Canadians deserve a living wage.

Nationwide. Now.
There's more than one way to do that.

Introduction

We don't have a federal minimum wage in Canada and I think this is a big problem.
 
With the exception of Alberta (where minimum wage will soon be $15/hour), the provinces uniformly fail to offer a living wage. This impacts us all.
 
The poverty and inequality that stems from these low wages creates no end of social ills - poor health, substance abuse, violence and depression to name a few. I would argue such a situation is also just wrong - nobody deserves to grow up poor. The more business-minded might also argue that it costs government an enormous amount of money and is a failure to make the most of human capital.
 
Now, it's quite possible you disagree and don't see the need for a living wage. You may buy into opposing arguments: that only teenagers make so little (wrong), that employment will suffer (it hasn't historically) or that it will drive companies out of business (evidence suggests otherwise).
 
If so, this is probably not the article for you. We won't be relitigating the case for a $15/hour minimum wage here, but I can recommend a few resources for you: For the rest of us who agree that you shouldn't be able to work 40 hours a week and still be poor enough to qualify for government assistance, it's time we did more than bemoan our constitution. It's time we came up with a solution.
 
You might be familiar with the basic facts: in Canada minimum wage is an area of provincial jurisdiction. A federal minimum wage would apply only to federally regulated industries and benefit only a few. But that's not the end of the story.
 
In this article, I'll go through the history of how we got into this mess and how we can clean it up. There's more than one way for the federal government to get involved in this debate and I propose they consider three tactics:
  1. Try introducing a federal minimum wage. The original court case that gave exclusive authority over labour law to the provinces might not hold up to modern interpretations of the constitution.
     
  2. Attack the root problem. If the courts rule the federal government truly has no authority to bring in a minimum wage, attack the root problem through an expansion of government anti-poverty programs funded by a tax on low-income providers.
     
  3. Build a national consensus. Use the threat of either of the above (or both) to bring the provinces together to reach a nationwide compact on minimum wage.
After you read this, I hope you'll take action of your own. Email, tweet or send a good old fashioned letter to your MP. Share the ideas within this article. Come up with your own plan. Let's get creative and let's get practical. Let's take real steps to eliminate poverty in Canada.
 

Corey Hogan

Poverty costs us all

Eli Khamarov once wrote that "poverty is like punishment for a crime you didn't commit". I tend to agree; children growing up hungry is a moral failure. Young adults not being able to reach their potential is a social cruelty. The elderly being forced from their homes is a generational embarrassment.
 
But even if you don't find the social arguments for tackling poverty compelling, consider this additional argument: poverty is expensive.
 
At the federal level alone, $13.3 billion was spent on the Canada Social Transfer and estimates place the cost of poverty on the Canadian health care system at $7.6 billion. A 2007 report found that poverty costs the federal government more than $24 to $30 billion a year - that's over $1000 for every Canadian of working age. Provincial and private sector costs of poverty bring the national impact well above $100 billion a year.
 
Not all poverty is the result of low wages, but low wages are an economic failure that is picked up by every taxpayer in this country. They lead to higher government expenditures and lower government revenues. The burden they put on provincial and federal government finances is enormous. Low wages are a hidden tax on us all.
 
Or, put another way: the low wage being paid to that cashier or phone centre operator are subsidized by Canadian taxpayers instead of the corporation benefiting from their work.
 
The most obvious and direct tool governments have to stop this is the minimum wage: by mandating what an employer is required to pay government has the ability to ensure employers cover a minimum cost of living instead of having that worker need to turn to all of us for social assistance.
 
And when you think about it, this policy tool should have enormous appeal to the left and the right: the employer that benefits from the employee's time shoulders the cost and the employee needs to roll up their sleeves and work to receive said benefit. Minimum wage isn't just a great piece of corporate accountability, it's the original workfare.
 
1,253,000 Canadian workers make the minimum wage. And in 2015, about 25 percent of all workers in Canada made $15/hour or less. These Canadians receive GST cheques, increased tax credits and a broader range of subsidies than middle income Canadians. And we're all paying for it.

