Citing several authorities,[3] he held that the right of a private individual to sue is not truly necessary for the Combines Investigation Act to be effective, and, accordingly, s. 31.1 is ultra vires the Parliament of Canada.

Previous jurisprudence had formulated a number of tests, which were not identical, for determining whether a provision is sufficiently integrated into legislation for sustaining its constitutionality under the ancillary doctrine.

Dickson CJ noted that such cases focused the question on a context-specific way, which did not lend to general principles, and said: As the seriousness of the encroachment on provincial powers varies, so does the test required to ensure that an appropriate constitutional balance is maintained.

In surveying past jurisprudence it is to be expected that some example of patterns between the appropriate test of fit, and the head of power under which the federal legislation is valid, will be found.

Goods and services, and the cash or credit which purchases them, flow freely from one part of the country to another without regard for provincial boundaries.