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Pith and substance [1] is a legal doctrine in Canadian constitutional interpretation used to determine under which head of power a given piece of legislation falls. The doctrine is primarily used when a law is challenged on the basis that one level of government (be it provincial or federal) has encroached upon the exclusive jurisdiction of another level of government.
The Constitution Act, 1867 , which established a federal constitution for Canada, enumerated in Sections 91 and 92 the topics on which the Dominion and the Provinces could respectively legislate. Notwithstanding that the lists were framed so as to be fairly full and comprehensive, soon it was found that the topics enumerated in the two sections overlapped, and the Privy Council repeatedly had to rule on the constitutionality of laws made by the federal and provincial legislatures. It was in this situation that the Privy Council evolved the doctrine that, for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance.
Thus, if a statute is found in substance to relate to a topic within the competence of the legislature, it should be held to be intra vires even though it might incidentally trench on topics not within its legislative competence. The extent of the encroachment on matters beyond its competence may be an element in determining whether the legislation is colourable: whether in the guise of making a law on a matter within its competence, the legislature is, in truth, making a law on a subject beyond its competence. However, where that is not the position, the fact of encroachment does not affect the vires of the law even as regards the area of encroachment.
The analysis must answer two questions: [2]
The first task in the pith and substance analysis is to determine the pith and substance or essential character of the law: [3]
The pith and substance analysis is not technical or formalistic — it is essentially a matter of interpretation. The court looks at the words used in the impugned legislation as well as the background and circumstances surrounding its enactment. In conducting this analysis, the court should not be concerned with the efficacy of the law or whether it achieves the legislature’s goals. [4]
There are two significant principles to be used in determining whether a matter falls within a particular federal or provincial jurisdiction: [5]
Once the law has been characterized it must be assigned to one of the two heads of power. The matters in the exclusive domain of the federal government are enumerated under section 91 of the Constitution Act, 1867 and matters in the exclusive domain of the provincial government are enumerated under section 92. Whether the characterization of a law fits within one of the enumerated matters depends on the breadth given by the court to each matter.
A law found to be valid under the pith and substance analysis of the law may also have some incidental effects upon matters outside of the government's jurisdiction. This is tolerated, as a law is classified by its dominant characteristic. [6] The modern approach to Canadian constitutional interpretation is to allow a fair amount of interplay and overlap into the other level of government's jurisdiction.
In many circumstances, however, a law that is found to be invalid under the pith and substance analysis may still be saved by using the doctrine of necessarily incidental or ancillary effects. In such cases, the intruding provisions of the law will only be upheld if they satisfy the "rational connection" test.
The doctrine was first articulated in Cushing v. Dupuy , where the Judicial Committee of the Privy Council held that certain rules of civil court procedure could be prescribed under the federal bankruptcy power. It was subsequently confirmed in Tennant v. The Union Bank of Canada, where rules governing warehouse receipts with respect to bank loans could be prescribed under the federal banking power.
The full test was articulated in General Motors v. City National Leasing by Dickson CJ, where he summarized and outlined the analysis to be used in that regard in future cases:
In certain cases, it may be possible to dispense with some of the aforementioned steps if a clear answer to one of them will deal with the issue. For example, if the provision in question has no relation to the regulatory scheme, the question of its validity may be quickly answered on that ground alone.
The pith and substance doctrine as applied in the jurisprudence of the Judicial Committee of the Privy Council, effectively the British imperial court of appeal, has been carried to other Commonwealth federations. It is used in the Indian constitution. It was also used in Northern Ireland under the Government of Ireland Act 1920 . The substance of the doctrine has been cast in statutory form in the Scotland Act 1998 for the purpose of devolution to Scotland. It was also used in Australia until 1964, when the High Court case of Fairfax v Commissioner of Taxation overruled its use by an alternate method.
It is used in the Indian constitution. The doctrine has been applied in India also to provide a degree of flexibility in the otherwise rigid scheme of distribution of powers. The reason for adoption of this doctrine is that if every legislation were to be declared invalid on the grounds that it encroached powers, the powers of the legislature would be drastically circumscribed. Cases relating to pith and substance:
Citation in the matter of M/s. Sky Gourmet Catering Private Limited V/s Tax Authorities (Commercial Tax and Service Tax) in the matter of Writ Appeal No. 671 to 726 of 2011 (T-Res) decided on 18th day of April, 2011 by Hon'ble High Court of Karnataka at Bangalore may also be seen.
Canadian federalism involves the current nature and historical development of the federal system in Canada.
Canadian constitutional law is the area of Canadian law relating to the interpretation and application of the Constitution of Canada by the courts. All laws of Canada, both provincial and federal, must conform to the Constitution and any laws inconsistent with the Constitution have no force or effect.
