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Immunity - Interjurisdictional

. Halton (Regional Municipality) v. Canadian National Railway Company

In Halton (Regional Municipality) v. Canadian National Railway Company (Ont CA, 2024) the Court of Appeal considered (and dismissed) appeals of denials of injunction and declaration applications by several local municipalities against CN, this with respect to the construction of a huge rail intermodal hub near Milton. The primary issue was the extent to which this federal project required provincial and municipal authorizations in the face of the doctrine of 'interjurisdictional immunity'.

Here the court usefully assesses the doctrine of 'interjuridictional immunity', and applies it to the issue at hand (the three 'non-premature' bylaws) [paras 52-76]:
C. Did the application judge err in law by misapplying the law of interjurisdictional immunity to the three bylaws?

[44] Cooperative federalism, an animating consideration in modern constitutional law in Canada relating to the division of powers, holds that statutes enacted by both levels of government should be permitted to operate, where possible: Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at para. 37; Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23, [2016] 1 S.C.R. 467, at para. 38. Notwithstanding the allure of cooperative federalism, there are times when designated constitutional powers would be inappropriately eroded by concurrent jurisdiction: Rogers Communications Inc., at para. 39. The doctrine of “interjurisdictional immunity” therefore serves to qualify the operation of cooperative federalism by preventing concurrent jurisdiction in limited circumstances: Canadian Western Bank, at para. 34. Where it operates, interjurisdictional immunity prevents laws validly enacted by one order of government from impairing the “unassailable core” content of a head of power or a vital or essential aspect of an undertaking that is specified as exclusive under the Constitution Act, 1867: Canadian Western Bank, at paras. 33 - 34; Bank of Montréal v. Marcotte, 2014 SCC 55, [2014] 2 S.C.R. 725, at para. 62. This doctrine does not invalidate an impairing provision but renders it inapplicable insofar as it affects the vital part of the exclusive head of power that is being protected: Marcotte, at para. 64.

[45] Given the high value attached to cooperative federalism, the doctrine of interjurisdictional immunity is given limited application to prevent it from granting “sweeping immunity”: Canadian Western Bank, at paras. 38, 77; Marcotte, at para. 63. Limits are imposed on the reach of interjurisdictional immunity in two different ways.

[46] First, the doctrine is to be used with restraint: Canadian Western Bank, at para. 67. It should “in general be reserved for situations already covered by precedent” (emphasis added): Canadian Western Bank, at para. 77; Marcotte, at para. 63; Québec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536 [“COPA”], at para. 26; Rogers Communications Inc., at para. 61; Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44, [2013] 3 S.C.R. 53, at para. 49. At times Halton appeared to suggest that interjurisdictional immunity simply cannot be applied absent a precedent. This overstates the law. The doctrine of interjurisdictional immunity “will usually not expand… to protect the core of legislative powers that have not already been so defined in our jurisprudence” (emphasis added): Desgagnés Transport Inc. v. Wärtsilä, 2019 SCC 58, [2019] 4 S.C.R. 228, at para. 93. And in Canada (Attorney General) v. P.H.S. Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, at para. 67, a case where there was no precedent on point, McLachlin C.J. said, for the Court, “[t]his is not determinative since new areas of exclusive jurisdiction could in theory be identified in the future,” albeit courts are “reluctant” to do so. However, it remains true that ordinarily, the absence of an established precedent will present a formidable obstacle to an interjurisdictional immunity claim.

[47] Second, to prevent interjurisdictional immunity from being given broad sweep the doctrine is applied strictly even in those spheres where it is available for consideration. To be rendered ineffective under this doctrine a law must: (1) impair, (2) a “core” or “vital and essential” element of the exclusive power.

[48] “Impair” is a higher standard than “affect”, the standard that once applied. For interjurisdictional immunity to be conferred under the current law, the impugned law must intrude in a significant or serious way on the exercise of the core competence, although “it need not paralyze it” or “sterilize it”: COPA, at paras. 43 - 45.

[49] A “core” of a federal power – the thing that must be impaired by the impugned law for interjurisdictional immunity to operate – has been described as the “‘basic, minimum, and unassailable content’ of the legislative power in question which is ‘necessary to make the power effective for the purpose for which it was conferred’”: Desgagnés Transport Inc., at para. 93 (citations omitted). As indicated, the core is often identified by considering what is “vital or essential” to achieve the purpose for which exclusive legislative power was conferred.

