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In Opsis Airport Services Inc v Quebec (Attorney General), 2025 SCC 17 [Opsis], the Supreme Court of Canada (“SCC” or the “Court”) refined the doctrine of interjurisdictional immunity (“IJI”) test from its framework in Canadian Western Bank v Alberta, 2007 SCC 22 [Canadian Western Bank]. Opsis centres on whether Quebec’s Private Security Act, CQLR, c S-3.5 [PSA] impairs the core of certain federal heads of power. The Court’s finding of inapplicability in this appeal represents a notable shift in the IJI analytical framework, with significant implications for legislatures, administrative decision-makers, and the private sector.
Facts
The Parties
Opsis Airport Services Inc. (“Opsis”) is an airport security company that operates an emergency call centre at a Montreal airport (Opsis, para 3). Its business involves providing camera surveillance and answering emergency calls (Opsis, para 3). Quebec Maritime Services Inc. (“QMS”) is a company working in the international marine transportation sector. It conducts loading operations on the north shore of the St. Lawrence River (Opsis, para 5). Michel Fillion (“Mr. Fillion”) is a QMS employee who monitors and controls access to QMS’s port facility (Opsis, para 5).
Legislative Context
The Aeronautics Act, RSC 1985, c A-2, and its subordinate legislation, regulate Opsis’s business. These federal laws impose obligations on aerodrome operators, such as training for security personnel and establishing an airport security program (Opsis, para 3). Like Opsis, QMS’s business is regulated by federal law. In particular, the Canada Shipping Act, 2001 SC 201, c 26, the Marine Transportation Security Act, SC 1994, c 40, and its subordinate legislation specify that marine facility security officers must have a defined range of knowledge of access control and monitoring techniques (Opsis, para 5).
The Quebec legislature enacted the PSA to regulate private security activities (Opsis, para 19). The PSA established a licensing scheme and created a self-regulatory body, the Bureau, with inspection and investigatory powers (Opsis, para 19). The licensing scheme required anyone operating a private security activity to have a license and to meet statutory training standards. The Bureau had broad powers to grant, suspend, cancel, and refuse licenses (Opsis, paras 22-23).
The Dispute
Opsis addressed two cases on appeal. The Opsis dispute arose when provincial authorities delivered a statement of offence to Opsis for operating a private security activity without holding an agency license, contrary to sections 4 and 114 of the PSA (Opsis, para 4). The QMS case began when provincial authorities issued a statement of offence to the company for performing a private security activity without holding an agent license of the appropriate class, contrary to sections 16 and 116 of the PSA (Opsis, para 6). Mr. Fillion faced charges for being employed by a person under section 16, who did not hold an agent license contrary to section 117 (Opsis, para 6). The parties all agreed that the appellants did not comply with the PSA. However, the appellants argued that the PSA is inapplicable under the IJI doctrine.
Judicial History
The Court of Québec
At the Court of Québec (“QCCQ”), Opsis pleaded guilty to the offences, subject to a determination of whether the PSA is inapplicable by virtue of the IJI doctrine (Opsis, para 7). The QCCQ rejected the constitutional challenge, finding that there was no evidence establishing the statute’s impact on airport security activities (Opsis, para 7). By contrast, the QCCQ held that the PSA impaired the exclusive federal jurisdiction over marine security and labour relations in QMS and Mr. Fillion’s case (Opsis, para 15).
Quebec Superior Court
The Quebec Superior Court (“QCCS”) found that airport security necessarily forms part of the core of the federal aeronautics power (Opsis, para 8). The QCCS also concluded that the provincial scheme impaired the federal core. Because the provisions that impaired the core were not “easily isolated” from the rest of the PSA, the entire PSA was declared inapplicable to Opsis (Opsis, para 8). Conversely, the QCCS determined that the Bureau’s statutory powers regarding agent licenses were merely a constraint that did not meet the standard of impairment.
Quebec Court of Appeal
The majority of the Quebec Court of Appeal (“QCCA”) overturned the QCCS’s decision in Opsis’s case. While the QCCA held that the PSA engaged the core of a federal power, the PSA and its regulations did not impair that core. Specifically, the possibility that the Bureau could issue directives did not satisfy the impairment standard, which is higher than speculation (Opsis, para 11). The dissenting judge held that the PSA did impair the federal core, concluding that the PSA as a whole, rather than its individual parts, would significantly limit the federal government’s ability to regulate aeronautics (Opsis, para 14).
The majority at the QCCA dismissed QMS and Mr. Fillion’s appeal on similar grounds. While the PSA touches Parliament’s core jurisdiction over navigation and shipping, the application of the PSA and its regulations did not create an impairment. In part, the dissenting judge found that the PSA was inapplicable because it limited the federal government’s ability to regulate the safety and security of marine transportation (Opsis, para 18).
Issue
The central issue before the SCC was whether the PSA should be declared constitutionally inapplicable to the appellants pursuant to the IJI doctrine (Opsis, para 27).
The SCC’s Decision
In a unanimous decision, the SCC held that there was an intrusion on the core of exclusive heads of power and corresponding impairments. The entire licensing regime under the PSA was declared inapplicable to Opsis, QMS, and Mr. Fillion.
Does the PSA Intrude on the Core of an Exclusive Head of Power?
