Attorney General of Quebec Appellant v. Department of Human Resources and Social Development Canada, 2011 SCC 60

SUPREME COURT OF CANADA Citation: Quebec (Attorney General) v. Canada (Human Resources and Social Development), 2011 SCC 60, [2011] 3 S.C.R. 635 Date: 20111208 Docket: 33511 Between: Attorney General of Quebec Appellant and Department of Human Resources and Social Development Canada and Commission de la santé et de la sécurité du travail Respondents - and - Rock Bruyère and Attorney General of British Columbia Interveners Official English Translation Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

Reasons for Judgment: (paras. 1 to 38) Deschamps J. (McLachlin C.J. and Binnie, LeBel, Fish, Abella, Charron, Rothstein and Cromwell JJ. concurring) Quebec (Attorney General) v. Canada (Human Resources and Social Development) , 2011 SCC 60, [2011] 3 S.C.R. 635 Attorney General of Quebec Appellant v. Department of Human Resources and Social Development Canada and Commission de la santé et de la sécurité du travail Respondents and

Rock Bruyère and Attorney General of British Columbia Interveners Indexed as: Quebec (Attorney General) v. Canada (Human Resources and Social Development) 2011 SCC 60 File No.: 33511. 2011: February 15; 2011: December 8.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. on appeal from the court of appeal for quebec Constitutional law — Federal paramountcy — Employment insurance — Recovery mechanism — Provincial statuteproviding that income replacement benefits received by injured worker exempt from seizure — Federal statute authorizing EmploymentInsurance Commission to issue requirement to pay in order to recover overpayments — Whether provincial provision constitutionallyinoperative in relation to garnishment provided for in federal statute — Employment Insurance Act, S.C. 1996, c. 23, s. 126(4) — Actrespecting industrial accidents and occupational diseases, R.S.Q., c.

A-3.001, s. 144. Crown law — Prerogatives — Immunity — Whether Employment Insurance Commission, as agent of Crown, protected bycommon law immunity, with result that s. 144 of Act respecting industrial accidents and occupational diseases inapplicable to federalCrown — Whether it is appropriate to consider doctrine of paramountcy before determining whether Crown immunity applies —Interpretation Act, R.S.C. 1985, c. I-21, s. 17. Following an industrial accident, B received income replacement benefits from the Quebec Commission de la santé et de lasécurité du travail (“CSST”).

From November 2006 to August 2007, the CSST complied with a requirement to pay that the CanadaEmployment Insurance Commission (“Commission”) had issued under s. 126(4) of the Employment Insurance Act (“EIA”) in order torecover employment insurance benefits B had received from the Commission but to which he was not entitled. B challenged thelawfulness of the remittance of the income replacement benefits on the ground that they were unseizable by virtue of s. 144 of the Actrespecting industrial accidents and occupational diseases (“AIAOD”).

The Superior Court found that the CSST had acted improperly,and ordered it to reimburse B. The Court of Appeal allowed the appeal and, finding that there was a conflict between the provincial andfederal statutory provisions, declared s. 144 AIAOD to be inoperative in relation to requirements to pay issued under s. 126(4) EIA. Held: The appeal should be dismissed. The courts are not required to apply systematically the Crown immunity rule set out in s. 17 of the

Interpretation Act. Where a case can be decided without recourse to this rule, the court should generally give preference to the other grounds raised by theparties. In the instant case, since it is possible to apply the paramountcy doctrine, that doctrine should be considered first. Section 126(4) EIA is a permissive provision, and s. 144 AIAOD is a prohibitive provision. Compliance with one is notdefiance of the other, so there is no operational conflict. There is, however, a conflict of purposes.

In this regard, to determine whether arestriction imposed by a government at one level is compatible with an authorization granted by one at another level, it is necessary toconsider the two provisions in their broader legislative context in order to identify the purpose being pursued by each of the legislatures. Parliament has, in enacting s. 126(4) EIA, chosen to give the Commission a freestanding positive right to require a third party to pay tothe Receiver General any amount the third party owes a person who is liable to make a payment under the EIA, on account of thatperson’s liability.

