Parliamentary Supremacy

Canada Post Corporation v. Hamilton (City), 2016 ONCA 767 (CanLII)

[42] Once the matter of the challenged legislation is ascertained, the next step is to determine whether the matter comes within one of the heads of power allocated to the enacting legislative body by s. 91 or s. 92 of the Constitution Act, 1867. If not, the legislation is ultra vires and void.

[43] Legislation will not be ultra vires, however, simply because its subject matter, for another purpose, could have fallen under the jurisdiction of the other level of government under a different head of power. The double aspect doctrine provides that “subjects which in one aspect and for one purpose fall within sect. 92, may in another aspect and for another purpose fall within sect. 91”: Hodge v. The Queen (1883), 9 A.C. 117, at p. 130 (P.C.). Accordingly, the doctrine contemplates that some subjects will fall equally under two distinct heads of power, one federal and one provincial: Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23, 397 D.L.R. (4th) 611, at para. 50.

[44] This double aspect raises the possibility of conflict between valid federal and provincial laws that both deal with the same subject matter. The doctrine of paramountcy stipulates that such conflict is to be resolved in favour of federal legislation: Canadian Western Bank, at para. 32. Where there is a conflict, federal legislation is paramount and the conflicting provincial legislation is inoperative to the extent of the conflict.

[45] The Supreme Court has recently clarified its jurisprudence on what is required for a conflict: Alberta (Attorney General) v. Moloney, 2015 SCC 51, (2015) 3 S.C.R. 327, at paras. 17-29. It summarized when a conflict will occur, at para. 29:

[I]f the operation of the provincial law has the effect of making it impossible to comply with the federal law, or if it is technically possible to comply with both laws, but the operation of the provincial law still has the effect of frustrating Parliament’s purpose, there is a conflict.

Collins v. Canada (Customs and Revenue Agency), 2005 FC 1431 (CanLII)

[13] In the Applicant's view, « the new legislation can in no way revive an alleged fiscal debt that was already extinguished one year earlier by the aforementioned ruling of the Supreme Court of Canada [Markevich v. Canada, supra], for if that were the case, it would have for effect the retroactive annulment of the actual ruling by the Supreme Court of Canada, which makes absolutely no sense » . With deference for the Applicant, the Parliament has discretion to overrule Supreme Court judgments. The principle of parliamentary supremacy is a foundation of Canadian constitutional law: the judiciary must abide by the statutes adopted by Parliament.

Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17 (CanLII), [2015] 4 FCR 467

[51] At the conceptual level, the Supreme Court in Dunsmuir identified two principles that underlie our law of judicial review, principles that are in tension with each other (at paragraphs 27-31). First, there is the constitutional principle of Parliamentary supremacy. Absent constitutional objection, courts are bound by the laws of Parliament, including those that vest exclusive power in an administrative decision-maker over a certain type of decision. Second, there is the constitutional principle of the rule of law. In some circumstances, courts must intervene even in the face of Parliamentary language forbidding intervention: Crevier v. A.G. (Québec) et al., 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220, 127 D.L.R. (3d) 1.

Canada v. Toronto-Dominion Bank, 2018 FC 538 (CanLII)

[12] It should also be emphasized that, in section 222, Parliament resorted to a private law concept, the trust, to implement its intention. In doing so, Parliament is presumed to rely on the rules associated with this private law context to supplement the explicit provisions of the ETA. As the Supreme Court of Canada once said, tax legislation “does not operate in a vacuum but rather relies implicitly on the general law, especially the law of contract and property” (Bastien Estate v Canada, 2011 SCC 38 at para 49, [2011] 2 SCR 710; see also Markevich v Canada, 2003 SCC 9 at para 14, [2003] 1 SCR 94; Will-Kare Paving & Contracting Ltd v Canada, 2000 SCC 36 at paras 31-35, [2000] 1 SCR 915).

