Conférence des juges de la Cour du Québec Appellant v. Chief Justice, Senior Associate Chief Justice and, 2021 SCC 27

SUPREME COURT OF CANADA Citation: Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27, [2021] 2 S.C.R. 291 Appeal Heard: September 24, 2020 Judgment Rendered: June 30, 2021 Docket: 38837 Between: Conférence des juges de la Cour du Québec Appellant and Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec Respondents - and - Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Conseil de la magistrature du Québec, Canadian Association of Provincial Court Judges, Organisme d’autoréglementation du courtage immobilier du Québec, Canadian Council of Chief Judges, Trial Lawyers Association of British Columbia and Canadian Superior Courts Judges Association Interveners And Between: Attorney General of Quebec Appellant and Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec Respondents

- and - Attorney General of Canada, Attorney General of Ontario, Attorney General of British Columbia, Attorney General of Alberta, Conseil de la magistrature du Québec, Canadian Association of Provincial Court Judges, Organisme d’autoréglementation du courtage immobilier du Québec, Conférence des juges de la Cour du Québec, Canadian Council of Chief Judges, Trial Lawyers Association of British Columbia and Canadian Superior Courts Judges Association Interveners And Between: Conseil de la magistrature du Québec Appellant and Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec Respondents - and - Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Canadian Association of Provincial Court Judges, Organisme d’autoréglementation du courtage immobilier du Québec, Conférence des juges de la Cour du Québec, Canadian Council of Chief Judges, Trial Lawyers Association of British Columbia and Canadian Superior Courts Judges Association Interveners And Between: Canadian Association of Provincial Court Judges Appellant and Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec Respondents - and - Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Conseil de la magistrature du Québec, Organisme d’autoréglementation du courtage immobilier

du Québec, Conférence des juges de la Cour du Québec, Canadian Council of Chief Judges, Trial Lawyers Association of British Columbia and Canadian Superior Courts Judges Association Interveners And Between: Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec Appellants and Attorney General of Quebec Respondent - and - Attorney General of Canada, Attorney General of Ontario, Attorney General of British Columbia, Attorney General of Alberta, Conseil de la magistrature du Québec, Canadian Association of Provincial Court Judges, Organisme d’autoréglementation du courtage immobilier du Québec and Conférence des juges de la Cour du Québec Interveners Official English Translation: Reasons of Côté and Martin JJ. and reasons of Wagner C.J.

Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Rowe and Martin JJ. Joint Reasons for Judgment: (paras. 1 to 161) Côté and Martin JJ. (Moldaver and Karakatsanis JJ. concurring) Reasons Dissenting in Part: (paras. 162 to 258) Wagner C.J. (Rowe J. concurring) Dissenting Reasons: (paras. 259 to 336) Abella J. IN THE MATTER OF a 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 , CQLR, c. C-25.01 , which set at less than $85,000 the exclusive monetary jurisdiction of

the Court of Québec and to the appellate jurisdiction assigned to the Court of Québec Conférence des juges de la Cour du Québec Appellant v.

Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec Respondents and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Conseil de la magistrature du Québec, Canadian Association of Provincial Court Judges, Organisme d’autoréglementation du courtage immobilier du Québec, Canadian Council of Chief Judges, Trial Lawyers Association of British Columbia and Canadian Superior Courts Judges Association Interveners - and - Attorney General of Quebec Appellant v.

Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec Respondents and Attorney General of Canada, Attorney General of Ontario, Attorney General of British Columbia, Attorney General of Alberta, Conseil de la magistrature du Québec, Canadian Association of Provincial Court Judges, Organisme d’autoréglementation du courtage immobilier du Québec, Conférence des juges de la Cour du Québec, Canadian Council of Chief Judges, Trial Lawyers Association of British Columbia and Canadian Superior Courts Judges Association Interveners - and - Conseil de la magistrature du Québec Appellant v.

Chief Justice, Senior Associate Chief Justice and

Associate Chief Justice of the Superior Court of Quebec Respondents and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Canadian Association of Provincial Court Judges, Organisme d’autoréglementation du courtage immobilier du Québec, Conférence des juges de la Cour du Québec, Canadian Council of Chief Judges, Trial Lawyers Association of British Columbia and Canadian Superior Courts Judges Association Interveners - and - Canadian Association of Provincial Court Judges Appellant v.

Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec Respondents and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Conseil de la magistrature du Québec, Organisme d’autoréglementation du courtage immobilier du Québec, Conférence des juges de la Cour du Québec, Canadian Council of Chief Judges, Trial Lawyers Association of British Columbia and Canadian Superior Courts Judges Association Interveners - and - Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec Appellants v.

Attorney General of Quebec Respondent and Attorney General of Canada, Attorney General of Ontario,

Attorney General of British Columbia, Attorney General of Alberta, Conseil de la magistrature du Québec, Canadian Association of Provincial Court Judges, Organisme d’autoréglementation du courtage immobilier du Québec and Conférence des juges de la Cour du Québec Interveners Indexed as: Reference re Code of Civil Procedure (Que.), art. 35 2021 SCC 27 File No.: 38837. 2020: September 24; 2021: June 30.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Rowe and Martin JJ. on appeal from the court of appeal for quebec Constitutional law — Courts — Provincial jurisdiction over administration of justice — Role of superior courts — Exclusive monetary jurisdiction over civil claims for less than $85,000 granted to Court of Québec by provincial legislature — Whether grant of that exclusive jurisdiction is constitutional — Constitution Act, 1867, ss. 92(14) , 96 — Code of Civil Procedure, CQLR, c. C-25.01, art. 35 para. 1.

On January 1, 2016, art. 35 para. 1 of Quebec’s new Code of Civil Procedure came into force. This provision grants the Court of Québec exclusive jurisdiction over all civil disputes in which the value of the subject matter or the amount being claimed is less than $85,000. The Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec filed an originating application seeking a declaratory judgment of unconstitutionality of art. 35 para. 1 C.C.P. in the Superior Court.

In their submission, the provision is incompatible with s. 96 of the Constitution Act, 1867 , because its effect is to deny Quebec litigants the right to file any civil claim in the Superior Court in which the value of the subject matter of the dispute is less than $85,000, thereby preventing the Superior Court from stating and advancing the law with respect to such claims.

They also contested the appellate jurisdiction granted to the Court of Québec with respect to certain administrative decisions on the basis that the requirement of deference recognized in the case law is incompatible with the superior courts’ power of judicial review. In response to those legal proceedings, the Quebec government filed with the Court of Appeal, by order in council, a notice of reference submitting two questions to it:

(1) Is art. 35 para. 1 C.C.P. valid with regard to s. 96 of the Constitution Act, 1867 ? and

(2) Is the application of the obligation of judicial deference, which characterizes the application for judicial review, to administrative appeals to the Court of Québec compatible with s. 96 of the Constitution Act,1867 ? On the first question, the Court of Appeal concluded that art. 35 C.C.P. is unconstitutional because it infringes on the core jurisdiction of the Superior Court to adjudicate certain substantial civil disputes. On the second question, however, it was of the view that applying the obligation of judicial deference to administrative appeals to the Court of Québec is compatible with s. 96 .

This is because the Superior Court retains its full superintending and reforming power over administrative decisions and decisions of inferior tribunals as well as its fundamental role as the guardian of an independent and unified system of justice in Canada. The Conférence des juges de la Cour du Québec, the Conseil de la magistrature du Québec and the Canadian Association of Provincial Court Judges, which were interveners in the Court of Appeal, and the Attorney General of Quebec appeal to the Court as of right on the first question.

The Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec, who also intervened in the Court of Appeal, appeal to the Court as of right on the second question. Held (Wagner C.J. and Rowe J. dissenting in part and Abella J. dissenting): The appeals should be dismissed. Per Moldaver, Karakatsanis, Côté and Martin JJ.:

Article 35 para. 1 C.C.P. is unconstitutional. The monetary limit of the jurisdiction granted to the Court of Québec is too high when considered in its historical and institutional contexts. Because this grant has the effect of transforming the Court of Québec into a prohibited parallel court, the transfer of jurisdiction contemplated by art. 35 para. 1 C.C.P. exceeds the limits established by s. 96 of the Constitution Act, 1867 .

The question concerning the Court of Québec’s application of the obligation of judicial deference when it hears an appeal from certain administrative decisions does not need to be answered, since it is now moot as a result of Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , and the coming into force of s. 83.1 of the Quebec Courts of Justice Act .

The purpose of s. 96 of the Constitution Act, 1867 is to give effect to the compromise reached at Confederation by protecting the special status of the superior courts of general jurisdiction as the cornerstone of Canada’s unitary justice system. The principles of national unity and the rule of law are central to this organization of the judiciary. Protecting the superior courts’ status reinforces the national character of the Canadian judicial system. The superior courts form a network of related courts whose role is to unify and ensure the uniformity of justice in Canada.

Protecting the essence of the superior courts thus preserves uniformity throughout the country in the judicial system. The rule of law is maintained through the separation of judicial, legislative and executive functions. This separation allows the courts to implement the three fundamental facets of the rule of law: equality of all before the law, the creation and maintenance of an

actual order of positive laws, and oversight of the exercise of public powers. Historically, the superior courts had primary responsibilityfor this task. Thus, in order to preserve the superior courts’ role as the cornerstone of the judicial system, they must be able to continueacting as primary guardians of the rule of law. This role falls to them because they are ideally placed to ensure the maintenance of therule of law.

Because of their independence and national character, they are best suited to resolving disputes over the division of powersbetween the provinces and the federal government and ensuring that government actions do not conflict with the fundamental rights ofcitizens. Moreover, the superior courts’ existence and status enjoy constitutional protection against legislative interference.

Subject toconstitutional guarantees of judicial independence, legislatures may abolish courts with provincially appointed judges or seriously fettertheir powers without falling afoul of the Constitution, whereas superior courts are constitutionally protected from such legislativeinterference. Only the superior courts have constitutionally protected inherent powers that flow from their very nature, and the particularpurpose of those powers is to enable the superior courts to ensure the maintenance of the rule of law in Canada’s legal system.

Finally,the superior courts have residual jurisdiction as courts of original general jurisdiction, meaning they may — without statutoryauthorization — hear any matter that has not been assigned to a statutory court, and this provides them with a comprehensive view of thelaw, allowing them to preserve the coherence of the judicial system and set its overall directions. To ensure s. 96 of the Constitution Act, 1867 can play its role to the fullest extent and achieve its purpose, the Court hasdeveloped a number of tests over the years in accordance with the living tree doctrine.

The jurisprudence on s. 96 must thus not causejudicial functions to be frozen in an 1867 mould, and adaptations must be permitted to allow the legislatures scope to deal effectivelywith emerging social problems and concerns. However, despite this process of liberalization that has made it possible for s. 96 to beadapted to modern realities, the Court has consistently reiterated the prohibition against establishing parallel courts that usurp thefunctions reserved to superior courts, as such parallel courts would eviscerate the protection afforded by s. 96.

In Re Residential Tenancies Act, 1979, (SCC), [1981] 1 S.C.R. 714, the Court articulated the three-step testthat limits the granting of power or jurisdiction over a type of dispute where, at the time of Confederation, the power or jurisdiction cameexclusively or primarily within the remit of the superior courts. According to this test, it must first be determined whether the transferredjurisdiction conforms to a jurisdiction that was dominated by superior, district or county courts at the time of Confederation.

If so, it mustbe asked whether the jurisdiction in question was exercised in the context of a judicial function and, if the answer is yes, whether thejurisdiction is either subsidiary or ancillary to an administrative function or necessarily incidental to the achievement of a broader policygoal of the legislature. Before a court proceeds with the first step of the test, it must characterize the jurisdiction at issue. In this case, thejurisdiction granted to the Court of Québec by art. 35 para. 1 C.C.P. must be characterized as one over civil disputes concerningcontractual and extracontractual obligations.

While this characterization is not narrow as required by Sobeys Stores Ltd. v. Yeomans andLabour Standards Tribunal (N.S.), (SCC), [1989] 1 S.C.R. 238, its generality is a product of the expansive language ofart. 35 para. 1 C.C.P. The result of applying the first step of the test to this case is that there was a general shared involvement or a meaningfulconcurrency of power in the area of jurisdiction at issue: three of the four founding provinces’ inferior courts had, at the time ofConfederation, sufficient practical involvement in matters relating to contractual and extracontractual obligations.

Accordingly, theResidential Tenancies test does not lead to the conclusion that art. 35 para. 1 C.C.P. is unconstitutional with respect to the types ofdisputes in question. It is therefore unnecessary to proceed to the second and third steps. A characterization like the one required by the provision at issue inappropriately favours a finding of general sharedinvolvement, which leads to a rather strange result: the broader a grant of jurisdiction, the greater the chance that it will escape therestrictions of the Residential Tenancies test.

Thus, even though it was developed to prohibit the creation of parallel courts, that test doesnot deal effectively with the very jurisdiction-granting provisions that are the most likely to establish such courts because of theirgenerality. This is why such a grant requires a tailored analytical framework for the purpose of determining whether a parallel court thatundermines the role of the superior courts has been created. It is therefore necessary to apply a second test, the core jurisdiction test adopted in MacMillan Bloedel Ltd. v.

Simpson, (SCC), [1995] 4 S.C.R. 725, which must be adapted to better reflect the principles underlying s. 96. This second test aims todo more than simply protect historical jurisdiction, as its purpose is to determine whether a grant of jurisdiction infringes on the superiorcourts’ core jurisdiction either through an alteration of their essential nature or because they are prevented from playing their central roleconferred by s. 96.

Depending on the circumstances, there are various factors that can be helpful when it comes to determining whether,by granting a jurisdiction to a court with provincially appointed judges, a legislature has created a prohibited parallel court that impairsthe superior court by preventing it from playing its constitutional role. The core jurisdiction of the superior courts includes their ability to act as courts of original general jurisdiction, that is, tohear and determine matters not exclusively assigned by law to other courts.

It therefore encompasses, by necessary implication, generaljurisdiction over private law matters, which must be accompanied by a subject-matter jurisdiction that is broad enough to preserve thesuperior courts’ role in providing jurisprudential guidance on private law. This requires significant involvement in the resolution ofdisputes falling under the most fundamental branches of private law, such as property law, the law of succession and the law ofobligations.

A province may assign portions or offshoots of these fields to courts whose judges it appoints, but cannot limit the superiorcourt’s involvement significantly without contravening s. 96. In this case, the weighing of the six relevant factors leads to the conclusion that the grant to the Court of Québec ofexclusive jurisdiction over civil claims for less than $85,000 prevents the Quebec Superior Court from playing its role under s. 96 incases concerning private law matters.

First of all, the scope of the jurisdiction granted to the Court of Québec is indicative of a significant encroachment on thegeneral private law jurisdiction of the superior courts of general jurisdiction.

Article 35 para. 1 C.C.P. grants to the Court of Québecalmost the entirety of the law of obligations, the real heart of private law, for claims of less than $85,000. Based on its scope and becauseof the fundamental nature of the field of law in question, the block of jurisdiction granted to the Court of Québec is unquestionablysimilar to the general private law jurisdiction exercised by the superior courts of general jurisdiction.

The exclusivity of the transfer accentuates the encroachment on the core jurisdiction of the superior courts. In this case, civil suits concerning contractual and extracontractual matters for less than $85,000 have been removed from the Superior Court’s jurisdiction, thereby undermining its role as the cornerstone of a unitary system of justice. The role left to the Quebec Superior Court in this field is minimal in comparison with the role of superior courts elsewhere in Canada.

