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Constitution - Interjurisdictional Immunity. 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 notes that a constitutional 'pith and substance' analysis should precede the one for 'interjurisdictional immunity':[51] We note that a court must conduct a pith and substance analysis “before inquiring into the application of the doctrines of interjurisdictional immunity and federal paramountcy, both of which are predicated on the constitutional validity of the impugned statute or measure” (Rogers, at para. 35; see also Canadian Western Bank, at para. 76; Alberta (Attorney General) v. Moloney, 2015 SCC 51, [2015] 3 S.C.R. 327, at para. 17). In these appeals, it is not in dispute that the PSA’s purpose is to regulate the private security industry and that this statute comes within provincial jurisdiction over property and civil rights (s. 92(13) of the Constitution Act, 1867; C.A. reasons (Opsis), at para. 134; C.A. reasons (QMS), at para. 95). Its validity is not in issue.
[52] In addition, this Court has previously suggested that it is “generally” preferable for federal paramountcy to be considered before interjurisdictional immunity in “the absence of prior case law favouring its application to the subject matter at hand” (Canadian Western Bank, at para. 78). This suggestion was made in order to favour, where possible, the concurrent application of statutes enacted by both levels of government. However, some authors have criticized this suggestion, noting that a statute’s applicability should be considered before its operability (see Hogg and Wright, at § 15:16; R. Elliot, “Interjurisdictional Immunity after Canadian Western Bank and Lafarge Canada Inc.: The Supreme Court Muddies the Doctrinal Waters — Again” (2008), 43 S.C.L.R. (2d) 433, at pp. 495‑96). It must in fact be recognized that, in most cases, this latter approach will be the most logical and appropriate one. Indeed, in all of our decisions subsequent to Canadian Western Bank that have dealt with both doctrines, namely British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23, [2007] 2 S.C.R. 86, COPA, Marine Services, Marcotte and Desgagnés Transport, the doctrine of interjurisdictional immunity has been addressed first. That being said, it is not out of the question that, in some circumstances, it will be expedient to consider the doctrine of federal paramountcy before that of interjurisdictional immunity. It sometimes also happens that only the doctrine of federal paramountcy is relied upon. A party is not required to raise the doctrine of interjurisdictional immunity first, or even at all, if it chooses to base its challenge exclusively on the doctrine of federal paramountcy. . Opsis Airport Services Inc. v. Quebec (Attorney General) [how certain intrusion must be]
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.
The court considers how 'certain' the provincial intrusion must be to invoke the doctrine of interjurisdiction immunity:(iv) Power of the Bureau To Issue Directives Regarding an Agency Licence Holder’s Activities
[76] To “protect the public”, the Bureau may, in particular, issue “directives to an agency licence holder regarding the agency licence holder’s activities” (s. 42(1) PSA). Because this power relates solely to agency licences, it concerns the Opsis case only. Section 29(4) PSA provides that if an agency licence holder “fails to follow the directives issued by the Bureau”, its licence may be suspended, cancelled or not renewed.
[77] The majority of the Court of Appeal noted that this power represents at most a [translation] “purely speculative impairment” as there is no certainty that the Bureau will exercise it and, furthermore, that if it does, it will exercise it in a manner that impairs the core of the federal aeronautics power (C.A. reasons (Opsis), at paras. 202‑3 (emphasis deleted)).
[78] Respectfully, we cannot accept that view for reasons similar to those just stated. Like the Bureau’s powers in relation to standards of conduct, the power to issue to an agency licence holder “directives ... regarding the agency licence holder’s activities” gives the Bureau a broad discretion. This power is a sword of Damocles hanging over the head of an enterprise like Opsis, given that the Bureau has the authority to dictate how it must carry on its airport security activities and that, it if fails to comply, it may lose its agency licence (s. 29(4) PSA) and thus no longer be able to carry on private security activities (s. 4 PSA). It therefore seems clear that the application of s. 29(4), which must be read in conjunction with s. 42(1) PSA, has the effect of subjecting Opsis’s activities falling within the core of an exclusive power of Parliament to the control of an administrative body created by the provincial legislature. Here again, we have no difficulty in concluding that there is an impairment of the core of Parliament’s exclusive aeronautics power.