The purpose of this measure is to ensure the integrity of the employment insurance system by making it possible torecover amounts owed, including benefit overpayments, in a simple and

summary fashion, without regard for the provincial rulesrespecting exemption from seizure. This purpose would be frustrated if the Commission were to comply with the provincial provisioncreating an exemption from seizure. The Attorney General of Quebec has failed to show that Parliament intended to require theCommission, in issuing a requirement to pay, to comply with the provincial provision exempting income replacement benefits fromseizure. The conflict between the two provisions is not merely apparent, but is indeed real.

The provincial provision is thereforeinoperative owing to a conflict of legislative purposes. Cases Cited Considered: Clarke v. Clarke, (SCC), [1990] 2 S.C.R. 795; Rothmans, Benson & Hedges Inc. v.Saskatchewan, 2005 SCC 13, [2005] 1 S.C.R. 188; 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC40, [2001] 2 S.C.R. 241; Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113; referred to: Phillips v.

NovaScotia (Commission of Inquiry into the Westray Mine Tragedy), (SCC), [1995] 2 S.C.R. 97; Canadian Western Bank v.Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Century Services Inc. v. Canada (Attorney General), 2010 SCC 60, [2010] 3 S.C.R. 379;Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), (SCC),[1989] 2 S.C.R. 225; R. v. Eldorado Nuclear Ltd., (SCC), [1983] 2 S.C.R. 551; Quebec (Attorney General) v. CanadianOwners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536; Multiple Access Ltd. v.

McCutcheon, (SCC), [1982]2 S.C.R. 161; Canada (Attorney General) v. Bourassa (Trustee of), 2002 ABCA 205, 6 Alta. L.R. (4th) 223. Statutes and Regulations Cited Act respecting industrial accidents and occupational diseases, R.S.Q., c. A-3.001, s. 144. Constitution Act, 1867, s. 91(2A).

Employment Insurance Act, S.C. 1996, c. 23, ss. 38(2), 42(1), (2), 43, 45, 46, 65, 126(1) to (4). Federal Courts Rules, SOR/98-106, rr. 1.1, 448. Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), s. 225(1), (5).

Interpretation Act, R.S.B.C. 1996, c. 238, s. 14(1).

Interpretation Act, R.S.C. 1985, c. I-21, ss. 8.1, 17.

Interpretation Act, R.S.P.E.I. 1988, c. I-8, s. 14. Authors Cited Côté, Pierre-André, in collaboration with Stéphane Beaulac and Mathieu Devinat. The

Interpretation of Legislation in Canada, 4th ed. Toronto: Carswell, 2011. Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp., vol. 1. Scarborough, Ont.: Thomson/Carswell, 2007 (updated 2010,release 1). Hogg, Peter W., and Patrick J. Monahan. Liability of the Crown, 3rd ed. Scarborough, Ont.: Carswell, 2000. Issalys, Pierre, et Denis Lemieux. L’action gouvernementale: Précis de droit des institutions administratives, 3e éd. Cowansville,Qué.: Yvon Blais, 2009. McNairn, Colin H. H. Governmental and Intergovernmental Immunity in Australia and Canada. Toronto: University of Toronto Press,1977.

Saunders, Brian J., Donald J. Rennie and Graham Garton. Federal Courts Practice 2011. Toronto: Carswell, 2010. APPEAL from a judgment of the Quebec Court of Appeal (Pelletier, Dalphond and Morissette JJ.A.), 2009 QCCA 2246, [2010] R.J.Q. 1, [2010] R.J.D.T. 1, [2009] J.Q. no 14313 (QL), 2009 CarswellQue 11956, setting aside a decision of Bédard J., 2008 QCCS 1465, [2008] J.Q. no 3011 (QL), 2008 CarswellQue 3026. Appeal dismissed. Alain Gingras and Benoît Boucher, for the appellant. Bernard Letarte and Pierre Salois, for the respondent the Department of Human Resources and Social DevelopmentCanada.

No one appeared for the respondent Commission de la santé et de la sécurité du travail. No one appeared for the intervener Rock Bruyère. Tyna Mason, for the intervener the Attorney General of British Columbia.

