Interjurisdictional immunity

In Canadian Constitutional law, interjurisdictional immunity is the legal doctrine that

determines which legislation arising from one level of jurisdiction may be applicable to matters
covered at another level. Interjurisdictional immunity is an exception to the pith and
substance doctrine, as it stipulates that there is a core to each federal subject matter that cannot be
reached by provincial laws.[1] While a provincial law that imposes a tax on banks may be
ruled intra vires,[2] as it is not within the protected core of banking, a provincial law that limits the
rights of creditors to enforce their debts would strike at such a core and be ruled inapplicable.[1]
The paramountcy doctrine states that if two pieces of legislation meet, regulate the same activities,
and conflict, the federal legislation is paramount, prevails and renders the provincial
legislation inoperative. In contrast, the interjurisdictional immunity doctrine is activated even if
there is no meeting of legislation or contradiction between federal and provincial statutes.[3] It
requires only for the provincial legislation to impact federal things, persons or undertakings
significantly. The doctrine renders inapplicable legislation of general application which affects the
rights and obligations, impacts the status, or regulates the essential parts of:

 things,
 persons, or
 undertakings,
exclusively within the core of the jurisdiction of the other order of government.

Contents

Early cases
The doctrine was first formulated to deal with the effects that provincial laws could have on
federally incorporated companies.[4]

 In John Deere,[5] provincial laws prohibiting companies not incorporated under the law
of the enacting province from carrying on business without a prescribed licence were
held not to apply to federally incorporated companies.
 In Great West Saddlery,[6] an Ontario law prohibiting all companies from acquiring or
holding land without a provincial license did not impair the status or essential powers
of the federal companies that operated within the province.

Expansion of doctrine
GTAA v. Mississauga[7] held that interjurisdictional immunity protected Toronto Pearson
International Airportfrom municipal development fees, due to federal jurisdiction
over aeronautics.
Until 1966, undertakings which came within federal jurisdiction were held to be immune
from otherwise valid provincial laws only if the laws had the effect of sterilizing,
paralyzing or impairing the federally authorized activity.[8] However, the scope of the
doctrine was expanded in Bell Canada (1966),[9] where a provincial law prescribing

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a minimum wage was held not to apply in 1966 when it was determined that a valid law
could not apply, as such a law "affects a vital part of the management and operation of the
undertaking". It did not matter that no sterilization, paralysis or impairment had occurred.
This doctrine was affirmed in 1988 when the Supreme Court of Canada ruled in three cases
that provincial occupational health and safety laws were held to be inapplicable to three
federal undertakings engaged in interprovincial transportation and
communication.[10] In Bell Canada v Quebec (1988), Beetz J declared:
254. ...the management of these undertakings and their labour relations are matters which
are part of this basic and unassailable minimum, as these matters are essential and vital
elements of any undertaking. How is it possible to disagree with this? How can the
exclusive power to regulate these undertakings not include at least the exclusive power to
make laws relating to their management? Additionally, just as the management of the
undertaking and working conditions determined by agreement or by operation of law are
parts of the same whole in labour law, how can the exclusive power to legislate as to
management of an undertaking not include the equally exclusive power to make laws
regarding its labour relations? To deny this, as the critics have done, is to strip the exclusive
federal power of its primary content and transform it simply into a power to make ancillary
laws connected to a primary power with no real independent content, apart from the power
to regulate rates and the availability and quality of services such as telephone services or
railway services. The latter undoubtedly fall within the exclusive classes of subject
represented by such federal undertakings, but there is nothing in the constitutional
provisions, rules or precedents to indicate that the exclusive legislative authority of
Parliament must or may be confined to so narrow a field. Indeed, rates and the availability
and quality of services are inseparable from the wage scale that the undertaking must pay,
the availability of its manpower, leave, vacation—in short, working conditions.
The doctrine was modified in Irwin Toy[11] to specify that:

 the "affecting a vital part" test only applied to provincial laws that were intended to
apply directly to a federal undertaking, but
 where a provincial law had only an indirect effect, it would not be inapplicable unless
it impaired a vital part of that undertaking.