The monetary ceiling of less than $85,000 fixed by art. 35 para. 1 C.C.P. represents an increase of approximately 29 percent over the historical ceiling of $100, which corresponds in today’s dollars to an amount of between $63,698 and $66,008. It is true that this increase is not clearly disproportionate to the historical ceiling, and the adopted amount can reasonably be connected to that ceiling insofar as it falls into a similar range. However, a monetary limit is merely one of several factors to weigh, and it cannot be determinative in itself.

It must therefore be analyzed in its context and in light of the other factors. The fact that there is no accessible appeal mechanism that would enable the superior court of general jurisdiction to review decisions of the Court of Québec reinforces the conclusion that the two courts are parallel. This means that there is no hierarchical distinction between the two courts and the superior court of general jurisdiction has no sway over decisions of the court with provincially appointed judges.

Furthermore, given that the threshold for an appeal as of right is fixed at $60,000, litigants who wish to have decisions of the Court of Québec reviewed must, in most cases, go through a screening process in order to obtain leave to appeal. The Court of Québec’s decisions are thus, to some extent, more shielded from appellate review than those of the Superior Court. This factor suggests that art. 35 para. 1 C.C.P. transforms the Court of Québec into a prohibited parallel court that undermines the role of the superior court of general jurisdiction.

Finally, the statistical evidence produced in this case does not make it possible to determine with certainty that art. 35 para. 1 C.C.P. has only a minimal impact on the Superior Court’s caseload in the area of obligations. Similarly, no evidence was tendered to show that a ceiling of less than $85,000 is needed in order to achieve an important societal objective such as promoting access to justice. In its current form, therefore, art. 35 para. 1 C.C.P. is not valid with regard to s. 96 , given that it encroaches impermissibly on the role the Constitution reserves to the superior court of general jurisdiction.

Per Wagner C.J. and Rowe J. (dissenting in part): The appeals relating to the first question should be allowed, but the appeal relating to the second question should be dismissed.

Article 35 C.C.P. is not contrary to s. 96 of the Constitution Act, 1867 . When properly characterized in terms of its subject matter, the jurisdiction conferred by art. 35 C.C.P. on the Court of Québec is civil jurisdiction over contractual and extracontractual obligations. This jurisdiction was not vested exclusively in the s. 96 courts at the time of Confederation. Moreover, art. 35 C.C.P. does not remove from the Quebec Superior Court any power that is within its core jurisdiction.

Sections 96 and 92(14) of the Constitution Act, 1867 , taken together, reflect one of the important compromises reached by the Fathers of Confederation with respect to the administration of justice in Canada. On the one hand, s. 92(14) gives each province the power and responsibility to legislate in relation to the administration of justice, including for the purpose of creating, transforming or abolishing judicial offices.

The provinces’ power is a wide one that gives them a great deal of flexibility, allowing them, among other things, to organize their courts in a manner that favours access to justice and strengthens public confidence in the judiciary while at the same time taking their specific needs and challenges into account. On the other hand, this provincial power is subject to what s. 96 subtracts in favour of Parliament, including the power to appoint the judges of the superior courts in each province.

This power of appointment implicitly limits provincial competence to endow a provincial tribunal with the powers of s. 96 courts . However, it does not follow that s. 96 freezes the civil jurisdiction of the inferior courts at what it was at the time of Confederation. The scope of s. 96 remains limited to what is necessary to ensure that the underlying objectives of the Confederation compromise are achieved, and primarily the objective of ensuring a unified judicial presence throughout Canada.

Section 96 should therefore not be given an overly broad scope that would unduly limit the provinces’ ability to address complex and emerging legislative challenges related to the administration of justice. The s. 96 analytical framework has two stages, which are concerned with the historical jurisdiction and the core jurisdiction of the superior courts. In accordance with Residential Tenancies , the first stage of the s. 96 analytical framework is to determine whether the grant of jurisdiction in question is permissible.

The second stage is to decide whether the Superior Court’s jurisdiction can be ousted, that is, whether an exclusive grant of jurisdiction is permissible. The analytical framework for the historical jurisdiction of the superior courts consists of a three-step analysis that serves to determine the constitutionality of a provincial grant of jurisdiction. The first step, the historical test, involves answering the following question: Does the impugned power or jurisdiction broadly conform to an exclusive power or jurisdiction exercised by the superior, district or county courts at the time of Confederation?

In the application of this test, all courts that existed in pre-Confederation Canada must be considered, and not only those of the province in question. If the impugned jurisdiction was exercised concurrently by the superior and inferior courts at the time of Confederation, it must be determined whether the inferior courts had a general shared involvement or a meaningful concurrency of power in this regard. If so, the grant will be considered valid under the historical test.

On the other hand, if the jurisdiction was exclusive to the superior courts, then it is necessary to proceed to the second and third steps of the analytical framework. The application of the historical test must begin with a proper characterization of the jurisdiction in issue. The characterization of the impugned jurisdiction must go beyond a technical analysis of remedies, it must not be focused on the particular remedy sought, and its effect must not be to freeze the jurisdiction of the inferior courts at what it was in 1867.

In addition, the allegedly exclusive nature of the jurisdiction cannot be included in its characterization. If a grant of jurisdiction satisfies both stages of the s. 96 analytical framework, then it can be exclusive. The exclusivity of the grant therefore results from the fact that both stages are met. It cannot be allowed to influence the analysis by being included in the characterization prematurely. A proper characterization of the jurisdiction in issue must be focused rather on the type of dispute, the area of jurisdiction and the subject-matter of the decision.

This is a crucial question, as the manner in which the jurisdiction in issue is characterized can be determinative in the application of the historical test. Monetary limits are only one factor in the overall assessment among several others, including the geographic reach of the jurisdiction and the range of disputes the court could decide. There are two additional factors for

assessing the extent of the courts’ shared involvement in exercising the jurisdiction in question, namely the percentage of the population that would have used the inferior courts and the frequency with which disputes amenable to their process arose. Depending on the context, certain factors will have more weight than others. The second stage of the s. 96 analytical framework, that is, the analysis of the core jurisdiction of the superior courts, requires that two questions be answered. First, is the power in question within the core jurisdiction of the superior courts?

Second, does the law have the effect of removing the power from their core jurisdiction? The core jurisdiction of the superior courts comprises those powers which are essential to the administration of justice and the maintenance of the rule of law. This jurisdiction is therefore a very narrow one which includes only critically important jurisdictions. Removing such powers from a superior court would, in other words, make it something other than a superior court and deprive it of its essential character.

Section 96 of the Constitution Act, 1867 gives the superior courts a core jurisdiction that allows them to resolve disputes between individuals and decide questions of private and public law. This power is meaningful only if the superior courts, as courts of original general jurisdiction, have substantial jurisdiction that allows them to state and develop the civil law in Quebec and the common law in the other provinces.

The question is therefore not whether the superior court can still adjudicate substantial civil disputes, but rather whether its jurisdiction in this regard is substantial enough that it is capable of ensuring this development. Three quantitative and qualitative factors are relevant in determining whether a statutory provision removes from a superior court part of its core jurisdiction in matters of private law: (

a) the impact on the number of cases that the superior court continues to deal with; (

b) the impact on the proportion of cases within the superior court’s jurisdiction compared with those within the jurisdiction of a provincially constituted court; (

c) the impact on the nature and importance of the cases within the superior court’s jurisdiction. As long as the superior courts continue to hear a volume of cases that is sufficient in number and proportion and varied enough in nature and importance that they are able to state and develop the civil law in Quebec and the common law in the other provinces, they will, as a result, continue to play their unifying role in Canada’s constitutional and judicial system.