[50] There are generally two steps in an interjurisdictional immunity inquiry. The first step is to determine whether the impugned law trenches on the protected core of the other level of government’s exclusive legislative jurisdiction: COPA, at para. 27; Rogers Communications Inc., at para. 59. This involves determining what is in the core of the power or undertaking, a determination that should be guided by precedent. This is done by asking, what is the “basic, minimum, and unassailable content” of the legislative power in question, which is “necessary to make the power effective for the purpose for which it was conferred”: Desgagnés Transport Inc., at para. 93. If interjurisdictional immunity could apply based on this inquiry because the impugned law will intrude upon the protected undertaking, the second step is launched, which is to resolve whether the impugned law’s intrusion on the exercise of the protected undertaking is sufficiently serious to invoke the doctrine: COPA, at para. 27. This involves determining whether the impugned law “impairs” an aspect of the law or undertaking that “makes them specifically of [the exclusive] jurisdiction”: Canadian Western Bank, at paras. 48 - 49, 51; British Columbia (Attorney General). v. Lafarge Canada Inc., 2007 SCC 23, [2007] 2 S.C.R. 86, at para. 115.

[51] Halton submits that the application judge made extricable errors of law in answering each of these questions. I will address Halton’s arguments following the structure for analysis I have just described.

Did the Application Judge Err in Deciding that the Three Bylaws Intruded Upon a “Core” Federal Undertaking?

[52] The parties agree that the federal government has exclusive jurisdiction over interprovincial railways. Section 91(29) of the Constitution Act 1867 provides the federal government with exclusive jurisdiction over subjects “expressly excepted” from matters otherwise exclusively within provincial jurisdiction. Section 92(10)(a) expressly excludes interprovincial railways from exclusive provincial jurisdiction over “Local Works and Undertakings”, while s. 92(10)(c) does the same for works that Parliament declares to be for the general advantage of Canada, which Parliament did with respect to “railway and other transportation works in Canada of CN” in s. 16(1) of the CN Commercialization Act, S.C. 1995, c. 24.

[53] However, Halton argues that the three bylaws do not intrude upon the core of the railway undertaking that is protected by interjurisdictional immunity and submits that the application judge erred in finding otherwise.

[54] As I will explain, in the decision under appeal, the application judge identified the core of federal jurisdiction over railway undertakings as including the power to decide where the intermodal hub could be constructed and operated, and he reasoned that since the bylaws purported to require municipal consent to proceed with the construction, they impaired that vital or essential core. Halton offers overlapping arguments to the contrary.

[55] First, Halton argues that the application judge erred by characterizing the intermodal hub as a railway undertaking. In oral submissions it stressed that “the trucking component [of the intermodal hub] is critical”, and a “dominant feature”. It emphasized that most of these trucks will not be owned or operated by CN, and that many of them will be conducting short haul operations within Ontario. In a reply factum, Halton argues that a finding that the intermodal hub is at the core of the federal power, and that this core is impaired, must be based on evidence, which it claims was lacking before the application judge. On this basis, Halton submitted that the intermodal hub is not, and has not been shown to be a railway undertaking, thereby falling outside of the exclusive jurisdiction of the federal government over interprovincial railways. To buttress its arguments, Halton relies upon s. 16(2) of the CN Commercialization Act, which provides by way of exception, that the s. 16(1) declaration of general advantage “does not apply to the … operation of motor vehicles of all kinds for the carriage of traffic in conjunction with or substitution for the rail services managed or controlled by CN.”

