Majority
only question for discussion on the appeal would be the academic technical question with regard to the propriety of proceeding by mandamus and the question of costs.
If an application had been made to quash the appeal at the outset we should have been compelled to say that, the appeal on the question as to the effect of this statute being entirely without merit and the judgment on that point having been acquiesced in, the sub-stratum of the litigation had disappeared and the appellant could not be allowed to prosecute the appeal for the purpose of raising a technical question which had become entirely academic and the question of costs.
I do not mean to throw any doubt upon the decision of the Court of Appeal touching the technical point of procedure and I have no doubt that the Commissioner's authority is vested in him as the agent of the statute and that mandamus will lie to compel him to perform his duty.
It is unnecessary to decide whether in the circumstances of this case mandamus was the proper procedure, but it must be understood that on that point we are not dissenting from the view of the Court of Appeal.
The appeal should be dismissed with costs.
Judgment of the Court
THE CHIEF JUSTIC-This appeal raises the question of the validity of an amendment to the British Columbia Dentistry Act, R.S.B.C., 1936, chap. 72, s. 63, which was enacted in 1939 by chap. 11, s. 3, of the statutes of that year. The section as amended reads as follows:- (1940) 55 B.C.R. 506; [19411 1 W.W.R. 9; [19411 1 DL.R. 565. '2) (1940) 55 B.C.R. 370; (1940] 3 W.W.R. 242; [1940] 4 D.L.R. 755. Prior to the passing of this amendment the Dentistry c.J. Act had established certain prohibitions affecting persons not registered under the statute in respect of the practice of dentistry in British Columbia. In effect, it forbade such persons to offer to practise dentistry in British Columbia, and prohibited anybody from holding out any such person as entitled or qualified to practise dentistry in that province.
The result of the amendment is to bring under the ban of these prohibitions cases where the offer to practise or the holding out, relates to the practice of dentistry outside the province, and the capacity of a provincial legislature to pass such legislation is challenged by the appeal. The decisive consideration, in my opinion, is that the prohibitions are directed against acts done within the province. Prima facie the legislation is within the provincial legislative sphere. Nor do I think (subject to an observation to be made upon one feature of the amending statute) there is any circumstance present here which has the effect of rebutting this prima facie conclusion. The statute does not profess to prohibit people going beyond the limits of British Columbia for the purpose of getting the benefit of the services of a dentist, or to regulate their conduct in doing so; nor does it prohibit the sending into British Columbia from abroad of newspapers and journals containing the advertising cards of practising dentists; nor does it prohibit any communication with British Columbia from abroad. Such prohibitions would present an entirely different question.
There is one feature of the statute to which it is desirable to advert. By section 63 of the principal Act, which is now section 63, subsection (1), there is a definition of " practising the profession of dentistry within the meaning of this Act."
By section 2 of the amending Act of 1939, section 63 is amended by bringing within the category of persons who are deemed to be practising dentistry within the meaning of the Act
It would seem to be at least arguable that the statute as amended in 1939 prohibits the publication in British Columbia by persons carrying on business outside the Province of advertisements stating that they are manufacturers of or dealers in dental supplies of the description or descriptions mentioned. It is unnecessary to consider this aspect of the amendments of 1939.
It might be argued, not without plausibility, that any prohibition of the publication in British Columbia of such advertisements in respect of articles of commerce is legislation in relation to a matter that is not a local British Columbia matter, within the contemplation of sections 91 and 92 of the British North America Act. Assuming the amending legislation to be pro tanto invalid by reason of this particular feature of it, the offending parts seem to be plainly severable; and no such question is raised by the advertisements before us.
The argument of Mr. Farris was largely based upon Bryden's case (1).
There it was held that the statute (having regard to its necessary effect) invaded the legislative field assigned exclusively to the Dominion by section 91 (25) " naturalization and aliens."
Subject to what has just been said, the principle of the judgment in that case does not apply here.
The appeal should be dismissed with costs.
Appeal dismissed with costs.
Cases cited
- 4 D.L.R. 755 4 D.L.R. 755
Statutes and regulations cited
-
Unresolved citations
- s. 63
- s. 3
- section 63 of the principal Act
- section 63
- subsection (1)
- section 2
- sections 91
- 92 of the British North America Act
- section 91