English version of the judgment of the Court delivered by [1] Deschamps J. — This appeal raises the issue of the interplay between a provincial statutory provision according towhich provincial income replacement benefits received by an injured worker are exempt from seizure and a federal statutory provisionthat authorizes the issuance by the Canada Employment Insurance Commission (“Commission”) of a requirement to pay. For thereasons that follow, it is my opinion that the two provisions are in conflict and that the doctrine of federal paramountcy applies. [2] The facts are not in dispute.

Following an industrial accident, Rock Bruyère received income replacement benefitsfrom the Commission de la santé et de la sécurité du travail (“CSST”). From November 1, 2006, to August 24, 2007, the CSSTcomplied with a requirement to pay that the Commission had issued under s. 126(4) of the Employment Insurance Act, S.C. 1996, c. 23(“EIA”), in order to recover employment insurance benefits Mr. Bruyère had received from the Commission but to which he was notentitled. Mr.

Bruyère challenged the lawfulness of the remittance of the income replacement benefits on the ground that they wereunseizable by virtue of s. 144 of the Act respecting industrial accidents and occupational diseases, R.S.Q., c. A-3.001 (“AIAOD”). I. Judicial History [3] Bédard J. of the Superior Court ruled in Mr. Bruyère’s favour (2008 QCCS 1465 (sub nom. Bruyère v.CSST)). He found that the CSST had acted improperly. In his opinion, the determination of whether property is seizable falls within theexclusive jurisdiction of the provinces over property and civil rights.

According to Bédard J., the federal paramountcy doctrine cannotapply in such a case. A federal provision will be paramount only where there is concurrent jurisdiction or an unoccupied field. Hepointed out that s. 144 AIAOD is of public order and expressed the opinion that the CSST may not depart from it even if the federalCrown has a statutory right of seizure. [4] The Quebec Court of Appeal (Pelletier, Dalphond and Morissette JJ.A. (2009 QCCA 2246, [2010] R.J.Q. 1)) setaside the Superior Court’s judgment, holding that there is a conflict between s. 144 AIAOD and s. 126(4) EIA.

In its view, the EIAconfers on the Commission a right that is incompatible with the prohibition against seizure provided for in the AIAOD. The Court ofAppeal also pointed out that it was open to Parliament to subject the federal enforcement measure to other federal social provisions and toprovincial provisions creating exemptions from seizure, and that Parliament had done so in other contexts. Since Parliament did notintend to so limit the scope of s. 126(4) EIA, there is a conflict of intentions. For these reasons, the Court of Appeal declared s. 144

AIAOD to be inoperative in relation to requirements to pay issued under s. 126(4) EIA. [5] The Attorney General of Quebec, who appeared in the Court of Appeal as an intervener, is appealing to this Court. II. Constitutional Questions [6] On June 29, 2010, the Chief Justice stated these two constitutional questions: 1. Is s. 144 of the Act respecting industrial accidents and occupational diseases, R.S.Q., c. A-3.001, constitutionallyinapplicable to a garnishment under s. 126(4) of the Employment Insurance Act, S.C. 1996, c. 23? 2.

Is s. 144 of the Act respecting industrial accidents and occupational diseases, R.S.Q., c. A-3.001, constitutionallyinoperative in relation to a garnishment under s. 126(4) of the Employment Insurance Act, S.C. 1996, c. 23? III. Positions of the Parties [7] The Attorney General of Quebec does not dispute that it was open to Parliament to enact s. 126(4) EIA pursuant tothe federal unemployment insurance power (s. 91(2A) of the Constitution Act, 1867).

But he submits that the doctrine ofinterjurisdictional immunity does not apply, because s. 126(4) EIA does not fall within the core of the federal unemployment insurancepower and because, in any event, the application of s. 144 AIAOD does not impair the core of the federal power. Moreover, in his view,the federal Crown’s immunity would not entitle it to effect a seizure that is not authorized by s. 144 AIAOD.

The Attorney General ofQuebec further argues that the federal and provincial provisions in issue are not incompatible, because it cannot be said that Parliamentintended to exclude the application of the provincial measure. [8] The Department of Human Resources and Social Development Canada (“Department”) submits that theCommission, as an agent of the Crown, is protected by a common law immunity as a result of which s. 144 AIAOD is inapplicable to thefederal Crown.

