BWA: All about interjurisdictional immunity

Yael Bienenstock (00:08): Welcome to Breakfast With Appeal, Torys’ Quarterly series on the cases you want to know about. We offer our thoughts on the appellate law that's shaping Canadian conversations. Let's dive in.

Andrew Bernstein (00:23): Good morning, and welcome to Breakfast With Appeal, the “Live from Toronto it's Tuesday Morning” edition. Unlike the obvious show that we're ripping off, we don't have guest hosts. You're stuck with me. I'm Andrew Bernstein, the host of Breakfast With Appeal. And the bad news is that it's my job to give the monologue. The good news is, unlike SNL, we also don't have musical guests. Why is that good news? Because our esteemed panel—David Outerbridge, Yael Bienenstock, Jeremy Opolsky—is a fabulous group of legal minds, but trust me, you do not want to hear them sing. Ever. [Laughter]

Jeremy Opolsky (00:56): That's a little unfair to Yael, who I think can hold her own.

Andrew Bernstein (00:59): Well, I mean, like, it's true. She's, like, decent at litigation karaoke night [laughter]. Sorry, Yael.

Jeremy Opolsky (01:07): Highest of praise.

Yael Bienenstock (01:09): This is very awkward [laughter] is all I have to say. It was less awkward on paper.

David Outerbridge (01:14): So decent, so decent.

Andrew Bernstein (01:16): Alright, well, no guest host, no musical guest, no monologue. What we do have is some damn exciting case law to discuss, and it's also David Outerbridge Appreciation Day, because at least according to the script, he was supposed to sit here quietly until he got called on. [Laughter]

One real change, kidding aside, is that we, we were planning on doing two major cases and four quick hits. We're still going to do two major cases and four a quick hits, but one of the major cases has been demoted.

The... So, we are going to start with a recent case from last week from the Supreme Court. A big, big sea change on interjurisdictional immunity, the Opsis and Québec case. Then we're going to do the Hillier case. The Working Families case that we were supposed to do in more detail has been demoted to a quick hit, and the Québec Bill 21 case was more of a preview of something to come than a case that's been decided recently. So, we'll wait until another Breakfast With Appeal to talk about that. No doubt there'll be plenty of talk about the Bill 21 case.

So, alright, we're on our first segment, post-monologue and following the SNL pattern, it may be kind of interesting, but perhaps not extremely funny. Yael, you're our longstanding federalism expert here. So, can you answer two questions for us? First, what is interjurisdictional immunity? And second, if interjurisdictional immunity was giving its Facebook status update prior to this decision, what would it be and why? [Laughter]

Yael Bienenstock (02:52): Jeremy? [Laughter]

Andrew Bernstein (02:53): Jeremy blew his cue. Alright, that's okay. Nobody’s watching those lines there.

Jeremy Opolsky (02:59): I was laughing too much [laughter]. Anyway.

Yael Bienenstock (03:00): Alright, we're skipping over the joke because I have a lot to say about IJI and there wasn't really enough time for the jokes to begin with. So, interjurisdictional immunity or “IJI”, what is it? It's a constitutional doctrine. And as I'm sure many of you know, section 91 and section 92 of the Constitution Act, 1867 set out a list in each section of classes of subjects where each level of government has quote, “exclusive legislative authority”.

Section 91 is for the federal government, and section 92 is for the provinces. And those subjects that are listed in each of these sections are sometimes called “powers”. Under the current doctrine of IJI—and as I'm going to tell you, it's evolved quite a bit—laws from the other level of government are inapplicable if they impair the core of a particular power, and in the abstract, that probably means very little. So, I'll get into this a little bit.

So, if you're looking at a law and you want to decide whether it's applicable to a particular matter, you need to say, okay, what matter does—let's say, for example, the federal government—why does it have jurisdiction over that? What is the core? What's the power at issue? What's the core of the power at issue?

And does this law from, let's say the provinces, impair it? So, this is admittedly a lot of, I think, constitutional jargon. I sometimes think about IJI as an immunity bubble. The bubble sits at the core of a power, and a law from the other level of government can prick the bubble, gently, as long as it doesn't actually burst the bubble. But if a law bursts the bubble—or quote unquote, “impairs the core” of the bubble or power—then under IJI, the law is inapplicable. So, this isn't a perfect analogy, but I think it helps explain some of the jargon.

So, the doctrine of IJI has a bit of a checkered history, and I would say courts have somewhat of a love-hate relationship with IJI. It first came about in a railway case in the late 1800s, so it's been around for a long time. And that was a case about a dirty ditch. And [laughter] the Privy Council explained [laughter]—not sure why dirty ditch is so funny…

Jeremy Opolsky (05:12): That was funnier than your bad phone joke.

Yael Bienenstock (05:15): Okay. Which you didn’t comment on. [Laughter]

Andrew Bernstein (05:16): You mean the one you missed? Okay, yeah.

Yael Bienenstock (05:19): Okay. Not intended to be funny. The Privy Council explained in that case that the federal government has extensive powers to regulate the construction, repair and alteration of a railway (this was a ditch beside a railway), and so only the federal government can legislate with respect to the structure of the ditch. But Québec could require the ditch to be kept clean of silt and rubbish.

