
orders. The power of ordinary citizens to make contracts is an
example of indirect prescription. They have this power because it
is prescribed that judges should give effect to promises which meet
certain conditions.
It is conceded that some secondary rules, or parts of secondary
rules, cannot be explained as directions to officials because they
are constitutive of official status. They create roles such as legisla-
tor, judge and policeman, the performance of which is governed
by other secondary rules. Constitutive rules are nevertheless pre-
scriptive in character. They retluire that certain pronouncements
should be treated as authoritative, both by other officials and by
ordinary citizens, because they are expressions of public rather
than private will.
To say that someone has a legal power is to indicate that, within
the limits prescribed for its exercise, other members of the legal
system are expected to give effeot to his expressions of will. Thus,
the meaning of a legal power cannot be explained without reference
10The following formulation of a general theory of secondary regulation
summarizes and develops arguments which are given more extensive treat-
ment in Colvin, The Sociology of Secondary Rules (1978) 28 U.T.L.J. 195, 196-
202.
McGILL LAW JOURNAL
[Vol. 25
to corollary prescriptions which give rise to it and define its limits.
A constitutional example will demonstrate this. That the B.N.A.
Act11 confers power on the federal Parliament to legislate in rela-
tion to certain specified matters means that persons applying laws
are expected to give effect to the pronouncements of Parliament on
these but not other matters. This is necessarily implied. If it were
not implied, it would not be true that the B.N.A. Act confers these
specified powers.
In “power-conferring” rules, the corollary prescriptions which
explain the meaning of the power are usually implicit. They do not
need to be made express because, given the structure of a legal
system and the principles which govern its operation, they follow
necessarily from a statement of the terms in which a power is
conferred. Their recognition does not require an inference of
particular legislative intention which goes beyond those terms.
In addition to this kind of necessary prescription, other prescrip-
tions for conduct may be involved in a conferral of power. The
most important case, for present purposes, is where jurisdiction is
conferred by Parliament with the intention that it be exclusive.
This will require that no attempt be made to effect a legal deter-
mination otherwise
than under the federal jurisdiction. How-
ever, unlike a prescription which is necessary to explain the mean-
ing of the power, this will only follow immediately from the terms
of a provision if it is express. If it is implicit, its recognition will
require judicial inference in accordance with the ordinary principles
of statutory interpretation, applied with the caution appropriate
to constitutional affairs.
Only when the prescriptive element of “power-conferring” rules
is identified does the problem of conflict emerge. Thus, a province’s
conferral of jurisdiction in relation -to some matter could never, by
itself, conflict with a federal conferral of jurisdiction in relation to
the same matter; at most, it would provide an alternative. For there
to be a conflict, there would have to be incompatible directions as
to the exercise of jurisdiction. One way in which this could occur
would be for the resolutions required of an issue to be contradictory.
Another would be for exclusive federal jurisdiction to be intended.
A conflict would then result with any provincial law conferring res-
ponsibility in relation to the same matter.
Hogg claims that Tennant v. Union Bank of Canada12 is a case
of express contradiction of federal and provincial law which cannot
“British North America Act, 1867, 30-31 Vict., c. 3 (U.K.).
12 [1894] A.C. 31 (P.C.).
1979]
COMMENTS – COMMENTAIRES
be analyzed in terms of the impossibility of dual compliance.” The
question there was whether the issuance of certain warehouse re-
ceipts to a bank was effective to pass title to goods, or in Hart’s
terms, whether there was power to pass title in this way. Provincial
legislation said that there was not, but federal banking legislation
said that there was. The Privy Council held that the federal pro-
vision, as valid legislation in relation to banking, was of paramount
authority.’ 4 Hogg contends that the bank could have complied with
both laws by not accepting the receipts, but that there was still an
express contradiction because the provisions made different deter-
minations of whether title would pass. 15 In fact, neither provision
required that any action be taken by the bank. Both laws did, how-
ever, require a particular response from a judge who was faced
with a question as to title. It was impossible for a judge to comply
with one direction without breaching the other. Nevertheless, Hogg
is correct to contend that the contradiction should be regarded as
express. It follows necessarily from the terms of the provisions and
does not depend upon an inference of further legislative intention.
