2018 QCCA 654, 2018 QCCA 654

In the matter: Reference to the Court of Appeal of Quebec pertaining to the constitutional validity of the provisions of

article 35 of the Code of Civil Procedure which set at less than $85,000 the exclusive monetary jurisdiction of the Court of Québec and to the appellant jurisdiction assigned to the Court of Québec 2018 QCCA 654 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-027083-179 In the matter: Reference to the Court of Appeal of Quebec pertaining to the constitutional validity of the provisions of

article 35 of the Code of Civil Procedure which set at less than $85,000 the exclusive monetary jurisdiction of the Court of Québec and to the appellant jurisdiction assigned to the Court of Québec Order in Council No.: 880-2017 DATE: April 24, 2018 IN THE PRESENCE OF THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. THE CHIEF JUSTICE, SENIOR ASSOCIATE CHIEF JUSTICE AND ASSOCIATE CHIEF JUSTICE OF THE SUPERIOR COURT OF QUEBEC APPLICANTS / INTERVENERS v.

ATTORNEY GENERAL OF QUEBEC and ATTORNEY GENERAL OF CANADA ATTORNEY GENERAL OF BRITISH COLUMBIA CONSEIL DE LA MAGISTRATURE DU QUÉBEC CANADIAN ASSOCIATION OF PROVINCIAL COURT JUDGES ORGANISME D’AUTORÉGLEMENTATION DU COURTAGE IMMOBILIER DU QUÉBEC (OACIQ) CONFÉRENCE DES JUGES DE LA COUR DU QUÉBEC INTERVENERS JUDGMENT * [ 1 ] During case management of this reference, the applicants have asked me to consider an application for a provision for costs in which they submit that their professional fees and all relevant costs should be assumed by the Attorneys General of Quebec and Canada. 1.

Factors governing provisions for costs in constitutional matters [ 2 ] The case law has consistently held that the following three requirements apply to granting discretionary provisions for costs in constitutional matters:

1. The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the issues to trial — in short, the litigation would be unable to proceed if the order were not made. 2. The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to the interests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means. 3.

The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolved in previous cases. [1] [ 3 ] In Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue) Bastarache and Lebel JJ. called these “absolute requirements”, [2] holding that no court may wield its discretionary power to grant a provision for costs unless these three requirements are met. 2.

The applicants’ position [ 4 ] Though the second and third requirements for granting a provision for costs in constitutional matters are met without difficulty here, it is clear that the applicants are not genuinely unable to pay for the litigation.

In this sense, they seem to “[TRANSLATION] acknowledge the unusual nature of their application.” [3] Nevertheless, they submit that in the context of the 1965 reference regarding the constitutional validity of the monetary jurisdiction of the Magistrate’s Court in civil matters [4] the Court of Queen’s Bench recommended, in its certified opinion, that the Government of Quebec pay the costs of the Barreau du Québec, which had intervened to ensure that the position opposing that of the Attorney General of Quebec would be represented. [5] [ 5 ] However, it is worth noting that the recommendation of the Court of Queen’s Bench was part of the final decision and was not provisional. [ 6 ] The applicants further submit that “[TRANSLATION] the parties to a reference cannot be said to win or lose,” [6] and that it is “unthinkable to imagine a scenario in which the Applicants would claim, at the end of the reference, ‘legal costs’ from the other parties.” [7] [ 7 ] Finally, they argue that “[TRANSLATION] this Court has already granted a provision for costs in a context in which one party stood alone to support one of the possible outcomes of the dispute.” [8] Here they refer to the judgment in Québec (Procureure générale) c.

D’Amico (“ D’Amico ”). [9] 3. Analysis [ 8 ] First, Canadian jurisprudence does not seem to include a single case in which a court granted a provision for costs in the context of a reference. [10] [ 9 ] Second, the applicants are right to note that granting costs is not the prevailing practice in reference cases.

In the Reference re: Same-Sex Marriage , the Supreme Court dismissed the applications of some interveners who sought costs, “[i]n accordance with its usual practice on references brought pursuant to s. 53(1) of the Supreme Court Act […].” [11] The Court did, however, grant legal costs to the appellants in the Reference re: Upper Churchill Water Rights Reversion Act [12] and to some interveners in the Reference re: Employment Insurance Act (Can.), ss. 22 and 23 . [13] In the same vein, in the Reference re: Remuneration of Judges of the Provincial Court of Prince Edward Island , [14] the Supreme Court – then seized with four appeals – granted costs in favour of all appellants who sought costs. [15] [ 10 ] As for D’Amico , [16] this was an appeal and not a reference, in which the applicant, Dr.

