The doctrine of “interjurisdictional immunity” is part of the framework of principles of Canadian federalism aimed at reconciling federal values with the reality that laws enacted by one level of government will inevitably have an impact on matters within the jurisdiction of the other level of government. The law on interjurisdictional immunity has undergone considerable evolution in the last few decades, with the most recent development being the Supreme Court of Canada’s decisions in Canadian Western Bank and Lafarge, which were decided in 2007. Historically, the doctrine of interjurisdictional immunity was narrowly applied and the issue was whether a provincial law sterilized, paralyzed or impaired a federal undertaking or subject. This strict test was relaxed by the Supreme Court of Canada in the seminal cases of Bell 1966 and Bell 1988, which held that provincial legislation was inapplicable to federal undertakings whenever it “affected” a vital part of a federal undertaking or core of federal jurisdiction. In Canadian Western Bank and Lafarge, the Supreme Court shifted the balance of federalism in the direction of the provinces by reverting back to a more restrictive approach to interjurisdictional immunity. In the first part of this paper, the authors describe the interjurisdictional immunity doctrine and distinguish it from the doctrines of pith and substance and paramountcy. In the second part, the authors discuss the history and development of interjurisdictional immunity, and in the last part, they provide comments on the wisdom of the Supreme Court’s move to a more restrictive application of interjurisdictional immunity in Canadian Western Bank and Lafarge.
Hogg, Peter W. and Godil, Rahat.
"Narrowing Interjurisdictional Immunity."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.