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Paramountcy - Post-Croplife Cases. Murray‑Hall v. Quebec (Attorney General)
In Murray‑Hall v. Quebec (Attorney General) (SCC, 2023) the Supreme Court of Canada considers an issue of paramountcy, here between a Quebec statute and the Criminal Code:[84] By way of introduction, I will outline the circumstances in which the doctrine of federal paramountcy applies. There is an inconsistency that justifies giving precedence to a federal law over a valid provincial law when there is an operational conflict or when the purpose of the federal law is frustrated. In the former case, the operational conflict means that it is impossible to comply with both laws simultaneously, such as “where one enactment says ‘yes’ and the other says ‘no’”, as it was put in Multiple Access Ltd. v. McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 S.C.R. 161, at p. 191. In the latter case, “imposing an obligation to comply with provincial legislation would in effect frustrate the purpose of a federal law” (Canadian Western Bank, at para. 73). As Major J. noted in Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2005 SCC 13, [2005] 1 S.C.R. 188, at paras. 14‑15, the existence of either of these situations is enough to trigger the application of the federal paramountcy doctrine, but this does not mean that proving their existence is easy.
[85] Indeed, the burden of proof that rests on the party alleging an operational conflict or a conflict of purposes is a high one (Alberta (Attorney General) v. Moloney, 2015 SCC 51, [2015] 3 S.C.R. 327, at para. 27; Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd., 2015 SCC 53, [2015] 3 S.C.R. 419, at paras. 21‑23). This requirement arises from the cardinal rule of constitutional interpretation that “[w]hen a federal statute can be properly interpreted so as not to interfere with a provincial statute, such an interpretation is to be applied in preference to another applicable construction which would bring about a conflict between the two statutes” (Attorney General of Canada v. Law Society of British Columbia, 1982 CanLII 29 (SCC), [1982] 2 S.C.R. 307, at p. 356). I am also of the view that the need for the greatest possible precision in the analysis of operability takes on particular importance in circumstances such as those in this case, where the legislative subject matter has a double aspect. It is essential “to avoid eroding the importance attached to provincial autonomy”, a concern I expressed in, among other cases, References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, at para. 128.
[86] For the reasons that follow, and in light of the “restrained” approach to paramountcy that guides the Court, I am of the view that the appellant has not met his burden of proof.
[87] I want to dispel at once any notion that there is an operational conflict between the impugned provisions and the federal Act. When questioned by the Court on this point, the appellant in fact conceded that it is possible to obey both laws, which suggests that there is no operational conflict. By not possessing or cultivating cannabis plants in their homes, individuals in Quebec can thus easily comply with both the federal Act, which exempts the possession and cultivation of up to four cannabis plants from the application of its scheme of criminal offences, and the provincial Act, which prohibits the possession and cultivation of any cannabis plant in a dwelling‑house.
[88] Therefore, the only question to be answered is rather whether a federal purpose is being frustrated, which in this case involves first establishing the purpose of the federal Act and then determining whether the provisions of the provincial Act are incompatible with that purpose (Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536, at para. 66). . R. v. Pahal
In R. v. Pahal (Ont CA, 2023) the Court of Appeal considered the application of the bylaw-HTA paramountcy provision of HTA s.195. While two lower courts held that an 'inconsistency' arose, the Court of Appeal disagreed. However the court did approve the JR's statement of the test for inconsistency [citing Hudson]:[31] To assess the question whether the 2018 Amending By-law is inconsistent with s. 177(3) of the HTA, the Justice of the Peace focused primarily on the following statements in 114957 Canada Ltee (Spraytech) v. Hudson (Town), 2001 SCC 40, [2001] S.C.R. 241, at paras. 37 and 38:[A] by-law is not void or ineffective merely because it “enhances” the statutory scheme of regulation by imposing higher standards of control than those in the related statute. [Citation omitted.] … The municipality retains its authority as long as there is no conflict with provincial legislation. It may be more demanding than the province, but not less so. [Citation omitted.] A finding that a municipal by-law is inconsistent with a provincial statute (or a provincial statute with a federal statute) requires, first, that they both deal with similar subject matters and, second, that obeying one necessarily means disobeying the other. [Emphasis added.]
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[46] I accept the test adopted in the courts below for making a finding of inconsistency under s. 195 of the HTA:A finding that a municipal by-law is inconsistent with a provincial statute … requires, first, that they both deal with similar subject matters and, second, that obeying one necessarily means disobeying the other: 114957 Canada Ltee (Spraytech), at para. 38. See also Croplife Canada v. Toronto (City), 2005 CanLII 15709 (ON CA), 75 O.R. (3d) 357, at para. 63. [47] Given my conclusion that s. 177(3) of the HTA does no more than create an exception to the prohibition in s. 177(2) against commercial solicitation from motor vehicle occupants while on a roadway, I see no basis for holding that Waterloo’s 2018 Amending By-law is inconsistent with s. 177(3). Even assuming they deal with the same subject matter, obeying one does not necessarily mean disobeying the other. . Pryde v. Chief Animal Welfare Inspector
In Pryde v. Chief Animal Welfare Inspector (Div Court, 2022) the Divisional Court considered the 'conflict' paramountcy provision of s.67 of PAWS (it cites Hudson):Issue #6: Did the Board fail to apply the test under s. 67 of the PAWS Act?