The Department does not rely on the constitutional doctrine of interjurisdictional immunity, but instead argues that, evenif the provision in question were applicable despite the Crown’s immunity, it would be inoperative by reason of the doctrine of federalparamountcy. IV. Analysis [9] The only issues are whether the provincial provision is applicable and whether it is operative. The AttorneyGeneral of Quebec submits that the doctrine of interjurisdictional immunity does not apply in the instant case, but there is no need toaddress this question because the Department is not relying on that doctrine. A.

Analytical Framework [10] The Department’s position that the CSST must comply with the requirement to pay is supported by two arguments. The Department suggests, in accordance with the principle that the Court should not rule on constitutional arguments unless it isnecessary to do so, that the issue of the common law immunity should be considered before that of paramountcy. [11] At first glance, the Department’s suggestion would appear to be based on the order in which the Court has oftendealt with the issues now before it: Phillips v.

Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), (SCC), [1995] 2 S.C.R. 97, at para. 9. If a statute is invalid, there is no point in enquiring into its applicability. And if a provincialprovision is not applicable, there can be no question of a conflict with a federal provision that engages the doctrine of federalparamountcy. It is therefore logical to consider first whether a contested provision is valid, then whether it is applicable and, finally,whether it is operative.

Thus, it would be appropriate to begin by considering the scope of Crown immunity, since it is a common lawrule and since it relates to the applicability of the provision, before turning to the doctrine of federal paramountcy, which relates to theoperability of the provision. This does not amount to a rule, however. Indeed, in Canadian Western Bank v.

Alberta, 2007 SCC 22,[2007] 2 S.C.R. 3, a majority of the Court held that arguments based on the paramountcy doctrine should be considered first, exceptwhere there are precedents that justify having recourse to the doctrine of interjurisdictional immunity to resolve the issue and that supporta finding that the provision is inapplicable. This hierarchy was established as a matter of judicial policy (paras. 77-78). [12] In my view, several reasons support considering the paramountcy doctrine before determining whether Crownimmunity applies. First, the privilege of Crown immunity has been eroded somewhat.

A more modern approach to the role ofgovernments is reflected in numerous legislative amendments, in insolvency matters for example (see the historical discussion inCentury Services Inc. v. Canada (Attorney General), 2010 SCC 60, [2010] 3 S.C.R. 379). Two provinces, British Columbia and PrinceEdward Island, have passed legislation to reverse the common law presumption that statutes are not binding on the Crown(Interpretation Act, R.S.B.C. 1996, c. 238, s. 14(1);

Interpretation Act, R.S.P.E.I. 1988, c. I-8, s. 14). [13] Second, the exceptions to the Crown immunity rule are now so numerous that the current law in this field isconsidered to be exceedingly complex. It is said that most of the techniques used to ensure that statutes apply to the Crown are uncertainin scope and unpredictable in their application. The immunity is considered to be broader than is necessary for governments to functionproperly (P. W. Hogg and P. J.

Monahan, Liability of the Crown (3rd ed. 2000), at pp. 327 and 329). [14] Finally, as is true of the doctrine of interjurisdictional immunity, the immunity rule has tended to benefit the federalCrown asymmetrically: Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), (SCC), [1989] 2 S.C.R. 225, at pp. 271-75; see also C. H. H. McNairn, Governmental and Intergovernmental Immunityin Australia and Canada (1977), at p. 42. [15] Nearly 30 years ago, in R. v.

Eldorado Nuclear Ltd., (SCC), [1983] 2 S.C.R. 551, Dickson J. (as hethen was), aware of the difficulties inherent in the application of Crown immunity, wrote the following:

The conceptual rationale underlying the doctrine of Crown immunity is obscure. . . . Why that presumption [of Crownimmunity] should be made is not clear. It seems to conflict with basic notions of equality before the law. The more active governmentbecomes in activities that had once been considered the preserve of private persons, the less easy it is to understand why the Crown needbe, or ought to be, in a position different from the subject.

This Court is not, however, entitled to question the basic concept of Crownimmunity, for Parliament has unequivocally adopted the premise that the Crown is prima facie immune. [p. 558] (See also the reforms suggested by Hogg and Monahan in Liability of the Crown, at pp. 326-30, and P. W. Hogg in Constitutional Law ofCanada (5th ed. Supp.), vol. 1, at pp. 10-14 to 10-23, as well as the comments of McNairn, at pp. 21-22, and those of P. Issalys andD.

