No “Wait and See,” Says Supreme Court of Canada: Statutes May Be Constitutionally Inapplicable on the Basis of Potential Effects Only

In Opsis Airport Services Inc. v. Quebec (Attorney General), 2025 SCC 17 (Opsis), the Supreme Court of Canada (SCC) held that a statute can be declared constitutionally inapplicable to an enterprise carrying on activities that fall within the core of an exclusive power of the other level of government based solely on effects of the statute that have not yet materialized. Businesses that are governed mainly by one level of government – whether federal or provincial – should not hesitate to seek legal advice if they are concerned that regulatory requirements stemming from the other level of government may interfere with their activities.

Key Takeaways

• The doctrine of interjurisdictional immunity applies when a provincial or federal statute impairs the core of an exclusive power of the other level of government. The statute remains valid, but the impairing provisions are declared inapplicable to matters – such as enterprises – that fall under the core of the exclusive power.
• In 2007, the SCC had held in Canadian Western Bank v. Alberta, 2007 SCC 22 that it did not favour intensive reliance on the doctrine, as it prevents the ordinary operation of statutes enacted by both levels of government. It had stated that the doctrine should in general be applied only to situations already covered by precedent.
• In Opsis, the doctrine was applied to a situation for which no specific precedent existed, which demonstrates that the SCC’s approach remains flexible and that the doctrine of interjurisdictional immunity continues to play an essential role in our constitutional framework.
• Opsis also demonstrates that the courts can declare a statute to be constitutionally inapplicable solely on the basis of its effects, whether they have materialized or not. Even though additional evidence may be helpful, it is not required.
• An impairment may arise, among other circumstances, where an enterprise’s activities are hampered by regulatory requirements that are unreasonable, that involve inordinately high costs or that grant such a broad discretion that the authorities have the final say on the possibility for the enterprise to carry on its activities.

Background

Opsis Airport Services Inc. (Opsis) operates the emergency call centre at Montréal’s Pierre Elliott Trudeau International Airport. Quebec Maritime Services Inc. (QMS) is tasked with monitoring and controlling access to the Pointe-au-Pic port facility. Both were served with statements of offence by the Bureau de la sécurité privée (BSP), the regulatory body responsible of the application of the Québec Private Security Act (PSA), for carrying on private security activities without the required licences.

It was not controversial that Opsis and QMS did not hold such licences. Opsis and QMS instead challenged the statements of offence on the basis that the PSA was constitutionally inapplicable to them.

Decision

The SCC decided that the PSA as a whole was constitutionally inapplicable to Opsis and QMS.

It concluded that the security-related activities of Opsis and QMS fell squarely within the core of the Parliament of Canada’s exclusive powers over aeronautics (in Opsis’ case) and navigation and shipping (in QMS’ case). Importantly, it reached the latter conclusion despite the absence of any precedent specifically establishing that the security of marine facilities and their operations is at the core of the federal navigation and shipping power.

The SCC then held that certain aspects of the PSA’s licensing scheme impaired the core of the federal exclusive powers.

The requirements for obtaining licenses – including the requirements which were specifically invoked against Opsis and QMS in the statements of offence – created no impairment by themselves.

Rather, the impairment stemmed from the BSP’s powers to suspend, cancel or refuse to renew a licence upon finding a violation of the standards of conduct which could imposed by the BSP by regulation, or upon finding a violation of the directives which could be issued by the BSP to an agency licence holder regarding its private security activities. Such provisions, if applied to Opsis and QMS, would effectively confer on the BSP the final say on the manner in which Opsis and QMS’ activities – activities falling within the core of exclusive federal powers – were to be conducted.

It is noteworthy that the impairment was therefore established on the basis of effects of the PSA which had not materialized. The BSP had not exercised any of the impairing powers against Opsis or QMS. In this respect, the SCC decided that as a rule, courts were not to assume that governmental authorities would act so as not to interfere with the core of the exclusive powers of the other level of government.

While only the impairing aspects of a statute should generally be declared to be constitutionally inapplicable, the SCC determined that, in this case, those aspects could not be severed from the remainder of the PSA. Thus, the PSA as a whole was declared inapplicable to Opsis and QMS.

Conclusion

Opsis serves as a reminder to businesses governed mainly by one level of government that they should not hesitate to seek legal advice when faced with requirements stemming from the other order of government. Even if the requirements at issue do not appear particularly burdensome, a consideration of the entirety of the statute at issue could reveal the potential for impairment of an exclusive power, and create a basis for the application of the doctrine of interjurisdictional immunity.