An Invitation to Revisit Interjurisdictional Immunity
Two appeals heard by the Supreme Court last week and now under reserve give the justices an opportunity to revisit an issue dear to many law students’ hearts (at least, the ones who sleep with a copy of Peter Hogg’s Constitutional Law of Canada under their pillows): interjurisdictional immunity.
The cases, Attorney General of Quebec v. Canadian Owners and Pilots Association (COPA) and Attorney General of Quebec v. Anabelle Lacombe, et al. deal with jurisdiction over aeronautics—specifically, disputes over provincial or municipal laws that prohibit the use of land or water for landing planes.
In COPA, two landowners decided to clear a plot of their land to build a runway and an airplane hangar. The runway was included on navigation charts issued to pilots, and complied with all the necessary federal regulations. However, in 1999 the Commission de protection du territoire agricole du Québec, relying on Quebec’s Act respecting the preservation of agricultural land and agricultural activities, R.S.Q., c. P-41.1, ordered the owners to cease their non-agricultural activities, dismantle the hangar, and return the land to agricultural use. The landowners sought judicial review of the decision, which was denied by the Superior Court, though overturned by the Quebec Court of Appeal (2008 QCCA 427).
In Lacombe, the respondents hold a federal license to operate their seaplane, and run a tour business out of their cottage, which is located on a lake in Sacré-Coeur. They often land on the lake and tie up at a dock there. The municipality passed a bylaw prohibiting the use of the lake as a base of operation for a seaplane business (respondent’s factum at para. 5). The Superior Court ordered the respondents to stop operating their business in the restricted area. The Court of Appeal also overturned that decision (2008 QCCA 426).
The issue for the Supreme Court in both appeals is the extent to which federally regulated undertakings have to comply with provincial and municipal laws.
That question isn’t exactly novel; indeed, it is the starting point for much of the Court’s division of powers jurisprudence. Until recently, courts answered it (in part) by applying the interjurisdictional immunity doctrine, which held that each level of government had a vital core of powers that could not be touched by the other level, even in the absence of any legislation (to use a discredited term, one level of government did not have to “occupy the field” in order to prevent the other level from legislating in the area). The classic statement of the doctrine is found in Beetz J.’s judgment in Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail),  1 S.C.R. 749 (Bell Canada 1988), where he wrote:
In order for the inapplicability of provincial legislation rule to be given effect, it is sufficient that the provincial statute which purports to apply to the federal undertaking affects a vital or essential part of that undertaking, without necessarily going as far as impairing or paralyzing it.
The Court overhauled its approach to interjurisdictional immunity in Canadian Western Bank v. Alberta (2007 SCC 22) and British Columbia v. Lafarge (2007 SCC 23). Binnie and LeBel JJ. held that “the dominant tide of constitutional interpretation does not favour interjurisdictional immunity”, and instead courts “should favour the operation of statutes enacted by both levels of government” (emphasis in original). The interjurisdictional immunity doctrine should now only be invoked if a statute impairs (not just affects) an absolutely indispensable or necessary part of the undertaking, and has generally been reserved for situations already covered by precedent.
So, then, when is something absolutely indispensable or necessary, and when is it impaired by a law? These are the questions that the Court needs to answer, if not definitively and for all time, then at least with more precision than in Canadian Western Bank. In that case, the Court didn’t really address when a law impairs an activity, since the activity in question (the promotion of “peace of mind” insurance by banks) was held not to be a vital part of banking. But banks and other undertakings that operate in a patchwork of federal and provincial regulation, such as telecommunications companies, need clarity on this issue. The potential to be subject to eleven different legislative schemes imposes real compliance costs on these businesses, and they should be able to make determinations about whether they have to comply with provincial laws.
Binnie and LeBel JJ. indicated in Canadian Western Bank that the paramountcy doctrine is now the preferred method of resolving division of powers questions, and the Court could choose to dispose of these cases via a paramountcy analysis. However, ignoring the interjurisdictional immunity doctrine entirely risks opening up a hole in the division of powers framework. As Professor Hogg points out in his text, in the absence of interjurisdictional immunity, a legislature could use a broadly framed law of general application to do what it could not through a narrowly framed one that would offend the division of legislative powers in sections 91 and 92 of the Constitution Act, 1867. The doctrine exists for a reason, and aeronautics certainly qualifies as a situation “already covered by precedent”. Moreover, in both cases, the provincial and municipal laws completely halt the activity that is permitted under the federal legislative scheme. These cases present a clear opportunity for the Court to outline what types of situations constitute an impairment—and what qualifies as a vital part—of a federal undertaking. The judges should take this chance to clarify this area of the law.