Interjurisdictional Immunity after Canadian Western Bank and Lafarge Canada Inc.: The Supreme Court Muddies the Doctrinal Waters - Again

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Supreme Court Law Review, Vol: 43, Page: 433-498

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Elliot, Robin
Canada; Constitutional Law; Jurisdiction; Constitutional Law; Law
article description
The doctrine of interjurisdictional immunity holds that valid, generally worded legislation enacted by one order of government cannot constitutionally be applied in contexts that can be said to fall within a core area of the other order of government’s legislative jurisdiction. After years of seemingly settled law, the Supreme Court of Canada reassessed the doctrine in its decisions in Canadian Western Bank v. Albert (CWB) and in British Columbia (Attorney General) v. Lafarge Canada Inc. (Lafarge) where the doctrine was invoked by federally regulated undertakings (i.e., banks and a port authority) wanting to avoid the application of valid provincial legislation. The purposes of this paper are to provide to provide a detailed overview of the origins and evolution of the doctrine of interjurisdictional immunity and a careful scrutiny of the doctrine’s place in the evolving law of Canadian federalism. Part II of the paper looks at the legal test used in early cases involving federally regulated undertakings. Part III summarizes the Court’s reassessment of the doctrine in both CWB and Lafarge. Part IV offers critical analysis of the Court’s reassessment of the doctrine.