[56] I am not persuaded that the application judge erred in treating the intermodal hub as a vital part of a railway undertaking. There was ample evidence before the application judge establishing that the function of the intermodal hub is to enable the transport of goods in and out of the Greater Toronto Area by rail. The use of containers to permit goods to be transferred more effectively from truck to railcar at the intermodal hub does not change this. In Canadian Western Bank, at para. 54, Binnie J. and Lebel J. summarized the federal transportation cases to assist in their analysis of that case. Remarks they made when considering Ontario (Attorney General) et al. v. Winner et al., 1954 CanLII 289 (UK JCPC), [1954] 4 D.L.R. 657 (P.C.), are apt. Winner involved provincial legislation purporting to regulate where interprovincial bus passengers could embark or disembark. Citing Winner, Binnie J. and Lebel J. commented that such legislation “would ‘destroy the efficacy’ of the federal undertaking” before saying, at para. 54:
For a province to regulate that part of the undertaking would be to usurp the regulatory function of the federal government. Access to passengers and cargo, in other words, was absolutely indispensable and necessary to the carriers’ viability.
[57] It follows, in my view, that the involvement of the trucks does not alter the function of the intermodal hub as an essential part of the railway undertaking. The intermodal hub serves the railway in the same way a more conventional railway station does, as a location to embark and disembark cargo. Trucks must use the intermodal hub to provide the railway with access to cargo, an indispensable and necessary function to the railway’s viability. This in no way undercuts the fact that the intermodal hub is a vital part of the railway installation.

[58] To be clear, I am not suggesting that the province and the municipalities cannot regulate the operation of the trucks that operate in conjunction with CN’s railway operations, as contemplated by s. 16(2) of the CN Commercialization Act. Of course, they can. The instant point is that the fact that trucks will use the intermodal hub to provide access to the cargo that CN will then transfer to its trains and move by rail does not alter the reality that the intermodal hub is a vital aspect of an interprovincial railway installation – a federal undertaking – and that the application judge made no error in considering it to be.

[59] Second, Halton argues that the application judge erred by finding there was “ample precedent for interjurisdictional immunity in relation to the location and operation of interprovincial railway undertakings and undertakings declared to be of national import”. Halton takes a decidedly narrow view of the precedent requirement in supporting this submission. Its position is that absent precedents establishing that the construction and operation of an intermodal hub lies at the “core” of federal railway jurisdiction, the rigorous precedential limitation on the application of interjurisdictional immunity cannot be met, and it argues that the application judge erred by relying on analogous precedents dealing with aeronautics, specifically COPA, and Greater Toronto Airports Authority v. Mississauga (City) (2000), 2000 CanLII 16948 (ON CA), 50 O.R. (3d) 641 (C.A.), leave to appeal refused, [2001] S.C.C.A. No. 83, [“GTTA”].

[60] Halton’s position is unduly rigid. Its submission that there must be a precedent that specifically addresses intermodal hubs is reminiscent of a failed argument advanced in Rogers Communications Inc, where the Attorney of General of Québec argued that the decision in Toronto Corporation v. Bell Telephone Co. of Canada, [1905] A.C. 52 (P.C.), was not a precedent relating to the siting of a radiocommunication antennae system because it dealt with placement of poles and cables. This submission was rejected because both cases concerned the location and installation of components that were necessary to the operation and maintenance of the communication systems: Rogers Communications Inc., at paras. 63 - 64.

[61] It is therefore too rigid and simplistic for Halton to rely on the absence of precedents dealing with intermodal railway hubs as a basis for challenging the application judge’s decision. The fact that there may not be precedents that do so is not enough on its own to oust interjurisdictional immunity, even leaving aside that in some case interjurisdictional immunity claims can be recognized without precedent. Given that intermodal hubs are railway installations not unlike train stations, the material inquiry for the application judge was whether, as a matter of precedent, the location, construction, and operation of installations that serve the railroad’s operation have been recognized as vital or essential aspects of a railway undertaking that falls exclusively under federal jurisdiction. Such recognition extends back for more than a century. In Canadian Pacific Railway Company v. Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367 (P.C.) at p. 372, the Privy Council said: “[T]he Parliament of Canada has, in the opinion of their Lordships, exclusive right to prescribe regulations for the construction, repair, and alteration of the railway, and for its management”. In Clark v. Canadian National Railway Co., 1988 CanLII 18 (SCC), [1988] 2 S.C.R. 680, at p. 708, the Court described “[t]he core federal responsibility regarding railways [is] to plan, establish, supervise and maintain the construction and operation of rail lines, railroad companies, and related operations.” This constitutes authoritative recognition that the construction and operation of the intermodal hub is a vital aspect of the core federal responsibility regarding railways.

