Quebec (Attoney General) v Canadian Owners and Pilots Association: Why the SCC Makes Me Feel Like a Leafs Fan

I love the Supreme Court of Canada. I really do. I have spent most of my career trying to defend it (at least to my first year constitutional law classes). Very few people could do the job that Supreme Court judges do.

But it is sometimes hard to keep soldiering on defending the Court. How, for instance, does one deal with the fact that it abandoned a legal concept and then, just under three years later, spectacularly brings back the same concept as if nothing ever happened? It is a little like remaining loyal to a sports team such as the Maple Leafs (for the last 40 plus years) or Liverpool FC (20 plus) and thinking at the beginning of each season, “This year, it will be different.” I am not sure if my health can take it.

Unfortunately, resurrecting a concept most thought was moribund is exactly what seems to have happened in the recent twin cases of Quebec (Attorney General) v Canadian Owners and Pilots Association, [2010] 2 SCR 536 [Canadian Owners and Pilots], and Quebec (Attorney General) v Lacombe, [2010] 2 SCR 453 [Lacombe]. In both cases, private citizens attempted to situate aerodromes on land that was provincially designated for other uses. In both cases, the Supreme Court of Canada allowed the aerodromes to remain. In both cases, the Court upheld the federal regulatory power over airports under the Aeronautics Act, RSC, 1985, c A-2 in the face of provincial legislation attempting to preserve agricultural land. In both cases the two dissenting judges, from Quebec, wanted to uphold the provincial law. And in both cases it turns out that interjurisdictional immunity is alive and well in 2010 – and that news of its demise turns out to be premature.

Here is what I mean. In two 2007 cases on interjurisdictional immunity (“IJI”), Canadian Western Bank v Alberta, [2007] 2 SCR 3 [Canadian Western Bank], and British Columbia (Attorney General) v Lafarge Canada Inc., [2007] 2 SCR 86 [Lafarge], the Court more than hinted that the time to move away from federal immunity is nigh. In a case where banks are subject to provincial insurance regulation (Canadian Western Bank) and where the building of a cement facility in the heart of a busy international port is opposed (Lafarge), paramountcy is to be the preferred approach where federal and provincial legislation conflict and are intra vires. As an example, take a look at a number of quotations from the Canadian Western Bank case:

The Dominant Tide of Constitutional Interpretation Does Not Favour Interjurisdictional Immunity (para 34).

Although the doctrine of interjurisdictional immunity has a proper part to play in appropriate circumstances, we intend now to make it clear that the Court does not favour an intensive reliance on the doctrine, nor should we accept the invitation of the appellants to turn it into a doctrine of first recourse in a division of powers dispute (para 47).

Despite the efforts to find a proper role for the doctrine, the application of interjurisdictional immunity has given rise to concerns by reason of its potential impact on Canadian constitutional arrangements (para 35).

A doctrine [that is] “not…particularly compelling” (quoting Ontario (Attorney General) v OPSEU, [1987] 2 SCR 2, para 36).

A court should favour, where possible, the ordinary operation of statutes enacted by both levels of government (para 37).

The court should try to restrict itself to the lesser but still important role of interpreting statutes of different jurisdictions in the same area, in order to avoid conflict, and applying a doctrine of paramountcy in the few situations which are left (para 37).

There are “dangers [in] allowing the doctrine of interjurisdictional immunity to exceed its proper (and very restricted) limit” (para 38).

[IJI] is based on the attribution to every legislative head of power of a “core” of indeterminate scope — difficult to define, except over time by means of judicial interpretations triggered serendipitously on a case-by-case basis (para 43).

The asymmetrical effect of interjurisdictional immunity can also be seen as undermining the principles of subsidiarity, i.e. that decisions “are often best [made] at a level of government that is not only effective, but also closest to the citizens affected” (para 45).

Finally, the doctrine would seem as a general rule to be superfluous (para 46).

Although it is true that the Court left the doctrine intact for situations already covered by precedent – such as federal things, persons or undertakings – it seemed henceforth that, if anything, IJI should be considered last in a division of powers analysis, only where it is “absolutely indispensable or necessary” for a legislature to “achieve its purpose” and then only where it is does not make any sense to resolve a matter by a pith and substance analysis followed by paramountcy.