[79] The courts below also discussed the broad investigation and inspection powers granted to the Bureau (ss. 69 to 74 PSA). These powers in themselves have no effect on the activities of Opsis and QMS that fall within the core of an exclusive federal power. However, it can be said that these powers represent the vehicle by which the Bureau is able to exercise certain powers that, as has just been found, amount to impairments. . Opsis Airport Services Inc. v. Quebec (Attorney General) [remedy]
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.
The court finds that the doctrine of interjurisdictional immunity applies, and grants a read-down s.52(1) declaration remedy:[84] From this perspective, it seems clear that the Quebec legislature would not have enacted the PSA without the impairing provisions, which are truly unseverable from the rest of the statute and essential to the whole of which they form part. Since a targeted declaration of inapplicability might change the nature of the legislative scheme intended by the legislature, the appropriate remedy is to read down the statute as a whole so that the appellants are excluded from its scope (see, by analogy, Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629, at para. 114; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 50‑51). . 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:[1] These appeals afford this Court an opportunity to look once again at the contours of the doctrine of interjurisdictional immunity. Since the landmark case of Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, the Court has continued, for the reasons mentioned in that case, to take a cautious approach to the applicability and scope of this doctrine. Despite this Court’s hesitation to make increased use of this doctrine, our jurisprudence shows that it still remains useful. The reasons that follow are in line with the decisions rendered by this Court since Canadian Western Bank.
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VI. Should the PSA Be Declared Constitutionally Inapplicable to the Appellants Pursuant to the Doctrine of Interjurisdictional Immunity?
A. General Principles
[32] The doctrine of interjurisdictional immunity serves to protect the core of an exclusive power — either federal or provincial — from being impaired by the other level of government. It is rooted in the notion of exclusivity that appears in the text of ss. 91 and 92 of the Constitution Act, 1867 (Canadian Western Bank, at para. 34) and is thus anchored in our law, since the primacy of the written Constitution is “one of the fundamental tenets of our constitutional framework” (Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693, at para. 18; Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at para. 53).
[33] In Canadian Western Bank, this Court stated that the doctrine of interjurisdictional immunity should be applied with restraint (para. 67). This approach can be explained by the tension that exists between this doctrine and the modern conception of cooperative federalism, which favours, “where possible, the ordinary operation of statutes enacted by both levels of government” (para. 37 (emphasis in original); Bank of Montreal v. Marcotte, 2014 SCC 55, [2014] 2 S.C.R. 725, at para. 63).
[34] Though it is “constrained by principle and precedent”, the doctrine of interjurisdictional immunity continues to play an essential role in relation to federalism, because it makes it possible to “balanc[e] the need for intergovernmental flexibility with the need for predictable results” (Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536 (“COPA”), at para. 58).
[35] When the doctrine applies, “the impugned provisions remain valid but are declared inapplicable to matters that would fall under the core of the exclusive head of power of the other order of government” (Desgagnés Transport Inc. v. Wärtsilä Canada Inc., 2019 SCC 58, [2019] 4 S.C.R. 228, at para. 90; Marcotte, at para. 64). This involves reading down the impugned provisions (Sharp v. Autorité des marchés financiers, 2023 SCC 29, at para. 113, quoting P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at §§ 15:15‑15:16, and citing H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (6th ed. 2014), at para. VI‑2.56).
[36] The application of the doctrine depends on two conditions being met: (1) intrusion on the core of an exclusive head of power and (2) impairment of the core of the exclusive head of power. Each of these conditions, as will be discussed below, significantly limits the scope of the doctrine of interjurisdictional immunity.