[62] Moreover, the doctrine of interjurisdictional immunity has been authoritatively recognized as applying to essential functions or vital parts of the operation of railways: R. v. TNT Canada Inc. (1986), 1986 CanLII 2632 (ON CA), 58 O.R. (2d) 410 (C.A.), leave to appeal refused, [1987] S.C.C.A. No. 149; Ontario v. Canada Pacific Ltd. (1993), 1993 CanLII 8608 (ON CA), 13 O.R. (3d) 389 (C.A.), at p. 394, aff’d 1995 CanLII 112 (SCC), [1995] 2 S.C.R. 1031; Notre Dame de Bonsecours at p. 372. Indeed, in COPA, at para. 26, McLachlin C.J. began with Notre Dame de Bonsecours, a railway case, in describing the development of interjurisdictional immunity in the context of federal undertakings.

[63] Even if there had not been precedents directly on point to rely upon, the application judge would not have erred by considering analogous precedents, as Halton asserts. In Canadian Western Bank, at paras. 54 - 63, in determining whether bank insurance is a core banking power in the absence of precedent, Binnie J. and Lebel J. looked by analogy at transportation cases, communication cases, maritime cases, cases in relation to “Indians and lands reserved for Indians” under s. 91(24), and management of federal institution cases to decide whether provincial insurance legislation intruded upon the core of the banking power. And in Marcotte, after noting that interjurisdictional immunity precedents have never considered the application of the doctrine to the credit card activities of banks at para. 63, the Supreme Court went on to assess whether this activity touched the core of the banking power, including by reasoning by analogy from the precedent in Canadian Western Bank. The two examples are sufficient to illustrate that the case law requires interjurisdictional immunity claims to be guided by precedent. It does not require relevant analogous precedents to be disregarded.

[64] In this case, the analogous precedents the application judge considered unquestionably supported his decision. He cited the COPA and GTTA decisions. In COPA at para. 37, McLachlin C.J. held that the location of aerodromes is “an essential and indivisible part of [the federal] aeronautics [power … as] aerodromes are ‘an essential part of aeronautics and aerial navigation’” citing with approval from Johannesson v. Rural Municipality of West St. Paul, 1951 CanLII 55 (SCC), [1952] 1 S.C.R. 292, at p. 319. She continued, “[t]he location of aerodromes attracts the doctrine of interjurisdictional immunity because it is essential to the federal power, and hence falls within its core”. Chief Justice McLachlin cited GTTA in support of that proposition. This, of course, is the reasoning the application judge used relating to the intermodal hub – the location of railway installations such as the intermodal hub is essential to the federal power and undertaking. In my view, he did not err in doing so.

[65] Third, Halton argues that the application judge erred by applying interjurisdictional immunity where there is a “double aspect” that arises from the concurrent jurisdiction that CN has over railroads, on the one hand, and municipalities have, on the other hand, over local environmental matters. I need not resolve whether there is a double aspect in this case because, contrary to Halton’s key position, the doctrine of interjurisdictional immunity applies even where the double aspect doctrine applies. The theory that it does not was thoroughly debunked by McLachlin C.J. for the majority in COPA, at paras. 54 - 60, and see Rogers Communications, at para. 119, per Gascon J. (concurring). In COPA, McLachlin C.J. cautioned that the suggestion to the contrary made by Binnie J. and Lebel J. at para. 4 in Lafarge, must be read in context, noting that after they themselves found a double aspect, Binnie J. and Lebel J. went on to consider interjurisdictional immunity. Not only can interjurisdictional immunity apply in double aspect cases but a finding of interjurisdictional immunity can even obviate the need to resolve double aspect issues. In COPA, McLachlin C.J. concluded that it was unnecessary for the court to consider the double aspect issue because of her interjurisdictional immunity finding: at para. 59.

[66] I would therefore reject this submission.

[67] Fourth, Halton relied on the recital in the Minister Decision Statement that Ministry approval did “not relieve [CN] from any obligation to comply with other legislative or other legal requirements of the federal, provincial, or local governments” as supporting its position that interjurisdictional immunity should not be applied. This statement is irrelevant. The Minister did not purport to describe what provincial or local laws qualify as legal requirements relating to this project. It is plain that the Minister was simply expressing the caveat that Ministry approval did not absolve CN from complying with any other legal requirements that apply. Questions about what legal requirements the proponent of a federal undertaking must comply with are to be resolved by courts, “the final arbiters of the division of powers”: Canadian Western Bank, at para. 24. That, of course, is what this litigation is about.