A somewhat similar pioblem arose in Hughes v. Hughes, where
Seaton J.A. claimed that section 11(1) of the Divorce Act does not
require or prohibit specific conduct., The literal terms of that
section do not require or prohibit anything. They merely empower
a judge, upon granting a divorce, to make orders with respect to
maintenance and custody if he thinks it fit and just to do so. How-
ever, the operation of this section cannot be explained without re-
ference to prescriptions for judicial conduct which necessarily
follow from those terms. For example, where a judge thinks it fit
and just to do so, he ought to make a maintenance order under the
section, and he ought never to make an order under the section with
respect to property. In effect, the Hughes case decided that the
section embodies another prescription, to the effect that, following
the making of a maintenance order under it, an antecedent order
with respect to the same persons should no longer be given legal
recognition. This prescription does not simply follow from the
terms used; it depends upon an inference of further legislative
intention. Once the inference is made, however, there is a conflict
with the prescription necessarily embodied in the provincial legisla-
tion, which requires that orders made under it should be enforce-
‘s Supra, note 2, 104.
14 Supra, note 12, 45-47.
15 Supra, note 2, 104.
A Supra, note 3, 581.
McGILL LAW JOURNAL
[Vol. 25
able. Dual compliance is impossible, and the paramountcy rule
specifies federal priority.
The confusion which surrounds secondary rules may result
partly from their frequent lack of “duty-imposing” form and partly
from the frequent lack of legal sanction for their violation. 17 Yet, even
if the person who breaches a secondary rule is not subject to legal
sanction, he will be subject to informal criticism and demands for
compliance from other persons; otherwise it would be misleading to
speak of the existence of a rule.’ Hogg falls into what may be re-
garded as the Hartian fallacy when he claims that there is a
category’of rules to which the notion of compliance is inappropriate.
It is only with reference to the problem of compliance with
duties that it ever makes sense to speak of a true conflict of law.
Conflict of law involves more than mere divergent pronouncements;
it involves having to choose between alternative courses of action.
This choice becomes necessary when compliance with one duty
involves breach of another.
III. The pattern of the cases
In Grand Trunk Railway of Canada v. Attorney-General of Ca-
nada, Lord Dunedin set forth the following statement of principle:
First, …
there can be a domain in which provincial and Dominion
legislation may overlap, in which case neither legislation will be ultra
vires, if the field is clear; and, secondly, … if the field is not clear, and
in such a domain the two legislations meet, then the Dominion must
prevail.19
Laskin has suggested that in so doing, Lord Dunedin was adopting
the occupied field test.Y0 In modern times, the most notable instan-
ces of the adoption of the occupied field test appear in the opinions
of Cartwright J. in the Supreme Court of Canada.2 ‘ It has, however,
been contended by both Laskin 2 and Lederman 3 that the earliest ex-
17The consequence of nullity is, of course, quite different from a sanction.
See Hart, supra, note 7, 33-35.
18 On the concept of a rule, see Hart, supra, note 7, 54-56, and Colvin,
supra, note 10, 198-201.
19 [1907] A.C. 65, 68 (P.C.).
20 Occupying the Field: Paramountcy in Penal Legislation (1963) 41 Can.
Bar Rev. 234, 238-39.
21 E.g., McKay v. The Queen [1965] S.C.R. 798, 805 (for the majority);
O’Grady v. Sparling [1960] S.C.R. 804, 820-21 (dissenting opinion).
22 Supra, note 20, 238 and 243.
23The Concurrent Operation of Federal and Provincial Laws in Canada
(1963) 9 McGill LJ. 185, 190-91.
1979]
COMMENTS – COMMENTAIRES
pression of the paramountcy rule related to the incompatibility of
express provisions. They have attempted to trace this test back to
the Local Prohibition case,2 4 where, at one point, Lord Watson
suggested that only the “repugnancy” of federal and provincial pro-
visions could exclude the operation of the latter.25 As Hogg noted,
though, the conclusions which were eventually reached in that case
on the interaction of federal and provincial temperance legislation
are more consistent with a broader view of the application of the
paramountcy rule.26 It was held that provincial prohibitions in force
within a district would become inoperative whenever the federal
scheme was adopted there.27 It would, however, have been possible
to comply with the express requirements of both schemes. Only the
inference that Parliament had intended the operation of its scheme
to be exclusive upon its local adoption could suspend the operation
of the provincial law.
