Английская Википедия:Interjurisdictional immunity
Шаблон:Short description 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.Шаблон:Sfn While a provincial law that imposes a tax on banks may be ruled intra vires,[1] 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.Шаблон:Sfn
The paramountcy doctrine proves that if a valid federal law and a valid provincial law conflict, the federal legislation is paramount, prevails and renders the provincial legislation inoperative to the extent of the conflict. The principal test for determining whether there is a conflict between the two laws is whether the provincial law "frustrates the purpose" of the federal law.[2] In contrast, the interjurisdictional immunity doctrine is activated even if there is no meeting of legislation or contradiction between federal and provincial statutes.Шаблон:Sfn 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.
Early cases
The doctrine was first formulated to deal with the effects that provincial laws could have on federally incorporated companies.Шаблон:Sfn
- In John Deere,[3] 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,[4] 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
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.Шаблон:Sfn However, the scope of the doctrine was expanded in Bell Canada (1966),[6] where a provincial law prescribing 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.[7] In Bell Canada v Quebec (1988), Beetz J declared:
The doctrine was modified in Irwin Toy[8] 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[9] 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.[10]
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.
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):Шаблон:Sfn
While most jurisprudence has revolved around the applicability of provincial laws on undertakings under federal jurisdiction,Шаблон:Sfn 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,[11] as maritime law is at the core of the federal power over "Navigation and Shipping".Шаблон:Sfn
- certain provincial laws regulating hunting have been held not to apply to Indians where they significantly interfere with treaty rights,[12] as such rights have been held to be at the core of the federal power over "Indians and Indian lands".Шаблон:Sfn
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:[13]
- Does the provincial law trench on the protected "core" of a federal competence?
- 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.Шаблон:Sfn The Supreme Court has expressed caution in employing the doctrine in future cases because:[14]
- It is in tension with the dominant approach that permits concurrent federal and provincial legislation with respect to a matter.
- It is in tension with the emergent practice of cooperative federalism.
- 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:
See also
- Intergovernmental immunity - US doctrine
- Intergovernmental immunity - Australian doctrine
References
Further reading
- ↑ Шаблон:Cite BAILII
- ↑ Шаблон:Cite web
- ↑ Шаблон:Cite BAILII
- ↑ Шаблон:Cite BAILII
- ↑ Шаблон:Cite CanLII
- ↑ Шаблон:Cite CanLII
- ↑ Шаблон:Cite CanLII, Шаблон:Cite CanLII and Шаблон:Cite CanLII
- ↑ Шаблон:Cite CanLII
- ↑ Шаблон:Cite CanLII
- ↑ Шаблон:Cite CanLII
- ↑ Шаблон:Cite CanLII
- ↑ Шаблон:Cite CanLII
- ↑ Шаблон:Cite CanLII
- ↑ Шаблон:Cite CanLII
