D. Peace, Order, and Good Government

AuthorPatrick J. Monahan - Byron Shaw
Pages396-398

Page 396

The opening words of section 91 of the Constitution Act, 1867 grant the Parliament of Canada power "to make Laws for the Peace, Order and Good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces." Although this source of federal authority has generally been interpreted relatively narrowly by the courts, as

Page 397

discussed in Chapter 8, one important exception has been in the field of transportation. The pogg power has been held to support exclusive federal jurisdiction over air transportation.76The Supreme Court has decided that aeronautics is a distinct subject matter beyond local concern and "must from its inherent nature be the concern of the Dominion as a whole."77The effect of the 1951 Johannesson case is to subject all aspects of aeronautics to exclusive federal authority, including purely local aeronautics undertakings. Therefore, the distinction between interprovincial and local undertakings, which has been critical in the judicial interpretation of section 92(10), has no application to the field of aeronautics. Even purely local airline operations fall under exclusive federal regulatory authority, regardless of whether they are connected to or integrated with an interprovincial undertaking.78Given the relatively settled nature of federal jurisdiction over aeronautics, the litigation in this field has tended to focus on a variety of subsidiary issues such as the extent to which provincial laws of general application apply to airports. Under the doctrine of interjurisdictional immunity, the courts have held that airports and aeronautics undertakings are exempt from the application of any provincial legislation that affects a vital part of the federal undertaking. For example, it has been determined that airports are exempt from municipal zoning bylaws of general application,79as well as from height restrictions imposed by a province on land adjacent to an airport.80Further, airports are exempt from provincial building code regimes, which regulate the physical structure of buildings, such that airport authorities need not obtain building permits or pay development charges prior to undertaking construction projects.81In Quebec (Attorney General) v. Canadian Owners and Pilots Association,82the Supreme Court applied the doctrine of interjurisdictional immunity and held that provincial legislation prohibiting the...

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