The best illustrations of the use of the express contradiction
test are to be found in some of the modern Supreme Court decisions
concerning overlapping federal and provincial penal legislation:
Smith v. The Queen,28 O’Grady v. Sparling,29 Mann v. The Queen,30
and Ross v. Registrar of Motor Vehicles. 1 In upholding the opera-
tiveness of provincial legislation, these cases made reference to the
operational compatibility of the provisions. As Judson J. said in
O’Grady, the provisions could “live together and operate concur-
rently” 32 It was in Smith that Martland J. made his remark about
In Mann,
the possibility of compliance with both provisions.3
Spence J. accepted this statement as authoritative for the application
of the paramountcy rule.34 Hogg concludes that the cumulative
effect of these decisions is that “the sole test of inconsistency in
Canadian constitutional law is express contradiction”.
Hogg does admit, however, that the Local Prohibition case
constitutes some authority for the opposing view. 0 Furthermore,
24A.G. for Ontario v. A.-G. for the Dominion [1896] -A.C. 348 (P.C.).
251bid., 366.
26 Supra, note 2, 109.
2 Supra, note 24, 369-70.
2 8 Supra, note 1.
2 Supra, note 21.
30 [1966] S.C.R. 238.
31 [1975] 1 S.C.R. 5.
S2 Supra, note 21, 811.
3 Supra, note 1.
34 Supra, note 30, 252.
35 Supra, note 2, 109.
36 See supra, note 26.
McGILL LAW JOURNAL
[Vol. 25
a majority of the Supreme Court of Canada has never expressly
rejected the occupied field test, despite several dissents (in cases
such as Smith37 and O’Grady8 ) which applied it. In both O’Grad?9O
and Mann,4″ issues of “legislative purpose” were considered in the
majority judgments affirming the operativeness of provincial law.
In Ross, Pigeon J. said that O’Grady and Mann had decided that
“Parliament did not implicitly permit conduct which did not come
within the description of the Criminal Code [R.S.C. 1970, c. C-34]
offence”, with the result that the provinces could enforce additional
prohibitions. 41
In Ross, it was held that an order for a partial prohibition against
driving, made upon the accused’s conviction for impaired driving
under the Criminal Code, did not render inoperative a province’s
total suspension, as a result of the conviction, of the offender’s
licence to drive.42 Pigeon J. reached this conclusion despite admitting
that “this means that as long as the provincial licence suspension is
in effect, the person concerned gets no benefit from the indulgence
granted under the federal legislation”.3 He noted that there was
“strictly speaking, no repugnancy”, because both the federal and
provincial provisions could operate simultaneously.44 This case is
perhaps the strongest single authority for the proposition that ex-
press contradiction is the sole ground for invoking the paramountcy
rule. However, the Court, rather than rejecting in principle the
occupied field test, again held that it did not operate so as to
suspend the item of provincial law in question: Pigeon J. concluded
that Parliament had not purported to deal generally with the right
to drive after conviction.45
Unfortunately, despite all the consideration which has been given
to the application of the paramountcy rule by the Supreme Court of
Canada, Laskin’s complaint in 1963 is still appropriate today:
From the time that the paramountcy principle was expounded in the
Local Prohibition case, and restated in different terms in the Grand
Trunk Railway Company case, there has been no general examination of
it in any Privy Council or Supreme Court of Canada judgment. The
37 Supra, note 1, 786-89.
38 Supra, note 21, 820-21.
29 Ibid., 811 and 812.
4 0 Supra, note 30, 250 and 251.
41 Supra, note 31, 14.
42 Ibid., 12-13.
43 Ibid., 13.
44 Ibid., 12-13.
451Ibid., 15.
