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Three ways: validity, operability, applicability

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1 Three ways: validity, operability, applicability
Challenging laws Three ways: validity, operability, applicability

2 challenging laws Bastarache J in Lafarge: An inquiry into the validity of a law, discussed earlier, may result in a declaration of invalidity which strikes down the law or the specific statutory provision altogether, while a declaration that a federal law is paramount over a provincial law, as discussed below, merely renders the provincial law inoperative to the extent of any conflict between the two laws. Without the availability of the doctrine of interjurisdictional immunity, there would be no remedy available to read down a provincial law which would be rendered “inapplicable” to a federal matter while still preserving the applicability of the provincial law to other non- federal matters. The only solution would be to find the provincial law invalid through a consideration of its pith and substance; this could result in the law or provision actually being struck down altogether. Furthermore, if there were no doctrine of interjurisdictional immunity, there would be no way to prevent the impermissible application of an otherwise valid provincial law to a federal matter in situations where there is not competing federal law.”

3 No No No No No No No No No Yes Yes Yes Yes Yes Yes Yes Yes Minor Major
The claimant is challenging specific provisions of the law The claimant is challenging the entire law Are the challenged provisions, in pith and substance, intra vires? Is the legislative scheme, in pith and substance, intra vires? No No Is the legislative scheme, in pith and substance, intra vires? No Yes Yes Yes Is the encroachment on jurisdiction major or minor? Minor Major Does the challenge relate to provincial law? No Is the connection between the provision and the law’s purpose rational? Yes Is the connection between the provision and the law’s purpose essential or necessary? Yes No No Is it impossible to comply with both the provincial law and a valid federal law? Yes No Is the law general in application and does it impair the core of a head of power? Yes Does the provincial law frustrate the purpose of a valid federal law? Yes No No

4 Paramountcy and interjurisdictonal immunity
inoperable and inapplicable laws

5 Paramountcy and interjurisdictional immunity
Interjurisdictional immunity is “rooted in the idea that [otherwise valid, generally worded] legislation enacted by one order of government cannot interfere [unduly] with the core of any subject matter that is under the jurisdiction of the other order of government,” and, therefore, does not apply to that other order of government. It is the “exception to pith and substance … because it stipulates that there is a core to each federal subject matter that cannot be reached by provincial laws,” and vice-versa. Paramountcy “stipulates that when there is a valid federal law and valid provincial law governing the same matter, and there is a conflict (or inconsistency) between the two, the federal law prevails and the provincial law is rendered inoperative to the extent of the inconsistency.” Hogg and Godil, “Narrowing Interjurisdictional Immunity”

6 Paramountcy

7 Paramountcy A provincial law will be inoperative insofar as it conflicts with a federal enactment. There will be a conflict such that paramountcy will operate to render inoperative the provincial enactment where: it is impossible to comply with both the federal and provincial enactment; or the provincial enactment would frustrate the federal enactment’s purpose. Mere duplication is not a conflict.

8 Law Society of BC v Mangat [2001]
Facts: Federal immigration act permitted non-lawyers to appear before immigration tribunals. Provincial law prohibited non-lawyers from appearing. Gonthier J: Both acts are valid, and they are in conflict: the federal act permits non-lawyers to appear and the provincial act prohibits non-lawyers to appear. “[T]here is an operational conflict as the provincial legislation prohibits non- lawyers to appear for a fee before a tribunal but the federal legislation authorizes non-lawyers to appear as counsel for a fee.” The provincial law is inoperative. It should be read down to exclude immigration tribunals from its purview.

9 Multiple access v mccutcheon [1982]
Facts: Insider tradition prohibitions found in both federal and provincial law. Dickson J: Mere duplication does not constitute a conflict. Provincial law remains operative. “In principle, there would seem to be no good reasons to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says “yes” and the other says “no”; “the same citizens are being told to do inconsistent things”; compliance with one is defiance of the other.” “The provincial legislation merely duplicates the federal; it does not contradict it.” Duplication is the “ultimate in harmony”.

