The Marcotte Trilogy and the Further Fragmentation of Federal Banking Powers in Canada

摘要

At one time, it was commonly accepted that the constitutional structure of federalism in Canada placed responsibility for the national economy on the federal rather than the provincial governments. Evidence for this understanding was often said to be found in the original division of constitutional powers in the Constitution Act 1867 ss. 91 and 92, in which most matters of an economic nature were allocated as exclusive, sovereign powers to Parliament, including trade and commerce (s.91(2)), currency and coinage (s.91(14)), savings banks (s.91(16)), banking and the incorporation of banks (s.91(15)), bills of exchange and promissory notes (s.91(18)), and legal tender (s.91 (20)). By contrast, the only matters of an economic nature allocated to the exclusive, sovereign jurisdiction of the provinces were the incorporation of companies with provincial objects (s.92(12)) and property and civil rights in the province (s.92(13)). In an early case, the Privy Council decided that property and civil rights included contracts. With specific respect to banking, the courts have traditionally interpreted s.91(15) so as to protect federal authority over banking in Canada. There have been a few exceptional situations where the provinces have been permitted to regulate around the edges of that authority, for example, by permitting the provinces to incorporate non-bank financial institutions, such as credit unions, caisses populaires or trust companies, and by enforcing provincial evidence acts in banking litigation. But other provincial attempts at bank regulation have been found to be invalid in relation to such matters as provincial taxation of bank profits, seizure of funds from bank accounts and taking security for bank loans. However, that the core of banking was thought to be well understood and protected prevailed until the 2007 decision of the Supreme Court of Canada (SCC) in Canadian Western Bank v Alberta (CWB), in which the court permitted provincial governments to regulate certain aspects of the insurance businesses of the banks. Recently, the SCC handed down a trilogy of cases concerned with bank credit card practices which appear to confirm that the court has re-opened the traditional understanding of s.91(15). The net effect is that it is less clear how extensive federal jurisdiction over the banks and banking in Canada now is, as it comes to be divided between the Federal Government, 10 provincial and 3 territorial governments.