Lemieux, L’action gouvernementale: Précis de droit des institutions administratives (3rd ed. 2009), at pp. 1396-97.) [16] Although the courts cannot change the Crown immunity rule given that it is set out in s. 17 of the

Interpretation Act,R.S.C. 1985, c. I-21, this does not mean that they are required to apply it systematically. Where a case can be decided without recourseto Crown immunity, the court should generally give preference to the other grounds raised by the parties. This is one such case, since itis possible to apply the paramountcy doctrine. B. Doctrine of Federal Paramountcy [17] In Quebec (Attorney General) v.

Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536, atpara. 64, the Chief Justice stated that the doctrine of federal paramountcy is applicable to two forms of conflict: The first is operational conflict between federal and provincial laws, where one enactment says “yes” and the other says“no”, such that “compliance with one is defiance of the other”: Multiple Access Ltd. v. McCutcheon, (SCC), [1982] 2S.C.R. 161, at p. 191, per Dickson J. In Bank of Montreal v.

Hall, (SCC), [1990] 1 S.C.R. 121, at p. 155, La Forest J.identified a second branch of paramountcy, in which dual compliance is possible, but the provincial law is incompatible with the purposeof federal legislation: see also Law Society of British Columbia v. Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113, at para. 72; [BritishColumbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23, [2007] 2 S.C.R. 86], at para. 84.

Federal paramountcy may thusarise from either the impossibility of dual compliance or the frustration of a federal purpose: [Rothmans, Benson & Hedges Inc. v.Saskatchewan, 2005 SCC 13, [2005] 1 S.C.R. 188], at para. 14. [18] In the case at bar, the Court of Appeal concluded that there is a conflict of intentions between the two provisions inissue (para. 7). But the Attorney General of Quebec challenges this conclusion on the ground that Parliament’s intention could not havebeen to block the application of provincial statutes that provide for exemptions from seizure.

He emphasizes that such statutes aregenerally designed to protect a minimum level of resources. In his opinion, because Parliament has not clearly expressed an intention toexclude the application of provincial law, that law — s. 144 AIAOD in this case — applies by virtue of s. 8.1 of the

Interpretation Act. [19] Before I consider the Attorney General of Quebec’s argument in greater detail, it will be helpful to reproduce the twoprovisions in issue:

An Act respecting industrial accidents and occupational diseases 144. Indemnities paid under this Act are unassignable, unseizable and nontaxable except the income replacementindemnity, up to 50% of which is seizable for alimentary debts. At the request of the Minister of Employment and Social Solidarity, the Commission shall deduct from indemnitiespayable to a person under this Act the amount repayable under

section 90 of the Individual and Family Assistance Act(chapter A-13.1.1). The Commission shall remit the amount thus deducted to the Minister of Employment and Social Solidarity. It shall also, at the request of the Régie des rentes du Québec, deduct from the income replacement indemnity payable to aperson under this Act, the amounts of disability pension or retirement pension paid to that person under the Act respecting the QuébecPension Plan (chapter R-9) which may be recovered under that Act. It shall pay the amounts so deducted to the Board. Employment Insurance Act 126.

(1) An amount or part of an amount payable under

Part I, II or VII.1 that has not been paid may be certified by theCommission (

a) without delay, if in the opinion of the Commission the person liable to pay the amount is attempting to avoidpayment; and (

b) in any other case, on the expiration of 30 days after the default.

(2) On production to the Federal Court, the resulting certificate shall be registered in the Court and when registered hasthe same force and effect, and all proceedings may be taken, as if the certificate were a judgment obtained in the Court for a debt of theamount specified in the certificate plus interest to the day of payment as provided for in this Act.

(3) All reasonable costs and charges attendant on the registration of the certificate are recoverable in like manner as ifthey had been certified and the certificate had been registered under this section.