[74] The Applicants submit that the Board failed to apply the test found in s. 67 of the PAWS Act which reads:In the event of a conflict between a provision of this Act or of a regulation made under this Act and of a municipal by-law pertaining to the welfare of or the prevention of cruelty to animals, the provision that affords the greater protection to animals shall prevail. [75] The Applicants submit that the local by-laws for the Townships of Oro-Medonte (Moonstone) and Severn make provision for (shorter) tether lengths which provide greater protection to animals, and the Board ought to have followed those by-laws rather than the provisions in the Act.
[76] Those provisions are as follows:Severn: Section 5.4 of By-law No. 2020-62, “Being a by-law for the licensing and regulating of dogs and kennels and for the control of dogs within the Township of Severn,” provides that “any person who has tethered an animal shall ensure that at all times the animal has unrestricted movement of a length not less than 2 metres.”
Oro-Medonte (Moonstone): Section 9.4 of By-law No. 2011-176, “A By-law to regulate and license Dog Kennels within the Township of Oro-Medonte,” requires that sled dog kennel operators abide by an industry guideline which recommends a tether length of 1.8 metres. [77] While the provisions in the by-laws are different from those in the PAWS Act, it cannot be said that they conflict with one another. The by-laws do not require a different length from the Regulation under the PAWS Act: rather, in the case of the Township of Severn, the by-law requires “at least” a 2-metre length tether. A three metre-length-long tether, as required by the Regulation, does not offend the by-law.
[78] In the case of the Township of Oro-Medonte, sled dog kennel operators are required to abide by industry guidelines which recommend a tether length of 1.8 metres. A longer tether length does not conflict with this by-law.
[79] The Board considered the test in 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), 2001 SCC 40 (CanLII), [2001] 2 S.C.R. 241 at paras. 38-39, and applied it to the two by-laws and the Regulation. The Board concluded, reasonably, that the dual compliance test did not put the Applicants in a position where obeying one law meant disobeying the other, even though both sets of laws here deal with the same subject matter.
[80] The Board’s decision is reasonable and well articulated. We find no basis on which to interfere with its finding. . Dr. Jha v. College of Physicians and Surgeons of Ontario
In Dr. Jha v. College of Physicians and Surgeons of Ontario (Div Ct, 2022) the Divisional Court considered an issue of provincial-federal paramountcy:The proper approach to consideration of paramountcy in division of powers analysis
[28] The doctrine of federal legislative paramountcy dictates that where there is an inconsistency between valid but overlapping federal and provincial laws, the provincial law is inoperative to the extent of the inconsistency.
[29] The principles applicable to determining whether provincial legislation is inoperative on division of powers grounds because of federal paramountcy are well-established. I draw the principles set out below from cases including: Saskatchewan v. Lemare Lake Logging Ltd., 2015 SCC 53, [2015] 3 S.C.R. 419, at paras. 15-23, 26-27; Quebec (Attorney General) v. Canadian Owners and Pilots Association), 2010 SCC 39, [2010] 2 S.C.R. 536, at paras. 62-66; Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5, [2019] 1 S.C.R. 150, at paras. 64-66; Rothman, Benson & Hedges Inc. v. Saskatchewan, 2005 SCC 13, [2005] 1 S.C.R. 188, at paras. 11-17; Alberta (Attorney General) v. Moloney, 2015 SCC 51, [2015] 3 S.C.R. 327, at paras. 14-29; Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44, [2013] 3 S.C.R. 53, at paras. 65-69, 77; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at paras. 36-38.
[30] A court or tribunal considering an issue of paramountcy must conduct two inquiries to determine if there is a conflict between valid but overlapping federal and provincial enactments.[3]
[31] The first inquiry concerns whether it is impossible to comply simultaneously with both laws. This is often referred to as “operational conflict.” The test for operational conflict is impossibility of compliance with both the federal and provincial enactments, also referred to as “express contradiction.”
[32] The second inquiry asks if the operation of the provincial law will “frustrate the purpose” of the federal law.
[33] The party seeking to invoke federal paramountcy bears the burden of establishing Parliament’s purpose for the federal law and of demonstrating that the provincial law is incompatible with this purpose. This is a high bar to meet, and there must be clear proof of the federal purpose.
