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The Trade, Investment And Labour Mobility Agreement Implementation Act (“TILMA” Act) has been tabled for the purpose of implementing a bi-lateral agreement entered into by Alberta and British Columbia in April 28, 2006. The opinion was commissioned to examine the constitutionality of Bill 1, the Trade, Investment And Labour Mobility Agreement Implementation Statutes Amendment Act, 2008 (“TILMA” Act).

Because of its unprecedented character and far-reaching effects on a diversity of governmental functions, the Bill raises serious and novel questions of constitutional law. In particular, by imposing financial and other sanctions on the otherwise lawful acts of the province, municipalities and other public bodies, Bill 1 and the Agreement it seeks to implement, directly confront basic constitutional norms, including the rule of law and democracy.

For the reasons set out below, there are several substantive grounds for impugning the constitutional validity of the TILMA regime, these are that:

  1. Bill 1 purports to address matters of inter-provincial trade, investment and labour mobility which under 91(2) of the Constitution Act, 1867 are delineated as matters of federal authority and therefore ultra vires the provincial government;
  2. By imposing financial penalties and other sanctions on the province for the lawful actions of governments and other public bodies, TILMA and Bill 1 improperly fetter the exercise of legislative and governmental authority;
  3. By empowering ad hoc arbitral tribunals to adjudicate private claims concerning the actions of government and other public bodies, TILMA and Bill 1 improperly derogate from the role and authority of superior courts and therefore offend the constitutional safeguard of judicial independence engendered by s. 96 of the Constitution;
  4. By amending certain provincial statutes to accord Cabinet with discretionary power to nullify, through regulation, the application of provisions of those statutes, Bill 1 offends constitutional limits on the delegation of legislative power to the executive. The courts have named such provisions “King Henry VIII clauses” after the propensity of that monarch to arrogate legislative power by proclamation; and
  5. By empowering Cabinet to pass regulations authorizing the collection, use and disclosure of information, including personal information and privileged communication, Bill 1 offends constitutional protection for solicitor-client privilege which the courts have consistently characterized as “a principle of fundamental justice and a civil right of supreme importance in Canadian law.” Depending upon the character of any such regulation, other constitutional norms relating to privacy, confidentiality and other forms of privileged communication may also be offended.

For these reasons, Mr. Shrybman considers it appropriate for the Province of Alberta to withdraw Bill 1, and abandon its present commitment to the TILMA scheme by advising British Columbia of its intention to invoke Article 20 to withdraw from the Agreement.