Current jurisprudence
In response to this more classical approach to settling matters of constitutional law,
the necessary degree of infringement was revisited in Canadian Western Bank[12] in
2007, where the Supreme Court of Canada ruled that, in the absence of outright
impairment of the "vital or essential part", interjurisdictional immunity would not
apply. This was subsequently affirmed in Lafarge.[13]
Therefore, in order to render statutes inapplicable, the impacts that engage the
interjurisdictional immunity doctrine must be significant. The requirement is that
legislation significantly embrace things, undertakings or persons exclusively in the
jurisdiction of the other order of government. The interjurisdictional immunity
doctrine will not render inapplicable insignificant impacts caused by legislation of
general application.

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 Additionally, though the doctrine was textually justified in Canadian Western Bank,
the court also expressed a preference for relying on the doctrine of
federal paramountcy over interjurisdictional immunity when attempting to resolve
federalism disputes (after the impugned legislation had been found valid):[14]
77 ... we do not think it appropriate to always begin by considering the doctrine of
interjurisdictional immunity. To do so could mire the Court in a rather abstract
discussion of "cores" and "vital and essential" parts to little practical effect. As we
have already noted, interjurisdictional immunity is of limited application and should
in general be reserved for situations already covered by precedent. This means, in
practice, that it will be largely reserved for those heads of power that deal with federal
things, persons or undertakings, or where in the past its application has been
considered absolutely indispensable or necessary to enable Parliament or a provincial
legislature to achieve the purpose for which exclusive legislative jurisdiction was
conferred, as discerned from the constitutional division of powers as a whole, or what
is absolutely indispensable or necessary to enable an undertaking to carry out its
mandate in what makes it specifically of federal (or provincial) jurisdiction. 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...
While most jurisprudence has revolved around the applicability of provincial laws on
undertakings under federal jurisdiction,[15] one must not ignore its relevance with
respect to things and persons. For example:

 in the matter of Canadian maritime law, provincial laws relating to damages,

negligence and apportionment have been held not to apply to fill in any gaps that may
exist,[16] as maritime law is at the core of the federal power over "Navigation and
Shipping".[17]
 certain provincial laws regulating hunting have been held not to apply to Indians where
they significantly interfere with treaty rights,[18] as such rights have been held to be at
the core of the federal power over "Indians and Indian lands".[19]
In Quebec (Attorney General) v. Canadian Owners and Pilots
Association ("COPA"), McLachlin CJ outlined a two-step test that must be
undertaken to determine if interjurisdictional immunity comes into play:[20]

1. Does the provincial law trench on the protected "core" of a federal

competence?
2. Is the provincial law’s effect on the exercise of the protected federal power
sufficiently serious to invoke the doctrine of interjurisdictional immunity?
Though there remains some debate, it has generally been accepted that the doctrine
applies to both the federal and provincial governments equally. Nevertheless,
virtually all of the case law concerns situations where provincial laws encroach on
federal matters.[21] The Supreme Court has expressed caution in employing the
doctrine in future cases because:[22]

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 1. It is in tension with the dominant approach that permits concurrent federal
and provincial legislation with respect to a matter.
2. It is in tension with the emergent practice of cooperative federalism.
3. It may overshoot the federal or provincial power in which it is grounded
and create legislative "no go" zones where neither level of government
regulates.
As McLachlin CJ explained in Canada (AG) v PHS Community Services Society:
[70] In summary, the doctrine of interjurisdictional immunity is narrow. Its
premise of fixed watertight cores is in tension with the evolution of Canadian
constitutional interpretation towards the more flexible concepts of double
aspect and cooperative federalism. To apply it here would disturb settled
competencies and introduce uncertainties for new ones. Quite simply, the doctrine
is neither necessary nor helpful in the resolution of the contest here between the
federal government and the provincial government.