''McLaren v Caldwell'' was a landmark decision of the
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 Augus ...
that upheld provincial jurisdiction in matters of a local or private nature, as well as over
property and civil rights 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:
It is one of three key residuary powers in the ''Constitution Act, 18 ...
. It has been described as "a decision in a non-constitutional legal context that had indirect non-legal, but profound, constitutional consequences."
Background
![PeterMcLarenSenator](https://upload.wikimedia.org/wikipedia/commons/7/72/PeterMcLarenSenator.jpg)
The case arose from a controversy that came to be known as the "Lumbermen's Feud".
Peter McLaren
Peter McLaren (born 1948) is a Canadian scholar who serves as a Distinguished Professor in Critical Studies Attallah College of Educational Studies, Chapman University, where he is Co-Director of the Paulo Freire Democratic Project and Internatio ...
owned a
lumber mill
A sawmill (saw mill, saw-mill) or lumber mill is a facility where logs are cut into lumber. Modern sawmills use a motorized saw to cut logs lengthwise to make long pieces, and crosswise to length depending on standard or custom sizes (dimensi ...
and had added
timber slide
A timber slide is a device for moving timber past rapids and waterfalls. Their use in Canada was widespread in the 18th and 19th century timber trade. At this time, cut timber would be floated down rivers in large timber rafts from logging c ...
s on the
Mississippi
Mississippi () is a state in the Southeastern region of the United States, bordered to the north by Tennessee; to the east by Alabama; to the south by the Gulf of Mexico; to the southwest by Louisiana; and to the northwest by Arkansas. Miss ...
river and its northern tributaries that flowed through land that he owned in
Lanark County
Lanark County is a county located in the Canadian province of Ontario. Its county seat is Perth, which was first settled in 1816.Brown, Howard Morton, 1984. Lanark Legacy, Nineteenth Century Glimpses of on Ontario County. Corporation of the Cou ...
,
Ontario
Ontario ( ; ) is one of the thirteen provinces and territories of Canada.Ontario is located in the geographic eastern half of Canada, but it has historically and politically been considered to be part of Central Canada. Located in Central Ca ...
, in order to provide for transporting his own logs. Boyd Caldwell owned a rival mill, and was attempting to
drive
Drive or The Drive may refer to:
Motoring
* Driving, the act of controlling a vehicle
* Road trip, a journey on roads
Roadways
Roadways called "drives" may include:
* Driveway, a private road for local access to structures, abbreviated "drive"
...
18,000 logs through those slides. McLaren sued Caldwell's firm, B. Caldwell & Son, to restrain them from passing or floating timber and saw logs through his slides.
Caldwell claimed that McLaren was unable to prevent the use of the river for the passage of his logs because of the statutes in force in Ontario. McLaren, however, asserted that he had the right to do so under the
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
.
In support of Caldwell, Ontario Premier
Oliver Mowat
Sir Oliver Mowat (July 22, 1820 – April 19, 1903) was a Canadian lawyer, politician, and Ontario Liberal Party leader. He served for nearly 24 years as the third premier of Ontario. He was the eighth lieutenant governor of Ontario and one of ...
arranged the passage of the ''Rivers and Streams Act, 1881'' which required the unobstructed passage of logs, timber, rafts, etc. down all waterways in the province, whether improved or not, subject to the payment of any reasonable tolls. This Act was
disallowed by the federal government under
John A. Macdonald
Sir John Alexander Macdonald (January 10 or 11, 1815 – June 6, 1891) was the first prime minister of Canada, serving from 1867 to 1873 and from 1878 to 1891. The dominant figure of Canadian Confederation, he had a political career that sp ...
on the grounds that it infringed upon private property rights. This conflict added fuel to the ongoing quarrel between the federal and provincial governments; the bill was re-enacted and disallowed again in 1882 and 1883.
In an 1882 debate in the
Legislative Assembly of Ontario, Mowat maintained that the Rivers and Streams Bill fell wholly within provincial jurisdiction, and asserted that federal disallowance could only take place:
#when the Act is altogether illegal or unconstitutional,
#when illegal or unconstitutional in part,
#in cases of concurrent jurisdiction as clashing with the legislation of the General Parliament
#when it affects the interests of the Dominion Parliament.