And so that was a case where the Court sort of articulated this idea that you have a core of the power, where one level of government has exclusive jurisdiction and other laws can come close, they can do things, but they can't really, you know—there's a sort of a bubble of exclusivity. And I would say the Bell trilogy that came almost 100 years later in the 1980s, that represents the love and the love-hate relationship.

In that case, the Court held that provincial health and safety laws were inapplicable to federal undertakings. IJI applied to protect the federal undertaking, as long as the provincial law affected the federal power. So back to the bubble analogy, a prick in the bubble was good enough for the doctrine of IJI to apply. But as constitutional law in general drifted away from this idea of watertight compartments of power and cooperative federalism became more popular, IJI fell out of favour and the Supreme Court of Canada's decision in Canadian Western Bank, I think, represents the hate in the love-hate relationship.

And in that case, the bank was arguing that because of IJI, provincial insurance legislation did not apply to banks that were promoting insurance projects, and the Court flatly rejected that argument. And in doing so, it went on a bit of a rant against IJI. The Court articulated all kinds of problems with it. It was asymmetrical because while in theory it could apply to either provincial or federal powers, in practice it's only ever applied to federal powers.

Now, that is true, although courts have certainly not shut the door to provincial IJI, and the Alberta Court of Appeal accepted it in the IAA reference. But the Court articulated other problems with this as well. They said IJI can create uncertainty, because what is the core of a power anyway? How do you figure out what that is? It can create a legal vacuum, because it makes a law from one level of government inapplicable to an area where other—or the other level of government has jurisdiction, even if the other level of government hasn't actually enacted any laws in the area, so you can have a situation where there are no laws.

And so, the Court said going forward, courts should take a more restrictive approach to IJI. And they put in place sort of two concrete things that make the test stricter. First, they changed the test from the Bell case, which said IJI applied where a law “affected” the core of the power to “impairing” the core of the power. So, this is where we get to, you know, bursting the bubble, not just pricking the bubble. Second, the court explained that the doctrine should not be expanded. We're not getting rid of it, but we're leaving it the way it is. It should be generally reserved for situations covered by precedent.

But aside from those two steps, the Court also made it clear that they just didn't like IJI. They specifically said, “We intend now to make it clear that the Court does not favor an intensive reliance on the doctrine, and should not be a doctrine of first recourse in a division of powers dispute”. So, pretty strong language from the Supreme Court of Canada on IJI.

Now, in practice, after the Canadian Western Bank case, IJI was not completely in the doghouse. There were some notable exceptions where courts did, you know, embrace IJI. One was the Rogers case in 2016. In that case, a municipality was trying to stop Rogers from building an, an antenna where it wanted to, and the Court said “No, the municipal law impairs the core of the federal power over radio communication, and therefore it's inapplicable under IJI”. And more recently—

Andrew Bernstein (09:17): That was a John Laskin case.

Yael Bienenstock (09:18): That was a John Laskin case.

Andrew Bernstein (09:19): Our former colleague and now Justice Laskin.

Yael Bienenstock (09:20): Yeah, I realize these are both Torys cases. There are probably other cases too. But these are, I think two notable—

Andrew Bernstein (09:25): We've won all the good IJI cases.

Yael Bienenstock (09:27): [Laughter] Okay, you could say that.

Jeremy Opolsky (09:32): You did!

Yael Bienenstock (09:27): I wasn't going to, I wasn't going to say it, but I was thinking it. [Laughter]

Jeremy Opolsky (09:34): You did, in fact, just say that. Yeah.

Yael Bienenstock (09:36): So, the other one I was going to talk about very briefly is, Andrew and I represented CN railway in a case where CN was trying to build—or was, is building—a project in Milton to facilitate the transfer of goods from trucks to trains. And there were a number of municipalities in Halton that were opposed to the project. And among other things, they were trying to insist that CN apply for a whole myriad of permits and approvals where any one of them would enable the municipality to say, no, you can't do this aspect of the project, or no, you can't do that aspect of the project and not being able to do a particular aspect of the project.

For example, if you can't cut a curb to have a road that goes into the project, you can't really have the project. That would have made it impossible for CN to go ahead with the project. And the Court of Appeal in that case said—well, both levels of court—said that is, these laws, these permitting laws are inapplicable by virtue of IJI. Now, turning to the Facebook status question. That was the second question, right?

Andrew Bernstein (10:38): You forgot because it was so long ago. [Laughter]

Yael Bienenstock (10:42): It was so long ago. I will admit. I was like, what is HIJI? There’s, like, many answers to that question. Depends when, you didn't specify [laughter]. So, I will just say I'm not that familiar with Facebook status updates [laughter]. So, I'm going to go with a movie title and changing the question. And before we get to the case we're about to talk about, I would say the movie title is It's Complicated.

Andrew Bernstein (11:05): Which is also, I believe, a Facebook status update. [Laughter]

Yael Bienenstock (11:07): Okay. But it's also a movie.

Andrew Bernstein (11:09): Alright.

Yael Bienenstock (11:11): Done.

Andrew Bernstein (11:12): Okay, done.

That about wraps up our conversation. Before we go, I want to remind our listeners that they can find the webinar version of this edition of Breakfast With Appeal, along with previous episodes, on torys.com, and that our BWA program is eligible for one substantive hour of continuing professional development. Thanks again for joining us and take care.