Federal Jurisdiction In Municipal Matters: What Happens When The Provinces Or Municipalities Step On Federal Toes?

1. INTRODUCTION:

   The key to success for any ballroom dancing partnership is to understand and respect your role in the partnership, but, most importantly, you must avoid stepping on each other's toes. Failing to follow this sage and seemingly simple advice ultimately results in a loss of balance and a potential breakdown of the partnership. Perhaps the drafters of the Constitution Act, 1867 (the "Constitution") had this sound and reasonable advice in mind when drafting Part VI of the Constitution, being the distribution of legislative powers.1

   Section 91 of the Constitution establishes the legislative authority of the Parliament of Canada to make laws for the peace, order and good government of Canada ("POGG") in relation to all matters not assigned exclusively to the legislatures of the provinces. Section 91 then sets out the specific powers assigned to the federal government with the caution that it is being provided for greater certainty but "not so as to restrict the generality" of the federal government's powers.2

   Section 92 of the Constitution states that in each province the legislature may exclusively make laws in relation to those matters coming within the class of subjects enumerated. Section 92.8 allows provincial legislatures to pass laws to establish municipal institutions within its province. As municipal governments are a product of provincial statutes they are limited to those powers granted to them through legislation enacted by the province and, therefore, remain creatures of provincial legislation.

   Municipalities are not empowered with residuary general powers, which would allow them to exercise dormant provincial or federal powers.3 To act, a municipality must be able to establish a grant of authority within an enabling provincial statute. The Supreme Court of Canada in Nanaimo (City) v. Rascal Trucking Ltd., ruled that a municipality's grant of power must be construed reasonably and generously, however, it cannot receive a power unless it already exists.4

   In theory, the separation of powers between the three levels of government is well defined and each exists within its individual silo. However, the lines often blur and appear to overlap and, before you know it, one level of government ends up stepping on the toes of the other.

   Perhaps the reason for the overlap is that the rules are not as clear as originally envisioned. For example, regulation of the environment has been found to come under the federal government's jurisdiction pursuant to POGG, however, federal legislation in this area would appear to conflict with the provinces' power to regulate property and civil rights under section 92.13 of the Constitution. Similarly, pursuant to POGG under section 91 of the Constitution, the federal government has exclusive jurisdiction over the regulation of aerodromes, yet the province has jurisdiction over property and civil rights (s. 92.13).5 The federal government has exclusive jurisdiction over the regulation of telecommunications and yet the courts have confirmed the provinces' powers to regulate advertising and cable installation.6 The federal government has exclusive jurisdiction over postal services under section 91 of the Constitution, while the province has jurisdiction over both local works and undertakings (s.92.10)7 and property and civil rights (s. 92.13).8

   The aforementioned are but a few examples of overlaps that have arisen within the municipal context. The determination of which level of government has jurisdiction when such overlaps occur has often resulted in protracted and lengthy litigation that has consumed a great deal of the courts' time. This paper will focus on examples of cases where overlap has occurred primarily regarding the interpretation of municipal by-laws and the federal government's jurisdiction in the areas of telecommunication, the environment, postal service and aerodromes.

2. CONSTITUTIONAL INTERPRETATION PRINCIPLES:

   Prior to embarking on a review of specific cases it is important to first provide an overview of key principles of constitutional law to assist in the analysis. The following is a brief overview of the principles applied by the Courts in assessing the validity of provincial legislation, federal legislation and municipal by-laws.

   The Principle of Cooperative Federalism9

   Cooperative federalism envisions the principle that the two levels of Canadian government (federal and provincial) should no longer operate as "watertight compartments,"10 but should instead consult, communicate, and work together.11 It is "a system of relationships between various political actors that allow for the continuous reallocation of responsibilities and resources" without the need to resort to the courts or the amending process.12

   Pith and Substance Doctrine13

   The "pith and substance" of a law or provision refers to its "dominant characteristic" or "matter". This doctrine is necessary for characterizing and classifying the law or provision under a head of power. There is no single test for determining pith and substance, as the approach must be flexible,14 but during this exercise the courts will consider a provision or a law's statutory context, purpose, and effects. A law or provision will be intra vires if its pith and substance falls within the jurisdiction of the enacting legislature. This is true even if it has incidental effects on a matter under the power of another jurisdiction.