Under such conditions, the legislatures can, without infringing on the superior courts’ core jurisdiction in matters of private law, confer subject-matter jurisdiction on provincially constituted courts to empower them to hear a certain number of civil claims. In this case, the analysis of the historical test shows that the vast majority — at least 80 percent — of civil disputes in pre-Confederation Canada, with the exception of Lower Canada, came before the inferior courts.

Although that jurisdiction was subject to monetary limits in several matters, it nevertheless indicates that there was significant coextensive involvement by the inferior courts in contractual and extracontractual matters.

With regard to the Superior Court’s core jurisdiction in civil matters, the application of the three factors shows that the Superior Court continues to deal with a large number of civil cases, that the number of cases opened at the Superior Court in comparison with those opened at the Court of Québec remains relatively stable, and that the Superior Court continues to hear claims on a variety of subjects as well as the judicial applications that are the most substantial in monetary terms.

Article 35 C.C.P. therefore does not have the effect of removing from the Quebec Superior Court its jurisdiction over substantial civil claims. Per Abella J. (dissenting): The appeal should be allowed.

Article 35 C.C.P. is valid with regard to s. 96 of the Constitution Act, 1867 . Both the superior and provincial courts shared jurisdiction over substantial monetary claims at Confederation and the expansion of the jurisdiction of the provincial Court of Québec by $15,000, from $70,000 to $85,000, does not impair the core of the Superior Court’s jurisdiction in any way. Section 92(14) of the Constitution Act, 1867 empowers provincial governments to create provincial courts and to appoint their judges.

Since Confederation, provincial courts have been a key component of Canada’s justice system, playing an indispensable role in the development of the law. The significance of the provincial courts in Canada today cannot be overstated. Parties appear before provincial court judges to have their liberty or livelihood or support and custody rights determined. Provincial courts combine with the superior courts to form a strong network of courts for litigants across Canada.

Nonetheless, over the years, the Court has occasionally limited the provinces’ authority under s. 92(14) because s. 96 guarantees that some jurisdiction must remain in the hands of federally appointed superior courts. In an effort to operationalize the jurisprudence’s approach to resolving the tension between ss. 92(14) and 96 , a three-stage test was developed in Residential Tenancies for analyzing the validity of a provincial grant of jurisdiction. It is essentially an historical inquiry.

The first stage of the test asks whether superior, district or county courts at the time of Confederation had exclusive jurisdiction over the subject matter now being given to the provincial court. If provincial courts in a majority of the four original provinces had a practical involvement in adjudicating cases related to the particular subject matter at Confederation, there could be no finding of exclusive jurisdiction for s. 96 courts, since the jurisdiction was shared at the time.

If the jurisdiction at issue was exclusively held by a s. 96 court at Confederation, the second stage of the analysis asks whether the provincial body is acting in a judicial capacity. If it is, the third stage of the analysis is triggered, which involves the assessment of the provincial court or tribunal in its institutional context in order to determine whether it is exercising a judicial power that is merely subsidiary or ancillary to general administrative functions, or one that is necessary to achieve a broad policy goal. In either of these circumstances, the grant is constitutionally permissible.

A layer was added to the test in MacMillan Bloedel , when the Court concluded that the legislature may not, even if its grant of jurisdiction passed the Residential Tenancies test, reduce or impair the core of superior court jurisdiction. The focus of this new requirement was determining whether a grant of exclusive jurisdiction to a provincial body frustrated the ability of superior courts to execute their functions. As the jurisprudence shows, the first step in analyzing the validity of a provincial grant of jurisdiction is to characterize that grant.

The boundaries of provincial court jurisdiction need not be drawn along the precise borders that existed at Confederation; rather, the inquiry centers on the type of case being heard. It is a functional approach which examines the purpose of the grant of jurisdiction. In determining the historical involvement of provincial courts in deciding civil claims, it is instructive to look at the proportion of cases that were heard by different courts at Confederation.

At the time, in most provinces, a majority of civil claims were heard by provincial courts; therefore, the superior courts did not have exclusive jurisdiction over civil claims in general. Any exclusive jurisdiction was limited to a small proportion of civil claims above a certain monetary threshold. This threshold was not, however, a marker which indicated when claims became substantial, it simply aimed to maintain a balance between the different types of courts in operation at the

time. In this case, the comparison of the proportion of cases heard at Confederation with today’s distribution shows that a grant of$85,000 of civil jurisdiction not only continues to respect the balance struck at the time of Confederation, but leaves superior courts withmore civil jurisdiction than they had at that time. The Residential Tenancies test is therefore met.

At the “core jurisdiction” stage of the test, the Court has held that legislation cannot have the effect of taking away theauthority superior courts need in order to make sure that they can effectively adjudicate the claims which are properly before them and toenforce their orders in those cases. However, core jurisdiction has been held to be a narrow concept, not a malleable one. It is intended toprotect only the essential role and function of superior courts.

As long as the essential character of superior courts is neither underminednor impaired, provincial legislatures are constitutionally entitled to exercise their jurisdiction under s. 92(14) by creating and authorizingprovincial courts, even exclusively, to respond to local justice needs, not as those needs existed at Confederation, but as they exist now.The notion that superior courts have inherited some core power over the development of private law from the pre-Confederation Englishcourts of inherent jurisdiction is irreconcilable with the fact that superior courts, since Confederation, have shared that role with a numberof provincial courts.

Superior courts have never had the exclusive responsibility of guiding the development of private law. This role,therefore, cannot be part of superior courts’ core jurisdiction. Although the classic application of the Residential Tenancies/MacMillan Bloedel test is dispositive of the appeal, this casereveals some of the fault lines of that approach. It may be time to consider replacing the test in a way that updates the law on therelationship between ss. 92(14) and 96 and synchronizes it with the Court’s approach to constitutional

interpretation generally and, inparticular, with the defining admonition that the Constitution is a living tree to be interpreted flexibly. Cooperative federalism is anapproach to federalism that not only accepts that an overlap between federal and provincial powers is inevitable, but is also usefulbecause it allows governments to respond to a complex interplay of issues. There is no reason why such an approach should not beextended to the understanding of the relationship between ss. 92(14) and 96.

There is a need for a generous approach to the authority ofprovincial governments to make jurisdictional grants to provincial adjudicative bodies since provincial governments are closer to theissues affecting most people who use the courts and to the realities of local issues. They are therefore better placed to recognize andaddress local concerns with the justice system. The benefits of cooperative federalism were not a particular concern in Residential Tenancies. Rather, it was animated by anumber of protective aspirations for s. 96 courts.

The first was the desire to promote national unity through the preservation of a unitarycourt system and the second was ensuring that disputes are adjudicated by impartial and independent courts. The Court’s approach tos. 96 was said to reinforce the theory that certain cases must be heard by superior courts because they must be decided by independentcourts.

But the assumption that the Constitution protected the independence only of superior courts disintegrated in the Reference reRemuneration of Judges of the Provincial Court of Prince Edward Island, (SCC), [1997] 3 S.C.R. 3, where the Courtrecognized that provincial courts also enjoy constitutionally protected independence and are as well placed to uphold the rule of lawindependently as the superior courts. Appeals to the rule of law and independence, therefore, can no longer serve to narrow thejurisdiction of provincial courts.

Increased constitutional recognition of the important role of provincially appointed judges within theCanadian judiciary does nothing to diminish the independence and impartiality of the superior courts. On the contrary, it enhances thejudiciary as a whole and the public’s perception that the provincial court judges they appear before are no less judicial because they areappointed by a different level of government. This acknowledgment of the independence of provincial courts makes them a partner inprotecting national unity.

The $15,000 increase in exclusive provincial court jurisdiction has not prevented the Superior Court of Quebec in anymaterial way from playing its usual role in deciding the kind of civil cases it has always heard. No matter the approach taken inanalyzing art. 35 C.C.P., it is a valid exercise of the province’s right under s. 92(14) to administer justice and to constitute courts of civiljurisdiction in Quebec. Cases Cited By Côté and Martin JJ.