[34] Both inquiries are aimed at assessing if the provincial law frustrates the purpose of the federal law – whether by the provincial law making it impossible to comply with the federal law, or by some other means.
[35] Paramountcy case law is also clear that the doctrine of paramountcy is to be applied using a restrained approach. When a federal law can be properly interpreted so as not to interfere with a provincial law, such an interpretation is to be preferred over an interpretation which would bring about a conflict between federal and provincial law. In the words of the majority in Lemare Lake, at paragraph 21: “harmonious interpretations of federal and provincial legislation should be favoured over interpretations that result in incompatibility.” Cooperative federalism allows for some interplay and overlap between federal and provincial legislation. Absent clear evidence of a broader statutory purpose, courts should avoid an expansive interpretation of the purpose of federal legislation that would bring it into conflict with provincial legislation.
[36] Although not determinative, the fact that the federal Attorney General does not take the position that provincial legislation is inoperative on division of powers grounds is a factor that a court may consider in assessing a claim that provincial legislation is inoperative on division of powers grounds. Courts must be “particularly cautious” about rendering a provincial law inoperative where the federal government does not oppose its operation: OPSEU v. Ontario (Attorney General), 1987 CanLII 71, [1987] 2 S.C.R. 2, at pp. 19-20; Ontario (Attorney General) v. Chatterjee, 2007 ONCA 406, 86 O.R. (3d) 168, at para. 17, aff’d 2009 SCC 19, [2009] 1 S.C.R. 624; Rothman, at para. 26. As noted above, the federal Attorney General was given notice of the constitutional issue raised in this appeal and did not intervene to take a position. . D.M. v. The Children’s Aid Society of Ottawa
In D.M. v. The Children’s Aid Society of Ottawa (Div Ct, 2021) the Divisional Court considered a matter of federal paramountcy:[251] The doctrine of federal paramountcy provides that when there are valid, but inconsistent, federal and provincial laws, the federal law prevails and the provincial law is declared inoperative to the extent of the conflict.[82]
[252] However, the fact that the federal government and a provincial government have legislated about the same matter does not create a conflict that precludes the infra vires provincial legislation from operating.[83] Duplicative legislation by itself does not raise issues of paramountcy.[84]There must be a conflict for the doctrine of paramountcy to come into effect.
[253] Two forms of conflict trigger the doctrine of paramountcy: (1) operational conflict, and (2) frustration of purpose.[85]Operational conflict arises when it is impossible to comply with both laws simultaneously.[86] Frustration of purpose arises where although it is possible to comply with both laws, the operation of the provincial law frustrates the purpose of the federal enactment.[87]
[254] The circumstance that Parliament has legislated in respect of a matter does not entail that it intended to rule out any possible provincial action in respect of that matter.[88] As Justice Dickson stated in Multiple Access Ltd. v. McCutcheon,[89] which concerned concurrent federal and provincial statutes prohibiting insider trading of corporate securities:In principle, there would seem to be no good reason to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says "yes" and the other says "no"; "the same citizens are being told to do inconsistent things"; compliance with one is defiance of the other. . wpd Sumac Ridge Wind Incorporated v. Kawartha Lakes (City)
In wpd Sumac Ridge Wind Incorporated v. Kawartha Lakes (City) (Ont CA, 2016) the court applies the modern ('Croplife') law of interjurisdictional conflict, here to uphold the overriding on paramountcy grounds of a municipal resolution in conflict with a provincial approval:(a) The doctrine of paramountcy and the governing test for frustration of purpose
[37] A cardinal rule of municipal law is that “all by-laws are subject to the general law of the realm and are subordinate to it”, and that “any by-laws which are repugnant to or inconsistent with general provincial legislation are void and of no effect, or else superseded to the extent that the legislature has acted”: Ian MacF. Rogers, Q.C., The Law of Canadian Municipal Corporations, loose-leaf (2014-Rel. 5), 2d ed. (Toronto: Carswell, 1988), at para. 63.16 (citations omitted).
[38] This principle has been codified in s. 14 of the Municipal Act, which provides as follows:14. (1) A by-law is without effect to the extent of any conflict with,
(a) a provincial or federal Act or a regulation made under such an Act; or
(b) an instrument of a legislative nature, including an order, licence or approval, made or issued under a provincial or federal Act or regulation.
Same
(2) Without restricting the generality of subsection (1), there is a conflict between a by-law of a municipality and an Act, regulation or instrument described in that subsection if the by-law frustrates the purpose of the Act, regulation or instrument. [39] To determine whether municipal and provincial legislative enactments conflict, this court has endorsed applying the paramountcy doctrine governing conflicts between federal and provincial legislation: Croplife Canada v. Toronto (City) (2005), 2005 CanLII 15709 (ON CA), 75 O.R. (3d) 357, at para. 63; Cash Converters Canada Inc. v. Oshawa (City), 2007 ONCA 502 (CanLII), 86 O.R. (3d) 401, at para. 32.
