Another Blow to the Much-Maligned Doctrine of Inter-Jurisdictional Immunity

Background

In Marine Services International Ltd. v. Ryan Estates 2013 SCC 44 the Supreme Court of Canada has dealt another blow to the oft-criticized constitutional doctrine of inter-jurisdictional immunity (IJI). IJI is a doctrine that restricts the application of the legislation of one level of government if it infringes on a core power of the other level.

The case concerned a negligence claim by the families of two fishermen who drowned when their boat capsized in turbulent Newfoundland waters. As a result, the Ryan Families’ Estates are prevented from brining a tort claim against the manufacturer of the boat pursuant to s 44 of the Workplace Health, Safety and Compensation Act (WHSCA). WHSCA is a no-fault insurance scheme which requires employers in the province to pay into a common insurance fund which is used to satisfy compensation claims by workers and their dependents. In a “historic trade off,” the WHSCA bars fault- based tort claims in return for no-fault compensation.

Barring tort action is a “necessary feature” of the compensation regime (Ordon Estate v Grail [1998] 3 SCR 437). The Ryan Families’ Estates argued that this necessary feature infringed on a core aspect of the federal power of navigation and shipping pursuant to Ordon Estate in violation of IJI (at para 84). The SCC has now decided that s 44 of the provincial WHSCA does not impair the core of a federal head of power, contrary to the argument of the Ryan Families’ Estates.

Problems with IJI

In Canadian Western Bank v. Alberta 2007 SCC 22, the SCC acknowledged that there are severe problems with IJI. First, this constitutional doctrine can produce a legal vacuum whereby neither provincial or federal laws govern. The SCC also acknowledged that an IJI constitutional analysis incorporates an exceedingly abstract discussion about core legislative powers. Thirdly, IJI tends to be applied asymmetrically to restrict the application of provincial rather than federal legislation. Lastly, IJI is a method of limiting provincial power, even if there is no operative federal legislation that contradicts provincial law. In other words, it runs counter to the principles of democracy and federalism.

IJI’s failure to facilitate legislative harmony within a federalist system is unique among constitutional doctrines. For example, the ancillary powers doctrine allows the necessary provisions of a legislative scheme to persist, despite substantial overlap into another jurisdiction. The doctrine of paramountcy is also a method of rendering provincial legislation inoperative when there is a conflict with legislation enacted by Parliament. However, paramountcy does not strike or read down legislation. Instead, it renders laws inoperative only to the extent of their conflict with federal law.

IJI on the other hand asserts strict boundaries rather than allowing overlap or cooperation between jurisdictions. Constitutional powers of s 91 and 91 are conceived as “watertight cores” that forbid overlapping jurisdiction if the legislative overlap is deemed an impairment of a core power. Notably, In Canada (AG) v PHS Community Services Society 2011 SCC 44, McLachlin C. J derided IJI for “[i]ts premise of fixed watertight cores” and its restrictions of jurisdictional overlap contrary to cooperative federalism (at para 70). In Canadian Western Bank, the court advocated other cooperative doctrines over IJI, stating, “[i]f a case can be resolved by the application of a pith and substance analysis, and federal paramountcy where necessary, it would be preferable to take that approach” (at para 77).

How Ryan Estates Reins in the Doctrine of IJI

Unlike the Newfoundland Court of Appeal’s (NLCA) earlier decision in this case, the SCC rejected the applicability of IJI. A key component of the now-overturned NLCA ruling was that Ordon Estate established the precedent that maritime negligence law is a core component of the federal power of navigation and shipping. However, the SCC acknowledged that the doctrine of IJI has evolved from the time of Ordon Estate, which predated the significant changes applied in Canadian Western Bank.

While Ordon Estate recognized maritime negligence law as a component of a core federal power, the standard of an intrusion that was used to justify invoking IJI was whether the legislation “affected” the core power. However, since Canadian Western Bank the legislation must “impair” the core of a head of power. At the time of Ordon Estate, the test for IJI was at a lower threshold and simply easier to establish (Ryan Estates at para 64). With the latest SCC ruling, the courts uphold the change to the test for IJI established in Canadian Western Bank, which is as follows: (1) does the impugned legislation trench on a core power and (2) does the legislation impair the core competence of another level of government (at para 48).

In Ryan Estates’, the SCC also tried to clarify what exactly it means to impair a core legislative power. The SCC considered (1) extent of federal power (in this case over navigation and shipping), (2) the lack of uniformity in Canadian maritime law, and (3) the history of other workers compensation schemes in a maritime context (at para 64). The SCC’s considerations, however, may cause future confusion. It is difficult to quantify, for example, the “breadth of federal power” in a legislative area and how that relates to the potential impairment. Presumably, a broader head of power is harder to impair, though the SCC does not seem to give many clues beyond that.

The SCC nonetheless reigned in IJI in this recent ruling, continuing the current jurisprudential trend to restrict its application. IJI runs counter to cooperative federalism and more precedents are deteriorating its relevance.