Saba, sought a provision for costs for his participation in an appeal brought by the Attorney General of Quebec from a decision of the Superior Court declaring the provisions dealing with physician assisted death in the Act respecting end-of-life care [17] constitutionally inapplicable until the coming into force of the declaration of invalidity issued by the Supreme Court of Canada in Carter v.

Canada (Attorney General) . [18] This Court granted the appeal without costs on December 22, 2015, [19] retaining jurisdiction to decide the question of a provision for costs, given the particular circumstances of that case. [20] The Court granted Dr. Saba’s application in these terms: Having encouraged the respondents’ legal proceedings in first instance, the AGC withdrew its support on appeal and instead supported the position of the AGQ. Dr.

Saba then found himself in a position where he was alone to defend the challenged order since, according to the trial judgment, the other respondent on appeal and plaintiff at trial did not meet the legal requirements for the granting of a provisional injunction. Dr. Saba thus found himself in the curious situation of having to defend federal legislation in place of the AGC and raising before this Court the arguments that the AGC had supported at trial.

In our view, this unusual situation justifies granting a provision for costs in light of the particular circumstances at issue. [21] [Emphasis added] [ 11 ] On the basis of this judgment, the applicants argue that in adjudicating their application for provision for costs I must first and foremost “[TRANSLATION] consider the risk of violating the principle of an independent and impartial judicial system and the importance of avoiding any appearance of a conflict of interest.” [22] [ 12 ] However, in D’Amico , this Court did consider the question of the applicant’s ability to pay: In this regard, it should be noted that at the hearing of the present motion, Dr.

Saba wanted to file an affidavit from his accountant attesting that he lacked sufficient resources. When asked to respond, the AGQ and AGC submitted to the Court that this affidavit was not determinant of the outcome. At the same

time, however, they submitted that Dr. Saba had not established that he did not have the financial resources necessary to fund the proceedings, going so far as to point out that the appeal had nevertheless been heard, while conveniently failing to mention that this had only been possible because counsel for Dr. Saba had agreed to advance their fees in view of the urgency of the matter. In these circumstances, and considering the weakness of the argument of the AGQ and AGC on this point, the Court finds this new evidence to be admissible .

Although it was submitted late, it was made relevant by the positions taken by the AGQ and AGC and caused them no prejudice since the Court, as shown in the reasons above, does not consider it to be overriding . [23] [Emphasis added] [ 13 ] Regarding this excerpt, the applicants are wrong to assert that “[TRANSLATION] proof of inability to pay was not made” in this matter. [24] At any rate, given that provision for costs was ordered following the resolution of the matter, the order is more akin to a judgment for costs in favour of the applicant. 4.

Conclusion [ 14 ] In light of the foregoing, I must dismiss the applicants’ request for a provision for costs, given they have not proven their inability to pay. It remains open to them, during or subsequent to the reference, to ask the Court to grant them legal costs including professional fees and expert costs, as permitted by the case law. [ 15 ] FOR THESE REASONS, THE UNDERSIGNED: [ 16 ] DISMISSES the application for a provision for costs, without costs given the circumstances. NICOLE DUVAL HESLER, C.J.Q. Mtre William J. Atkinson William J. Atkinson, avocat and Mtre Véronique Roy Langlois avocats S.E.N.C.R.L.

For the applicants Mtre Dominique Rousseau Mtre Jean-Yves Bernard Bernard, Roy (Justice-Québec) For the Attorney General of Quebec Mtre Bernard Letarte Mtre Lindy Rouillard-Labbé Department of Justice – Canada

For the Attorney General of Canada Mtre François Grondin Mtre Anaïs Bussières-McNicoll Borden Ladner Gervais For the Conférence des juges de la Cour du Québec Mtre Karrie Wolfe (absent) Mtre Gareth Morley (absent) Mtre Zachary Froese (absent) Department of Justice – British Columbia For the Attorney General of British Columbia Mtre Marc-André Fabien (absent) Fasken Martineau DuMoulin For the Conseil de la magistrature du Québec Mtre Jon Laxer (absent) Mtre Audrey Mayrand (absent) Juristes Power For the Canadian Association of Provincial Court Judges Mtre Vanessa J.

Goulet (absent) Organisme d’autoréglementation du courtage Immobilier du Québec For the Organisme d’autoréglementation du courtage immobilier du Québec (OACIQ) Date of the Hearing: April 18, 2018