Unanimous Opsis decision finds evidence not needed to prove impairment
In a decision released last Friday, the Supreme Court of Canada provided some definitive clarity to the issues of inter-jurisdictional immunity and federal paramountcy.
Opsis Airport Services Inc. v. Quebec (Attorney General), 2025 SCC 17, is about two similar cases heard in parallel. Both involved the Quebec government, through its Private Security Act (PSA) statute attempting to regulate the actions of companies engaged in providing security services to federally regulated industries: Opsis Airport Services Inc. which runs the emergency call centre at the Pierre Elliott Trudeau International Airport in Montréal and Quebec Maritime Services Inc. (QMS) which manages loading operations on transatlantic ships at the La Malbaie shipping terminal and who monitors and controls access to the port facility.
In both cases, the companies and some of their named employees were told they needed to hold PSA-issued licences to engage in their private security activities. Both companies, however, believed that the PSA requirement interfered with their ability to carry out their duties – duties that they were performing on behalf of federally controlled and regulated industries.
As the cases worked their way through the Quebec courts, one of the central questions that had to be addressed was whether the PSA’s regulations were creating an impairment of the core of the federal power since both the shipping and aeronautics industries clearly fall under federal control. And as the decision pointed out, the “doctrine of interjurisdictional immunity serves to protect the core of an exclusive power – either federal or provincial – from being impaired by the other level of government. It is rooted in the notion of exclusivity that appears in the text of ss. 91 and 92 of the Constitution Act, 1867.”
Now, with the decision, that question has been answered: the work of both companies falls solely under Parliament’s exclusive jurisdiction.
The fact that both companies dealt with security matters for their respective federally regulated industries was noted and remarked on by the courts.
"It's not just a simple matter of saying all airports are federal and therefore no provincial laws should apply. It's actually a lot more nuanced than that," said François Tremblay, a lawyer at DLA Piper who represented Opsis. "Every time you have to deal with such questions, you have to ask yourself the 'Am I at the core of federal jurisdiction over aviation?' as not everything that goes on at an airport is part of the core. Just to give you an example that's really easy to grasp, the people working at Tim Horton's at Montreal Trudeau, they're not subject to federal law, but and as the court found in our case, the the people who work at security, which is really at the core of the federal jurisdiction over aviation, are subject to federal law."
Additionally, the province overreached its jurisdiction since “the power conferred on the Bureau de la sécurité privée to suspend, cancel or refuse to renew an agent licence clearly reveals the potential for impairment. Furthermore, the power to issue directives to an agency licence holder regarding its activities gives the Bureau de la sécurité privée a broad discretion and has the effect of subjecting activities falling within the core of an exclusive power of Parliament to the control of an administrative body created by the provincial legislature.”
But in addition to addressing the specifics of the cases, the court’s approach to addressing the broader legal issues is truly important, said Sean Griffin, CEO of Langlois Lawyers, who appeared on behalf of QMS.
“I’d say the issue that is the most interesting is the fact that the Supreme Court clarified its decision from 2007 in Canadian Western Bank. It clarifies that the notion of impairment is a question of law and not only, a question of evidence, that one of the most important debates before the Appeal Court and before the Supreme Court: what was the test to meet the impairment? Now, the Supreme Court established that it’s mainly a question of law.
“Another important clarification of Canadian Western Bank is the order in which you can apply the doctrines, either paramountcy or jurisdictional immunity. And changes the landscape saying that it’s oftentimes more appropriate in logic to start with the doctrine of interjurisdictional immunity, which was a bit different in Canadian Western Bank, where the Supreme Court seemed to put more importance on the paramountcy doctrine rather than the interjurisdictional immunity doctrine.”
Griffin explained that paramountcy assumes that as long as there’s no conflict between two valid pieces of legislation, both laws apply. “The paramountcy test is one of a conflict. There has to be conflict between one law and the other, whereas the immunity test really asks ‘does the Quebec law or the federal law impair the core of the exclusive head of power?’ It’s not the same kind of approach. The paramountcy one is a lot more flexible in its application. Both laws can remain valid and applicable... And the reason why, in 2007, the Supreme Court favoured that approach before the immunity approach is that under the principle of cooperative federalism [they said] let’s try to have both laws apply and if they do apply, then go to the immunity test. That that was kind of repositioned in the decision of Friday.”
The immunity test is a two-part test, looking for both an intrusion to the core power and an impairment to the core power. Griffin said the court confirmed that an intrusion “is not enough to declare the disposition or the law inapplicable. The intrusion must meet the standard of impairment.”
As to judging what is or isn’t an impairment, the court made it clear that while evidence can help determine impairment, it isn’t necessary. Impairment is solely a matter of law and jurisdiction.
According to Tremblay, "If you do require a body of evidence every time you want to argue a case like this, it creates this wait-and-see approach that's really not practical for businesses. Jokingly, sometimes we tell clients, the only way to find out for sure, if you're federal or provincial, is to take a position, get it wrong and take it all the way to the Supreme Court. By not requiring, a factual basis in which to examine these issues, we can actually be a little bit more proactive, and we don't have to wait for a situation in which federal business is actively being prevented from carrying on its business to solve this issue and vice versa, so that that's really important, and hopefully it will really help with predictability and clarity for businesses operating in these fields."
Griffin believes that the way the decision was presented makes the will of the court very clear.
“It's a unanimous decision, and it’s rendered by the court. When you see that it's not individual judges that signed the decision, but it’s a decision by the court, usually that sends a clear message of the position of the Supreme Court with respect to the doctrine now.
“Having a unanimous decision is something we’re quite happy for us, but also for federal enterprises and undertakings because it brings predictability and visibility on how you can apply the doctrine. It’s quite important, above and beyond our case.”
