The municipality of St-Adolphe d’Howard enacted a by-law which restricted access to two lakes to residents of the municipality, required all owners to clean the hulls of their motorised boats and relaunch them from the municipal boat launches, and prohibited the use of private boat launches. The plaintiffs in Chalets St-Adolphe inc. c St-Adolphe d’Howard (Municipalité), 2011 QCCA 1491 [Link available here], owned a cottage-rental business on one of the lakes and challenged the by-law as an intrusion on federal jurisdiction over navigation and shipping.
The Québec Superior Court upheld the by-law as a valid exercise of municipal power, necessary to preserve the shoreline and protect water quality, with only incidental effect on federal jurisdiction; the by-law’s discriminatory effect on non-residents was necessary to achieve its environmental purpose and did not impair vital elements of federal jurisdiction. The majority of the Québec CA reversed this ruling: by restricting access to the lakes, the by-law impaired exclusive federal jurisdiction over navigation and shipping, and infringed the ancient common-law right of navigation. Some of the by-law’s environmental measures were found to be legitimate and severable. Léger JA dissented, agreeing with the court below that the by-law was environmental in pith and substance, so within the municipality’s competence.
In light of the dissent, this one may go to the SCC.