[61] Nevertheless, in the absence of constitutional guarantees, courts must bow to Parliamentary supremacy. Parliament may want to alter the norms governing the allocation of wealth, property and financial risk. Presumptions of interpretation should not frustrate Parliament’s intention. In Estabrooks, Justice La Forest cautioned about too much reliance on the presumption against interference with private property:

The courts should not, for example, place themselves in the position of frustrating regulatory schemes or measures obviously intended to reallocate rights and resources simply because they affect vested rights. For legislation almost inevitably affects vested rights. They must similarly have great deference for legislative schemes establishing priorities among creditors and encumbrancers and, in particular, those that favour the Crown over other creditors […] (at 31)

[69] A cause of action is “a set of facts that provides the basis for an action in court” (Markevich v Canada, 2003 SCC 9 at para 27, [2003] 1 SCR 94). In this case, those facts arose on October 28, 2011, when the Bank received money that should have been paid to the Receiver General. From that date, the Crown was in a position to sue the Bank.

Law Society of British Columbia v. Mangat, 2001 SCC 67 (CanLII), [2001] 3 SCR 113

1 The central issues raised by this appeal are whether ss. 30 and 69(1) of the Immigration Act, R.S.C. 1985, c. I-2, are intra vires the federal Parliament, and whether a provision of the Legal Profession Act (then S.B.C. 1987, c. 25, s. 26; now S.B.C. 1998, c. 9, s. 15) which prohibits a person, other than a member of the Law Society in good standing or a person listed in the exceptions, to engage in the practice of law is constitutionally inoperative or inapplicable to persons acting under ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations.

A. British Columbia Supreme Court (1997), 1997 CanLII 2112 (BC SC), 149 D.L.R. (4th) 736

11. Before Koenigsberg J., the respondents Mangat and Westcoast admitted that they were engaged in the practice of law within the meaning of s. 1 of the Legal Profession Act, but contended that their conduct was sanctioned by ss. 30 and 69(1) of the Immigration Act, which permit non-lawyers to appear on behalf of clients before the IRB. Koenigsberg J. held that the threshold question was whether the Immigration Act authorizes the practice of law. She concluded that the Immigration Act does not authorize the practice of law and therefore does not shield the respondents from the requirements of the Legal Profession Act. She held that, there was no rational connection between the stated policy of the Immigration Act or the requirements that hearings be conducted as informally and expeditiously as possible and the authorizing of untrained, unqualified, or unregulated persons to appear before the IRB representing persons for a fee. She held that although unpaid agents could represent aliens, ss. 30 and 69(1) authorize the paid employment of other licensed counsel, and that only lawyers are licensed in the absence of an alternative licensing regime established under s. 114(1)(v) of the Immigration Act. Relying on the reasoning of the Court of Appeal of British Columbia in Law Society of British Columbia v. Lawrie (1991), 1991 CanLII 659 (BC CA), 59 B.C.L.R. (2d) 1, she stated that the protection of the public is best served by requiring that persons appearing before immigration tribunals as counsel be licensed, and that the objectives of the Immigration Act are not served by authorizing a different class of professional to represent persons. Finally, having regard to constitutional norms, this interpretation avoids creating a conflict between federal and provincial laws.

12. While Koenigsberg J. disposed of the appeal on this basis, she nevertheless considered the constitutional issues in the event that she erred in her conclusion. She accepted that both the Legal Profession Act and the Immigration Act are each a valid exercise of power within the constitutional jurisdiction of the respective governments, specifying that the Immigration Act fell within ss. 91(25) and 95 of the Constitution Act, 1867. Applying the framework set out in General Motors of Canada Ltd. v. City National Leasing, 1989 CanLII 133 (SCC), [1989] 1 S.C.R. 641, she then held that the Immigration Act is a valid regulatory scheme, but one that makes a substantial intrusion into the provincial power with respect to the regulation of law in the province because the creation of an unregulated profession of the practice of law leaves the public unprotected. In her view, without ensuring a standard for the practice of law by creating a licensing body, there was no rational connection between such an intrusion and the stated policy or the requirements that hearings be conducted informally. She concluded that ss. 30 and 69(1) of the Immigration Act were ultra vires Parliament insofar as they authorize the practice of law by non-lawyers.

