Constitutional Law/Division of Powers/Constitution Act 1987

John L. Bowles and Tracy A. Pratt of Fasken Martineau DuMoulin LLP appeared before a panel of the Ontario Court of Justice (General Division) Divisional Court on 2/3 February, 2000 on an application for judicial review of a decision of the Ontario Workplace Safety and Insurance Appeal Tribunal (WSIAT), brought on behalf of the Canadian Pacific Railway (CPR). CPR argued that the provisions of the Ontario Workers’ Compensation legislation relating to re-employment or return to suitable work of workers injured in the workplace were constitutionally inapplicable to Federal undertakings coming within the exclusive legislative authority of the Federal Parliament pursuant to sections 92(10)(a) and 91(29) of the Constitution Act 1987.

Appearing in opposition to the proposition that such provisions were constitutionally inapplicable to a federal undertaking such as the CPR were Hart Schwartz on behalf of the A-G Ontario, Messrs Douglas J. Wray and Micheil M. Russell of Caley & Wray on behalf of the injured worker (a member of the Brotherhood of Maintenance of Way Employees) and Daniel S. Revington of WSIAT’s in-house counsel.

After two full days of argument, during which legal authorities dating back to 1890 and a number of federal statutes and operating rules relating to the CPR were canvassed, the Divisional Court reserved judgment.