Applied: Re Residential Tenancies Act, 1979, (SCC), [1981] 1 S.C.R. 714; MacMillan Bloedel Ltd. v.Simpson, (SCC), [1995] 4 S.C.R. 725; considered: Trial Lawyers Association of British Columbia v. British Columbia(Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31; Tomko v. Labour Relations Board (N.S.), (SCC), [1977] 1S.C.R. 112; Reference re Amendments to the Residential Tenancies Act (N.S.), (SCC), [1996] 1 S.C.R. 186; SobeysStores Ltd. v. Yeomans and Labour Standards Tribunal (N. S.), (SCC), [1989] 1 S.C.R. 238; referred to: Canada(Minister of Citizenship and Immigration) v.

Vavilov, 2019 SCC 65; Renvoi touchant la constitutionnalité de la Loi concernant lajuridiction de la Cour de Magistrat de Québec, (CSC), [1965] S.C.R. 772; Crevier v. Attorney General of Quebec, (SCC), [1981] 2 S.C.R. 220; Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704; Reference re Supreme CourtAct, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; Hunter v.Southam Inc., (SCC), [1984] 2 S.C.R. 145; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342; Windsor (City) v.Canadian Transit Co., 2016 SCC 54, [2016] 2 S.C.R. 617; Attorney General of Canada v.

Law Society of British Columbia, (SCC), [1982] 2 S.C.R. 307; Reference re Young Offenders Act (P.E.I.), (SCC), [1991] 1 S.C.R. 252; Scowby v.Glendinning, (SCC), [1986] 2 S.C.R. 226; Canada (Human Rights Commission) v. Canadian Liberty Net, (SCC), [1998] 1 S.C.R. 626; McEvoy v. Attorney General for New Brunswick, (SCC), [1983] 1 S.C.R. 704;Reference re Manitoba Language Rights, (SCC), [1985] 1 S.C.R. 721; British Columbia v. Imperial Tobacco CanadaLtd., 2005 SCC 49, [2005] 2 S.C.R. 473; Cooper v. Canada (Human Rights Commission), (SCC), [1996] 3 S.C.R. 854;Amax Potash Ltd. v.

Government of Saskatchewan, (SCC), [1977] 2 S.C.R. 576; Reference re Remuneration of Judges ofthe Provincial Court of Prince Edward Island, (SCC), [1997] 3 S.C.R. 3; R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R.110; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; U.E.S., local 298 v. Bibeault, (SCC), [1988] 2 S.C.R. 1048; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Toronto Corporation v. YorkCorporation, (UK JCPC), [1938] A.C. 415; Reference re Adoption Act, (SCC), [1938] S.C.R. 398;Labour Relations Board of Saskatchewan v.

John East Iron Works, Ltd., (UK JCPC), [1949] A.C. 134; AttorneyGeneral of Quebec v. Grondin, (SCC), [1983] 2 S.C.R. 364; Massey-Ferguson Industries Ltd. v. Government ofSaskatchewan, (SCC), [1981] 2 S.C.R. 413; Chrysler Canada Ltd. v. Canada (Competition Tribunal),

(SCC), [1992] 2 S.C.R. 394; Noël v. Société d’énergie de la Baie James, 2001 SCC 39, [2001] 2 S.C.R. 207; Reference re Secession ofQuebec, (SCC), [1998] 2 S.C.R. 217; Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837; Edwards v.Attorney-General for Canada, (UK JCPC), [1930] A.C. 124; Hunt v. T&N plc, (SCC), [1993] 4 S.C.R.289; Attorney General of Quebec v. Farrah, (SCC), [1978] 2 S.C.R. 638; Re: B.C. Family Relations Act, (SCC), [1982] 1 S.C.R. 62; Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Attorney-General for Ontario v.Attorney-General for Canada, (UK JCPC), [1912] A.C. 571; Reference re Public Schools Act (Man.),s. 79(3), (4) and (7), (SCC), [1993] 1 S.C.R. 839; Reference re Remuneration of Judges of the Provincial Court ofPrince Edward Island, (SCC), [1998] 1 S.C.R. 3; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3S.C.R. 1101; Reference Re Certification in the Manitoba Health Sector, 2019 MBCA 18, [2019] 5 W.W.R. 614; Ontario (AttorneyGeneral) v. G, 2020 SCC 38, [2020] 3 S.C.R. XXX.

By Wagner C.J. (dissenting in part) Re Residential Tenancies Act, 1979, (SCC), [1981] 1 S.C.R. 714; Renvoi concernant la constitutionnalité dela Loi concernant la juridiction de la Cour de magistrat, 11-12 Elizabeth II,

chapitre 62, [1965] B.R. 1; Séminaire de Chicoutimi v. LaCité de Chicoutimi, (SCC), [1973] S.C.R. 681; Re Cour de Magistrat de Québec, (CSC), [1965]S.C.R. 772; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, (SCC), [1997] 3S.C.R. 3; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; Reference re Same-Sex Marriage, 2004 SCC 79,[2004] 3 S.C.R. 698; Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704; Conférence des juges de paix magistrats duQuébec v.

Quebec (Attorney General), 2016 SCC 39, [2016] 2 S.C.R. 116; Reference re Adoption Act, (SCC), [1938]S.C.R. 398; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; Trial Lawyers Association of BritishColumbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31; MacMillan Bloedel Ltd. v. Simpson, (SCC), [1995] 4 S.C.R. 725; Citizens Insurance Co. of Canada v. Parsons (1881), 7 App. Cas. 96; Sobeys Stores Ltd. v. Yeomans andLabour Standards Tribunal (N.S.), (SCC), [1989] 1 S.C.R. 238; Re: B.C. Family Relations Act, (SCC), [1982] 1 S.C.R. 62; OPSEU v.

Ontario (Attorney General), (SCC), [1987] 2 S.C.R. 2; Reference re YoungOffenders Act (P.E.I.), (SCC), [1991] 1 S.C.R. 252; Reference re Amendments to the Residential Tenancies Act(N.S.), (SCC), [1996] 1 S.C.R. 186; Dupont v. Inglis, (SCC), [1958] S.C.R. 535; Attorney General ofQuebec v. Grondin, (SCC), [1983] 2 S.C.R. 364; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342; Babcock v. Canada(Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3; R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110; Ontario v. Criminal Lawyers’Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3; Windsor (City) v.

Canadian Transit Co., 2016 SCC 54, [2016] 2 S.C.R. 617;Crevier v. Attorney General of Quebec, (SCC), [1981] 2 S.C.R. 220; Attorney General of Canada v. Law Society ofBritish Columbia, (SCC), [1982] 2 S.C.R. 307; Attorney General of Quebec v. Farrah, (SCC), [1978]2 S.C.R. 638; Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd., (UK JCPC), [1949] A.C. 134;New State Ice Co. v. Liebmann, 285 U.S. 262 (1932); R. v. Zelensky, (SCC), [1978] 2 S.C.R. 940; Clark v. CanadianNational Railway Co., (SCC), [1988] 2 S.C.R. 680.

By Abella J. (dissenting) Reference re Adoption Act, (SCC), [1938] S.C.R. 398; Re Cour de Magistrat de Québec, (CSC), [1965] S.C.R. 772; Tomko v. Labour Relations Board (N.S.), (SCC), [1977] 1 S.C.R. 112; Mississauga (City) v.Peel (Municipality), (SCC), [1979] 2 S.C.R. 244; Attorney General of Quebec v. Farrah, (SCC),[1978] 2 S.C.R. 638; Re Residential Tenancies Act, 1979, (SCC), [1981] 1 S.C.R. 714; Sobeys Stores Ltd. v. Yeomansand Labour Standards Tribunal (N.S.), (SCC), [1989] 1 S.C.R. 238; MacMillan Bloedel Ltd. v.