19791
COMMENTS – COMMENTAIRES
approach has been particularistic, with no discernable concern for
ramifications.46
The judgments fail to weigh the alternative tests, and thereby fail
to provide a theoretical context which would permit the existing
support for each test to be calculated. There is, however, a possible
exception to this; in the recent decision of the Supreme Court of
Canada in Robinson v. Countrywide Factors,”‘ Beetz J. appeared to
consider the alternatives and to opt for express contradiction as
the sole test of paramountcy. He stated that provincial laws could
only become inoperative in cases of actual repugnancy with federal
laws and that the test of repugnancy is “operational conflict”. 48
He contrasted this test with the test of “conflict of legislative
policies entailing no operational inconsistency”, which he said
would depend on the intention of the paramount legislature.49 He
did not elaborate on the meaning of operational conflict or inconsis-
tency; however, short of express contradiction, it is difficult to see
how a determination of conflict or inconsistency can be made
without reference to legislative intention.
Beetz J. was delivering a separate opinion for the majority, and
the other opinions in the Robinson case only serve to illustrate
the uncertain scope of the paramountcy rule. The case dealt with
the validity and operativeness of provincial insolvency legislation.
The legislation did not provide a cut-off date after which payments
would be void, whereas the federal Bankruptcy Act contained a
similar provision which avoided all payments occurring within
three months of bankruptcy.” However, section 50(6) of the latter
Act stated: “The provisions of this Act shall not be deemed to
abrogate or siipersede the substantive provisions of any other law
or statute relating to property and civil rights that are not in
conflict with this Act.”
The Court divided 54 on the issues of both validity and opera-
tiveness, but only operativeness is relevant for present purposes.
The main opinion for the majority was delivered by Spence J.,
who held that, as a matter of construction, Parliament had not
intended to occupy the whole field of transactions avoided by the
4 Supra, note 20, 257.
4″ [1978] 1 S.C.R. 753 (Spence J., Judson, Ritchie and Pigeon II. concurring;
Beetz J. writing separately for the majority, Pigeon J. concurring; Laskin
CJ.C., Martland, Dickson and de Grandpr6 JJ. dissenting).
48 Ibid., 808.
49 Ibid.
5o Bankruptcy Act, R.S.C. 1970, c. B-3, s. 73.
McGILL LAW JOURNAL
(Vol. 25
provincial legislationY1 He found support for this construction in
section 50(6), as did Beetz J.52 Laskin C.J.C., in his dissent, took a
more restrictive view of that section. He thought that the Bank-
ruptcy Act was “a code on the subject of bankruptcy and insol-
vency” ,53 and that there was “no room for any assertion that such
provincial legislation can continue to have operative effect in the
face of the scope of the Bankruptcy Act”. 4 His reasoning endorses
the continued validity of the occupied field test.
The application of the paramountcy rule again faced the Su-
preme Court of Canada in Montcalm Construction Inc. v. Minimum
Wage Commission f5 On this occasion, the judgment of the majority,
delivered by Beetz J., indicated that there would have to be an
express contradiction before provincial law could be suspended5
However, the context of the remarks was not such that they can be
regarded as a general resolution of the paramountcy question. The
issue in the case was whether a provincial minimum wage law
applied to the employees of a construction company working on
an airport project on federal Crown land. The main submission
of the company was that regulation of the wages of its employees
was ultra vires the legislature of a province, either because the
construction of airports is an integral part of the exclusively federal
field of “aeronautics”, or because provincial law cannot apply on
federal property. The Court disallowed the submission on validity by
a majority of 7-2. The majority also dismissed a submission that
‘the field was occupied by the minimum wage provision in section
3(1)(a) of the federal Fair Wages and Hours of Labour Act,57
which applies to contracts with the federal Crown s
In refusing to invoke the paramountcy rule, Beetz J. said that
it was incumbent upon the company “to establish that it could not
comply with provincial law without committing a breach of the
federal Act” 9 This is in line with the approach he had taken in
51 Supra, note 47, 794. The statement of Hogg, supra, note 2, 109, n. 42, that
test” is incorrect. Only
the “majority applied the express contradiction
the opinion of Beetz J. fits this description.
52 Ibid., 808-9.
53Ibid., 766.
54 Ibid., 766-67.
55 (1979) 25 N.R. 1 (S.C.C.).
56Ibid., 15.
57R.S.C. 1970, c. L-3.
s8 Supra, note 55, 15. 1he dissenting minority did not deal with the para-
mountcy question.