10 Bank of Montreal v Hall [1990]
Facts: In cases of delinquent mortgages, the federal act provided for rapid foreclosure. However, provincial law required the creditor to serve the debtor with a notice providing him/her with a final opportunity to pay the debt. The Bank of Montreal had not provided the final notice as required by provincial law. La Forest J: Here there was an “actual conflict in operation”. “The Bank Act provides that a lender may, on the default of his borrower, seize his security, whereas The Limitation of Civil Rights Act forbids a creditor from immediately repossessing the secured article on pain of determination of the security interest. There could be no clearer instance of a case where compliance with the federal statute necessarily entails defiance of its provincial counterpart.” Here there was also “frustration of legislative purpose.” “[D]ual compliance will be impossible when application of the provincial statute can fairly be said to frustrate Parliament’s legislative purpose. In this instance, … Parliament’s legislative purpose is … creating a security interest susceptible of uniform enforcement by the banks nationwide[.]” “[T]he broader question [is] whether operation of the provincial act is compatible with the federal legislative purpose. Absent this compatibility, dual compliance is impossible.”

11 Rothman’s v Saskatchewan [2005]
Facts: Federal law banned some advertising of tobacco products. Saskatchewan law went even further, banning advertising, display, promotion of tobacco or tobacco-related products anywhere frequented by people under the age of 18. Major J: “Actual conflict in operation” is not necessary. Where provincial legislation “displaces or frustrates” Parliament’s legislative purpose, the provincial act will be inoperable. Here, there was no “actual conflict in operation” “A retailer can easily comply with both the [Federal and Saskatchewan Act] in one of two ways; by admitting no one under the age of 18 years of age on premises or by not displaying tobacco or tobacco-related products." Here, the provincial act does not frustrate Parliament’s intention. In fact, it may even promote it. "[The Saskatchewan Act] appears to further at least two of the stated purposes in the [Federal Act], namely "to protect young persons and others from inducements to use tobacco products" and "to protect the health of young persons by restricting access to tobacco products."

12 Quebec v CanAda (HRSCD) [2011]
Facts: Section 126(4) permitted garnishment orders to be made by the Canada Employment Insurance Commission for wrongly paid employment insurance benefits as applied against remittances. Section 144 of the Quebec Act prohibited the garnishment of remittances. “Indemnities paid under this Act are unassignable, unseizable and nontaxable except the income replacement indemnity, up to 50% of which is seizable for alimentary debts.” The Commission issued an order for garnishment of the remittance. This was challenged. Deschamps J: There was here no “actual conflict in operation” as federal law was merely permissive and provincial law prohibitive. “It would be possible to comply with the more restrictive provision, the provincial one, by limiting the scope of the less restrictive provision, the federal one. There is not, therefore, an operational conflict.”

13 Quebec v CanAda (HRSCD) [2011]
Deschamps J: The remaining question is whether the purpose of the federal enactment would be violated by application of the provincial legislation. “To determine whether the legislative purposes of the provisions are in conflict, it must be asked whether Parliament’s purpose is compatible with that of the provincial legislature.” This requires looking closely at the provisions in question. [T]o determine whether a conflict of purposes really exists, it is necessary to consider each of the provisions in issue in its context and to review its legislative purpose in order to clarify its scope.” Here, the purpose was to allow recovery. “The purpose of this measure is to ensure the integrity of the employment insurance system by making it possible to recover amounts owed under the EIA, including benefit overpayments, in a simple and summary fashion, without regard for the provincial rules respecting exemption from seizure. This purpose would be frustrated if the Commission were to comply with the provincial provision creating an exemption from seizure.”