13. In addition, Koenigsberg J. held that the interjurisdictional immunity doctrine did not apply in this case on the grounds that it is restricted to cases involving federal undertakings (including federal works, things, or persons). Indeed, constitutional jurisprudence has approached the creation of interjurisdictional immunities consciously, with the design of a flexible federal system in mind. Finally, she noted that the paramountcy doctrine also does not apply given that the potentially conflicting federal legislation is ultra vires.

14 Since she found that a number of the respondents’ activities constituted the unlawful practice of law within the meaning of the Legal Profession Act and were therefore outside the ambit of the Immigration Act, Koenigsberg J. issued the injunction on the grounds that the Immigration Act did not authorize the practice of law. Alternatively, she would have granted the injunction on the basis that the provisions were ultra vires Parliament.

London Property Management Assn. v. London (City) 2011 CarswellOnt 11699, 2011 ONSC 4710

54. I note also that as a matter of statutory interpretation, courts should attempt to interpret two potentially conflicting pieces of legislation in a way that avoids a conflict. In Brantford (City) Public Utilities Commission v. Brantford (City) (1998), 36 O.R. (3d) 419 (Ont. C.A.), the Ontario Court of Appeal said at para. 27:

In dissolving the Public Utilities Commission and establishing the Hydro-Electric Commission the City was not exercising any of the powers given to municipalities by Bill 26. More importantly, in my view, the exercise of those powers did not conflict with s. 210.4 or the regulations. In approaching this issue it is important to bear in mind a fundamental principle of statutory construction that courts should attempt to avoid finding a conflict between two pieces of legislation. Anglin J. expressed this principle in The Toronto Railway Company v. Paget (1909), 42 S.C.R. 488 at p. 499:

• It is not enough to exclude the application of the general Act that it deals somewhat differently with the same subject-matter. It is not "inconsistent" unless the two provisions cannot stand together.

56 The Applicant points out s. 37 of the RTA, which provides that: a tenancy may be terminated only in accordance with this Act. However, s. 2.2 and 2.4 of the Licensing By-law provide, respectively, that no person shall operate a Rental Unit without holding a current valid license or while their license is under suspension.

57 The Licensing By-law does not discuss what happens to the tenant in a scenario where a license is either refused or revoked. The Applicant points to Ms. McLaren's and Mr. Angelini's circumstances where the License Manager asserted the Rental Unit was illegal and could not be rented. Assuming that a refusal to grant, or a revocation of, a license renders the tenancy at an end the Applicant submits that there is an operational conflict between the statutes.

58 However, I am not satisfied that dual compliance is not possible or that the RTA is frustrated. For example, if a license is not granted because of a failure to meet Building Code standards, the landlord may properly evict the tenant under s. 50 of the RTA in order to undertake repairs to the rental property.

62 However, I cannot accept this argument by the Applicant. The Licensing By-law contains no provisions which evict tenants. I disagree with the Applicant's submission that the Licensing By-law creates a new ground for termination of a tenancy not found in the RTA. The penalty for failing to comply with a Licensing By-law is the potential of a fine or a finding of contempt. The penalty section of the Licensing By-law provides for the imposition of a fine for contravening any provision of the Licensing By-law and s. 10.5 provides that the court which enters a conviction and any court of competent jurisdiction thereafter may make an order prohibiting the continuation or repetition of the offence (that is operating without a license) and requiring the person to correct the contravention in the manner and within the period that the court considers appropriate.

Singh v. Canada ( Attorney General ), 1999 CanLII 9359 (FC), [1999] 4 FC 583

[18] The applicants challenge the constitutionality of section 39 of the Canada Evidence Act which vests, in the executive branch of government, an absolute right to determine whether "confidence[s] of the Queen's Privy Council" should be excluded from evidence in a case before a court or administrative tribunal even where the content of such "cabinet documents" would be relevant to the proceedings. The applicants assert that Canada is now a constitutional democracy, that is, the Constitution of Canada is supreme and has displaced the doctrine of Parliamentary supremacy. They rely on Reference re Secession of Quebec , 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217 (the Quebec Secession case) to support this proposition. In that case, the Supreme Court of Canada stated at page 258: "This Court has noted on several occasions that with the adoption of the Charter , the Canadian system of government was transformed to a significant extent from a system of Parliamentary supremacy to one of constitutional supremacy." The applicants submit that section 39 is contrary to the largely unwritten fundamental and organizing principles of the Constitution of Canada. The principles relevant to this matter are: the separation of powers, the independence of the judiciary and the rule of law. The applicants argue that, given the supremacy of the Constitution, section 39 should be declared invalid.