(1) First Condition: Intrusion on the Core of an Exclusive Head of Power
[37] For the doctrine of interjurisdictional immunity to apply, the first requirement is that the impugned provision or provisions intrude on the core of an exclusive head of power of the other level of government. The core of a power is its “basic, minimum and unassailable” content (Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), 1988 CanLII 81 (SCC), [1988] 1 S.C.R. 749 (“Bell Canada (1988)”), at p. 839; Canadian Western Bank, at para. 50; COPA, at para. 35; Desgagnés Transport, at para. 93). This notion serves to identify and delineate “the authority that is absolutely necessary” to enable Parliament or a provincial legislature to effectively achieve the purpose for which the power was conferred (Canadian Western Bank, at para. 77; COPA, at para. 35; Desgagnés Transport, at para. 93). The consideration of evidence can sometimes assist in determining the core of an exclusive head of power (see, e.g., Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23, [2016] 1 S.C.R. 467, at para. 66).
[38] It is clear that the concept of core is “necessarily narrower” than the concept of the scope of the power (Desgagnés Transport, at para. 95; see also Brun, Tremblay and Brouillet, at para. VI‑2.62). The jurisprudence will frequently serve as a “useful guide” in identifying the core of an exclusive head of power (COPA, at para. 36, citing Canadian Western Bank, at para. 77; Marine Services, at para. 55). It was noted in Canadian Western Bank that the application of the doctrine of interjurisdictional immunity should “in general” be reserved for situations already covered by precedent (para. 77). As the Quebec Court of Appeal has rightly observed, the words used by Binnie and LeBel JJ. in that case reflect an intention “to favour the application of the doctrine of interjurisdictional immunity when a precedent exists, without, however, necessarily prohibiting it in the other situations” (Attorney General of Quebec v. IMTT‑Québec inc., 2019 QCCA 1598, 30 C.E.L.R. (4th) 1, at para. 173).
[39] The jurisprudence subsequent to Canadian Western Bank has maintained the flexibility of the approach adopted by the Court (see, e.g., Rogers, at para. 61, where the adverb “generally” is used, and Desgagnés Transport, at para. 93, where the adverb “usually” is used). In Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, McLachlin C.J. also noted that the fact that the core of a power has never been recognized in the jurisprudence “is not determinative”, since it remains possible that new exclusive fields of jurisdiction will be identified in the future (para. 67).
(2) Second Condition: Impairment of the Core of the Exclusive Head of Power
[40] Since Canadian Western Bank, it has been well settled that not every degree of intrusion will trigger the application of the doctrine of interjurisdictional immunity: there must be an impairment (para. 48; COPA, at para. 43; Desgagnés Transport, at para. 92). Impairment implies that there are adverse consequences, and it must therefore involve more than mere effects, without necessarily amounting to paralysis or sterilization (Canadian Western Bank, at para. 48). The core of the exclusive power of Parliament or a provincial legislature must be seriously or significantly trammeled (COPA, at para. 45; Marine Services, at paras. 56, 60 and 64; Marcotte, at para. 64; Rogers, at paras. 59 and 70).
[41] The impairment test strikes an appropriate balance and continues to reflect a “growing resistance to the broad application of interjurisdictional immunity based on modern conceptions of cooperative federalism and a perceived need to promote efficacy over formalism” (COPA, at para. 44). Moreover, for the doctrine of interjurisdictional immunity to apply, it is not necessary to show that there is a conflict between the laws of the two levels of government or even that “the government benefiting from the immunity [is] exercising its exclusive authority” (PHS, at para. 59; see also Canadian Western Bank, at para. 34; COPA, at para. 52; Brun, Tremblay and Brouillet, at para. VI‑2.66; G. Régimbald and D. Newman, The Law of the Canadian Constitution (2nd ed. 2017), at §5.91).
[42] Determining whether the core of an exclusive power has been impaired is a question of law: the analysis focuses solely on the effects of the statute of the other level of government on the core of an exclusive power (COPA, at para. 57). Even though the evidence adduced by the parties will in most cases be helpful, the analysis does not depend on it. Indeed, “the focus of the inquiry must be on the power itself” (para. 48).
