Conflict of Laws & Parliamentary Supremacy

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Date Retrieved:	2024-04-19
CLNP Page ID:	840
Page Categories:	[Legal Principles], [Conflict of Laws], [Interference of Reasonable Enjoyment (LTB)], [Immigration Law]
Citation:	Conflict of Laws & Parliamentary Supremacy, CLNP 840, <https://rvt.link/1e>, retrieved on 2024-04-19
Editor:	Sharvey
Last Updated:	2023/03/04

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.

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72 In this case, there is an operational conflict as the provincial legislation prohibits non-lawyers to appear for a fee before a tribunal but the federal legislation authorizes non-lawyers to appear as counsel for a fee. At a superficial level, a person who seeks to comply with both enactments can succeed either by becoming a member in good standing of the Law Society of British Columbia or by not charging a fee. Complying with the stricter statute necessarily involves complying with the other statute. However, following the expanded interpretation given in cases like M & D Farm and Bank of Montreal, supra, dual compliance is impossible. To require “other counsel” to be a member in good standing of the bar of the province or to refuse the payment of a fee would go contrary to Parliament’s purpose in enacting ss. 30 and 69(1) of the Immigration Act. In those provisions, Parliament provided that aliens could be represented by non-lawyers acting for a fee, and in this respect it was pursuing the legitimate objective of establishing an informal, accessible (in financial, cultural, and linguistic terms), and expeditious process, peculiar to administrative tribunals. Where there is an enabling federal law, the provincial law cannot be contrary to Parliament’s purpose. Finally, it would be impossible for a judge or an official of the IRB to comply with both acts.

73 This case should be distinguished from 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, 2001 SCC 40. In that case, it was possible to comply with the federal, provincial, and municipal statutes or regulations without defeating Parliament’s purpose. As previously shown, in this case, it is impossible to comply with the provincial statute without frustrating Parliament’s purpose.

(c) Extent of the Conflict

74 As this case dealt with hearings before the Adjudication and Refugee Divisions only, I would hold that the Legal Profession Act’s prohibition on non-lawyers from collecting a fee to act as representatives and to provide services in that regard is inoperative to that extent. The provision of services means document preparation and advice on matters relevant to the individual’s case.

D. Remedy

75 As I have found the provisions of the Immigration Act at issue to be valid and paramount over the provisions of the Legal Profession Act, an injunction against the respondents Mangat, Westcoast, and Sparling cannot be granted in respect of the activities complained of. Moreover, the question of an injunction is moot as far as the respondents Mangat and Westcoast are concerned. Mr. Mangat is now a member in good standing of the bar in the provinces of Alberta and Ontario, which entitles him to represent a client before any hearing of the IRB. He has no intention of returning to his former work of immigration consultant. Westcoast is now dissolved and no longer exists.

76 The Court finds that there is a basis to grant a declaratory order that ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations are intra vires Parliament and that s. 26 (now s. 15) of the Legal Profession Act is inoperative to non-lawyers who collect a fee acting under ss. 30 and 69(1) for the purposes of representation before the Adjudication Division or Refugee Division and the provision of services to that end.

77 The respondent Sparling is entitled to party and party costs while, as decided by Iacobucci J. in the motion to quash the appeal for mootness, solicitor-client costs should be granted to the respondent Mangat.

VII. Disposition

78 For the foregoing reasons, I would dismiss the appeal with party and party costs to the respondent Sparling and solicitor-client costs to the respondent Mangat.

79 I would answer the constitutional question as follows:

Q. Is s. 26 of the Legal Profession Act, S.B.C. 1987, c. 25, constitutionally inoperative or inapplicable to persons acting under ss. 30 and 69 of the Immigration Act, R.S.C. 1985, c. I-2, and its associated Rules and Regulations and, if so, are the latter provisions ultra vires Parliament?

A. Section 26 of the Legal Profession Act is constitutionally inoperative to persons acting under ss. 30 and 69(1) of the Immigration Act and its associated Rules and Regulations. It is not necessary to determine whether this disposition is constitutionally inapplicable. The provisions are intra vires Parliament.

