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Constitution (Non-Charter) - Aviation. Opsis Airport Services Inc. v. Quebec (Attorney General)
In Opsis Airport Services Inc. v. Quebec (Attorney General) (SCC, 2025) the Supreme Court of Canada allowed appeals, here respecting "the contours of the doctrine of interjurisdictional immunity", where a Quebec provincial statute was applied against a federal undertaking.
Here the court locates aviation in the federal-provincial division of power, more specifically under the POGG powers:[54] Aeronautics falls within Parliament’s exclusive jurisdiction as part of its power to make laws for the peace, order and good government of Canada (s. 91 of the Constitution Act, 1867). It has been recognized to be a matter of national importance (see COPA, at paras. 28‑31, citing Johannesson v. Rural Municipality of West St. Paul, 1951 CanLII 55 (SCC), [1952] 1 S.C.R. 292, and Air Canada v. Ontario (Liquor Control Board), 1997 CanLII 361 (SCC), [1997] 2 S.C.R. 581, at para. 72).
[55] A number of precedents have dealt more specifically with the relationship between this exclusive federal jurisdiction and airports. It is now accepted that “the federal aeronautics jurisdiction encompasses not only the regulation of the operation of aircraft, but also the regulation of the operation of airports” (Air Canada, at para. 72; COPA, at para. 31). As McLachlin C.J. noted, “Canada’s airports and aerodromes constitute a network of landing places that together facilitate air transportation and ensure safety” (COPA, at para. 33). Estey J. also recognized several decades ago that “in any practical consideration it is impossible to separate the flying in the air from the taking off and landing on the ground and it is, therefore, wholly impractical, particularly when considering the matter of jurisdiction, to treat them as independent one from the other” (Johannesson, at p. 319; Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453, at para. 27).
[56] Furthermore, in Lafarge, Binnie and LeBel JJ. quoted with approval the comments of MacKinnon J.A. of the Ontario Court of Appeal to the effect that “airports are an integral and vital part of aeronautics and aerial navigation, and cannot be severed from that subject‑matter so as to fall under a different legislative jurisdiction” (para. 64, quoting Re Orangeville Airport Ltd. and Town of Caledon (1976), 1976 CanLII 743 (ON CA), 11 O.R. (2d) 546 (C.A.), at p. 549).
[57] It can be inferred from the guidance provided in our jurisprudence that airport security, insofar as it is related to the security of air transportation itself, is at the core of the aeronautics power. This is self‑evident, because [translation] “[w]ithout safety and security measures, there would simply be no civil aviation” (C.A. reasons (Opsis), at para. 12, per Ruel J.A., dissenting; see also para. 67). Indeed, this observation echoes the statement in Canadian Western Bank that “interprovincial and international carriers have a vital and essential interest in being able to land at an airport or having access to a safe harbour” (para. 54).
[58] The tasks associated with Opsis’s mandate at the Pierre Elliott Trudeau International Airport include providing camera surveillance of interior and exterior locations at the airport and operating the computer systems of the call centre, which receives some of its calls from the control tower (A.R., vol. II, at p. 137; Sup. Ct. reasons (Opsis), at para. 73). These activities unquestionably fall within the core of the aeronautics power because they are related to the security of air transportation itself. The application of the PSA to Opsis’s activities leads to the conclusion that the first condition for the applicability of the doctrine is met. There is an intrusion on the core of an exclusive head of power.
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