Section 92(13) of the Constitution Act, 1867, also known as the property and civil rights power, grants the provincial legislatures of Canada the authority to legislate on:
13. Property and Civil Rights in the Province.
Hodge v The Queen is a Canadian constitutional law decision of the Judicial Committee of the Privy Council in 1883, at that time the highest court of appeal in the British Empire, including Canada. It was decided under the British North America Act, 1867, now known as the Constitution Act, 1867.
Ontario (AG) v Canada (AG), also known as the Local Prohibition Case, is a significant Canadian constitutional decision by the Judicial Committee of the Privy Council, at that time the highest court in the British Empire, including Canada. It was one of the first cases to enunciate core principles of the federal peace, order and good government power.
Re Board of Commerce Act 1919 and the Combines and Fair Prices Act 1919, commonly known as the Board of Commerce case, is a Canadian constitutional decision of the Judicial Committee of the Privy Council in which the "emergency doctrine" under the federal power of peace, order and good government was first created.
General Motors of Canada Ltd v City National Leasing is a leading Supreme Court of Canada decision on the scope of the Trade and Commerce power of the Constitution Act, 1867 as well as the interpretation of the Ancillary doctrine.
Royal Bank of Canada v R, is a notable Canadian constitutional decision of the Judicial Committee of the Privy Council where the Council limited the province's ability to create laws in relation to extraprovincial contractual rights.
Union Colliery Co of British Columbia v Bryden is a Canadian constitutional decision of the Judicial Committee of the Privy Council where the exclusivity principle in Canadian federalism and pith and substance analysis was first articulated.
Section 91(2) of the Constitution Act, 1867, also known as the trade and commerce power, grants the Parliament of Canada the authority to legislate on:
2. The Regulation of Trade and Commerce.
In Canadian Constitutional law, interjurisdictional immunity is the legal doctrine that determines which legislation arising from one level of jurisdiction may be applicable to matters covered at another level. Interjurisdictional immunity is an exception to the pith and substance doctrine, as it stipulates that there is a core to each federal subject matter that cannot be reached by provincial laws. While a provincial law that imposes a tax on banks may be ruled intra vires, as it is not within the protected core of banking, a provincial law that limits the rights of creditors to enforce their debts would strike at such a core and be ruled inapplicable.
Ward v Canada (AG) is a leading Supreme Court of Canada decision on federalism. The Court re-articulated the "pith and substance analysis and upheld the regulations prohibiting sale of "blueback" seals for the valid purpose of "curtailing commercial hunting of young seals to preserve the fisheries as an economic resource".
Canada (AG) v Ontario (AG), also known as In re the Regulation and Control of Aeronautics in Canada and the Aeronautics Reference, is a decision of the Judicial Committee of the Privy Council on the interpretation of the Canadian Constitution. Lord Sankey decided in the case that the federal government has the authority to govern the subject of aeronautics, including licensing of pilots, aircraft, and commercial services and regulations for navigation and safety.
Canadian Western Bank v Alberta [2007] 2 S.C.R. 3 is a landmark decision in Canadian constitutional law by the Supreme Court of Canada (SCC) relating to the division of powers between Federal and Provincial legislative bodies.
British Coal Corp v R is a decision of the Judicial Committee of the Privy Council in which the authority of the Canadian Parliament to prohibit appeals to the JCPC in criminal cases was upheld.
Quebec (AG) v Lacombe, 2010 SCC 38, [2010] 2 SCR 453, is a decision of the Supreme Court of Canada on the nature of the ancillary powers that arise from the doctrine of pith and substance in Canadian constitutional law.
Nadan v R is a key ruling of the Judicial Committee of the Privy Council in determining the competence of the Parliament of Canada with respect to the restrictions laid out in the Colonial Laws Validity Act 1865, and whether it possessed extraterritorial jurisdiction.
Canada (AG) v British Columbia (AG), also known as the Reference as to constitutional validity of certain sections of The Fisheries Act, 1914 and the Fish Canneries Reference, is a significant decision of the Judicial Committee of the Privy Council in determining the boundaries of federal and provincial jurisdiction in Canada. It is also significant, in that it represented a major victory in the fight against discrimination aimed at Japanese Canadians, which was especially prevalent in British Columbia in the early part of the 20th century.
Marine Services International Ltd v Ryan Estate, 2013 SCC 44 is a leading case of the Supreme Court of Canada concerning the coexistence of Canadian maritime law with provincial jurisdiction over property and civil rights, and it marks a further restriction upon the doctrine of interjurisdictional immunity in Canadian constitutional jurisprudence.
Canada (AG) v Ontario (AG)[1937] UKPC 6, [1937] A.C. 326, also known as the Labour Conventions Reference, is a landmark decision of the Judicial Committee of the Privy Council concerning the distinct nature of federal and provincial jurisdiction in Canadian federalism.
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