[68] In sum, none of Halton’s objections to the potential application of interjurisdictional immunity can carry the day. The sole question remaining under the first step of the inquiry is whether the three bylaws intruded upon this vital part of the federal undertaking, the construction and operation of the intermodal hub. To avoid duplication, I will address that issue while examining the second step in the analysis.

Did the application judge err in determining that the three bylaws “impair” the core of the federal undertaking?

[69] The application judge found that all three bylaws impair CN’s core function relating to the construction and operation of the intermodal hub. He based his decision on his conclusion that in order to comply with those bylaws “prior to building the intermodal hub CN is required to apply for exemptions from curb cut and grading bylaws by applying for and obtaining official plan amendments.” He held that the bylaws “cannot apply to require CN to seek official plan amendments prior to building its intermodal hub” without impairing the core federal powers at issue. I see two strains of reasoning in this explanation. First, the official plan approval that he found to be required under each of the three bylaws confers broad discretion on municipal officials that effectively authorizes them to prohibit the construction of the intermodal hub, since official plan amendments are highly discretionary. The power to prevent the project is impairing. Second, he found that the official plan approval will require years of proceedings. Although he did not articulate it, it is clear from his reasoning that he found this delay would itself constitute an impairment of the core federal power.

[70] In coming to the first of these conclusions, the application judge adopted the law as expressed before him by the Attorney General of Ontario, that “[s]chemes that give provincial officials open-ended discretion to prohibit or intrusively regulate federal undertakings are more likely to trigger interjurisdictional immunity,” and that bylaws “may rise to the level of impairment” where they “confer broad discretion on decision-makers to approve the location or impose restrictions or prohibitions on vital and essential aspects of a federal undertaking.” The Attorney General of Canada agreed with these propositions. I do, as well.

[71] By way of example, in Attorney General of Quebec v. IMTT-Québec Inc., 2019 QCCA 1598, 79 Admin. L.R. (6th) 1, the Quebec Court of Appeal found that several provisions of the Quebec Environment Quality Act, C.Q.L.R. c. Q-2, were inapplicable relating to a federally regulated harbour installation because of interjurisdictional immunity. This decision turned on the fact that the impugned sections gave provincial authorities broad discretion to prohibit the project by refusing to authorize it: IMMT, at paras. 208, 218. This effectively gave provincial authorities decision-making and regulatory power over port and maritime infrastructures, thereby impairing a core federal power.

[72] Similarly, 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, at p. 860, Gonthier J. concluded that the application of provincial permitting requirements for bus services at a national historic site (a federal undertaking) “affected” an essential aspect of the management and operation of that federal undertaking. He found that authority under the permitting regime to refuse, change, suspend or revoke permits impinged on the “very existence” of the federal service and placed the National Battlefields Commission “at the mercy of the largely discretionary decisions of the [provincial authority] on fundamental aspects of the service it offers the public under its mandate”: at p. 859. Although the decision in National Battlefields Commission preceded the current requirement that an impugned law must impair and not merely affect the exclusive jurisdiction over a federal undertaking before interjurisdictional immunity can operate, the essential point illustrated in National Battlefields Commission remains apposite. Just as the discretion claimed relating to provincial permitting requirements in that case did, the official plan amendment process in this case places the intermodal hub at the mercy of the highly discretionary decisions of the municipalities.

[73] To be clear, not all local or provincial legislation requiring permits will impair the exercise of the federal power or a vital or essential part of an undertaking. In TNT Canada Inc., for example, provincial legislation requiring TNT Canada Inc., a federally regulated undertaking engaged in interprovincial transportation, to secure a certificate of approval before carrying chemical waste, did not render the application of the provincial law ultra vires. The conditions for obtaining a certificate of approval did not contain broad discretion to prevent TNT Canada Inc. from engaging in transportation. They simply required confirmation of the exact composition of the waste, a certificate of insurance, and the inspection and approval of the equipment: TNT Canada Inc., at pp. 413 - 414. Therefore, the legislation never threatened the core of the federal undertaking.

