Gowling WLG is proud to have represented the Canadian Bankers' Association as an Intervener before the Supreme Court of Canada in a case dealing with the doctrine of interjurisdictional immunity and the application of the Private Security Act to activities under federal jurisdiction.

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In joint decisions issued on May 30, the Supreme Court of Canada (“SCC”) affirmed the constitutional doctrine of interjurisdictional immunity’s (“IJI”) essential role in relation to cooperative federalism and offered important clarity with respect to the application of the impairment test.

Opsis Airport Services Inc. v. Attorney General of Québec, et al. (2025 SCC 17) and Quebec Maritime Services Inc., et al. v. Attorney General of Quebec, et al. examined IJI doctrine in relation to the application of Québec’s Private Security Act (“PSA”) to activities under federal jurisdiction.

By unanimous decision, the SCC allowed the appeal filed by the Appellants Opsis Airport Services Inc. (“Opsis”) and Québec Maritime Services Inc. and ruled that the PSA is constitutionally inapplicable to both entities pursuant to the IJI doctrine.

A Gowling WLG team comprising Mathieu Lévesque, Patrick Cajvan, Alana Scotchmer and Graham Ragan, as well as co-counsel Guy Pratte and Julien Boudreault of BLG, represented the Canadian Bankers' Association (“CBA”) as an Intervener in this significant case.

Background

The main question of the appeal involving Opsis was centred around the jurisdiction of a province to regulate airport security activities, given that airports fall under federal jurisdiction.

Opsis operates the emergency call centre at Montréal’s Pierre-Elliott-Trudeau International Airport under the authority of Aéroports de Montréal. Opsis was charged by a Statement of Offense for operating a private security business without the requisite permit under the PSA. The Court of Québec found that the PSA applied to Opsis’ activities and convicted the company.

Opsis appealed at the Superior Court, arguing that the PSA was constitutionally inapplicable because its security activities at the airport fell within the core of exclusive federal jurisdiction over aeronautics. Relying on the principles of IJI, the Superior Court reasoned that three specific powers of the Private Security Office—namely, the power to issue binding directives to private security agencies, to revoke permits, and to conduct inspections and investigations—would unduly interfere with federal authority. The Superior Court thus declared the PSA inapplicable to Opsis’ activities and acquitted the company.

On further appeal, a majority of the Québec Court of Appeal allowed the Attorney General of Québec’s appeal, set aside the Superior Court judgment, and reinstated the Court of Québec’s guilty verdicts. In allowing the appeal, the majority of the Québec Court of Appeal indicated that while Opsis’ activities indeed fell within the core of Parliament’s aeronautics power, the application of the PSA did not cause any actual impairment. The Court of Appeal assessed that the impairment was purely speculative or hypothetical, which was not sufficient to meet the test.

The CBA sought leave to intervene before the SCC on behalf of the banking industry to advocate for preserving the exclusive federal legislative authority—specifically by ensuring that the IJI remains relevant and available, so that provincial legislation does not improperly impair the core of federal head of power.

The SCC’s decision

Three questions were submitted to the Supreme Court by the appellant Opsis, including the following one which was of particular interest for the CBA:

In considering the doctrine of exclusive jurisdiction, what is the nature of the impairment required to constitute an impediment and trigger the constitutional inapplicability of a provincial statute, and what burden of proof applies to the demonstration of such an impairment?

It has long been established by this Court that the test for IJI requires a two-pronged analysis following the decisions rendered in Canadian Western Bank and Desgagnés Transport Inc.:

  1. determination of the “core” of an exclusive head of power: identifying whether the provincial law trenches on a core aspect of a federal head of power; and
  2. assessment of the impairment: evaluating whether the provincial law impairs the exercise of the federal power.

By the decision, the threshold of impairment required for IJI doctrine to apply was clarified: it must implicate adverse consequences for the claimant. The test, however, remains a delicate and challenging balance to strike between more than mere effects, but without necessarily amounting to paralysis or sterilization.

In the application of the criteria, the CBA submitted that courts should be concerned with the impact of provincial legislation on the core of one or more specific federal legislative powers. The focus should therefore be on the impact on the power itself, rather than the impact on existing legislation or practices. 

In setting aside the decision of the Québec Court of Appeal, the SCC also added that, for predictability to be ensured, it is important to take into account the effects of the application of the impugned statute, whether they have materialized or not. As stated in the decision, there is no valid reason to adopt a “wait and see” approach.

Although the requirements to obtain a licence (i.e., for instance, of being of “good character”) or the training aspects of the PSA were not deemed by the SCC as causing sufficient impairment,  the following were found to impair the core of Parliament’s exclusive power over aeronautics:

  • the power of the Private Security Office to suspend, cancel or refuse to renew an agent licence, as well as,
  • its power to issue binding directives to an agency licence holder about the way the activities are to be conducted.

As these impairing aspects of the PSA cannot be severed from the rest of the statute, the end result is that the PSA has to be declared to be wholly inapplicable to Opsis, Maritime Services Inc. and its employee.

We believe that the decision represents a significant development in the application of the doctrine of interjurisdictional immunity and the separation of competences under the Constitution.

If you have any questions, please reach out to one of the authors or a member of our Commercial Litigation or Supreme Court of Canada Services groups.