Eleven different minimums

Let's say we agree we want to raise the minimum wage. How do we do it? In Canada minimum wage laws are currently only enacted at the provincial level, giving us a patchwork of wage floors.
Minimum wage by province, October 2016
This situation presents a number of challenges, the biggest of which is this: within the country businesses can move easily, people can move with only moderate difficulty and governments are stuck exactly where they are.
 
Corporations that employ low wage workers can hold governments hostage by threatening to take their business to another province. "Mom and pop" companies worry if they raise wages they'll be uncompetitive with businesses across the border. Whether or not these fears are justified, they create a powerful communications narrative and pressure on any government thinking of raising the minimum wage.
 
This leads to a race to the bottom - or at best a great deal of hesitancy in moving up from the middle of the pack.
 
Contrast the current situation with a hypothetical national minimum wage. It might be easy to leave a province but it is significantly harder for a businesses or person to uproot and leave the country. They are subject to tariffs, immigration policies and quotas that restrict the movement of labour and capital.
 
A national minimum wage wouldn't just stop the race to the bottom. It would set a minimum standard for all Canadians and help harmonize prices and services across regions. It would be a national solution to a national problem.

Why we don't have a federal minimum wage

So why can't the federal government just introduce a minimum wage? It’s a good question with a complicated answer. The short version is: they can and we've had one as recently as 1996 but because of some very old court rulings it wouldn't apply to that many people.
SKIP AHEAD: Forget the why, bring me to what we need to do.
The long version involves our ambiguous constitution, the British Privy Council and two court cases: Toronto Electric Commissioners v Snider and the Labour Conventions Reference.
 
 
LABOUR AND THE CONSTITUTION
 
The Canadian constitution doesn't specifically mention labour laws or a minimum wage. This isn't particularly surprising: after all, the document was written in the 1860s. For all its veneration, our constitution is a governing document that spells out who has authority over auctioneers but makes no mention of health insurance - government's largest single expense.
 
As expectations of government have evolved over time, how the framers intended powers to be divided between the provincial and federal government have had to be divined by the courts based on what words were actually written. Public health insurance, for example, has been "read into" the constitution as a provincial responsibility because provinces are given authority to make laws related to "the Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions".
ELEEMOSYNARY (adj): of, relating to, or supported by charity. Above: a Montreal soup kitchen, an example of an eleemosynary institution.
Similarly, labour protections were on few minds in 1867 (action by organized labour was considered illegal if considered at all). It would be another five years before the Trade Union Act decreeing that unions were not illegal conspiracies was passed by parliament.
 
Because of this origin in criminal law and its impact on trade and commerce (clear federal responsibilities), labour law seemed to the federal government to be at least partially within its wheelhouse. The provincial governments, with authority over civil law (a clear provincial responsibility) felt similarly entitled to regulate labour.
 
Both levels passed overlapping labour laws in the late 19th and early 20th century. This was, by and large, fine - and certainly not without precedent before or since. Where conflict existed, it was usually over degree and not the direction. In such cases it was straightforward for the stronger restriction to prevail. This happy detente was not, however, meant to last.
 
 
TORONTO ELECTRIC COMMISSIONERS v SNIDER
 
In 1923 Toronto Electric Commission employees went on strike. Under Canada's Industrial Disputes Investigation Act of 1907 either the employer or the employees were able to apply for the establishment a dispute resolution board which would have - among other powers - the authority to compel testimony, audit books and enter work premises to gather evidence. The employees exercised this right. The employer filed for an injunction to stop this.
 
Their argument? That the request should be ignored as the federal government had overstepped its boundaries in passing the 1907 Act. This was - in their opinion - an attempt by the federal government to infringe on civil rights - a provincial responsibility - and as such the federal Act was unconstitutional.
 