Simpson, (SCC), [1995] 4 S.C.R. 725; Reference re Amendments to the Residential Tenancies Act (N.S.), (SCC), [1996] 1S.C.R. 186; Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3; Ontario v. Criminal Lawyers’ Association ofOntario, 2013 SCC 43, [2013] 3 S.C.R. 3; Crevier v. Attorney General of Quebec, (SCC), [1981] 2 S.C.R. 220; Noël v.Société d’énergie de la Baie James, 2001 SCC 39, [2001] 2 S.C.R. 207; Trial Lawyers Association of British Columbia v.

BritishColumbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31; Reference re Remuneration of Judges of the Provincial Court of PrinceEdward Island, (SCC), [1997] 3 S.C.R. 3; Edwards v. Attorney-General for Canada, (UK JCPC),[1930] A.C. 124; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217; R. v. Comeau, 2018 SCC 15, [2018] 1S.C.R. 342; Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146;Multiple Access Ltd. v.

McCutcheon, (SCC), [1982] 2 S.C.R. 161; Reference re Securities Act, 2011 SCC 66, [2011] 3S.C.R. 837; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; NIL/TU,O Child and Family Services Society v. B.C.Government and Service Employees’ Union, 2010 SCC 45, [2010] 2 S.C.R. 696; Chatterjee v. Ontario (Attorney General), 2009 SCC19, [2009] 1 S.C.R. 624; Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5, [2019] 1 S.C.R. 150; Saskatchewan (AttorneyGeneral) v.

Lemare Lake Logging Ltd., 2015 SCC 53, [2015] 3 S.C.R. 419; 114957 Canada Ltée (Spraytech, Société d’arrosage) v.Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241; Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457;McEvoy v. Attorney General for New Brunswick, (SCC), [1983] 1 S.C.R. 704; Ontario (Attorney General) v. PembinaExploration Canada Ltd., (SCC), [1989] 1 S.C.R. 206; Paul v. British Columbia (Forest Appeals Commission), 2003SCC 55, [2003] 2 S.C.R. 585; Reference re Young Offenders Act (P.E.I.), (SCC), [1991] 1 S.C.R. 252. Statutes and Regulations Cited

An Act further to amend the law respecting District Magistrates in this Province, S.Q. 1871, c. 9, s. 1.

An Act respecting District Magistrates in this Province, S.Q. 1869, c. 23, ss. 13, 16, 17.

An Act respecting the jurisdiction of the District Magistrate’s Court, S.Q. 1946, c. 53, s. 1.

An Act respecting the jurisdiction of the Magistrate’s Court, S.Q. 1963, c. 62, s. 1.

An Act to again amend the Code of Civil Procedure, S.Q. 1969, c. 81, s. 2.

An Act to amend the Code of Civil Procedure , S.Q. 1952-53, c. 18, s. 12.

An Act to amend the Code of Civil Procedure and other legislation , S.Q. 1979, c. 37, s. 8.

An Act to amend the Code of Civil Procedure and other legislation , S.Q. 1984, c. 26, s. 3.

An Act to amend the Code of Civil Procedure and the Act respecting municipal courts , S.Q. 1995, c. 2, s. 2.

An Act to amend the Code of Civil Procedure respecting the district magistrate’s court , S.Q. 1921, c. 100, s. 1.

An Act to amend the Code of Civil Procedure respecting the jurisdiction of the Circuit and Magistrates’ Courts , S.Q. 1922, c. 94.

An Act to amend the Courts of Justice Act , S.Q. 1952-53, c. 29, s. 17.

An Act to amend the Courts of Justice Act , S.Q. 1965, c. 17, s. 1.

An Act to amend the Courts of Justice Act and other legislation to establish the Court of Québec , S.Q. 1988, c. 21, ss. 1 to 5.

An Act to amend the law respecting District Magistrates , S.Q. 1888, c. 20, s. 1.

An Act to amend the law respecting district magistrates , S.Q. 1889, c. 30, s. 1.

An Act to amend various legislation , S.Q. 1982, c. 58, s. 19.

An Act to establish the new Code of Civil Procedure , S.Q. 2014, c. 1, s. 35.

An Act to reform the Code of Civil Procedure , S.Q. 2002, c. 7, s. 5. Canadian Charter of Rights and Freedoms . Civil Code of Québec . Civil Resolution Tribunal Act , S.B.C. 2012, c. 25, ss. 2 , 118 , 133 . Code of Civil Procedure , CQLR, c. C-25.01 , arts. 30, 31, 33 paras. 1 and 2, 34 para. 1, 35, 536 to 570. Code of Civil Procedure , S.Q. 1965, c. 80, art. 34. Constitution Act, 1867 ,

preamble, ss. 91 , 92 , 96 to 100 , 101 , 129 , 133 . Courts of Justice Act , CQLR, c. T-16, ss. 2 , 79 , 83.1 [ad. 2020, c. 12, s. 84 ], 106. Criminal Code , R.S.C. 1985, c. C-46 . Décret 880-2017, (2017) 149 G.O. II, 4495. Provincial Court Civil Division Amendment Regulation , Alta. Reg. 139/2014. Small Claims Act , R.S.B.C. 1996, c. 430, s. 3 . Small Claims Act, 2016 , S.S. 2016, c. S-50.12, s. 4 . Small Claims Amendment Regulations, 2016 , Sask. Reg. 4/2016, s. 3. Small Claims Court Monetary Limit Regulation , B.C. Reg. 179/2005, s. 1 [am. B.C. Reg. 120/2017, Sch. 1].

Small Claims Regulations, 2017 , R.R.S., c. S-50.12, Reg. 1, s. 3 . Statutes Amendment Act, 2015 , S.A. 2015, c. 12, s. 6(4)(a)(v). Tribunal Small Claims Regulation , B.C. Reg. 232/2018, s. 3 . Authors Cited Baker, John. An Introduction to English Legal History , 5th ed. Oxford: Oxford University Press, 2019. Bingham, Tom. The Rule of Law . London: Allen Lane, 2010. Blackstone, William. Commentaries on the Laws of England , Book I. Oxford: Clarendon Press, 1765. Blackstone, William. Commentaries on the Laws of England , Book III. Oxford: Clarendon Press, 1768. Brun, Henri, Guy Tremblay et Eugénie Brouillet.

Droit constitutionnel , 6 e éd. Cowansville, Que.: Yvon Blais, 2014. Canada. Department of Justice. Correspondence, Reports of the Ministers of Justice and Orders in Council Upon the Subject of Dominion and Provincial Legislation 1867-1895 , by W. E. Hodgins. Ottawa, 1896.

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Section 96 : Striking a Balance between Legal Centralism and Legal Pluralism”, in Richard Albert, Paul Daly and Vanessa MacDonnell, eds., The Canadian Constitution in Transition . Toronto: University of Toronto Press, 2019, 84. Deslauriers, Jacques. “La Cour provinciale et l’art. 96 de l’A.A.N.B.” (1977), 18 C. de D. 881. Garant, Patrice. “La Cour du Québec et la justice administrative” (2012), 53 C. de D. 229. Girard, Philip, Jim Phillips and R. Blake Brown. A History of Law in Canada , vol. 1, Beginnings to 1866 . Toronto: University of Toronto Press, 2018.

Healy, Patrick. “Constitutional Limitations upon the Allocation of Trial Jurisdiction to the Superior or Provincial Court in Criminal Matters” (2003), 48 Crim. L.Q. 31. Hogg, Peter W. Constitutional Law of Canada , vol. 1, 5th ed. Supp. Toronto: Thomson Reuters, 2019 (loose-leaf updated 2019, release 1). Hogg, Peter W., and Cara F. Zwibel. “The rule of law in the Supreme Court of Canada” (2005), 55 U.T.L.J. 715. Huppé, Luc. Le régime juridique du pouvoir judiciaire . Montréal: Wilson & Lafleur, 2000.

