CONSTITUTIONAL LAW
10 INTER-JURISDICTIONAL
IMMUNITY
1
Shigenori Matsui
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INTRODUCTION


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There is a limit on the application of provincial
law to federally incorporated companies or
federal undertakings.
The inter-jurisdictional immunity doctrine
The applicability
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I Inter-jurisdictional Immunity
Doctrine

Origin of the doctrine
 John Deere Plow Co. v. Wharton [1915] A.C.
330

Precluded the applicability of provincial law
which impairs the status of the federally
incorporated companies (sterilization test or
impairment test)
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The doctrine also came to be used to deny
applicability of provincial law to federal
undertakings as well.

Toronto v. Bell Telephone Co. [1905] A.C. 52
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The doctrine only denies applicability of the
provincial law.

The applicability of the provincial law is denied
even when there is no conflicting federal law.
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Asymmetrical application of the doctrine
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Theoretically speaking, inter-jurisdictional immunity
doctrine could be used to give immunity to
provincial undertaking from federal law. Yet, in
reality, the doctrine has been used to give immunity
to federal heads of power from provincial law.
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The Supreme Court of Canada expanded the
applicability of the doctrine

McKay v. The Queen, [1965] federal election
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Moreover, the Supreme Court of Canada
intensified the doctrine: adoption of the affect
test

Commission du Salaire Minimum v. Bell Telephone
Co of Canada (Bell Canada #1) [1966]
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
Commission de la Sante et de la Securite du travail
v. Bell Canada, [1988]
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Is the doctrine of inter-jurisdictional immunity
available to all heads of the power of federal
Parliament?
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Is province totally precluded from regulating
the subject matters of federal jurisdiction?

Taxation on banks?

Application of provincial environmental law
Ontario v. Canadian Pacific [1995]

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Attempt to readjust the doctrine

Irwin Toy Ltd. v. Quebec, [1989]
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II CURRENT FRAMEWORK

Canadian Western Bank v. Alberta, [2007]
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Inter-jurisdiction immunity doctrine is against the
predominant tide of constitutional interpretation.
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Various problems with respect to broad application
of the doctrine
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The Supreme Court concluded that although
the doctrine has a proper part to play in
appropriate circumstances, it intends to
make it clear that the court does not favour
an intensive reliance on the doctrine, nor
should it accept the invitation to turn it into a
doctrine of first recourse in a division of
powers dispute. Moreover, the Supreme
Court held that law as it stood prior to Bell
Canada better reflected our federal scheme.15
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The future of the inter-jurisdictional immunity
doctrine. The Supreme Court has
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Limited the applicability of the doctrine to preexisting cases and allowed no further expansion of
its applicability
Refused to consider the inter-jurisdictional immunity
doctrine as a necessary inquiry
Required the sterilization or impairment before
denying applicability of the provincial law
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
British Columbia v. Lafarge Canada [2007]
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III CONTROVERSIES OVER
THE DOCTRINE

Is the inter-jurisdictional immunity doctrine a
legitimate doctrine or unnecessary doctrine?
 Is the doctrine against the pith and substance
doctrine or is it against the predominant tide of
constitutional interpretation on federalism in
Canada?
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Is it unnecessary to employ the doctrine to protect
the federal undertakings?
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