The Ontario Court of Appeal disagreed. In a 4-1 decision they stated the federal government was within its authority to pass the Industrial Disputes Investigation Act: the federal government has responsibility over criminal law, the regulation of trade and commerce and the power "to make Laws for the Peace, Order, and good Government of Canada". Any of these grounds would be sufficient.
 
The Toronto Electric Commissioners appealed this decision to Britain's Judicial Committee of the Privy Council - then Canada's highest court. In 1925 the Ontario Court of Appeal's decision was reversed: it was the opinion of the Committee that the powers of the dispute resolution board were not the federal government's to grant.
 
Viscount Haldane, Author of the Judicial Committee of the Privy Council decision on Toronto Electric Commissioners v Snider.
In a series of arguments that may seem uncompelling to modern eyes the Committee rejected all of the appellate court's grounds for allowing the federal law to stand.
 
No, they argued, the Act could not be justified under the federal authority to create criminal law: the creation of a penalty alone does not make something a matter of criminal law. They did not reject labour law's origin in criminal law but dismissed this as a "non sequitur".
 
No, the Act could not be justified under trade and commerce clauses: the Committee was of the opinion that the constitution only gave Parliament the ability to govern an undefined "general" trade and commerce.
 
And no, this was not justifiable under the "Peace, Order and good Government" clause: the clause, it was decided, was not about good government but rather exceptional circumstances. To pass legislation under this clause required "extraordinary peril" and/or "highly exceptional circumstances" and "no great national emergency was shown to have existed".
 
Under the Canadian constitution the federal government can only act in areas of defined provincial responsibility if they have a defined responsibility of their own. The courts had decided no such responsibility existed, necessitating a total retreat by the federal government from areas of labour law related to civil rights and much more deference to the provinces.
 
Toronto Electric Commissioners v Snider was a fatal blow to federal labour law. The stake to the heart would come twelve years later.
 
 
LABOUR CONVENTIONS REFERENCE
 
After Toronto Electric Commissioners v Snider the federal government had been put on notice: there would be no major Acts related to the regulation of labour until the Second World War, when the trigger of "extraordinary peril" was clearly met. But neither the federal government nor labour relations froze in time.
 
After World War I the International Labour Organization (ILO) was established and several conventions were adopted governing hours of work, weekly rest and minimum wage. The federal government referred the question of ratification (specifically - who had jurisdiction?) to the Supreme Court of Canada.
The ILO Convention Limiting the Hours of Work in Industrial Undertakings was passed in 1919 and called for the "application of the principle of the 8-hour working day or of the 48-hours week".
The court unanimously decided that the content of the ILO conventions was provincial - not federal - in nature. They were subsequently referred to the provincial governments for action.
 
The story would have ended there were it not for two events in 1931 that would reshape the federal government's view of itself. One was the passing of the Statute of Westminster, which gave Canada sovereignty over its affairs in the world.
 
The other came from the Judicial Committee of the Privy Council. Like Lucy setting up the football for Charlie Brown, the Committee had given the federal government reason to believe that the power to create treaties overrode the authority of the provinces. In the Aeronautics Reference the committee stated that:
There may also be cases where the [federal government] is entitled to speak for the whole, and this not because of any judicial interpretation of [the constitutional division of powers] but by reason of the plain terms of section 132, where Canada as a whole, having undertaken an obligation, is given the power necessary and proper for performing such obligation.
Section 132 gives the federal government "all the Powers necessary" to fulfill obligations to foreign governments as a result of treaties of the British Empire. And given that the British Empire no longer made treaties, but rather Canada did directly, the government claimed this power to speak for the whole by ratifying three ILO conventions in 1934 and 1935. Once again, upon appeal the Judicial Committee of the Privy Council decided to narrow the scope of federal authority.
 
