20 Const. F. 1 (2011)

handle is hein.journals/consfo20 and id is 1 raw text is: Canada's re-emerging
division of powers
and the unrealized
force of reciprocal
Dwight Newman*
In recent decades, up to the middle of the first
decade of the twenty-first century, Canadian
division- of-powers jurisprudence seems to have
been in a period of quiescence, with modern
doctrine imposing few constraints on the fed-
eral government's implementation of national
programs. The Supreme Court of Canada had
shown a readiness to uphold federal legislation
in previously unanticipated areas, such as in the
substantial federal roles developed in economic
and environmental regulation. In the process,
federal powers like trade and commerce and
criminal law grew beyond their prior bounds.
The Court simultaneously spoke of its innova-
tions as if they marked an era of so-called co-
operative federalism.
In the last five years, however, division of
powers constraints on the federal government
have re-emerged. In 2007, the decision in
Canadian Western Bank (released with a
companion decision in Lafarge to the same
effect) contained a surprise twist: for the first
time, the Court explicitly affirmed the reciprocal
application of interjurisdictional immunity
(IJI)l to protect the core of provincial works
and undertakings from federal interference.2
Although the doctrine of IJI should be reciprocal,
protecting provincial works from federal
incursions by federal laws and federal works

from incursions by provincial laws, Canadian
courts have previously applied the doctrine
in an asymmetrical fashion consistently in
favour of federal laws. In the two Bell Canada
cases, for example, federal jurisdiction over
interprovincial telecommunications won out
over provincial jurisdiction in relation to
labour relations. The decisions in these two
cases resulted in a situation where provincial
labour standards are inapplicable to federally
regulated telecommunications companies and
other federally regulated industries. However,
this traditional application of the IJI doctrine
provides no explanation for why the core of
provincial labour relations jurisdiction counts
for nothing. The subsequent decision in
Canadian Western Bank came with a stricter
test for IJI, seemingly applying IJI only where
one government sterilizes an entity regulated
by the other. This strict test has been removed
again in a recent pair of aeronautics cases in
Qubbec that have applied a less strict test again,
as explained further below. The implication of
IJI applying more broadly again, along with
the decision that it is available in favour of the
provinces, is that provincial IJI claims may now
have teeth. One example is present in the Insite
case, in which the British Columbia Court of
Appeal held in favour of a provincial IJI claim

Constitutional Forum constitutionnel


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