The courts below
On initial application to the Court of Chancery of Ontario, Vice-Chancellor Proudfoot granted the interlocutory injunction that was requested. That injunction was overturned on appeal to the
Ontario Court of Appeal
The Court of Appeal for Ontario (frequently referred to as the Ontario Court of Appeal or ONCA) is the appellate court for the province of Ontario, Canada. The seat of the court is Osgoode Hall in downtown Toronto, also the seat of the Law Socie ...
.
The Court of Chancery of Ontario, in Vice-Chancellor Proudfoot's subsequent decision on 16 December 1880, held that Caldwell could not drive his logs as the streams were found not to have been navigable or floatable for saw logs or other timber, rafts, and crafts when in a state of nature, and issued the appropriate injunction.
Appeal was allowed by the
Ontario Court of Appeal
The Court of Appeal for Ontario (frequently referred to as the Ontario Court of Appeal or ONCA) is the appellate court for the province of Ontario, Canada. The seat of the court is Osgoode Hall in downtown Toronto, also the seat of the Law Socie ...
, where Chief Justice
Spragge held that Ontario law made all streams, whether naturally or artificially floatable, public waterways.
On appeal to the
Supreme Court of Canada
The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
, the Court of Appeal's decision was reversed on the grounds that:
:* the streams in question were not floatable without the aid of artificial improvements,
:* the appellant had at common law the exclusive right to use his property as he pleased, and to prevent respondents from using as a highway the stream in question where it flowed through appellant’s private property,
:* as held in the 1863 decision in ''Boale v. Dickson'', the Ontario statute in question extends only to such streams as would, in their natural state, without improvements, during
freshet
The term ''freshet'' is most commonly used to describe a spring thaw resulting from snow and ice melt in rivers located in upper North America. A spring freshet can sometimes last several weeks on large river systems, resulting in significant in ...
s, permit saw logs, timber, etc., to be floated down them.
Appeal to the Privy Council
![Colin Blackburn, Vanity Fair, 1881-11-19](https://upload.wikimedia.org/wikipedia/commons/d/db/Colin_Blackburn%2C_Vanity_Fair%2C_1881-11-19.jpg)
The Privy Council held in favour of Caldwell, ruling that the decision of the Ontario Court of Appeal (stating that the Upper Canada Act had been misconstrued as to its effect in ''Boale v. Dickson'') was correct. After reviewing Upper Canada's laws in the matter that had been enacted as early as 1828, it further declared:
Aftermath
As a result of the Privy Council's ruling, the
Legislative Assembly of Ontario passed the ''Rivers and Streams Act, 1884'', which the federal government decided not to disallow. In order to assert its own jurisdiction, the
Parliament of Canada
The Parliament of Canada (french: Parlement du Canada) is the federal legislature of Canada, seated at Parliament Hill in Ottawa, and is composed of three parts: the King, the Senate, and the House of Commons. By constitutional convention, the ...
subsequently passed the ''
Navigable Waters Protection Act
The ''Canadian Navigable Waters Act'' (the ''Act'') (formerly the ''Navigation Protection Act'' and beforehand the ''Navigable Waters Protection Act'') is one of the oldest regulatory statutes enacted by the Parliament of Canada. It requires appro ...
''. Subsequent legislation on the issue had mixed results.
''McLaren v Caldwell'' established the principle in Canadian law that waterways are open to all, and that while private interests can charge a reasonable amount for the use of any improvements they have made, they cannot refuse passage to anyone. The victory was essentially a political one - Mowat's refusal to back down in the face of Macdonald’s intransigence made it more difficult for the federal government to disallow legislation that clearly fell under provincial jurisdiction, and led Macdonald increasingly to send matters to the courts. Essentially, disallowance was considered to be inconsistent with the rule of law, as well as being incompatible with the political conception of Canadian federalism.
The Judicial Committee of the Privy Council, in turn, increasingly ruled in favour of the provinces, with a broad interpretation of what constituted local matters. In that regard, it has been estimated that, in its history, the Judicial Committee overturned about half of all appeals from the Supreme Court of Canada, while only overturning about a quarter of all appeals from other Canadian courts.
Further reading
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References
{{reflist, 2
1880s in the environment
1884 in case law
Judicial Committee of the Privy Council cases on appeal from Canada
1884 in Canadian case law
Canadian federalism case law