It was decided that "for the purposes of [the division of powers] ... there is no such thing as treaty legislation as such" and that...
the legislative powers remain distributed and if in the exercise of her new functions derived from her new international status [Canada] incurs obligations they must, so far as legislation be concerned when they deal with provincial classes of subjects, be dealt with by the totality of powers, in other words by co-operation between the [federal government] and the Provinces. While the ship of state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure.
The courts had ruled that the powers they saw granted to the provinces in 1867 would not be reduced by the additional authority granted to the federal government in international relations. The 1925 ruling was referenced to affirm all labour laws as belowing to a class of subjects "assigned exclusively to ... the Provinces".
 
The Labour Conventions Reference didn't just take a legislative tool out of the federal toolbox. It was a blockbuster judicial decision in its own right and it canonized the perception that Toronto Electric Commissioners v Snider was a fundamentally sound ruling; its questionableness now receded into history.
 
It has been restated many times, in many ways, since. And each restatement has made exclusive provincial competency in labour law seem more solidly rooted than is arguably the case or was even understood when made the original ruling was made in 1925.

The Doctrine of Colourability

By 1979 the legal situation was described by the Supreme Court as follows: "Parliament has no authority over labour relations as such nor over the terms of a contract of employment; exclusive provincial competence is the rule".
 
The first thing people who want a federal minimum wage do when they learn how federal authority has been limited is try to get clever. If labour law is provincial jurisdiction, why not find an appropriate federal power to use? Why not, say, just make paying somebody less than $15/hour illegal under the Criminal Code of Canada?
 
You are not the first armchair constitutional scholar to consider such an approach. Courts across the commonwealth have taken a dim view of governments attempting to "colour in" gaps in their legislative powers with powers they do possess. The jurisprudence has been clear: “What cannot be done directly cannot be done indirectly.”
COLOURABLE: "Does the law in form appear to address something within the legislature’s jurisdiction, but in substance deal with a matter outside that jurisdiction?"
The pith and substance of legislation making it illegal to pay somebody less than $15/hour would be to legislate wages, which is a provincial responsibility. When the federal government acts, it must be because of a specifically delineated federal power, not because somebody has found a way to read federal authority into an area of provincial competence.
 
It would seem, at first glance, that shuts the door to federal action. After all, the courts have ruled that labour law is a provincial jurisdiction. A long legal tradition establishes that you can't sew federal rags into a provincial dress. What can we do?
 
There are at least three solutions that can be considered.

Solution #1: Just try it

Perhaps the most direct solution is for the federal government to attempt the passing of a national minimum wage that applies to all workers.
 
The federal government can just address their challenge with the courts head on. They can prepare a reference and go back to that original 1925 ruling - a ruling that never explicitly discussed the minimum wage - and re-argue it on the merits. They can argue it was wrong then and doubly wrong now as the constitution has evolved.
 
It's important to be realistic about the likelihood of this approach succeeding. Every single province will line up against the federal government. Courts are not enthusiastic about relitigating the past; reconsiderations and rehearings are very rare and subject to strict rules.
 
But there is an argument to be made that is at least worthy of a fair hearing: that the constitution is a "living tree" and minimum wage has evolved into a matter of "national concern".
 
 
THE LIVING TREE
 
The Privy Council and later the Supreme Court of Canada have embraced the notion that the Constitution of Canada must be viewed as a "living tree capable of growth and expansion within its natural limits". In the words of the Supreme Court in 2011:
This [living tree] metaphor has endured as the preferred approach in constitutional interpretation, ensuring that Confederation can be adapted to new social realities. The Supreme Court of Canada, as final arbiter of constitutional disputes since 1949, moved toward a more flexible view of federalism that accommodates overlapping jurisdiction and encourages intergovernmental cooperation — an approach that can be described as the “dominant tide” of modern federalism.
That tide has carried us a long way away from the watertight compartments of 1937 and over time that "living tree" has borne a lot of fruit. Women were added to the definition of "persons", able to be appointed to the Senate. Sexual orientation became a guaranteed equality right. And the narrow view of the federal government's powers to create legislation for the "peace, order and good government" of Canada has expanded.
 