   Double Aspect Doctrine15

   Legislation may have a double aspect when it falls under a federal power for one purpose and aspect, and yet for another aspect and purpose, also falls under the provincial powers.16 The double aspect doctrine is an important principle to consider when determining a matter's pith and substance. This doctrine recognizes that both levels of government "can adopt valid legislation on a single subject depending on the perspective from which the legislation is considered."17 If there is no direct conflict between the heads of power, then the provincial law can remain operable; otherwise, the doctrine of federal paramountcy will apply.18

   The Concurrency Doctrine19

   Concurrency is the ability for both the federal and provincial governments to legislate the same matters under the same head of power. Similar to the double aspect doctrine, concurrency is an important principle to consider when determining a matter's pith and substance. It is also important not to confuse concurrency with the double aspect doctrine, which deals with both levels of government legislating a specific matter, but under different heads of power under sections 91 and 92 of the Constitution.

   The Doctrine of Federal Paramountcy20

   Federal paramountcy protects federal powers from provincial intrusion. While both the provincial and the federal governments may legislate on a common matter, the federal legislation will prevail in the event of a conflict. 21 There are two types of potential conflict, the first is where "it is impossible to comply with both laws" and the second occurs where "to apply the provincial law would frustrate the purpose of the federal law."22 Courts have found federal paramountcy preferable over the application of the interjurisdictional immunity doctrine as it will only limit the provincial legislation to the extent that it conflicts with federal jurisdiction and no further.23

   The Doctrine of Interjurisdictional Immunity24

   This doctrine is similar to the principle of federal paramountcy, however, the doctrine of interjurisdictional immunity protects the powers of one level of government from intrusion by the other. This doctrine recognizes that the Constitution is based on exclusive powers allocated to both levels of government, but that these powers are bound to interact. Unlike the doctrine of federal paramountcy, the issue is not whether a provincial and federal law conflict, but whether "a valid provincial law of general application should be deemed to apply to federal things."25 The court asks whether the provision "trenches on the protected 'core' of a federal competence," and if it does, "whether the provincial law's effect on the exercise of the protected federal power is sufficiently serious to invoke the doctrine."26 As noted above, the preferred approach to conflict is to apply the federal paramountcy doctrine. The interjurisdictional immunity analysis should only be used for situations where the courts have established a precedent for its application.27

   Ancillary Powers Doctrine / Necessarily Incidental28

   The ancillary powers doctrine provides a means of saving an otherwise ultra vires provision of a piece of legislation. It is available to both federal and provincial legislatures,29 allowing "one level of government to trench on the jurisdiction of the other in order to enact a comprehensive regulatory scheme."30 For example, if a provision in a federal act is in pith and substance related to a provincial matter, the provision may still be saved if it is sufficiently integrated into a federal scheme such that it is considered necessary but incidental to the main legislation.31 However, it cannot be the central part of the act or scheme that "spills over" into the other jurisdiction (hence, ancillary). Where the subject ultra vires provision is central to the act or scheme, the entire act will be found to be ultra vires.

   The Incidental Effects Rule

   The incidental effects rule is different from the ancillary powers doctrine. It applies where "a provision, in pith and substance, lies within the competence of the enacting body but touches on a subject assigned to the other level of government," and "it holds that such a provision will not be invalid merely because it has an incidental effect on a legislative competence that falls beyond the jurisdiction of its enacting body."32 The ancillary powers doctrine is not invoked simply because there is an incidental or subsidiary effect of a law with a valid core matter - there must be a true "spill-over"...