14 Interjurisdictional immunity

15 Interjurisdictional immunity
Interjurisditional immunity in Canada has waxed and wanted. Toronto v Bell Telephone Co [1905]: A provincial law would be inapplicable to a federal undertaking if it sterilized or impaired its status or essential powers (ie provincial law would bring a half to the federal activity). Commission du Salaire Minimum v Bell Telephone Co [1966]: A provincial law would be inapplicable to a federal undertaking if it affected “a vital part of the management and operation of the undertaking.” Irwin Toy v Québec [1989]: Bifurcated the test in Bell [1966] If the provincial law interfered directly in a federal undertaking, it would not apply if it “affected a vital part” of the undertaking; and If the provincial law interfered indirectly in a federal undertaking (in this case, it operated on the advertisers of federal broadcasting companies), it would not apply if it “impaired a vital part” of the undertaking. Canadian Western Bank v Alberta [2007]: If a provincial law interfered with a federal undertaking, it would not apply if it “impaired a vital part” of the undertaking.

16 Canadian western bank v Alberta [2007]
Facts: Albertan law required all deposit-taking institutions [generally worded legislation] to obtain a licence from the province and comply with consumer protection laws in order to promote insurance. The federal Bank Act had been amended in 1991 to provide banks with the power to promote interest. Regulation of insurance fell within provincial jurisdiction under s. 92(13): Citizens Insurance v Parsons. Regulation of banks fell within federal jurisdiction under s. 91(15).

17 Canadian western bank v Alberta [2007]
Binnie, LeBel (McLachlin CJ, Fish, Abella and Charron JJ): “[I]n certain circumstances, the powers of one level of government must be protected against intrusions, even incidental ones, by the other levels.” The two ways developed to achieve this are: Interjurisdictional immunity Paramountcy Interjurisdictional immunity is based on “exclusivity” of heads of power found in ss. 91 and 92. “If that authority is truly exclusive, the reasoning goes, it cannot be invaded by provincial legislation even if the federal power remains unexercised.”

18 Canadian western bank v Alberta [2007]
Binnie, LeBel (McLachlin CJ, Fish, Abella and Charron JJ): The doctrine of interjurisdictional immunity should be retained. “The text and logic of our federal structure justifies the application of interjurisdictional immunity to certain federal ‘activities’.” “It’s existence is supported both textually and by the principles of federalism.” The doctrine operates to protect both federal and provincial jurisdiction. “In theory, the doctrine is reciprocal: it applies both to protect provincial heads of power and provincially regulated undertakings from federal encroachment, and to protect federal heads of power and federally regulated undertakings from provincial encroachment.” The doctrine works contrary to the “dominant tide” of constitutional interpretation. “The “dominant tide” finds its principled underpinning in the concern that a court should favour, where possible, the ordinary operation of statutes enacted by both levels of government. In the absence of conflicting enactments of the other level of government, the Court should avoid blocking the application of measures which are taken to be enacted in furtherance of the public interest.”

19 Canadian western bank v Alberta [2007]
Binnie, LeBel (McLachlin CJ, Fish, Abella and Charron JJ): The doctrine should be applied with caution and restraint. “In the absence of conflicting enactments of the other level of government, the Court should avoid blocking the application of measures which are taken to be enacted in furtherance of the public interest.” The correct test is “impair” not “affect”. “In our opinion, it is not enough for the provincial legislation simply to ‘affect’ that which makes a federal subject or object of rights specifically of federal jurisdiction. The difference between “affects” and “impairs” is that the former does not imply any adverse consequence whereas the latter does.” Interjurisdictional immunity should only be considered after paramountcy. “If 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.” “[T]he Court does not favour an intensive reliance on the doctrine, nor should we accept the invitation of the appellants to turn it into a doctrine of first recourse in a division of powers dispute.”

20 Canadian western bank v Alberta [2007]
Binnie, LeBel (McLachlin CJ, Fish, Abella and Charron JJ): The doctrine applies not just to “federal undertakings” but “fedearally regulated activities” “[B]roadly speaking, the doctrine of interjurisdictional immunity was used to protect that which makes certain works or undertakings, things (e.g., Aboriginal lands) or persons (e.g., Aboriginal peoples and corporations created by the federal Crown) specifically of federal jurisdiction.” “[T]he text and logic of our federal structure justifies the application of interjurisdictional immunity to certain federal “activities”, nevertheless, a broad application of the doctrine to “activities” creates practical problems of application much greater than in the case of works or undertakings, things or persons, whose limits are more readily defined.”