 
THE "NATIONAL CONCERN" DOCTRINE
 
Relative to the Judicial Committee of the Privy Council, the Supreme Court of Canada has interpreted the federal government's authority to create legislation at the edges of its constitutional mandate more broadly.
 
"Peace, order and good government" is still not a catch-all to allow any and all types of federal legislation, but it is also no longer limited to use in times of "extraordinary peril" or "highly exceptional circumstances", as Toronto Electric Commissioners v. Snider decreed. As described by the Supreme Court in 1988:
The national concern doctrine ... applies to both new matters which did not exist at Confederation and to matters which, although originally matters of a local or private nature in a province, have since, in the absence of national emergency, become matters of national concern.
In the same case, the Supreme Court laid down criteria on whether a "national concern is valid":
  1. The issue must have a "singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern". To assess this criteria the Court asks us to consider " the effect on extra‑provincial interests of a provincial failure to deal effectively with the control or regulation of the intra‑provincial aspects of the matter".
     
  2. The law or regulation must have "ascertainable and reasonable limits, in so far as its impact on provincial jurisdiction is concerned". There must be clear boundaries to federal action; the "National Concern" Doctrine cannot remove areas of provincial responsibility wholesale.
As it relates to a federal minimum wage a few observations on the applicability of these doctrines can be made. Minimum wage may once have been interpreted as a provincial matter, but the increased mobility of the Canadian labour force and the growing number of low income Canadians has made it more national in scope.
 
The provinces are not well equipped to deal with the problem alone. Action in either direction (raising or lowering the minimum wage) has an impact on a province's neighbours, either pulling business in or pushing people away. The actions of one province can have a significant impact on the others.
 
And finally, it is possible to make a federal minimum wage law with strict limits. It's worth noting that minimum wage is not a delineated provincial area of responsibility under the constitution. Nor is labour law. They are both interpreted as subsections of the broader civil rights category and as such it can be argued that this is a reasonable encroachment on provincial responsibility.
 
National Concern has been used as justification for federal spending in areas of provincial jurisdiction and the national regulation of health - an area that was once equally thought to be entirely provincial in nature.
 
Can it work in labour? We won't know until a government is willing to ask.

Solution #2: Address the root problem

Other solutions also exist. It is important to keep in mind is that we are not trying to raise the minimum wage for the sake of raising the minimum wage and we should not confuse the policy tool with the problem it is trying to address.
 
If the courts reaffirm that the Federal government cannot introduce a minimum wage, they can't and they shouldn't. Instead, they should step back and look at what policy tools exist within their toolkit to address the root problem.
From the federal government's standpoint the root problems can be summarized as follows:
  • people are poor;
  • poverty costs the government a significant amount; and
  • the "benefit" of poverty is enjoyed by very few.
In economic terms you might say that low wages are a tragedy of the commons: they are a resource supported by us all that provide private benefit. The constitution gives the federal government its own set of policy tools to create a solution.
 
The federal government should pay for the costs of working poverty through a tax on companies that pay low wages.
 
Before we go any further let's address what the solution cannot be: this cannot be a minimum wage through other means.
 
As discussed above, you cannot cobble together a series of federal powers to mimic a provincial power: the pith and substance of any such action would be the regulation of the minimum wage and it would be disallowed by the courts. However such a tax is constructed it cannot be done to approximate authority the federal government does not have.
 
It cannot tax employers in such a way that it makes zero economic sense to pay less than the desired minimum wage. It cannot reach into provincial jurisdiction by providing a cash subsidy to employees that tops up the income they received.
 
It should be based on a sincere estimate of what working poverty costs the government, and distributed accordingly. The distribution of the tax burden may go well beyond those that pay employees $15/hour, and well below those that pay $10/hour. It should, ideally, be holistic and tax other activities that are likely to result in poverty, not just providers of low wages. It should be based on a process and not a desired outcome, and that process should be rooted in sound constitutional principles.
SKIP AHEAD: Okay, I get it. Let's skip to Solution #3.
Can the federal government tax activities of a provincial nature? Activity it considers detrimental? Can they tax employers based on the income they pay? There are a number of precedents that support this "root problem" approach.
 