[40] Whether a true conflict exists between federal and provincial legislative enactments has been the subject of considerable jurisprudence. It was most recently discussed in Alberta (Attorney General) v. Moloney, 2015 SCC 51 (CanLII), [2015] 3 S.C.R. 327.
[41] In that case, the Supreme Court of Canada set out the following analytical framework:i) As a preliminary question, it must be determined whether both laws are validly enacted. If one is invalid, then no conflict can exist: Moloney, at para. 17; see also Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23 (CanLII), at paras. 34-39.
ii) If both laws are independently valid, the court must then examine whether the laws’ concurrent operation results in a conflict under either branch of the paramountcy test. The two branches are (1) operational conflict – “there is an operational conflict because it is impossible to comply with both laws”; or (2) frustration of purpose – when, “although it is possible to comply with both laws, the operation of the provincial law frustrates the purpose of the federal enactment”: Moloney, at para. 18.
iii) If conflict is found, the inferior law remains in force but is inoperative to the extent it conflicts with the superior law: Moloney, at para. 29. [42] The party alleging the conflict bears the burden of proving conflict: Moloney, at para. 27. When examining conflict, it is the effect of the inferior law, and not its purpose that is the focus of the paramountcy analysis: Moloney, at para. 28; Husky Oil Operations Ltd. v. Minister of National Revenue, 1995 CanLII 69 (SCC), [1995] 3 S.C.R. 453, at para. 39. That being said, an intention to interfere with the superior government’s purpose may call into question the legitimacy of the inferior law: Moloney, at para. 28; Husky Oil, at paras. 39, 44-45.
[43] In this case, the parties went straight to the second branch of the paramountcy test – frustration of purpose – which the Divisional Court applied to conclude that the City’s resolution was in conflict with the Sumac Ridge Approval and, therefore, invalid. Although the application could have been disposed of on the basis of the court’s finding of bad faith, given the nature of this dispute, it was, and is, in the interests of justice to determine whether the resolution frustrated the purpose of the Sumac Ridge Approval.
[44] In Moloney, the court cautioned that the standard for establishing frustration of purpose is high. It identified, at para. 26, that the following situations would generally not lead to a conflict: “For instance, duplicative federal and provincial provisions will generally not conflict. Nor will a conflict arise where a provincial law is more restrictive than a federal law” (citations omitted).
[45] The court went on to explain that “[t]he application of a more restrictive provincial law may, however, frustrate the federal purpose if the federal law, instead of being merely permissive, provides for a positive entitlement“ (citations omitted).
[46] The Supreme Court cited Law Society (British Columbia) v. Mangat, 2001 SCC 67 (CanLII), [2001] 3 S.C.R. 113, as providing an example of a federal law that created a positive entitlement, rather than being merely permissive, and which was thus frustrated by a more restrictive provincial law.
[47] In Mangat, the issue was whether provincial legislation preventing non-lawyers from charging a fee to represent persons at Immigration Review Board hearings conflicted with federal legislation: namely, ss. 30 and 69(1) of the Immigration Act, R.S.C. 1985, c. I-2. Section 30 provided that every person before the adjudication tribunal had the right to retain and be represented by “a barrister or solicitor or other counsel” and was to be given a reasonable opportunity to “obtain such counsel at the person’s own expense”. Section 69(1) provided that before the Refugee division the person “may, at that person’s own expense, be represented by a barrister or solicitor or other counsel.”
[48] In finding that the provincial legislation conflicted with those federal legislative provisions, the Supreme Court applied the modern approach to statutory interpretation to determine the federal purpose. It looked beyond the specific provisions at issue and considered the legislative scheme as a whole, how similar and related acts governed representatives before federal tribunals, and reviewed an Ontario legislative report that highlighted the benefits of non-lawyer representatives.
[49] Ultimately, and relying heavily on ss. 68(2) and 80.1(4) of the Immigration Act – which called for proceedings to be as informal and expeditious as the circumstances and fairness permit – the court found that in enacting the provisions at issue, Parliament “was pursuing the legitimate objective of establishing an informal, accessible (in financial, cultural and linguistic terms), and expeditious process”: Mangat, at para. 72. The provisions were not simply permissive. They provided a positive entitlement for non-lawyers to represent participants at hearings. Provincial legislation forbidding non-lawyers from charging a fee at the Adjudicative and Refugee divisions was accordingly held to be of no effect.
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[74] The purpose of that approval -- to authorize a renewable energy project of the type fostered by the Green Energy and Green Economy Act, and to place the decision as to whether it is in the public interest in the hands of the director -- has been frustrated by the city's purported exercise of its jurisdiction over roads. [page545]
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