21 Canadian western bank v Alberta [2007]
McLachlin CJ and Binnie, LeBel, Fish, Abella and Charron JJ: Thus, interjurisdictional immunity can be raised to prevent a law of general application from interfering with: the “basic, minimum, and unassailable” “core” of the federal legislative power or the “vital and essential part” of the federal undertaking; where the law of the other jurisdiction impairs that core or part. In this case, the core of the federal undertaking is not interfered with: “While banking certainly includes the securing of loans by appropriate collateral, a bank in promoting optional insurance is not engaged in an activity vital or essential to banking.” Therefore, the question of whether or not the provincial legislation impairs does not arise.

22 Canadian western bank v Alberta [2007]
Bastarache J: Fundamentally disagreed with the decisions of the majority. The doctrine should not be applied with undue restraint. [T]here is both a doctrinal and a practical need to conserve the doctrine of interjurisdictional immunity.” Interjurisdictional immunity should be considered before paramountcy (cf Binne & LeBell JJ point 6). First, the pith and substance of the provincial law and the federal law should be examined to ensure that they are both validly enacted laws and to determine the nature of the overlap, if any, between them. Second, the applicability of the provincial law to the federal undertaking or matter in question must be resolved with reference to the doctrine of interjurisdictional immunity. Third, only if both the provincial law and the federal law have been found to be valid pieces of legislation, and only if the provincial law is found to be applicable to the federal matter in question, then both statutes must be compared to determine whether the overlap between them constitutes a conflict sufficient to trigger the application of the doctrine of federal paramountcy.

23 Canadian western bank v Alberta [2007]
Bastarache J: The correct test is “affect” not “impair” (as per his decision in Lafarge) “I would suggest that we should interpret … being “affected” to mean that the full or plenary exercise (or potential exercise) of the federal legislative authority in question would need to be “attacked”, “hindered” or “restrained” before immunity could attach.”

24 Canadian western bank v Alberta [2007]
Held: Interjurisdictional immunity While Binnie & LeBel were on one side, and Bastarche on the other, they ultimately agreed that the regulation of the promotion of interest did not touch on a “vital or essential core” of the federal banking power. Binnie & LeBel: NO—the law is applicable “It is simply not credible, in our view, to suggest that the promotion of “peace of mind” insurance is “absolutely indispensable or necessary” to enable the banks to carry out their undertakings in what makes them specifically of federal jurisdiction.” Bastarache J: NO—the law is applicable “Because the promotion of insurance does not go to the core of banking, it is obvious that in the present case, Alberta’s Insurance Act is not affecting in any important way the core of banking.”

25 Canadian western bank v Alberta [2007]
Held: Paramountcy The judges also agreed that the doctrine of paramountcy did not apply in this case. Binnie & LeBel: NO—the law is operative “This is not a case where the provincial law prohibits what the federal law permits.” “The intention of the 1991 amendments is clear on their face. The appellants argue that Parliament intended to create a unified national “banking” scheme for the promotion of insurance, but there is nothing in the record to support such a conclusion.” Bastarache: NO—the law is operative In this case, it is clear that there is no express conflict between the provincial and federal schemes concerning the promotion of insurance by banks and that on the face of the relevant statutory provisions involved, dual compliance with both schemes is possible and in fact is to be encouraged.” “Nor is there any express or “operational” conflict between the federal prohibition on banks acting as an “agent”…”

26 BC v Lafarge [2007] Facts: Lafarge wanted to build an integrated ship offloading/concrete batching facility on waterfront lands owned by the Vancouver Port Authority. The City of Vancouver had not opposed the project The Burrardview Neighbourhood Association challenged the decision of the City to not require a permit. Lafarge argued that the undertaking was injurisdictionally immune from provincial interference pursuant to s. 91(10) “navigation and shipping” “Is the City of Vancouver Zoning and Development Bylaw No constitutionally inapplicable to the proposed development on the Property in view of Parliament’s legislative authority over “navigation and shipping” under s. 91(10) of the Constitution Act, 1867?”