Johnson, (Alyn) James. “The Judges Reference and the Secession Reference at Twenty: Reassessing the Supreme Court of Canada’s Unfinished Unwritten Constitutional Principles Project” (2019), 56 Alta. L. Rev. 1077. Jones, David Phillip. “A Constitutionally Guaranteed Role for the Courts” (1979), 57 Can. Bar Rev. 669. Lamer, Antonio. “The Rule of Law and Judicial Independence: Protecting Core Values in Times of Change” (1996), 45 U.N.B.L.J. 3. Lederman, W. R. “The Independence of the Judiciary” (1956), 34 Can. Bar Rev. 769 and 1139. Lyon, Noël. “Is Amendment of

Section 96 Really Necessary?” (1987), 36 U.N.B.L.J. 79. Migneault, Gaétan. “L’administration de la justice et la structure judiciaire canadienne” (2006), 37 R.D.U.S. 41. Monahan, Patrick J., Byron Shaw and Padraic Ryan. Constitutional Law , 5th ed. Toronto: Irwin Law, 2017. Morley, J. Gareth. “Dead Hands, Living Trees, Historic Compromises: The Senate Reform and Supreme Court Act References Bring the Originalism Debate to Canada” (2016), 53 Osgoode Hall L.J. 745. Normand, Sylvio. La Cour du Québec: Genèse et développement . Montréal: Wilson & Lafleur, 2013. Pépin, Gilles.

Les tribunaux administratifs et la Constitution — Étude des articles 96 à 101 de l’A.A.N.B. Montréal: Presses de l’Université de Montréal, 1969. Pepin, René. “Les parlements peuvent-ils vider les cours supérieures de leur juridiction? Ont-elles des pouvoirs ‘inhérents’, ‘inaliénables’? Réflexions sur la décision MacMillan Bloedel Ltd. c. Simpson ” (1997), 22 Queen’s L.J. 487. Québec. Assemblée législative. “Bill 20 — Code de procédure civile ”, Débats de l’Assemblée législative , vol. 2, n o 85, 4 e sess., 27 e lég., 14 juillet 1965, p. 4294. Québec.

Assemblée législative. “Bill No 75 — Loi modifiant la loi des tribunaux judiciaires”, Débats de l’Assemblée législative , vol. 2, n o 84, 4 e sess., 27 e lég., 13 juillet 1965, p. 4232-4235. Québec. Assemblée législative. “Projet de loi: Code de procédure civile ”, Débats de l’Assemblée législative , vol. 1, 1 re sess., 24 e lég., 12 et 16 décembre 1952, p. 273, 284. Québec. Assemblée nationale. “Bill 74 — Loi modifiant de nouveau le code de procédure civile”, Débats de l’Assemblée nationale , vol. 8, n o 100, 4 e sess., 28 e lég., 9 décembre 1969, p. 4746-4748, 4750. Québec.

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Loi sur les cours municipales”, Journal des débats , vol. 34, n o 8, 1 re sess., 35 e lég., 8 décembre 1994, p. 359-360. Québec. Assemblée nationale. “Projet de loi 83 — Loi modifiant le Code de procédure civile et d’autres dispositions législatives”, Journal des débats , vol. 27, n o 91, 4 e sess., 32 e lég., 15 mai 1984, p. 6033. Québec. Assemblée nationale. “Projet de loi 83 — Loi modifiant le Code de procédure civile et d’autres dispositions législatives”, Journal des débats , vol. 27, n o 103, 4 e sess., 32 e lég., 7 juin 1984, p. 6826-6831. Québec.

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Toronto: Toronto University Press, 2007, 123. Trudel, Gérard. Traité de droit civil du Québec , t. 7, Des contrats . Montréal: Wilson & Lafleur, 1946. APPEALS from a judgment of the Quebec Court of Appeal (Duval Hesler C.J. and Bich, Kasirer, Levesque, Vauclair, Mainville and Hogue JJ.A.), 2019 QCCA 1492 , [2019] Q.J. No. 7806 (QL), 2019 CarswellQue 10358 (WL Can.), in the matter of the reference pertaining to the constitutional validity of the provisions of

article 35 of the Code of Civil Procedure , CQLR, c. C-25.01 , which set at less than $85,000 the exclusive monetary jurisdiction of the Court of Québec and to the appellate jurisdiction assigned to the Court of Québec. Appeals dismissed, Wagner C.J. and Rowe J. dissenting in part and Abella J. dissenting. François Grondin and Guy J. Pratte , for Conférence des juges de la Cour du Québec. Dominique Rousseau and Francis Demers , for the Attorney General of Quebec. Marc-André Fabien and Vincent Cérat Lagana , for Conseil de la magistrature du Québec.

Audrey Mayrand and Jennifer Klinck , for the Canadian Association of Provincial Court Judges. Sean Griffin and William J. Atkinson , for the Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec. Bernard Letarte , for the intervener the Attorney General of Canada. Daniel Huffaker , for the intervener the Attorney General of Ontario. Gareth Morley , for the intervener the Attorney General of British Columbia. Written submissions only by Randy Steele , for the intervener the Attorney General of Alberta.

No one appeared for the intervener Organisme d’autoréglementation du courtage immobilier du Québec. P. Jonathan Faulds , Q.C. , for the intervener the Canadian Council of Chief Judges. Ryan D. W. Dalziel , for the intervener the Trial Lawyers Association of British Columbia. Pierre Bienvenu , for the intervener the Canadian Superior Courts Judges Association. English version of the judgment of Moldaver, Karakatsanis, Côté and Martin JJ. delivered by Côté and Martin JJ. — TABLE OF CONTENTS Paragraph I. Overview 1

II. Background to the Reference to the Quebec Court of Appeal 12III. Quebec Court of Appeal, 2019 QCCA 1492 19IV. Analysis on the First Question 26A. Scope of the First Reference Question 26B. Constitutional Framework 29(1) Compromise Reached at Confederation 32(2) Role and Purpose of

Section 96 41 (

a) National Unity 43(

b) Rule of Law 46(3).... Concept Common to the

Section 96 Tests: Prohibition Against Creating Parallel CourtsThat Undermine the Role of the Superior Courts 53 (a).... Historical Jurisdiction 55(b).... Core Jurisdiction 63(c).... Conclusion 70C. Application 71(1) Three-Step Residential Tenancies Test 72(a).... Characterizing the Jurisdiction 72(b).... Historical Analysis 75(2) Core Jurisdiction Test 80(a).... General Private Law Jurisdiction 82(b).... Purpose of the Analysis and Factors to Consider 87(i)..... Scope of the Jurisdiction Being Granted 96(ii).... Whether the Grant Is Exclusive or Concurrent 101(iii)... Monetary Limit 105(iv)...

Appeal Mechanisms 119(v) ... Impact on the Caseload of the Superior Court of General Jurisdiction 124(vi)... Pursuit of an Important Societal Objective 126(c).... Weighing the Factors 131V. Analysis on the Second Question 146VI. Effect of the Decision 151VII. Disposition 160Appendix I. Overview [1] The unified national judicial system is a defining feature of Canada’s judiciary.

This system ensures the joint participation of the federal government and the provinces.[1] On the one hand, the Constitution grants exclusive jurisdiction over theadministration of justice to the provinces, thereby empowering them to create courts and organize them.

On the other hand, it places aspecific category of courts, the superior courts, at the centre of the Canadian judiciary and vests the federal government with the power toappoint their judges. [2] Over the years, the courts have endeavoured to give meaning to this characteristic of Canada’s judicial system,which stems from ss. 92(14) and 96 to 100 of the Constitution Act, 1867.

The case law sought to strike a proper balance betweenprovincial initiatives on the administration of justice and respect for one of the important compromises of the Fathers of Confederation,on which the special and inalienable status conferred on the s. 96 courts is grounded. [3] The first question raised in these appeals is whether art. 35 para. 1 of the Code of Civil Procedure, CQLR, c.C-25.01 (“C.C.P.”), is consistent with s. 96 of the Constitution Act, 1867.

