Do you need a provincial licence when offering services to a federal business? The Supreme Court gets involved

The Supreme Court of Canada recently granted leave to appeal from two decisions rendered by the Quebec Court of Appeal in (i) Opsis Services aéroportuaires inc. c. Procureur général du Québec and (ii) Services maritimes Québec inc. c. Procureur général du Québec. These two cases raise important questions about the obligation for a company offering services to a client whose activities fall under the exclusive jurisdiction of the federal Parliament (such as ports or airports) to hold a permit issued by the provincial authorities.

In Opsis Services aéroportuaires inc., the Attorney General of Quebec was claiming that a company operating an emergency call dispatch center at Montréal-Trudeau International Airport was required to hold a permit issued by the Bureau de la sécurité privée (BSP) in accordance with the provisions of the Private Security Act (PSA) adopted by the Quebec National Assembly. In Services maritimes Québec inc., the Attorney General of Quebec also claimed that an employee of a company engaged in loading operations on transatlantic vessels, whose task was to control access to port facilities, was required to hold a permit issued by the BSP under the PSA. For their part, the defendant companies were essentially arguing they were not subject to the application of the PSA since port and airport security fell within the exclusive jurisdiction of the federal Parliament. 

The Court of Appeal applied the principle of cooperative federalism to conclude that, while port and airport security effectively fall within the exclusive jurisdiction of Parliament, the mere requirement to hold a licence in accordance with the provisions of the PSA does not frustrate the purpose of that jurisdiction. According to the Court of Appeal, the provisions of the PSA are intended simply to control the probity of licensees, and not to control the quality of their work or how they carry out their activities.

The Supreme Court's decision on this issue is eagerly awaited, since many provincial laws - and municipal by-laws - across Canada require companies wishing to carry out certain activities or work to hold a permit, and obtaining and holding this permit is usually accompanied by various conditions and obligations likely to have a significant impact on activities falling within Parliament’s exclusive jurisdiction. The Supreme Court's decision will have a direct impact on the many Canadian companies offering services to clients operating in areas under the exclusive jurisdiction of Parliament.