(4) If the Commission has knowledge or suspects that a person is or is about to become indebted or liable to make apayment to a person liable to make a payment under

Part I, II or VII.1 or under subsection (7), it may, by a notice served personally orsent by a confirmed delivery service, require the first person to pay the money otherwise payable to the second person in whole or in partto the Receiver General on account of the second person’s liability. . . .

[20] As can be seen from the provisions themselves, the federal provision is permissive, and the provincial provision isprohibitive. Compliance with one is not defiance of the other (Multiple Access Ltd. v. McCutcheon, (SCC), [1982] 2S.C.R. 161, at p. 191). It would be possible to comply with the more restrictive provision, the provincial one, by limiting the scope ofthe less restrictive provision, the federal one. There is not, therefore, an operational conflict. As a result, what must be determined in thecase at bar is whether there is a conflict of purposes.

In some cases, it can be seen from the legislative context that a permissive orrestrictive provision of a federal statute has a purpose that is compatible with the purpose of the provincial legislation, but in others, theopposite is true. To determine whether the legislative purposes of the provisions are in conflict, it must be asked whether Parliament’spurpose is compatible with that of the provincial legislature. To guide this analysis, it will be helpful to review certain of this Court’sdecisions. [21] The Attorney General of Quebec urges the Court to draw an analogy with the facts of Clarke v.

Clarke, (SCC), [1990] 2 S.C.R. 795. Three other cases are also relevant to the determination of whether a permissive federal provision iscompatible with a restriction imposed by a provincial provision: Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2005 SCC 13,[2005] 1 S.C.R. 188; 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241; andLaw Society of British Columbia v.

Mangat, 2001 SCC 67, [2001] 3 S.C.R. 113. [22] In Clarke, the Court found that the prohibition against attaching federal pension benefits that was provided for in theCanadian Forces Superannuation Act, R.S.C. 1970, c. C-9, was not inconsistent with the inclusion of those benefits in the propertysubject to division between spouses under the Matrimonial Property Act, S.N.S. 1980, c. 9. The Court reached this conclusion because,in particular, the purpose of the statute that prohibited attachment was to protect not only Canadian Forces retirees but also their spouses.

In addition, the protection from attachment was subject to the Garnishment, Attachment and Pension Diversion Act, S.C. 1980-81-82-83,c. 100, which included an exception for the enforcement of an order made to ensure the payment of financial support to a spouse. Thetwo provisions in issue were held to be consistent, because the fact that the Canadian Forces Superannuation Act was subject to theGarnishment, Attachment and Pension Diversion Act showed that Parliament’s intention was to ensure that “the financial needs of arecipient’s family were not adversely affected by” the exemption from attachment (p. 832).

Clarke shows that to determine whether arestriction imposed by a government at one level is compatible with an authorization granted by one at another level, it is necessary toconsider the two provisions in their broader legislative context in order to identify the purpose being pursued by each of the legislatures.

A federal provision that appears to be prohibitive may, upon consideration of its legislative purpose, prove to be compatible with apermissive provincial provision. [23] In Rothmans, Benson & Hedges, a federal provision authorized exclusions, within certain limits, from a generalprohibition on the promotion of tobacco products. A provincial provision imposed additional restrictions. The issue was whether therestrictive provincial provision was in conflict with the authorization granted by the federal legislation.

The Court held that there was noinconsistency between the federal and provincial provisions, first because Parliament and the provincial legislature had the samepurpose, namely to deal with the public health problem caused by tobacco use, and second because the authorization provided for in thefederal statute did not create a freestanding right — or positive entitlement — to advertise (paras. 18-20).

In that context, the provincialprovision that restricted the access of persons under 18 years of age to premises where tobacco products were promoted could be appliedwithout conflicting with the right created in the federal provision. Rothmans, Benson & Hedges shows that it is important, in decidingwhether a provincial provision frustrates Parliament’s purpose, to determine the exact scope of the right created in the federal provision. [24] Spraytech is another decision in which a restriction — a municipal one in that case — was held to be compatiblewith a permissive federal provision.

In Spraytech, some companies had been authorized, by a federal agency empowered to do so, tomanufacture, distribute or use pesticides. They had also been authorized by a provincial agency to sell and use the products in question. However, the municipality had prohibited the aesthetic use of pesticides. The companies argued that the municipal prohibition was inconflict with the authorizations they had received from the provincial and federal agencies. The Court held that all the provinciallegislation did was to establish a licensing scheme.