The SCC found an intrusion on the core of an exclusive head of power in both appeals. In Opsis’s case, aeronautics falls within Parliament’s exclusive jurisdiction to make laws for peace, order, and good government under section 91 of the Constitution Act, 1867 [1867 Act]. The Court reasoned through case law that aeronautics is recognized as a matter of national importance (Opsis, para 54). This federal jurisdiction includes the regulation of air transportation security. The SCC determined that, without security measures like camera surveillance and call centres, there would be no civil aviation (Opsis, para 57).
The Court also concluded that Parliament has exclusive jurisdiction over navigation and shipping under section 91(10) of the 1867 Act. The SCC held that case law suggests dockside unloading and storage operations are integral to shipping, falling under the core of section 91(10) of the 1867 Act (Opsis, para 59). This finding follows even if precedent did not establish that the security of marine facilities was at the core of the federal navigation head of power. The Court found that, without security measures, there would be no navigation and marine commerce (Opsis, para 60). QMS’s activities and Mr. Fillion’s work accordingly fell within the core of section 91(10) of the 1867 Act.
In short, the application of the PSA to Opsis, QMS, and Mr. Fillion was an intrusion on the core of exclusive heads of power.
Does the PSA Impair the Core of an Exclusive Head of Power?
Although the SCC considered the licensing regime as a whole, the Court focused on four aspects of the PSA at this step of the IJI doctrine analysis. First, the SCC assessed the requirements for obtaining an agency license. These requirements, which did not affect how Opsis conducted its security standards, had no impact on the core of Parliament's exclusive powers in both appeals (Opsis, para 68). Second, the requirements for obtaining an agent license—despite narrowing the pool of potential employees for Opsis and QMS—did not amount to an impairment of the core of exclusive federal powers (Opsis, para 70).
However, the third element regarding requirements for standards of conduct raised an impairment issue. The SCC held that sections 30 and 107(6) of the PSA—empowering the Bureau to take action against agent license holders based on standards of conduct, such as negligence—allowed the province to regulate safety rules under the core of exclusive federal powers (Opsis, para 75). Fourth, the Bureau may issue directives to an agency license holder regarding its activities under a broad discretionary power that amounts to an impairment (Opsis, para 78). In Opsis’s case, this administrative power had the effect of shaping the company’s activities under the core of an exclusive federal power (Opsis, para 78).
Scope of Inapplicability
The SCC concluded that the entire licensing regime under the PSA, rather than its two impairing aspects, is inapplicable. Given that the two impairing aspects were essential to the Bureau’s function of protecting the public, a declaration of inapplicability applying only to these aspects would significantly limit the decision-maker’s ability to supervise private security activities (Opsis, para 83). Put differently, because the Quebec legislature would not have enacted the PSA without these impairing provisions, the appropriate remedy is to read down the entire statute (Opsis, para 84).
Analysis
Although the SCC declared that Opsis is in line with Canadian Western Bank at the beginning of its reasons, it adopted an approach to the IJI doctrine that necessarily broadens its scope (Opsis, para 1). This broadening has implications for the balance of powers, particularly for the dominant tide of cooperative federalism.
A Notable Shift in the IJI Doctrine Analysis
In Canadian Western Bank, the SCC addressed whether provincial insurance legislation applies to banks. Because banks fall under federal jurisdiction, Canadian Western Bank provided an opportunity for the Court to consider whether provincial regulatory schemes are applicable in these circumstances. The SCC ultimately held that there was no impairment of the core of the federal jurisdiction over banks when provincial laws regulate the promotion and sale of insurance. In other words, provincial and federal legislation can work in harmony.
In its reasons, the majority made several significant findings about the core analysis. Binnie and LeBel JJ, writing for the majority, held that the IJI doctrine should not apply to new circumstances. It will apply only to cores already identified in case law to avoid the uncertainty that arises when considering what is at the core of a legislature’s head of power (Canadian Western Bank, para 77). A pith and substance analysis best adjudicates these disputes, determining an act’s validity rather than its applicability.
The SCC did not follow this framework in Opsis. In my view, it is not always appropriate to address these constitutional questions through the IJI doctrine, which invites courts to engage in abstract discussions of the core with little practical effect (Canadian Western Bank, para 77). Generally, the IJI doctrine should apply in situations already covered by precedent because the applicability analysis involves abstraction rather than a clearly defined legal analysis. The careful exercise of statutory interpretation at the characterization stage of the pith and substance analysis may provide a more robust analytical framework. The SCC’s shift to a broad IJI framework in Opsis similarly raises policy concerns, noted below.
Implications for Cooperative Federalism
In Canadian Western Bank, Binnie and LeBel JJ stressed the importance of cooperative federalism in maintaining the balance of powers. This argument has important implications. The IJI doctrine has historically applied only to protect federal powers. Unsurprisingly, Opsis is yet another decision favouring the concentration of federal power.
As Dickson J concluded in his concurring opinion in Ontario Public Service Employees’ Union v AG Ontario, [1987] 2 SCR 2 [“OPSEU”], the IJI doctrine is contrary to the dominant tide of cooperative federalism because legislatures should be encouraged to pursue policy agendas without being stymied by concerns over heads of power spillover (OPSEU, para 27). In short, the IJI doctrine is not only ambiguous in its legal analysis but also risks disrupting the balance of power by favouring federal jurisdiction and constraining creative legislative solutions between Parliament and provincial legislatures. Will Opsis disrupt this balance? Perhaps only time will tell.