 
THE FEDERAL TAXATION OF PROVINCIAL CONCERNS
 
The federal authority to tax areas of a provincial nature is not really in dispute. There are a number of excise taxes of the federal government that directly (and exclusively) impact provincial industries. Some of these include:
  • health goods;
  • housing and residential construction;
  • mines and quarries;
  • alcohol; and
  • lumber and wood products.
These taxes have been levied for years without concern for their impact on provincial jurisdictions. In Canada the doctrines of interjurisdictional immunity and paramountcy have evolved to address the inevitable overlap of federal and provincial powers. It has long been understood that it's almost impossible to create a law that doesn't have an impact on an area within another jurisdiction. The Supreme Court has ruled that unless the impact on another jurisdiction's exclusive domain is significant, the statute will stand.
 
 
THE VALIDITY OF SIN TAXES, PIGOUVIAN TAXES AND OTHER PUNITIVE TAXES
 
You are probably familiar with the idea of sin taxes: alcohol and tobacco being taxed at a higher rate to dissuade their use. You may be less familiar with the concept of a Pigouvian tax. A Pigouvian tax is like a sin tax with a degree in economics: it taxes negatives but that tax is intended to correct an inefficient market outcome.
 
In other words, if there is a public cost to private low wages, there should be a tax on providing low wages that equals that cost.
 
The most famous Pigouvian tax is one on pollution. With a Pigouvian tax polluters pay based on the cleanup costs or the cost of damage their pollution is calculated to do to the environment and public health.
 
There have been many such taxes introduced over the years designed to offset free-riding behaviour. In 2000 one such tax code change was introduced that saw any income transferred to minor children taxed at the highest rate, regardless of the level of taxation that would have resulted if distributed to the parent. This tax, known colloquially as the "Kiddie Tax", was introduced to keep high income earners from transferring income to their children to reduce their overall tax burden, behaviour the federal government deemed undesirable.
 
The law was challenged in court as "unfair". The Tax Court of Canada was unmoved.
The applicant says that the law is unfair and he asks the Court to make an exception for him. However the Court does not have that power. The Court must take the statute as it finds it. It is not open to the Court to make exceptions to statutory provisions on the grounds of fairness or equity. If the applicant considers the law unfair, his remedy is with Parliament, not with the Court.
Whether preventative, punitive or corrective, Parliament is within its authority to pass a tax on low income providers.
 
 
FEDERAL TAX RATE BASED ON HOURS/WAGES PROVIDED TO EMPLOYEES
 
Employer taxes and remittances have often been set on a sliding scale based on income. Payroll taxes, EI and CPP and provincial health premiums have all been applied to employers based on the wages they pay their staff.
 
Similarly, taxation being determined by the nature of an employment contract is not unprecedented: from 1978 to 1981 the federal government's Employment Tax Credit Program provided a credit for job creation that varied based on the hours offered and hourly wages paid.
 
The credit was not given on work over 40 hours per week by any given employee or if employees worked less than 35 hours/week. Jobs were required to pay at least "the appropriate minimum wage" or an hourly rate that exceeded the rate of the tax credit by $0.25/hour if the job was not subject to minimum wage legislation, or else the credit would not be provided.
 
For practical purposes the differences between a tax credit and a tax increase are minimal: both are introducing a variance in your tax rate based on behaviour or characteristics and both are under the scope of the federal government's constitutional authority.

Solution #3: A Compact on Wages

The last - and probably best - solution is to simply work with the provinces to get them to enter a compact on minimum wages across Canada.
 
In such a scenario the provinces agree among themselves to a common minimum wage. Wage levels and phase-in timelines are set and legislation is passed that harmonizes all jurisdictions. Any province wishing to leave the arrangement is required to give appropriate notice to its counterparties.
 