[43] It has been said in our jurisprudence that an impairment must relate to the core of the exclusive power of the other level of government or to “the vital or essential part of an undertaking it duly constitutes” (Canadian Western Bank, at para. 48; see also paras. 51‑52). The intervener the Canadian Telecommunications Association stresses the importance of this passage, which implies that there are two ways for the application of the doctrine of interjurisdictional immunity to be triggered. However, it must be emphasized that the focal point of the doctrine is the core of the exclusive power. From this perspective, assessing how the impugned statute affects “the vital or essential part” of an undertaking is rather an approach that can indicate in concrete terms that the impugned statute has an impairing effect on the core of the exclusive power (J. G. Furey, “Interjurisdictional Immunity: The Pendulum Has Swung” (2008), 42 S.C.L.R. (2d) 597, at p. 601).
[44] This is in fact what was suggested in Bell Canada (1988), which still contains some relevant teachings despite those regarding the necessary degree of intrusion being rendered obsolete by Canadian Western Bank. Beetz J. clearly stated that consideration of a statute’s effects on the activities of an undertaking may provide a strong indication of whether there is an unacceptable degree of intrusion:If the application of a provincial statute to a federal undertaking has the effect of impairing or paralyzing it, that a fortiori is an almost certain sign that such application bears upon the specifically federal nature of the undertaking and constitutes an encroachment on the exclusive legislative authority of Parliament. [p. 860] [45] The usefulness of such an approach is illustrated, inter alia, by Marcotte, in which the Court looked at the practical effects of the impugned provisions of a provincial statute on the appellants’ banking operations and determined that those effects were insufficient to find that the core of Parliament’s exclusive jurisdiction over banking was impaired (paras. 66‑67 and 69). Similarly, in Rogers, the Court considered how the impugned regulatory measure interfered in concrete terms with the activities of a telecommunications undertaking. That inquiry led the Court to find that the regulatory measure in question “seriously and significantly impaired the core of the federal power over radiocommunication” (paras. 71‑72). Rogers shows that, ultimately, considering the effects of an impugned statute on a vital or essential part of an undertaking relates to the analysis of the second condition that must be met for the doctrine to apply, namely an impairment of the core of an exclusive power.
[46] Even where the evidence is silent in this regard, it is possible to take into account the effects of the impugned statute’s application that may amount to an impairment:In deciding what constitutes impairment the Court cannot disregard potential impairment or effects, especially when, as here, far‑reaching provincial statutes are at issue here designed to be accompanied by a large number of regulations, ordinances or remedial orders, or which can have major as well as minor effects on the undertaking, effects which cannot be foreseen at the time the Court must rule on whether the statute is applicable, as is true for example with exercise of the right of refusal.
(Bell Canada (1988), at p. 862) [47] While much water has flowed under the bridge since Beetz J. made these remarks, they remain relevant. COPA provides a good illustration of this point. In that case, two private citizens had built an aerodrome that was registered under a statute enacted by Parliament. The aerodrome was situated in a designated agricultural region. However, a provision of a provincial statute relating to the preservation of agricultural land prohibited the use of a lot in such a region for any purpose other than agriculture without the prior authorization of an administrative body (para. 9). The Court held that this provincial provision “does impair the federal power to decide when and where aerodromes should be built” (para. 47). Discussing the nature of the impairment, McLachlin C.J. did not confine her analysis to the particular facts of the appeal in COPA; she considered the effects of the application of the provision in issue:Section 26 of the [Act respecting the preservation of agricultural land and agricultural activities, R.S.Q., c. P‑41.1 (“ARPALAA”)] significantly restricts, or impairs, Parliament’s power to determine where aerodromes may be constructed. Section 26 of the ARPALAA does not sterilize Parliament’s power to legislate on aeronautics; the doctrine of paramountcy would permit Parliament to legislatively override provincial zoning legislation for the purpose of establishing aerodromes. But the ARPALAA would nevertheless seriously affect the manner in which the power can be exercised. Instead of the current permissive regime, Parliament would be obliged to legislate for the specific location of particular aerodromes. Such a substantial restriction of Parliament’s legislative freedom constitutes an impairment of the federal power. [Emphasis deleted; para. 48.] [48] Similar reasoning was applied by Gonthier J. in Commission de transport de la Communauté urbaine de Québec v. Canada (National Battlefields Commission), 1990 CanLII 87 (SCC), [1990] 2 S.C.R. 838, where the effects of the application of a permit system created by a provincial statute were considered. Gonthier J. found that, if it applied, “[t]he consequence . . . would be to make the setting up, substance and maintenance of the federal transport service subject to the largely discretionary control of the Commission des transports and the government, when these aspects are within exclusive federal jurisdiction” (p. 860). Consideration of the effects of the application of impugned legislation has also led appellate courts to find impairments (IMTT, at paras. 218‑21; Halton (Regional Municipality) v. Canadian National Railway Co., 2024 ONCA 174, 171 O.R. (3d) 41, at paras. 75‑76; Vancouver International Airport v. Lafarge Canada Inc., 2011 BCCA 89, 331 D.L.R. (4th) 737, at para. 59).