59 Ibid.
19791
COMMENTS – COMMENTAIRES
Robinson v. Countrywide Factors.”0 It is not clear, however, that
the concurrence of a majority of the Court extended to this parti-
cular point.
The “fair wages” which are required by section 3(1) (a) of the
federal Act are defined in section 2 as follows:
“fair wages” means such wages as are generally accepted as current for
competent workmen in the district in which the work is being performed
for the character or class of work in which such workmen are respectively
engaged; but shall in all cases be such wages as are fair and reasonable
and shall in no case be less than the minimum hourly rate of pay
prescribed by or pursuant to Part III of the Canada Labour Code [.J
It would not be easy to infer from such an imprecise provision
that the operation of the ordinary minimum wage standard of a
province was intended to be excluded. Indeed, the company does not
this argument. Apparently, its sub-
appear to have attempted
mission had been no more than that the federal provisions might
differ from those of provincial law. Not surprisingly, Beetz J. com-
mented, “This is not good enough”.0 ‘ Clearly, therefore, the attempt
to invoke the paramountcy rule failed the occupied field test as
well as the express contradiction test. It may be for this reason
that the remarks of Beetz J. on the paramountcy question were
confined to a brief statement of his conclusions. They were not
developed to the extent expected of a Court intending a general
resolution of the application of the paramountcy rule.
It may seem from the trend of the Supreme Court of Canada
decisions that, even if the implicit occupation of a field is theore-
tically available as a ground for invoking the paramountcy rule, it
is almost a dead letter in practice. The argument for implicit
occupation prevailed in none of the modern cases which have been
discussed here. 2 However, with the possible exception of Ross,’
there has been little disapproval of the Court’s view that, in these
cases, Parliament had not intended to occupy the field. The heavy
concentration of cases concerning penal legislation makes it difficult
to draw conclusions about the Court’s general stance on paramount-
cy. Ross may be a particularly unsatisfactory precedent from which
06oSupra, note 47.
OlSupra, note 55, 15.
62 In McKay v. The Queen, supra, note 21, 805, Cartwright J. was speaking
for the majority when he approved a submission that the Canada Elections
Act [now RS.C. 1970, c. 14 (1st Supp.)] had occupied the field of the regula-
tion of placards and posters in relation to federal elections. However, his
remarks in this respect were clearly indicated to be obiter dicta.
03 Supra, hote 31.
McGILL LAW JOURNAL
[Vol. 25
to generalize, because the provincial prohibition was not effected
directly but rather through the withdrawal of a licence. The earlier,
and also much disputed, decision in the Saskatchewan Breathalyser
caseP4 made it clear that, rightly or wrongly, some judges of the
Court were prepared to treat licensing and penal laws as entirely
different matters in considering the possibility of conflict.”
It is unfortunate that little attention has been paid to the
resolution of paramountcy questions in the field of family law
during the last decade. Maintenance provisions of the federal
Divorce Act66 and of provincial legislation may now be the most
frequent source of conflict between federal and provincial laws.
The Supreme Court of Canada has not yet dealt with the
interaction of federal and provincial laws on maintenance. The
trend in the provincial courts of appeal has been to hold that a
maintenance order under the Divorce Act renders inoperative an
antecedent or a subsequent provincial order relating to the same
persons6 The existence of machinery for making orders for corol-
lary relief under the Divorce Act has also given rise to contentions
(albeit disputed) that a provincial order will be inoperative after
a divorce, whether or not an order is made under the Divorce Act 6 8
The cases which have led to disagreement have concerned general
family legislation, not legislation specifically in relation to main-
tenance as corollary relief upon divorce. The Ontario Court of
Appeal has held that the latter form of provincial legislation is
ineffective simply because “the federal
legislation occupies the
field”6 9
Issues of constitutional theory were not examined in detail in
these cases. Nevertheless, as was suggested earlier in relation to the
Hughes case, the conclusion that a provincial order will become
64Validity of Section 92(4) of The Vehicles Act, 1957 (Sask.) [1958] S.C.R. 608.
