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Quebec (Attorney General) v Canadian Owners and Pilots Association, 2010 SCC 39

Facts:

Valid Quebec legislation prohibited the construction of airports on land zoned agricultural. But aeronautics is an area of fed jurisdiction under POGG power

Issue(s):

Does the doctrine of IJI or paramountcy apply?

Ratio:

TEST for IJI:
1. Does the section of provincial Act trench on the protected core of a fed competence (impairment), if yes
2. Now determine whether this power lies as the protected core of fed power, if yes
**Test is whether the subject comes w/in the essential jurisdiction (Bell) – the core of a fed power is the authority absolutely necessary to enable Parl “to achieve the purpose for which exclusive jurisdiction was conferred”
**IJI should in general be reserved for situations already covered by precedent (Canadian Western Bank)
3. Determine whether the provincial law’s effect on the exercise of the protected fed power is sufficiently serious to invoke the doctrine of IJI
**Test is now: whether the provincial law impairs the fed exercise of the core competence (Canadian Western Bank) – move away from affects test of Bell\
***Impairs suggests an impact that not only affects the core federal power, but does so in a way that seriously or significantly trammels the fed power

Analysis:

Paramountcy:
*Claims in this may arise from 2 forms of conflict – 1. Operational conflict between fed and prov laws, where one says yes and the other says no (Ross), 2- where compliance is possible, but prov law is incompatible w/ the purpose of fed leg (BMO)
**Paramountcy may arise from either the impossibility of dual compliance or the frustration of a fed purpose (Rothmans)

Permissive scheme on its own does not establish purpose – more must be evidenced on this.

Party seeking to invoke the doctrine of fed paramountcy bears the burden of proof (Lafarge).

Holding:

Doctrine of IJI invoked, doctrine of paramountcy not invoked (frustration of fed purpose is not established)


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