Without saying it explicitly, the entire tenor of the decisions of Lafarge and Canadian Western Bank seemed clear: no more shall the Court entertain new IJI arguments. Instead, it will probably just wither away. So have we gone back to the future in Canadian Owners and Pilots and Lacombe? Or, to put it another way, why is air travel different from banking or port land development?

The majority of the Court, in essence, relies on past precedent to claim air transport’s uniquely federal nature. As the Chief Justice writes on behalf of the majority:

Air transportation is an indispensable part of modern life… Aircraft must take off and land.  For this they need soil or water.  The soil or water they use is not available for other purposes (Canadian Owners and Pilots, para 1).

A long line of cases tells us that air travel and the location of aerodromes lies at the core of federal competence over aeronautics.

I can accept that airline travel is different. It is different from, as faced the Court in Canadian Western Bank, the types of products banks offer customers. Airline travel must be regulated federally to make sense of it all. I would certainly not want a patchwork of federal and provincial legislation dealing with air travel – just because someone is flying a float plane from Lake Muskoka to Buttonville airport should not mean that they can ignore federal regulation over commercial and international flights. The fact is that planes mix in the sky, just as kayaks, canoes, sailboats, cruise ships and supertankers all mix around the Toronto harbour. I am glad one authority looks over much of it.

So what is my concern? It is one simple thing. It is all about situating an aerodrome – I learned from those cases that private persons apply for such a thing. I even tried it myself, but after spending a good hour or two trolling around the Department of Transport’s website, I failed to locate the appropriate application form. So I asked Kevin Psutka, the President and CEO of the Canadian Owners and Pilots Association (who, understandably, was arguing for immunity from provincial laws in these cases) for help. He kindly sent me a link to a Quebec application form. It is an interesting read. You can try it yourself.

Basically, anyone can apply to have an aerodrome anywhere. On agricultural land, glaciers, lakes, swamps or anything else. In fact, my guess is that I could send in an application for a Toronto street, say, Roncesvalles Ave., to become an airstrip, with my abutting house as the aerodrome. I hope it would not be granted.

But the fact is, you and I apply for the license. It is not up to the federal government to initiate the matter. In other words, the federal government does not have any grand plan about where aerodromes and airfields should be. They are passive participants in this process. They did not plan; they react.

Provincial governments, on the other hand, are very active in setting out zoning restrictions, managing urban and rural planning, deciding whether areas should be designated off limits to development, protected habitats, etc. It is clearly a matter within their domain of property and civil rights in a province. In fact, it seems to me to be awfully similar to the debate over who has exclusive authority over “port lands” as in Lafarge.

And that is one of the problems with IJI – it asks the wrong questions. Whether a provincial law “impairs” the operation of a federal law may be useful to know, but it ignores a host of other important policy objectives and motivations. For one, I think that a scheme of planning is better policy than a scheme of ad hoc decision making, no matter which level of government is involved. If Transport Canada wished to develop a planned approach to aerodromes, that would signal something – and it would then allow them to rely on the more coherent doctrine of paramountcy, as suggested in Canadian Western Bank and Lafarge, to render inoperable any conflicting legislative enactments.

In the end, I want the federal government to have exclusive control over the airways, air traffic control, flight routes, pilot licensing, etc., for both intraprovincial and international flights – and for everything from hang gliders and one seater ultralights to the new Airbus A380. I would not feel safe otherwise. But I remain unconvinced that they should control legitimate provincial interests in planning, zoning and control of the landscape unless they show their own interest in such things.

More importantly, if the Supreme Court of Canada would only just hold off on the surprises, I think I will live longer. Maybe even long enough to see Liverpool win the League (I almost wrote “the Leafs win the Cup” instead, but I did not).

Richard Haigh is a Visiting Professor and the Director of the Public Interest Requirement program at Osgoode Hall Law School. He has been a Senior Advisor at the National Judicial Institute in Ottawa, a Senior Lecturer at Deakin University in Melbourne, Australia, and is currently working on his doctoral degree at the University of Toronto in the area of freedom of conscience and religion. His research and teaching interests include Constitutional Law, Public Law, and Equity and Trusts.