In Canadian Western Bank v. Alberta and British Columbia v. Lafarge, the Supreme Court of Canada significantly altered the application of the constitutional doctrine of interjurisdictional immunity. In each case, by a 6-1 majority, the Court rejected challenges to the application of provincial legislation to federal organizations (banks in the Alberta case, and a port authority in British Columbia). In doing so, the author argues, the Court has severely restricted the application of the doctrine, primarily by raising the threshold of the test from one of “affecting” a vital aspect of the federal organization to one which imposes a requirement of “impairment”. Further, the author suggests that the use of the doctrine may be further restricted by the Court’s limitation of the federal heads of power to which the doctrine will be applied, and by the suggestion of the Court in Lafarge that the doctrine should not be applied to “double aspect” cases. Finally, the author takes the position that these decisions bring much-needed clarity to the application of the doctrine, in a fashion which brings the doctrine in line with modern principles of Canadian federalism.
Furey, John G..
"Interjurisdictional Immunity: The Pendulum Has Swung."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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