Madden v Nelson and Fort Sheppard Railway Co.

At that time, the Judicial Committee of the Privy Council was the highest appellate body for the British Empire. Litigants could appeal directly to the Judicial Committee, bypassing the Supreme Court of Canada.^[4] Madden appealed the decision of the British Columbia Supreme Court to the Judicial Committee, sitting in London. The Attorney General for British Columbia intervened in the appeal in support of the legislation.

In a short decision given by the Lord Chancellor, the Earl of Halsbury, the Judicial Committee dismissed Madden's appeal. The Lord Chancellor held that it was no answer to say that the federal statute was silent on the issue of protective fences. The jurisdiction to regulate the railway lay with the federal government, and the provincial government could not pass legislation that it thought the federal government should have enacted, as was set out in the preamble to the Cattle Protection Act. He concluded that the Act was not within provincial jurisdiction and was "manifestly ultra vires".^[5]

The Lord Chancellor also referred to the Judicial Committee's recent decision, Canadian Pacific Railway Co. v Notre Dame de Bonsecours, decided in March, 1899, four months before Madden.^[6] That case had held that a provincial law requiring property owners to keep their property in good condition did apply to a federally regulated railway, because the law did not purport to require the railway to change its physical structure. The Lord Chancellor distinguished the Madden case from Notre Dame de Bonsecours, saying: "... in this case there is the actual provision that there shall be a liability on the railway company unless they create such and such works upon their roadway. This is manifestly and clearly beyond the jurisdiction of the provincial legislature."

The Supreme Court of Canada continues to cite the Madden case with approval, for the proposition that provincial laws cannot regulate the specifically federal nature of federally regulated works and undertakings.^[7] The case has acquired particular significance in environmental law cases, along with the related case of Notre Dame de Bonsecours. Taken together, the two cases help to set out the boundary for provincial jurisdiction over federally-regulated works and undertakings.

In 2019, the British Columbia Court of Appeal cited Madden and Notre Dame de Bonsecours in its decision holding that the province could not regulate the product shipped on a federally regulated pipeline.^[8][9] On appeal, the Supreme Court unanimously dismissed the appeal, "...for the unanimous reasons of the Court of Appeal for British Columbia."^[10]

In 1949, the Parliament of Canada abolished appeals to the Judicial Committee. The federal Department of Justice then published a three-volume collection of significant constitutional decisions of the Judicial Committee. The Madden case was included in that collection.^[11]