As for the federal legislation, it concerned the registration of pesticides for purposesof manufacturing and use, not the use to which they could be put; in short, it was unrelated to the activity restricted by the municipality. The authorizations granted to the companies merely exempted them from the general prohibitions applicable to citizens who were notregistered or did not hold permits to distribute or use pesticides.

What this meant was that the federal authorization to distribute and usepesticides, which could be asserted to counter a general prohibition on those particular activities, was not negated by the prohibition onspreading pesticides for purely aesthetic purposes. [25] In the above three cases, the purposes of the various governments were held to be compatible, but the Court reachedthe opposite conclusion in Mangat.

That case concerned a federal statute that authorized aliens to be represented in immigrationproceedings before certain administrative tribunals by persons who were not generally licensed to practise law. That authorizationconflicted with the province’s prohibition against practising law without a licence. Although it would technically have been possible foran alien to retain a lawyer and thus comply with both provisions, the provincial prohibition was in conflict with the positive right underthe federal statute to be represented by a person who was not a lawyer.

It had thus been shown that the federal legislative purpose offacilitating access to the immigration process for aliens was frustrated by the prohibitive provincial provision.

That provision thereforehad to yield to the federal provisions as a result of the doctrine of federal paramountcy. [26] It is clear from these four cases that, to determine whether a conflict of purposes really exists, it is necessary toconsider each of the provisions in issue in its context and to review its legislative purpose in order to clarify its scope. [27] To identify Parliament’s purpose in enacting s. 126(4) EIA, the Attorney General of Quebec suggests that thisprovision must be considered from the perspective that federal legislation generally favours the application of provincial legislation.

Relying on s. 8.1 of the

Interpretation Act, he argues that Parliament has consented to the application of the provincial rules respectingexemption from seizure, since it has not expressed an intention to exclude the application of provincial law for the purposes of s. 126(4)EIA. According to this argument, Parliament’s purpose in authorizing the Commission to issue a requirement to pay cannot be to depriveclaimants of the protection existing under the provincial provisions. The argument based on s. 8.1 of the

Interpretation Act cannotsucceed.

Section 8.1 states that if in interpreting a federal provision it is necessary to refer to private law concepts, reference must bemade to the law of the province in which the provision is to be applied: see P.-A. Côté, in collaboration with S. Beaulac and M. Devinat,The

Interpretation of Legislation in Canada (4th ed. 2011), at p. 373. Here, the federal statute provides for a recovery mechanism, the

requirement to pay. That mechanism does not require the application of private law concepts that make it necessary to refer to provincial law. [ 28 ] The legislative context of the federal provision is nevertheless relevant. In the instant case, there is no exception in the EIA to the effect that Parliament intended to limit the requirement to pay mechanism to what is authorized by provincial legislation.

And it is apparent from the purpose and scope of the federal measure that Parliament did not consent to the restriction imposed by the provincial provision. [ 29 ] It is not enough to find that the purpose of the provincial provision is to protect a source of basic income and that this purpose is compatible with the purpose of employment insurance benefits. Parliament’s purpose in making effective recovery mechanisms available to the Commission is to protect the integrity of the employment insurance system: Canada (Attorney General) v. Bourassa (Trustee of) , 2002 ABCA 205 , 6 Alta.

L.R. (4th) 223 , at para. 32 . [ 30 ] There are several situations in which amounts must be repaid or paid under the EIA (see, for example, ss. 38(2) , 43 , 45 , 46 and 65 ), and various measures are available for recovering such amounts. Thus, under s. 126(1) EIA , the Commission may certify that an amount is due and ask the Federal Court to register this certificate. A certificate produced to and registered in the Federal Court has the same force as a judgment of that court ( s. 126(2) EIA ). The procedure for enforcing Federal Court judgments is set out in the Federal Courts Rules , SOR/98-106.

Rule 1.1 states that the Rules apply to proceedings in the Federal Court. Rule 448 provides that an officer of the court who is responsible for executing a writ must apply provincial law (see B. J. Saunders, D. J. Rennie and G. Garton, Federal Courts Practice 2011 (2010), at p. 345). This means that the Commission must follow the applicable provincial procedure if it wishes to enforce the certificate, and is therefore subject to the rules respecting exemption from seizure.

