Barrister and Solicitor
Legal Writing and Research
Municipal Law - Paramountcy - Municipal v Provincial
Constitution - Paramountcy - Federal v Provincial
wpd Sumac Ridge Wind Incorporated v. Kawartha Lakes (City) (Ont CA, 2016)
In this case the Court of Appeal comments usefully on the present doctrine of legislative paramountcy, here as it relates to a conflict between a municipal resolution versus an approval granted under provincial legislation. The test is essentially the same for provincial-federal paramountcy:
(a) The doctrine of paramountcy and the governing test for frustration of purpose
 A cardinal rule of municipal law is that “all by-laws are subject to the general law of the realm and are subordinate to it”, and that “any by-laws which are repugnant to or inconsistent with general provincial legislation are void and of no effect, or else superseded to the extent that the legislature has acted”: Ian MacF. Rogers, Q.C., The Law of Canadian Municipal Corporations, loose-leaf (2014-Rel. 5), 2d ed. (Toronto: Carswell, 1988), at para. 63.16 (citations omitted).
 This principle has been codified in s. 14 of the Municipal Act, which provides as follows:
14. (1) A by-law is without effect to the extent of any conflict with, To determine whether municipal and provincial legislative enactments conflict, this court has endorsed applying the paramountcy doctrine governing conflicts between federal and provincial legislation: Croplife Canada v. Toronto (City) (2005), 2005 CanLII 15709 (ON CA), 75 O.R. (3d) 357, at para. 63; Cash Converters Canada Inc. v. Oshawa (City), 2007 ONCA 502 (CanLII), 86 O.R. (3d) 401, at para. 32.
(a) a provincial or federal Act or a regulation made under such an Act; or
(b) an instrument of a legislative nature, including an order, licence or approval, made or issued under a provincial or federal Act or regulation.
(2) Without restricting the generality of subsection (1), there is a conflict between a by-law of a municipality and an Act, regulation or instrument described in that subsection if the by-law frustrates the purpose of the Act, regulation or instrument.
 Whether a true conflict exists between federal and provincial legislative enactments has been the subject of considerable jurisprudence. It was most recently discussed in Alberta (Attorney General) v. Moloney, 2015 SCC 51 (CanLII),  3 S.C.R. 327.
 In that case, the Supreme Court of Canada set out the following analytical framework:
i) As a preliminary question, it must be determined whether both laws are validly enacted. If one is invalid, then no conflict can exist: Moloney, at para. 17; see also Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23 (CanLII), at paras. 34-39. The party alleging the conflict bears the burden of proving conflict: Moloney, at para. 27. When examining conflict, it is the effect of the inferior law, and not its purpose that is the focus of the paramountcy analysis: Moloney, at para. 28; Husky Oil Operations Ltd. v. Minister of National Revenue, 1995 CanLII 69 (SCC),  3 S.C.R. 453, at para. 39. That being said, an intention to interfere with the superior government’s purpose may call into question the legitimacy of the inferior law: Moloney, at para. 28; Husky Oil, at paras. 39, 44-45.
ii) If both laws are independently valid, the court must then examine whether the laws’ concurrent operation results in a conflict under either branch of the paramountcy test. The two branches are (1) operational conflict – “there is an operational conflict because it is impossible to comply with both laws”; or (2) frustration of purpose – when, “although it is possible to comply with both laws, the operation of the provincial law frustrates the purpose of the federal enactment”: Moloney, at para. 18.
iii) If conflict is found, the inferior law remains in force but is inoperative to the extent it conflicts with the superior law: Moloney, at para. 29.
 In this case, the parties went straight to the second branch of the paramountcy test – frustration of purpose – which the Divisional Court applied to conclude that the City’s resolution was in conflict with the Sumac Ridge Approval and, therefore, invalid. Although the application could have been disposed of on the basis of the court’s finding of bad faith, given the nature of this dispute, it was, and is, in the interests of justice to determine whether the resolution frustrated the purpose of the Sumac Ridge Approval.
 In Moloney, the court cautioned that the standard for establishing frustration of purpose is high. It identified, at para. 26, that the following situations would generally not lead to a conflict: “For instance, duplicative federal and provincial provisions will generally not conflict. Nor will a conflict arise where a provincial law is more restrictive than a federal law” (citations omitted).
 The court went on to explain that “[t]he application of a more restrictive provincial law may, however, frustrate the federal purpose if the federal law, instead of being merely permissive, provides for a positive entitlement“ (citations omitted).
 The Supreme Court cited Law Society (British Columbia) v. Mangat, 2001 SCC 67 (CanLII),  3 S.C.R. 113, as providing an example of a federal law that created a positive entitlement, rather than being merely permissive, and which was thus frustrated by a more restrictive provincial law.
 In Mangat, the issue was whether provincial legislation preventing non-lawyers from charging a fee to represent persons at Immigration Review Board hearings conflicted with federal legislation: namely, ss. 30 and 69(1) of the Immigration Act, R.S.C. 1985, c. I-2. Section 30 provided that every person before the adjudication tribunal had the right to retain and be represented by “a barrister or solicitor or other counsel” and was to be given a reasonable opportunity to “obtain such counsel at the person’s own expense”. Section 69(1) provided that before the Refugee division the person “may, at that person’s own expense, be represented by a barrister or solicitor or other counsel.”
 In finding that the provincial legislation conflicted with those federal legislative provisions, the Supreme Court applied the modern approach to statutory interpretation to determine the federal purpose. It looked beyond the specific provisions at issue and considered the legislative scheme as a whole, how similar and related acts governed representatives before federal tribunals, and reviewed an Ontario legislative report that highlighted the benefits of non-lawyer representatives.
 Ultimately, and relying heavily on ss. 68(2) and 80.1(4) of the Immigration Act – which called for proceedings to be as informal and expeditious as the circumstances and fairness permit – the court found that in enacting the provisions at issue, Parliament “was pursuing the legitimate objective of establishing an informal, accessible (in financial, cultural and linguistic terms), and expeditious process”: Mangat, at para. 72. The provisions were not simply permissive. They provided a positive entitlement for non-lawyers to represent participants at hearings. Provincial legislation forbidding non-lawyers from charging a fee at the Adjudicative and Refugee divisions was accordingly held to be of no effect.