Page 109
Attorney-General v. Wilts United Dairies, Ltd. (1921), 37 L.T.R. 884 (C.A.), at p. 885,
aff’d (1922), 91 L.J.K.B. 897 (H.L.), Scrutton L.J. stated:
It is conceivable that Parliament, which may pass legislation requiring the subject
to pay money to the Crown, may also delegate its powers of imposing such
payments to the Executive, but in my view the clearest words should be required
before the Courts hold that such an unusual delegation has taken place. As Chief
Justice Wilde said in Gosling v. Veley, 12 Q.B., at p. 407: “The rule of law that
no pecuniary burden can be imposed upon the subjects of this country, by
whatever name it may be called, whether tax, due, rate or toll, except upon clear
and distinct legal authority, established by those who seek to impose the
[burden], has been so often the subject of legal decision that it may be deemed a
legal axiom, and requires no authority to be cited in support of it.” [Emphasis
added by Iacobucci J.]
This case was relied on in Gruen Watch Co. of Canada Ltd. v. Attorney-General of
Canada, [1950] O.R. 429 (H.C.), at p. 438, affirmed on this point in Bulova Watch Co. v.
Attorney-General of Canada, [1951] O.R. 360 (C.A.), where McRuer C.J.H.C. stated:
It is for the legislative body to decide in every case what power is to be delegated
to any administrative body, and in each case the administrative tribunal is
confined to the express authority delegated to it and to the authority that may
arise by necessary implication. In no case is the exercise of the delegated
authority more carefully scrutinized than in the case where it is claimed that it
gives a right to impose any financial burden on the subject.
The same principles apply to the delegation of powers to the executive. As previously
referred to in paras. 75 and 76, see The King v. National Fish Co., [1931] Ex. C.R. 75, at
p. 83, and Hodge v. The Queen (1883), 9 App. Cas. 117 (P.C.), at pp. 131-33.
[78]
These principles explain how Parliament and the provincial legislatures are able
to delegate taxing authority to municipalities, school boards and Aboriginal band
councils. Westbank First Nation, supra, provides but one example of the constitutional
delegation of such a taxing power, …
[79]
…[A] tax imposed through the delegation of the taxing authority must also be
intra vires, for a legislature cannot delegate a power it does not have. In the case of
provincial legislatures, this primarily means that the delegated tax must be a direct tax,
given that s. 92(2) of the Constitution Act, 1867 assigns to the provinces only the power
of “Direct Taxation within the Province in order to the raising of a Revenue for
Provincial Purposes”. Property taxes for education purposes are a direct tax, and so are
intra vires the province. The delegation of the taxing authority in the EQIA is therefore
constitutional. The delegation has been effected using express and unambiguous words,
and the tax that the Minister has been delegated the authority to impose is intra vires the
province.
(Italics emphasis added)
[356] We observe, however, that Professor Hogg has strongly criticised Eurig Estate and
OECTA as allowing Parliament to “in practice escape the democratic accountability that occurs
when a bill is introduced in the legislative assembly” (Peter W. Hogg, “Can the Taxing Power Be
Delegated?” (2002), 16 SCLR (2d) 305 at 309). Professor Hogg wrote (at 309–310):