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Paramountcy - Conflict. International Air Transport Association v. Canada (Transportation Agency)
In International Air Transport Association v. Canada (Transportation Agency) (SCC, 2024) the Supreme Court of Canada dismissed an appeal, here involving "the vires of the Air Passenger Protection Regulations, SOR/2019-150 (“Regulations”) [SS: under the 'Canada Transportation Act'], and the nature and scope of the “exclusivity principle” set out in Article 29 of the 1999 Convention for the Unification of Certain Rules for International Carriage by Air" [SS: the 'Montreal Convention'].
Here the court considers a legislative-treaty 'conflict', here in a regulation ultra vires inquiry:(1) What Constitutes a Conflict?
[92] In Thibodeau, this Court explained that[c]ourts presume that legislation passed by Parliament does not contain contradictions or inconsistencies and only find that they exist when provisions are so inconsistent that they are incapable of standing together. Even where provisions overlap in the sense that they address aspects of the same subject, they are interpreted so as to avoid conflict wherever this is possible. [para. 89] Thus, to find a conflict between the Montreal Convention and the impugned Regulations, the latter must be “so inconsistent with” the former that they are “incapable of standing together” (Daniels v. White, 1968 CanLII 67 (SCC), [1968] S.C.R. 517, at p. 526).
[93] The inquiry into whether one statute conflicts with another is distinct from the presumption that Parliament legislates in conformity with international law and “the rule of judicial policy that, as a matter of law, courts will strive to avoid constructions of domestic law pursuant to which the state would be in violation of its international obligations” (R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53). Where, as here, the treaty in question has been implemented in Canadian law, the test for statutory conflicts applies and there is no need to have regard to the presumption of conformity. . Canada (Attorney General) v. Monette
In Canada (Attorney General) v. Monette (Fed CA, 2024) the Federal Court of Appeal allowed a Crown JR, here from a CIRB decision involving the unpaid wage provisions of the Canada Labour Code.
Here the court notes a potential conflict of law:[22] However, the Board’s analysis does not consider the fact that Western Express deals with the application of two federal statutes. In the case at hand, it is the application of a provincial statute to a plan established by a federal statute. The analysis differs depending on whether two statutes passed by the same legislator can coexist without conflict or whether a provincial statute can supplement a federal statute if it is silent (see, in particular, Ruth Sullivan, The Construction of Statutes, 7th ed., Markham, ON, LexisNexis, 2022, § 11.03[4]; Canada (Attorney General) v. St-Hilaire, 2001 FCA 63, leave to appeal to the SCC denied, 28643 (November 29, 2001). The Board’s reasons do not make that distinction.
[23] Furthermore, the Board does not make any comparative analysis of the provisions at issue and, in particular, does not consider whether there are differences between section 119 of the CBCA and section 154 of the BCA. It is therefore difficult to understand how it could assimilate the two provisions and give them the same effect because although they are similar in several respects, there are differences between them.
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