This is a case in which federal law explicitly provides for the co-ordination of federal and provincial provisions. [ 31 ] There are other provisions under which federal law is expressly subject to provisions that establish exemptions from seizure. For example, s. 225(1) of the Income Tax Act , R.S.C. 1985, c. 1 (5th Supp.), establishes a

summary procedure for seizing the goods and chattels of a person who has failed to pay an amount as required by that Act. Despite the fact that a special procedure is expressly provided for in the Income Tax Act , s. 225(5) states that provincial exemptions from seizure are applicable. [ 32 ] The differences between the procedures provided for in s. 126(1) and s. 126(4) EIA become apparent when the two procedures are compared. The procedure under s. 126(4) is autonomous, since it can be applied without reference to other federal rules or to provincial law.

It requires nothing more than the issuance of a notice by the Commission, and that notice is sufficient to effect what amounts to garnishment. If Parliament has created two separate procedures, one of which is subject to provincial law while the other is not, it must be understood to have intended the second procedure to be independent of provincial law.

The Commission has been granted a freestanding positive right to proceed by way of a requirement to pay rather than by way of seizure. [ 33 ] That Parliament intended the requirement to pay mechanism to be independent of the provincial rules respecting exemption from seizure is also confirmed by s. 42(1) EIA , which provides that employment insurance benefits are not to be assigned, charged, attached, anticipated or given as security.

The protection of employment insurance benefits from seizure undoubtedly reflects a reality similar to the situation that must have prevailed at the time the provincial legislature enacted the provision exempting income replacement benefits from seizure. Nevertheless, the explicit protection afforded with respect to employment insurance benefits must yield to the Commission’s right to recover an amount that is owed under the EIA ( s. 42(2) ). This shows that Parliament intended the government’s interest in such a debt to override the need to protect individuals.

It would be surprising if, even though Parliament has made an exception to the prohibition on attaching employment insurance benefits in order to authorize the recovery of amounts payable under the EIA , its intention was to comply with the provincial provision exempting income replacement benefits from seizure. [ 34 ] Moreover, I note that, in s. 144 AIAOD , the provincial legislature has itself made exceptions to the rule that income replacement benefits are unseizable.

In the cases of last resort financial assistance and certain pension benefits, amounts owed may be recovered through a requirement to pay by means of a process similar to the one provided for in s. 126(4) EIA . V. Conclusion [ 35 ] The choice to give precedence to the integrity of the employment insurance system is a policy decision that falls within Parliament’s authority and to which the Court must defer. The system’s stability depends not only on sound management of the collection of premiums, but also on responsible management of the recovery of benefit overpayments.

It must be remembered that the responsibility for financing the employment insurance system’s social safety net is borne by all Canadian workers and employers. [ 36 ] I must therefore find that Parliament has, in enacting s. 126(4) EIA , chosen to give the Commission a freestanding positive right to require a third party to pay to the Receiver General any amount the third party owes a person who is liable to make a payment under the EIA , on account of that person’s liability.

The purpose of this measure is to ensure the integrity of the employment insurance system by making it possible to recover amounts owed under the EIA , including benefit overpayments, in a simple and

summary fashion, without regard for the provincial rules respecting exemption from seizure. This purpose would be frustrated if the Commission were to comply with the provincial provision creating an exemption from seizure. [ 37 ] The Attorney General of Quebec has failed to show that Parliament intended to require the Commission, in issuing a requirement to pay, to comply with the provincial provision exempting income replacement benefits from seizure. The conflict between the two provisions is not merely apparent, but is indeed real.

The provincial provision is therefore inoperative owing to a conflict of purposes. [ 38 ] For all these reasons, I would dismiss the appeal. No requests for costs have been made. Appeal dismissed. Solicitor for the appellant: Department of Justice, Québec.

Solicitor for the respondent the Department of Human Resources and Social Development Canada : Department of Justice Canada, Ottawa. Solicitor for the intervener the Attorney General of British Columbia: Ministry of the Attorney General, Victoria.