The federal government can provide both incentive and threat to help such a scenario come to fruition. Funding can be provided - much like how signing onto the Canada Health Act results in federal transfers. Alternatively (or, in addition), either or both of the previous solutions can be threatened as the national government's "Plan B" on the issue of poverty and wages.
 
Admittedly, there's something almost anticlimactic about the provinces just deciding to work together. But the end result could be the same, with less uncertainty for all parties.

Conclusion

We don't have a federal minimum wage in Canada and I think this is a big problem.
 
But I don't think this is a big problem because I'm fixated on the number 15. I think it's a problem because poverty is a national problem. The current arrangement threatens to punish provinces that try to do more and as a result keeps wages low. We all pay for it. And those companies that aren't paying living wages carry the benefit.
 
Let’s be clear: the most direct way to tackle the challenge of poverty and employers who don’t do their fair share is to have the provinces work together to raise the minimum wage. It is the most straightforward, has the least legal ambiguity and creates the least additional bureaucracy.
 
But the federal government has a role in bringing them together to do this. And if the provinces won't come together and agree to raise the minimum wage the federal government should be prepared to act – to work within their constitutionally mandated scope to tackle the challenge through the means available to them.
 
This is not about circumventing the provincial governments. This is about our federal government tackling something of national concern and great cost.. This is about stopping the race to the bottom and making federalism work for us all.
 
Let’s call this “Root problem federalism”. The federal government identifies a problem, works with the provinces to find a solution, and in the absence of an agreement for collective action addresses the root problem as best they can with the tools they have available.
 
Because, ultimately what we need now is action, even if it's imperfect. You can always find a reason not to do the right thing right now. But now's the time for a $15/hour minimum wage.
 

 
Write your MP. Share this page. Come up with your own plan. Let's let people know that if there's the will, there's a way.
 

Corey Hogan
  1. Source: Statistics Canada - Labour Force Survey (2014) via Press Progress
  2. "[This study] examines the relationship between minimum wages and employment in all ten Canadian provinces between 1983 and 2012, and finds no consistent evidence that minimum wage levels affect employment in either direction."
     
    Source: Canadian Centre for Policy Alternatives - Dispelling Minimum Wage Mythology (October 2014)
  3. "We do not find compelling evidence that the minimum wage has caused significant increases in business failure rates. Moreover, if there has been any increase in business closings caused by the Minimum Wage Ordinance, it has been more than offset by an increase in business openings."
     
    Source: University of Washington - The Seattle Minimum Wage Study Team (July 2016)
  4. "[Using] the midpoint estimate ... [gives] an estimate of 33,065 workers covered by [a proposal for a $15/hour federal minimum wage]."
     
    Source: Maclean's - Why the numbers behind the NDP’s minimum wage plan don't add up (August 2015)
  5. Source: Government of Canada - "Federal Support to Provinces and Territories" (2016)
  6. Source: Canada Without Poverty - "The Cost of Poverty"
  7. Source: Ontario Association of Food Banks - "The Cost of Poverty" (2007)
  8. "This varies significantly by province, from 18 percent of all employees in Alberta, to 38 percent of all employees in PEI."
     
    Source: Statistics Canada - Labour Force Survey (2015) via Canadian Labour Congress
  9. In most cases, they probably aren't. Service jobs aren't easily transferred: most of us do not have the ability to drive to another province to get a hamburger.
  10. Source: Various. The Government of Ontario 2016 Budget is illustrative.
  11. The Trade Union Act legalizing union activity was passed in 1872. The CBC has a brief rundown of different early labour milestones, including this one.
  12. You can learn more about the early history of labour relations in Canada here.
  13. Source: Privy Council Appeal - Toronto Electric Commissioners v. Snider (1925) .
  14. They further argue that while the federal government might be able to pass criminal laws related to strikes, they can't pass such laws about lock-outs and therefore - because you cannot easily separate the two - the criminal law argument must fail.
  15. Source: Hugo Cyr - "Canadian Federalism and Treaty Powers" (2009) .
  16. Source: Privy Council Appeal - Canada (AG) v Ontario (AG) a.k.a. Aeronautics Reference (1931) .
  17. "The Parliament and Government of Canada shall have all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries."
  18. The Governor General then referred these Acts to the Supreme Court of Canada, which split 3-3 on whether or not it was within the federal government's authority to do so.
  19. Source: Privy Council Appeal - Canada (AG) v Ontario (AG) a.k.a. Labour Conventions Reference (1937) .
  20. To illustrate: in 1979 a Supreme Court ruling called Northern Telecom v. Communications Workers restated the principle as such: "Parliament has no authority over labour relations as such nor over the terms of a contract of employment; exclusive provincial competence is the rule".
     