65 Ibid., 616.
66 R.S.C. 1970, c. D-8.
67 See Hughes v. Hughes, supra, note 3. See also Ramsay v. Ramsay (1976)
70 D.L.R. (3d) 415 (Ont, C.A.). The position with respect to custody orders
is more complicated. See Colvin, Custody Orders under the Constitution
(1978) 56 Can. Bar Rev. 1.
8SSee Gillespie v. Gillespie (1973) 36 D.L.R. (3d) 421, 430
(N.B.C.A.);
Goldstein v. Goldstein (1976) 67 D.L.R. (3d) 624, 628 (Alta C.A.). Contra, see
(3d) 326, 332 (B.C.C.A.); Hughes v.
Armich v. Armich
Hughes, supra, note 3, 580-81.
69 Richards v. Richards (1972) 26 D.L.R. (3d) 264, 265-66 (Ont. C.A.). The
Supreme Court of Canada, however, has twice declined to express an opinion
on this question. See Vadeboncoeur v. Landry [1977] 2 S.C.R. 179, 187-88;
A.-G. Quebec v. Cumming [1978] 2 S.C.R. 605, 610-11.
(1971)
16 D.L.R.
1979]
COMMENTS – COMMENTAIRES
inoperative, whether upon divorce or upon the making of an order
under the Divorce Act, must involve reference to implicit legislative
intention. There is no specific provision in the Divorce Act which
excludes the operation of other orders; therefore, there can be no
question of express contradiction of law with a court’s exercise
of provincially derived jurisdiction. Moreover, the person who is
obligated to provide maintenance under both a federal and a pro-
vincial order can comply with each by paying twice. Even if the
orders make different determinations of who is to provide main-
tenance, the result is that part or all of their ultimate effect will be
cancelled out, not that compliance with both will be impossible.
However much the enforcement of the provincial order would
undermine the intent of the federal order, there is no express con-
tradiction of law: the orders do not require courses of action which
are incompatible in operaticn.
Thus, although the question of paramountcy in relation to main-
tenance legislation and orders has not yet been tackled by the
Supreme Court of Canada, the occupied field test appears to be in
regular use among provincial courts of appeal in a field where
paramountcy problems are relatively frequent.
IV. The problem of duplication
Additional support for the occupied field test may be found in
the special situation where federal and provincial laws are du-
plicative. The cases indicate that the consequence of simple dupli-
cation of federal pronouncements will be the inoperativeness of
the provincial law. Thus, Lederman has claimed:
Duplicative provincial legislation may operate concurrently only when
inseverably connected with supplemental provincial legislation, otherwise
duplicative provincial legislation is suspended and inoperative.70
He argued that duplication leads to inoperativeness in the interests
of economy, since it involves a waste of legislative and administra-
tive resources. 71 Rather than being a situation of conflict, duplica-
tion “is the ultimate in harmony”.72
Although there is no conflict of express provisions when there is
duplication, there can be a conflict of implioit legislative intention.
7oSupra, note 23, 199. He cited as authorities: Home Insurance Co. v.
Lindal & Beattie [1934] S.C.R. 33, 40; Lymburn v. Mayland [1932] A.C. 318,
326-27 (P.C.). The Supreme Court of Canada stressed the differences between
the federal and provincial provisions in the modem series of cases on over-
lapping penal legislation: see text, supra, p. 89.
71 Ibid., 196.
’12Ibid., 195 [italics deleted].
McGILL LAW JOURNAL
[Vol. 25
Parliament may have intended its legislation to exclude the opera-
tion of provincial enactments which merely cover the same ground.
If duplication generally leads to the suspension of provincial law,
the courts are taking the position that this negative implication is
ordinarily present. Rand J. upheld this position in Johnson v.
Attorney General of Alberta7″ He thought that duplicative provin-
cial penal legislation could interfere with and effectively displace
the enforcement of the Criminal Code provisions.74 The problem
arises as well in cases of overlapping provisions. However, if the
provincial law in some respects supplements the federal, this may
make interference more acceptable and defeat any argument that
exclusive operation is intended.
If the duplication test is viewed as a special application of the
occupied field test, then it should be rejected if express contradiction
is the sole test of conflict for the purposes of the paramountcy rule.