[72] I agree with Mr. Cooper's comment in Crown Privilege, Aurora, Ont.: Canada Law Book Inc., 1990, at page 141:

Both branches have duties to safeguard public interests, but only one can take the decision on disclosure of Cabinet documents. The fact that Parliament has enacted legislation which assigns total responsibility to the Executive has no impact on the constitutional relationship. As with any common law development, Parliament has a duty and a political mandate to create legislation which, when considered in the context of the common law, expresses the will of the public. Such is the historic interaction of statute and common law; to deny Parliament's supremacy with respect to the legislation of statutory provisions which are otherwise constitutional (constitutional in the sense of the federal and provincial division of powers and with respect to the Charter), would clearly undermine the constitutional tension.

[73] In the final analysis, Carey, supra, is a statement of the common law. The principles set out by La Forest J. cannot, in and of themselves, invalidate properly enacted legislation. As MacGuigan J.A. noted in Canadian Assn. of Regulated Importers, supra, the purpose of statute law may be to modify the common law rather than to declare it.

[74] Parliament's failure to amend section 39 in light of Carey, supra, is indicative of its unwillingness to modify the statute law to accord with the principles stated in that case.

Law Society of Ontario v Leahy, 2018 ONSC 4722 (CanLII)

[19] The Supreme Court held that to the extent that there was a direct conflict between the BC law and the Federal law, the Federal law was paramount, but that absent a direct conflict the two laws could remain in force and co-exist. In that case, the Court found that there was a direct conflict with respect to one part of the arrangement since the Immigration Act permitted non-lawyers to provide legal services for compensation whereas the LPA prohibited them from providing those services. However, the Court went out of its way clarify that non-lawyer appearances were limited to proceedings before the IRB, and emphasized that the Immigration Act did not permit the practice of immigration law by non-lawyers for any other purposes (including appearances before the Federal Court).

[20] Accordingly, the Mangat case never did authorize a non-lawyer such as the Respondent to practice law in the Federal Court. Now, however, even the limited exception which that case left open for practicing before the IRB has been removed. The old version of the Immigration Act has been repealed and has been replaced by IRPA. Section 91(2) of IRPA now restricts practice before the IRB to lawyers and paralegals who are members of a provincial law society (or of the Chambre des notaires du Quebec), or members of the Immigration Consultants of Canada Regulatory Council (“ICCRC”). The Respondent is not a member of any of those organizations.

[22] In the first place, this is not a conflict that triggers the federal paramountcy doctrine. As the Supreme Court stated in the leading case of Multiple Access Ltd. v McCutcheon, 1982 CanLII 55 (SCC), [1982] 2 SCR 161, 191, federal statutes are declared paramount, and the provincial statute inoperative, where “‘the same citizens are being told to do inconsistent things’; compliance with one is defiance of the other.” That is not the case here. The IRPA does not affirmatively authorize an unlicensed person to provide legal services, whether for free or for a fee.

[23] In a provision that has no bearing on the Respondent’s Federal Court and advice-giving activities, section 167(1) of the IRPA authorizes the provision of unpaid legal services to persons with cases before the IRB. However, that provision must be read in conjunction with section 91(2) of the IRPA which, as set out above, requires that the provider of such services be a member in good standing of a provincial law society or the ICCRC. In other words, section 167(1) of the IRPA clarifies that the requirement that advocacy be done by a provincially licensed paralegal, lawyer, Quebec notaire, or ICCRC member, applies to services provided on a pro bono as well as a fee-paying basis.