27 BC v Lafarge [2007] Binnie, LeBel (Deschamps, Fish, Abella and Charron JJ): Interjurisdictional immunity means that a provincial law of general application does not apply to a federal undertaking. The provincial law is not unconstitutional, as such; it simply does not apply to the federal undertaking. Interjurisdictional immunity should be considered after pith and substance and conflicts (paramountcy). The doctrine applied to protect “‘essential and vital elements’ of the undertaking.”

28 BC v Lafarge [2007] Held: Interjurisdictional immunity
Binnie & LeBel: NO—the law is applicable “Activities that ‘support’ port operations (directly or indirectly) are not necessarily in themselves port operations and need not necessarily be of a shipping and navigation nature, provided they generate revenue for the development of the port as an economic entity. To qualify as ‘support’ in this sense is clearly not sufficient in our view to justify exclusive federal jurisdiction.” “Authorizing the construction of a cement mixing facility on these port lands does not fall within the VPA’s core or vital functions. On the facts of this case, it is rather an activity incidental to shipping.” Bastarache: YES—the law is not applicable The core of the s. 91(10) power necessarily extends to and includes the power to regulate land use planning and development for port lands in support of port operations. This provides the necessary link to navigation and shipping in order to trigger federal immunity, and it flows from the inclusion of ports and harbours generally within the federal power over navigation and shipping …”

29 BC v Lafarge [2007] Held: Paramountcy
Binnie & LeBel: YES—the law is inoperative [T]hese two valid laws are incapable of simultaneous enforcement: there is an operational conflict in this case because a judge could not have given effect to both the federal law and the municipal law.” “The record confirms areas of conflict relating to a height restriction, and to noise and pollution standards. To apply the relevant municipal law in these areas would frustrate the federal purpose by depriving the VPA of its final decisional authority on the development of a project that both the City and the VPA have considered to be primarily shipping-related in respect of matters that fall within the legislative authority of Parliament.” Bastarache: Not considered as by-law was deemed inapplicable

30 BC v Lafarge [2007] Notable aspects of dissent
Arguments advanced by Bastarache J: Pith and substance only tells us whether a law was enacted under a valid head of power. Pith and substance and interjurisdictional immunity do not work at crossed purposes; they both have important and coexistent roles to play: “[Pith and substance] tells us nothing about whether or not the law, though valid, could or should apply to a particular matter or thing. Immunity helps resolve that question (see Elliot) … Immunity would therefore play a role in preventing constitutionally impermissible applications of provincial laws to federal matters, without the need to strike down such laws and without the need for competing and conflicting federal legislation.”

31 BC v Lafarge [2007] Notable aspects of dissent Bastarache J:
While not abandoning the use of “affects” for “impairment”, Bastarache J favours the following definition of the degree of interference that would be necessary for interjursisdictional immunity to be raised: “I would suggest that we should interpret Bell Canada (1988)’s determination of a vital part of the federal core being “affected” to mean that the full or plenary exercise (or potential exercise) of the federal legislative authority in question would need to be “attacked”, “hindered” or “restrained” before immunity could attach.” He also cites “intrude heavily”, as formulated by Hogg. Rather than focus on the specific activity or operation (here, VPA’s construction of the concrete plant), focus should be on “whether the federal power over navigation and shipping (expressed in this case as the federal power over land use planning and development decisions by a port authority, a federally regulated undertaking) is immune from the application of the municipal by-law.”

32 Canada (AG) v phs [2011] Facts:
BC had been operating a safe injection sight under ministerial exemption from the Controlled Drug and Substances Act. In 2008, the minister decided the exemption would not be renewed. The challenge to this decision to not renew the exemption was challenged on the basis that: the provision of this service to intravenous drug users (this provincial undertaking) fell within interjurisdictional immunity; and it violated provisions of the Charter.