[74] Halton does not appear to take issue with the general proposition I have just outlined, that the scope and nature of the discretion associated with a required permit can cause that legislation to impair the core of a federal power. Instead, it argues that: (1) impairment cannot be based on hypothetical concerns that a permit may “possibly” be denied or take an extended period of time; (2) there is no evidence that the bylaws carry broad discretion that would impair the “location and siting of the federal undertaking”, and (3) the application judge erred in concluding that Halton bylaw 32-17, relating to constructing access to a regional road, requires official plan approval. It concedes that the Milton bylaws, 33-2004 and 035-2020 do so. Halton’s point relating to bylaw 32-17, of course, is that because it does not require official plan approval, bylaw 32-17 does not impair a core federal power. I disagree with all three of these submissions, which I will address in turn.

[75] The decision in IMTT-Québec Inc. provides a complete answer to Halton’s objection that impairment in this case is no more than hypothetical. In IMTT-Québec Inc., the Attorney General of Québec argued that the court can and should assume that provincial authorities will exercise their discretionary power so as not to interfere with the federal head of power by withholding their authorization or imposing conditions that would frustrate the projects. The Québec Court of Appeal said 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”: IMTT-Québec Inc, at para. 220. Put otherwise, the mere empowerment of provincial authorities to withhold approval for construction impairs exclusive federal regulation by asserting authority to intrude on that exclusive federal jurisdiction.

[76] The same reasoning applies to Halton’s “wait and see” position taken before us. Interjurisdictional immunity is about jurisdiction. If a provincial law purports to claim the authority to impair a federal undertaking, the doctrine is available, especially in the context of a case such as this where Halton has asked a court to grant prophylactic declarations and injunctions on the strength of its assertion of authority to regulate. I therefore reject Halton’s position that a finding of impairment is premature.


Additional Considerations

[81] Before I leave this issue, as the application judge did, I will reaffirm the limited application that I am recognizing for interjurisdictional immunity. As I hope I have made clear, I agree with the application judge, and all of the interveners before us, that “federal undertakings are not enclaves immune from provincial laws of general application”, and that interjurisdictional immunity does not render provincial laws inapplicable if they do not impair a vital or essential aspect of a federal undertaking: Canadian Western Bank, at para. 48. By way of example, a bylaw requiring everyone, including a railway company, to clean a ditch besides its rail line was found not to have impaired the core of a railway undertaking in Notre Dame de Bonsecours. Also, consider Canada Pacific Ltd., where environmental legislation preventing the discharge of contaminants which had the effect of preventing a railway from choosing to use a “controlled burn” to maintain the area around its tracks was found not to impair the core of the federal power.

[82] I also agree with the application judge that there can be little doubt that CN will be legally required to obtain some permits and comply with some provincial, municipal, and regional laws and bylaws. As I explain below, I can provide no more precise guidance than this, given the application record.
. Sharp v. Autorité des marchés financiers

In Sharp v. Autorité des marchés financiers (SCC, 2023) the Supreme Court of Canada considered a province's administrative extra-provincial jurisdiction issue (aka 'prescriptive legislative jurisdiction'), here being the application of a Quebec securities tribunal (FMAT) to four BC residents "who are alleged to have contravened the Quebec Securities Act". Here the courts have applied the 'real and substantial connection' standard - from the Van Breda PRIL venue doctrine (which determines which geographical jurisdiction hears a multi-geographical case) - to which extra-geographical parties a local tribunal has jurisdiction over (this was done in the case of Unifund).

In this quote the court analogizes the Unifund doctrine to interjurisdictional immunity:
[113] Second, like the doctrine of interjurisdictional immunity in constitutional law, the Unifund test functions as a principle of statutory interpretation. As noted by Professors Peter W. Hogg and Wade K. Wright, under the doctrine of interjurisdictional immunity, a broadly framed provincial or federal law that is valid in most of its applications “should be interpreted so as not to apply to the matter that is outside the jurisdiction of the enacting body” (Constitutional Law of Canada (5th ed. Supp.), at § 15:16 (emphasis added)). The enacting legislative body “is presumed to have meant to enact provisions which do not transgress the limits of its constitutional powers; general language which appears to transgress the limits must therefore be ‘read down’ so that it is confined within the limits” (§ 15:15; see also H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (6th ed. 2014), at para. VI-2.56). “Reading down is simply a canon of construction (or interpretation)” (Hogg and Wright, at § 15:15).


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Last modified: 17-03-24
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