This is the position taken by Hogg.75 It was also adopted in the
judgment at first instance in Multiple Access Ltd v. McCutcheon,”
a case which involved duplicative provisions with respect to liability
for insider trading. On appeal, however, this decision was reversed
by a majority of the Ontario Divisional Court,7 and a further appeal
was dismissed unanimously by the Court of Appeal.7 8 The reasoning
of Morden J. of the Divisional Court was adopted by the Court of
Appeal. Morden J. held that application of the provincial law would
leave no practical scope within which the federal law might oper-
ateY9 This can only be viewed as a fatal defect if Parliament has
intended its provisions to be the operative ones in cases of duplica-
tion, and, further, if an implicit intention to this effect is sufficient
to suspend a provincial law.
The problem of duplication has received little attention in the
modern decisions of the Supreme Court of Canada. Nevertheless,
one of the issues in Nova Scotia Board of Censors v. McNeil” in-
volved duplicative prohibitions on indecency. Ritchie J., for the
majority, held that, where federal and provincial penal enactments
are “virtually identical” or “indistinguishable”, the federal excludes
73 [1954] S.C.R. 127.
74 Ibid., 138.
l8 Supra, note 2, 110-11.
76 (1976) 65 D.L.R. (3d) 577, 589-91 (Ont. H.C.).
7′ (1977) 78 D.L.R. (3d) 701 (Ont. Div. Ct).
78 (1978) 86 D.L.R. (3d) 160 (Ont. C.A.).
79Supra, note 77, 709-10.
80 [1978] 2 S.C.R. 662.
19791
COMMENTS – COMMENTAIRES
the provincial.8 ‘ He sought authority for this proposition in the
judgment of Rand J. in the Johnson case.2 The more strongly
supported view, therefore, is that duplication results in the inopera-
tiveness of provincial law. In an obiter dictum, Ritchie J. remarked
that he accepted the test of impossibility of dual compliance with
the terms of both federal and provincial provisions as the authori-
tative test for the paramountcy rule.83 However, this is inconsistent
with the invocation of the paramountcy rule in cases of duplication.
If provincial law can be suspended because it simply duplicates
federal law, this should indicate the legitimacy, in at least some
circumstances, of a search for conflict arising from negative im-
plication. It may even lend support to the general relevance of
the occupied field test. Of course, it will not necessarily do so. An
alternative interpretation is that the suspension of duplicative law
is an exception to a general rule which denies that conflict can
exist through implicit legislative intention.
V. Conclusion
It has been argued that the paramountcy rule is invoked where
there is a conflict of federal and provincial law in the sense that the
prescriptions of each are operationally incompatible, or in other
words, where compliance with both will be impossible. The express
contradiction and occupied field tests. are narrower and broader
rules for determining whether there is operational incompatibility.
The express contradiction test determines incompatibility only with
reference to prescriptions which are express or which are necessarily
embodied in what is express. The occupied field test extends to
prescriptions which are implicitly intended. The duplication test
is only partly a separate test. Either it is a special application of
the occupied field test (whereby Parliament is deemed to intend
that the operation of duplicative provincial law be excluded), or
it is an exception to a general rule which prohibits reference to
implicit legislative intention.
The cases certainly demonstrate that the courts will be cautious
in inferring that a federal pronouncement was intended to be the
81 Ibid., 698-99. It was unnecessary for the dissenting minority to deal with
this issue. Ritchie J. actually used the term “invalid” to describe the status
of the provincial law, but “inoperative” would have been more consistent with
constitutional theory.
82 Supra, note 73.
83 Supra, note 80, 695. Once again, however, he seemed to confuse the con-
cepts of inoperativeness and invalidity.
McGILL LAW JOURNAL
[Vol. 25
exclusive law in relation to some matter. There are also some
judicial statements which appear to reject the occupied field test
in principle. The cumulative effect of the cases, however, does not
establish that negative implication has been generally rejected as
a ground for invoking the paramountcy rule. Moreover, in view of
the confusion which surrounds the meaning of and relationship
between the various tests for invoking the rule, any claim that a
single test has now emerged in Canadian constitutional law should
be treated with caution.
Eric Colvin*
*Associate Professor, College of Law, University of Saskatchewan. I am
grateful to John Laskin for his helpful comments on an earlier version of
this article.
