04/19/2013
Construction
Peter Hogg and
Courtney Kachur
Construction projects are usually governed by provincial law, which is enacted pursuant to s. 92(13) of the
Constitution Act, 1867 ("property and civil rights in the province"). Municipal bylaws may also apply. They also come within provincial authority, either under s. 92(13) or s. 92(8) ("municipal institutions in the province"). Construction projects raise many difficult legal issues, but only occasionally do they give rise to
constitutional issues. The Canadian Charter of Rights and Freedoms is rarely relevant because the Charter does not normally apply to matters of property and contract. Federalism issues can arise, however, when the apparently governing provincial (or municipal) law encroaches in some fashion on a federal matter (a matter outside provincial jurisdiction). This situation is illustrated by a number of recent cases, which are the topic of this article. Constitutional challenges to a provincial law fall into three categories:
- The provincial law is ultra vires and invalid because it is in relation to a matter within federal jurisdiction;
- The provincial law is valid but inapplicable by reason of interjurisdictional immunity;
- The provincial law is valid but inoperative by reason of federal paramountcy.
This article covers these three categories.
The Doctrine of Ultra Vires
A provincial law is
ultra vires (beyond the powers of) and
invalid if it is, in its pith and substance, in relation to a matter coming within federal jurisdiction. This is the fate of a provincial (or municipal) law that fails to keep within the heads of power assigned to the provinces in s. 92 of the
Constitution Act, 1867.
In
Quebec v. Lacombe (2010), the plaintiff cottage owners constructed aerodrome facilities on a lakeside property in Quebec, and then used the lake as a water aerodrome for a commercial air taxi service that used a fleet of float planes. The plaintiffs had selected the lake for the aerodrome without any input or permission from the Federal Department of Transport. However, they had registered the lake as an aerodrome with the Department, which was all that was needed to dedicate the lake as an "aerodrome" (as opposed to an "airport", which is subject to serious regulatory standards). The commercial air taxi service required a licence from the Department and the plaintiffs had duly obtained that licence.
In
Lacombe, the problem was that the lake was within a municipality that had enacted a bylaw prohibiting the use of that lake (and others in the same area), as an aerodrome. The plaintiffs brought proceedings attacking the validity of the bylaw. The Supreme Court of Canada (SCC) held that the pith and substance of the bylaw, which explicitly prohibited the construction of aerodromes, was aeronautics, which is a federal head of power.1 Therefore the bylaw was
ultra vires the province and the municipality and was accordingly invalid. The plaintiffs were entitled to continue to use the lake as an aerodrome despite the contrary bylaw, as it was subject to federal jurisdiction. The takeaway from
Lacombe is that provincial, or in this case municipal, law cannot control the location of airfields.
In
Lacombe, McLachlin CJ, writing for the majority, added that, if the bylaw had been a valid law in relation to land use in the province, she would still have held that it was inapplicable to the water aerodrome, by virtue of the doctrine of interjurisdictional immunity. That was the holding in the companion case of
Quebec v. Canadian Owners and Pilots Association (2010), which we discuss next under the heading of "interjurisdictional immunity".
The Doctrine of Interjurisdictional Immunity
If a valid provincial law of general application has the effect in one of its applications of impairing the "core" of a federal head of power, the provincial law is
inapplicable to the federal subject matter by virtue of the doctrine of
interjurisdictional immunity.
COPA was another case in which Quebec landowners had established a small local aerodrome (this one on dry land) in breach of a zoning regulation. In this case, the regulation was not a municipal bylaw, but a provincial law that designated parts of the province as agricultural zones from which all non-agricultural uses were prohibited. Unlike the bylaw in
Lacombe, the law did not single out aeronautics. However, the law did purport to prohibit the aerodrome because it was a non-agricultural use of land within an agricultural zone.
McLachlin CJ, writing for the majority, held that the pith and substance of the provincial law was not aeronautics, but land use, a matter within the provincial head of power of property and civil rights in the province (s. 92(13)). Unlike the bylaw in
Lacombe, this law was valid. However, she held that the law was inapplicable to the aerodrome by virtue of the doctrine of interjurisdictional immunity. The location of aerodromes and airports was part of the core of the federal power over aeronautics, and provincial regulation would impair that power. This was so even though Parliament had not in fact regulated the location of aerodromes; in this case, the location of the aerodrome had been chosen by the landowners and simply registered with the Federal Department of Transport. The absence of any federal law regulating the location of aerodromes was fatal to a paramountcy argument,2 but it did not matter for interjurisdictional immunity. The result was that the doctrine of interjurisdictional immunity exempted the aerodrome from the provincial law prohibiting non-agricultural uses of the land. Like
Lacombe,
COPA reinforced the rule that provincial law cannot control the location of airfields.
[...continues at length...]
