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Constitutional Law
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Division of Powers

 Legislative authority to make laws dealing with transportation is

divided between the federal and provincial government under
the Constitution Act, 1867 (formerly known as the British North
America Act)

 Law is held to be “ultra vires” (beyond the powers) if a level of

government passes a law that it has no constitutional authority
to pass

 Section 91 – federal jurisdiction

 Section 92 – provincial jurisdiction

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Federal Powers

 Preamble of section 91 – residual power for “Peace, order and

good government” for any area not assigned to provincial
government

 Section 91(10) – navigation and shipping

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Provincial Powers

 Section 92(10) – laws respecting certain transportation entities

 Intra-provincial shipping, railways and other transportation is

provincial jurisdiction

 Therefore, anything not listed is governed by federal powers

 Federal jurisdiction over inter-provincial (including international)

shipping, railways, and other means of transportation

 NOTE: section 92(10)(c) – federal government can declare its own

jurisdiction in certain matters

 Work versus undertaking

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Transportation by Road

 Winner case – constitutional authority over road transport

 Canadian constitutional law avoids divided jurisdiction over a transportation

enterprise

 Where a transportation enterprise has a continuous and regular inter-

provincial aspect, its whole operation will come under federal jurisdiction

 Undertaking – Winner’s bus line business was one “undertaking” – it was a

unified entity

 Introduction of the Motor Vehicle Transport Act, 1954

 Section 7/8 – delegation of federal licensing power to provincial officials

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Transportation by Rail

 Local railways within a province come within provincial

jurisdiction

 Inter-provincial railways come under federal jurisdiction

 Physical and operational connection

 NOTE: section 92(10)(c) – some intra-provincial railways have

been brought under federal powers through this declaratory
power
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Transportation by Water

 Federal government has general jurisdiction over inter-provincial

and international ship lines

 No federal jurisdiction over intra-provincial ship lines as

undertakings BUT

 Section 91(10) Authority over navigation and shipping

 Exclusive jurisdiction to the federal government over purely
navigational and shipping aspects of water transportation
 Harbours, maritime and admiralty law
 Liability for accidents at sea and liability for loss of cargo
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Transportation by Air

 Exclusive Federal jurisdiction over aeronautics

 Re: Aerial Navigation – peace, order and good government

 Treaty making power – federal power – section 132 of the

Constitution Act, 1867

 Both navigational and economic aspects of air transport is

federal
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Discussion Forum

 Is the case of Regina v. Toronto Magistrates consistent with the

decision in the Winner case? Why or Why not?