Friday, August 2, 2013

Interjurisdictional immunity of highly limited application

Marine Services International Ltd. v. Ryan Estate2013 SCC 44 effectively eliminates the doctrine of interjurisdictional immunity:

Interjurisdictional immunity exists to protect the "basic, minimum and unassailable content" or the core of the "exclusive classes of subject" created by ss. 91 and 92 of theConstitution Act, 1867Bell Canada, at p. 839.  This Court discussed interjurisdictional immunity in Canadian Western Bank and later in Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536 ("COPA").  The doctrine has a limited application today: Canadian Western Bank, at paras. 33-34. InGeneral Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641, Dickson C.J. stated that the dominant tide of constitutional interpretation, which favours, where possible, the operation of statutes enacted by both levels of government, militates against interjurisdictional immunity.  A broad application of the doctrine is inconsistent with a flexible and pragmatic approach to federalism.  As stated earlier, interjurisdictional immunity "is of limited application and should in general be reserved for situations already covered by precedent": Canadian Western Bank, at para. 77.

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