[49] For example, in IMTT, a decision of the Quebec Court of Appeal, the doctrine of interjurisdictional immunity was relied on by an enterprise carrying on activities that fell within the core of Parliament’s maritime jurisdiction. The impugned sections of the provincial statute subjected “development projects to a discretionary provincial authorization” that could be granted only after an environmental assessment had been carried out, which meant that “Quebec’s Minister of the Environment and the Government of Quebec can authorize or refuse to authorize a project, place conditions on such an authorization and, since the 2017 amendments, even regulate a project piecemeal” (para. 206). Before the Court of Appeal, the province’s Attorney General argued that courts should “assume that the provincial authorities will exercise their discretionary powers so as not to interfere with the [core of a] federal head of power” (para. 220). This argument was convincingly rejected:This argument does not withstand analysis, because its direct result would be to circumvent the exclusive federal jurisdiction over federal public property used for federal purposes.
The Government of Quebec has no constitutional jurisdiction to approve projects on federal public property used for purposes or activities related to an exclusive federal head of power . . . .
... The principle of environmental precaution cannot, in and of itself, serve as the basis for the environmental assessment of a project if the level of government carrying out the assessment has no decision‑making jurisdiction with respect to the project. Allowing a level of government to require the assessment of a project that falls exclusively within the jurisdiction of the other level of government, without the requirement that it exercise a decision‑making power based on an otherwise valid constitutional jurisdiction, would jeopardize the Canadian constitutional balance. [paras. 220‑22] [50] We agree with that approach. Predictability is key to “the proper functioning of the division of powers” (PHS, at para. 65, citing Canadian Western Bank, at paras. 23‑24), and for predictability to be ensured, it is important to take into account the effects of the application of the impugned statute, whether they have materialized or not. This must be so because the analysis is essentially based on the interpretation of the statute of the other level of government. There is no valid reason to take a “wait and see” position (see Halton, at para. 76) when the interpretation of a legislative provision or scheme clearly reveals the potential (Bell Canada (1988), at p. 862) for impairment of the core of an exclusive power. . BNSF Railway Company v. Greater Vancouver Water District
In BNSF Railway Company v. Greater Vancouver Water District (Fed CA, 2025) the Federal Court of Appeal dismissed an appeal [under the Canada Transportation Act, s.41(1)], here from a CTA decision that "found the rerouting works suitable and authorized the District to construct and maintain them at the District’s cost".
Here the court considers interjurisdictional immunity:[130] While a federal undertaking is not immune from provincial legislation, interjurisdictional immunity applies when provincial legislation would impair (without necessarily sterilizing or paralyzing) the federal power or undertaking: Canadian Western Bank v. Alberta, 2007 SCC 22 at para. 48. The doctrine of interjurisdictional immunity applies to the essential functions and parts of railway operations: Ontario v. Canada Pacific Ltd., (1993), 1993 CanLII 8608 (ON CA), 13 O.R. (3d) 389, 103 D.L.R. (4th) 255, at 394, affirmed 1995 CanLII 112 (SCC), 1995 2 S.C.R. 1031, 125 D.L.R. (4th) 385; Halton (Regional Municipality) v. Canadian National Railway Company, 2024 ONCA 174, leave to appeal to SCC refused, 41248 (11 July 2024).
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