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legislation had been held to be unconstitutional. The second statute was
drafted to avoid concerns about the extraterritorial aspects of the earlier
statute and avoid further challenges.
The tobacco companies argued that the second statute was unconstitutional
because it violated territorial limits on provincial legislative jurisdiction,
the principle of judicial independence and the rule of law. Regarding
the rule of law, Major J. undertook the following textual analysis:
66 … the appellants’ arguments fail to recognize that in a constitutional
democracy such as ours, protection from legislation that some
might view as unjust or unfair properly lies not in the amorphous underlying
principles of our Constitution, but in its text and the ballot box. …
67 The rule of law is not an invitation to trivialize or supplant the Constitution’s
written terms. Nor is it a tool by which to avoid legislative initiatives
of which one is not in favour. On the contrary, it requires that
courts give effect to the Constitution’s text, and apply, by whatever its
terms, legislation that conforms to that text.
76 Additionally, the appellants’ conception of a “fair” civil trial seems
in part to be of one governed by customary rules of civil procedure and
evidence. … There is no constitutional right to have one’s civil trial governed
by such rules. Moreover, new rules are not necessarily unfair. …
The Alberta Court of Queen’s Bench applied this textual analysis in
Alberta v. Kingsway General Insurance Co.22 That case considered legislation
that froze auto insurance premiums, arguably with a larger societal objective
of addressing potential abuses in the auto insurance industry, which
affects most citizens. On our theory, the importance of that objective may
have discouraged the court from finding the legislation to be unconstitutional.
Kingsway sued the Alberta government, claiming losses for rewriting
existing policies and for eliminated rate increases. Later legislation
included a provision extinguishing rights of action against the government.
Kingsway argued the legislation was unconstitutional and contrary to the
rule of law, among other things. The court dismissed these arguments and
found it to be constitutional. Kingsway relied on BCGEU, Pleau and Polewsky,
as well as European cases, and argued the rule of law prevented interference
by statute with the judicial process. In response, the government argued that
Canadian jurisprudence did not establish the rule of law as an independent
basis for striking down legislation. The court cited the principle that laws are
presumed to be constitutionally valid until shown to be otherwise.
The rule-of-law reasoning in Trial Lawyers follows very closely the B.C.
Court of Appeal’s decision in Christie v. British Columbia.23 Christie involved
a constitutional challenge to B.C. legislation that imposed a seven per cent
tax on the purchase of legal services, ostensibly to fund legal aid. Christie