33 Canada (AG) v phs [2011] McLachlin C.J. (Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. concurring): Courts should exercise caution in finding undertakings immune because of: dual aspect: “This model of federalism recognizes that in practice there is significant overlap between the federal and provincial areas of jurisdiction, and provides that both governments should be permitted to legislate for their own valid purposes in these areas of overlap.” cooperative federalism: “Where possible, courts should allow both levels of government to jointly regulate areas that fall within their jurisdiction” legal vacuums: Since it is not necessary for the government benefiting from the immunity to actually regulate in the field in question, extension of the doctrine of interjurisdictional immunity risks creating ‘legal vacuums’”

34 Canada (AG) v phs [2011] McLachlin C.J. (Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. concurring): While the doctrine of interjurisdictional immunity is not confined just to federal undertakings, its application to healthcare would constitute a new extension. This is not an extension that should be made for three reasons: “the proposed core of the provincial power over health has never been recognized in the jurisprudence” “the claimants in this case have failed to identify a delineated ‘core’ of an exclusively provincial power.” In fact, provincial power over health care is characterized by a marked overlap of jurisdictions (eg criminal) to do so might create a legal vacuum: “The provinces might choose not to legislate in these areas, and indeed might not have the power to do so.”

35 Québec (AG) v Canadian Owners and Pilots Association 2010
Facts: “Parliament has power of aeronautics … under the federal POGG power.” Two private individuals built a aerodrome and registered it under the federal Aeronautics Act. The Québec Commission for the Protection of Agricultural Land ordered the individuals to convert their aerodrome back into farm land. The provincial legislation was valid based on s. 92(13) (property and civil rights), s. 92(16), (matters of a merely local or private nature), or s. 95 (agriculture). As the provincial legislation was valid and there was no conflicting federal legislation, the question remained as to whether the provision in Québec law to empower the Commission to control the establishment or removal of aerodrome was inapplicable as a result of interjursidictional immunity.

36 Québec (AG) v Canadian Owners and Pilots Association 2010
McLachlin CJ [for Binnie, Fish, Abella, Charron, Rothstein and Cromwell JJ]: There are two requirements for interjurisdictional immunity to apply: The provincial law must: impair; the protected core, of the federal competence. Here, the protected core, the ability to determine the location of aerodromes is certainly touched on. “Impairment is a higher standard than “affects”. It suggests an impact that not only affects the core federal power, but does so in a way that seriously or significantly trammels the federal power.”

37 Québec (AG) v Canadian Owners and Pilots Association 2010
McLachlin CJ [for Binnie, Fish, Abella, Charron, Rothstein and Cromwell JJ]: The effect here is major and amounts to impairment: “It prohibits the building of aerodromes in designated agricultural regions unless prior authorization has been obtained from the Commission. … [T]he effect may be to prevent the establishment of a new aerodrome or require the demolition of an existing one. This is not a minor effect on the federal power to determine where aerodromes are built.” While it is true, by definition, if something falls within interjursidictional immunity, Parliament has the power to legislate contrary such that federal paramountcy would render inapplicable the provincial law, this does not mean that interjurisdictional immunity should not or does not exist. “If [the provincial act] applied, it would force the federal Parliament to choose between accepting that the province can forbid the placement of aerodromes on the one hand, or specifically legislating to override the provincial law on the other hand. This would seriously impair the federal power over aviation, effectively forcing the federal Parliament to adopt a different and more burdensome scheme for establishing aerodromes than it has in fact chosen to do.”

38 Québec (AG) v Canadian Owners and Pilots Association 2010
McLachlin CJ [for Binnie, Fish, Abella, Charron, Rothstein and Cromwell JJ]: To render inapplicable a provincial statute on the basis of paramountcy, it’s necessary to show that it either: is inoperable (Multiple Access; Bank of Montreal v Hall) frustrates the purpose of the federal statute (Lafarge) To do the later, the part must: identify the purpose of the federal enactment; and show that this purpose is frustrated by the provincial enactment. The purpose of merely permissive legislation is not typically frustrated by provincial legislation regulating the area. Exceptions to this would be Mangat, where it was clear that Parliament’s purpose was to permit greater access to representations in tribunals. Here, even where a license is granted, it cannot be said that the failure for an aerodrome to materialize would mean that the federal purpose is frustrated.


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