    This was a quote from another 1979 Supreme Court ruling, Construction Montcalm Inc. v. Minimum Wage Commission (1979), the full context of which explains that the "as such" in the quote above is that while international airports fall under federal labour laws, the employees of the contractor building the runway fall under provincial labour laws. Employment contracts, it explains, fall under provincial jurisdiction unless the federal government can prove "jurisdiction is an integral part of its primary competence". This ruling in turn was based on language from the Stevedoring case of 1955.
     
    In this case it was stated "Normally, [labour legislation] came within the class of subjects assigned by s. 92 exclusively to the legislatures of the provinces, namely Property and Civil Rights in the Province".
     
    The source for this statement was the 1937 Labour Relations Convention.
  21. The Province of Ontario had passed an Act in 1914 that offered similar (if not identical) dispute resolution mechanisms - but these mechanisms existed without limiting the right to strike or lock-out during an inquiry. This difference was the crux of the Commissioners request for an injunction.
  22. Civil rights in this sense does not refer to civil liberties such as free speech, but rather the ability to make contracts, use property, and take legal action (among others). Civil law can be contrasted with criminal law - and in Canada civil law falls under the jurisdiction of the provinces.
  23. "Within the spheres allotted to them by the [BNA] Act the Dominion and the Provinces are rendered on general principle co-ordinate governments. As a consequence where one has legislative power the other has not, speaking broadly, the capacity to pass laws which will interfere with its exercise. What cannot be done directly cannot be done indirectly"
     
    Source: Privy Council Appeal - The Great West Saddlery Company Limited and others v The King (Canada) (1921) .
  24. "Pith and substance" is the court's preferred test when discussing colourability: what exactly is the nature of the legislation? What is trying to be accomplished?
     
    We'll talk more about it below, but if you're interested in the subject, this Wikipedia article is a good launching off point.
  25. Covered in many Supreme Court cases. Ward v. Canada (Attorney General) from 2002 does a good job of describing the concepts at play.
  26. Source: Privy Council Appeal - Edwards v Canada (AG) a.k.a. Persons Case (1929) .
  27. Source: Supreme Court of Canada - Reference re Securities Act (2011) .
  28. The scope of this authority has expanded as well. In the Anti-Inflation Reference of 1975 the courts also laid out a belief that the courts should be broadly deferential in letting the federal government decides what is or is not an emergency.
  29. Source: Supreme Court of Canada - R. v Crown Zellerbach Canada Ltd (1988) .
  30. Increased, increasing and as of 1982, constitutionally guaranteed.
  31. I assume.
  32. The Supreme Court has, in their words, "rejected rigid formalism in favour of accommodating cooperative intergovernmental efforts".
  33. Explicitly tying the tax to social spending could put the federal government on less firm legal ground: "tax legislation could be questioned if it were explicitly combined with a spending program outside federal jurisdiction". Care would have to be taken to stick to existing programs and spending areas of federal competence.
  34. Source: Supreme Court of Canada - Canadian Western Bank v Alberta (2007) .
  35. You can learn more about Pigouvian taxes and their possible applications here.
  36. Source: Tax Court of Canada - Jeannotte v The Queen (2011) .
  37. Source: Arun S. Roy and Ging Wong - Direct Job Creation Programs: Evaluation Lessons (1998)