Appeal dismissed.

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

[17] Under section 26.1 of the LSA, LSO has statutory authority to regulate the practice of law in this province. As counsel for LSO point out in their factum, “[t]here are no carve outs or exceptions in respect of immigration law.”

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[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.

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

[7] Relying on this authority, Canada Post promulgated the Mail Receptacles Regulations, SOR/83-743 (the “Regulation”). Section 3 of the Regulation provides that Canada Post “may install … in any public place, including a public roadway, any receptacle … to be used for the collection, delivery or storage of mail.” Section 4 further provides that no person may relocate or remove a mail receptacle without Canada Post’s prior authorization.

[8] These provisions authorizing Canada Post to place mail receptacles on municipal roads continue in Canada Post a power that was previously enjoyed by the Postmaster General. Under The Post Office Act, 1867, c. 10, s. 10(14), the Postmaster General was authorized to place mail receptacles “in the streets … or other public place where he may consider such Letter Box to be necessary” (emphasis added). A later version of that statute was more explicit in the grant of discretion: “the Postmaster General shall administer … the Canada Post Office, and … provide and arrange for the erection of letter boxes or other receptacles at such locations as he deems appropriate” (emphasis added): The Post Office Act, S.C. 1950-51, c. 57, s.5(f). The power to install mail receptacles on municipal roads is a power that has been exercised by Canada Post and its predecessors from Confederation.

[17] The City adopted the recommendation, and on April 15, 2015, the City enacted By-Law No. 15-091, regulating the installation of equipment on City roads.

[18] Section 3.1(1) of the By-Law prohibits any person from undertaking any “work” (defined to include any installation of equipment on a road) without first obtaining a permit in accordance with the By-Law and the City’s “Roads – Equipment Installation Manual” (the “Manual”). There was a problem, however, in that the existing Manual did not address above-ground equipment and so there were no criteria in place to govern the permitting of CMBs.

[22] Canada Post successfully challenged the By-Law on six grounds, and the application judge declared it to be inapplicable and inoperative with respect to the installation of CMBs by or on behalf of Canada Post.

[23] First, the application judge held the By-Law was inoperative in respect of CMBs on the basis of vagueness.

[24] Second, he held that the By-Law was of no effect insofar as CMBs were concerned as it contravened s. 14(1) of the Municipal Act, 2001, S.O. 2001, c. 25. Section 14(1) renders a by-law in conflict with a federal Act or regulation of no effect. The application judge concluded there was a conflict because the By-Law frustrated the purpose of the Regulation, which he characterized as “the time sensitive need for [Canada Post] to carry out its mandate with respect to delivery of mail on a self-sustaining financial basis.”

[25] Third, the application judge characterized the subject matter of the By-Law as in pith and substance the control of the location of CMBs, which he concluded is “ultra vires the authority of the City, even though it is within an aspect, i.e. roads, that the City has jurisdiction.” The application judge’s conclusion on vires was influenced by his view that the By-Law was adopted as a means to stop the transition to CMBs: “[t]he by-law was purposely created by councillors with the avowed intention of stopping the transition of home delivery to CMBs, an intention expressed in a by-law which essentially takes over [Canada Post’s] decision making in choosing a business model.”

[26] Fourth, he held the By-Law intruded into the core federal jurisdiction over the postal service, and was inapplicable to Canada Post by operation of the doctrine of interjurisdictional immunity.

[27] Fifth, he held that Canada Post was not bound by the By-Law on the basis of Crown immunity.

[28] Sixth, although the application judge concluded that the By-Law was ultra vires, had he concluded otherwise, he would nevertheless have held it to be inoperative vis-à-vis Canada Post due to the doctrine of paramountcy.

[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.

[87] I therefore conclude that there is a conflict between the By-Law on the one hand, and the CPCA and the Regulation on the other, and the application judge made no error in so finding. The By-Law is thus inoperative to the extent of the conflict, including both the permitting and moratorium provisions as they apply to Canada Post.

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.

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.