Put differently, does granting exclusive jurisdiction over civilclaims for less than $85,000 to the Court of Québec create a parallel or shadow court that usurps the role reserved by the Constitution tothe superior courts? In this case, the legislature has not transferred a specific jurisdiction to the provincial court, but rather an extensiveand exclusive jurisdiction over a vast area at the heart of private law. This case presents an opportunity for this Court to clarify the linethat the provinces must not cross in exercising their jurisdiction over the administration of justice.

This question represents a newmilestone in the evolution of the case law on s. 96, as it concerns a wholesale court-to-court transfer of jurisdiction over contractual andextracontractual obligations below a specific monetary limit, which has the effect of removing these matters from the jurisdiction of thesuperior courts. [4] The purpose of s. 96 is to give effect to the compromise reached at Confederation by protecting the special status ofthe superior courts of general jurisdiction as the cornerstone of our unitary justice system.

The principles of national unity and the rule oflaw are central to this organization of the judiciary. To ensure that s. 96 fulfills its function, this Court has developed various tests overtime, the most recent being the three-step test from Re Residential Tenancies Act, 1979, (SCC), [1981] 1 S.C.R. 714(“Residential Tenancies”), and the core jurisdiction test adopted in MacMillan Bloedel Ltd. v. Simpson, (SCC), [1995] 4S.C.R. 725.

These two tests are based on a shared concern reflected in earlier jurisprudence: the nature and role of superior courts are tobe protected, and the creation of courts with provincially appointed judges that mirror or usurp the functions of superior courts is notpermitted. [5] The three-step Residential Tenancies test limits the granting of power or jurisdiction over a type of dispute where, atthe time of Confederation, the power or jurisdiction came exclusively or primarily within the remit of the superior courts.

In our view,the application of this test does not on its own render art. 35 para. 1 C.C.P. unconstitutional. Indeed, there was sufficient generalinvolvement by the inferior courts in civil disputes pertaining to the law of contractual and extracontractual obligations in three of thefour founding provinces. [6] The second test aims to determine whether a grant of jurisdiction infringes on the superior courts’ core jurisdiction

either through an alteration of their essential nature or because they are prevented from playing their central role conferred by s.

Article 35 para. 1 C.C.P. infringes on the superior courts’ general private law jurisdiction — an essential feature that forms part of their core jurisdiction — in a way that is inconsistent with the Constitution. Both the Superior Court and the Court of Québec play an important

part in maintaining the rule of law, enjoy the guarantees of judicial independence, are composed of professional, qualified judges, and promote access to justice. These shared characteristics are essential to the proper functioning of both courts and to the protection of the public.

While we acknowledge these realities, the question is nevertheless whether the province’s wholesale transfer of an exclusive jurisdiction to a court with provincially appointed judges complies with s. 96 . [ 7 ] In this distinct context, we have looked to a wide range of factors to answer that question: the scope of the jurisdiction granted by art. 35 para. 1 C.C.P. , the exclusivity of the grant, the high monetary limit, the available appeal mechanisms, and the absence of a societal objective capable of justifying the legislation.

The weighing of the relevant factors leads us to conclude that the grant to the Court of Québec of exclusive jurisdiction over civil disputes concerning contractual and extracontractual obligations up to a value of less than $85,000 unduly compromises the position of s. 96 courts and is unconstitutional. The scope of the jurisdiction granted by art. 35 para. 1 C.C.P. , combined with the various features of the institutional context in which that jurisdiction is exercised, transforms the Court of Québec into a prohibited parallel court and impermissibly infringes on the core jurisdiction of the Superior Court.

This necessarily undermines the crucial role the Quebec Superior Court plays in the Canadian judicial system. [ 8 ] We agree with the Court of Appeal that the monetary limit is too high when considered in its historical and institutional contexts. It is noteworthy that the transfer of jurisdiction to the Court of Québec not only grants a broad civil jurisdiction in the area of obligations that is circumscribed by a monetary limit, but also removes that jurisdiction from the Quebec Superior Court.

This improperly impinges on the Superior Court’s ability to hear and rule on disputes in a field at the heart of Quebec private law. No other court with provincially appointed judges in Canada has a comparable exclusive jurisdiction in civil matters: the other provinces retain a form of concurrent jurisdiction between courts with provincially appointed judges and s. 96 courts. [ 9 ] Other characteristics of the Court of Québec likewise support the conclusion that the impugned

article oversteps the bounds of constitutionality. Both courts hear civil cases involving contractual and extracontractual matters and apply the same laws and procedural rules in adjudicating them. Further, the Court of Québec’s decisions can be appealed directly to the Quebec Court of Appeal. As a result, the jurisdiction provided for in art. 35 para. 1 C.C.P. gives the Court of Québec every appearance of being a parallel court and undermines the central role reserved to the superior courts in the Canadian judicial system by ss. 96 to 100 of the Constitution Act, 1867 .

It is difficult to see what remains to distinguish the Court of Québec from a constitutionally protected superior court. [ 10 ] In our view, the second reference question, which relates to the Court of Québec’s application of the obligation of judicial deference when it hears an appeal from an administrative decision under certain provincial statutes, is now moot as a result of this Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , and the coming into force of s. 83.1 of the Courts of Justice Act , CQLR, c. T-16 .

We therefore decide not to address it. [ 11 ] For the reasons that follow, we would dismiss the appeals on the basis that art. 35 para. 1 C.C.P. is unconstitutional and the second question is moot. II. Background to the Reference to the Quebec Court of Appeal [ 12 ] On January 1, 2016, the new Code of Civil Procedure , including art. 35 , came into force.

Article 35 grants the Court of Québec exclusive jurisdiction over all civil disputes in which the value of the subject matter or the amount being claimed is less than $85,000. However, this jurisdiction excludes family matters other than adoption, and any other jurisdiction that is exclusively assigned by law to another court or adjudicative body.

Article 35 para. 1 C.C.P. reads as follows: The Court of Québec has exclusive jurisdiction to hear and determine applications in which the value of the subject matter of the dispute or the amount claimed, including in lease resiliation matters, is less than $85,000, exclusive of interest; it also hears and determines applications ancillary to such an application, including those for the specific performance of a contractual obligation.

However, it does not have such jurisdiction in cases where jurisdiction is formally and exclusively assigned to another court or adjudicative body, or in family matters other than adoption. [ 13 ] The structure of Quebec’s judicial organization, of which art. 35 forms part, can be understood by briefly reviewing the scope of the Superior Court’s and the Court of Québec’s current jurisdictions in order to get a full picture of the issues raised by these appeals. [ 14 ] The Court of Québec, as a statutory court, may exercise only the jurisdiction conferred on it by the legislature.

Under Quebec legislation, the Court of Québec has jurisdiction throughout Quebec over civil, criminal and penal matters, as well as over youth matters. This three-pronged jurisdiction is reflected in the three divisions of the court ( ss. 2 , 79 and 106 of the Courts of Justice Act ). The court also sits on administrative matters and on appeals in cases provided for by law (s. 79). Pursuant to art. 35 C.C.P. , the Court of Québec’s Civil Division has exclusive jurisdiction to hear and determine applications where the value of the subject matter is less than $85,000.

Applications not exceeding $15,000 are heard by the Civil Division’s Small Claims Division (art. 536 C.C.P. ). [ 15 ] By contrast, the Quebec Superior Court, as the court of original general jurisdiction, has province-wide jurisdiction to hear and determine any matter that is not formally and exclusively assigned to another court (art. 33 para. 1 C.C.P. ). As a result, it hears, inter alia , civil suits in which the amount at issue is at least $85,000, cases relating to immovable property or its dismemberments, successions and wills, and most family law cases, including divorce applications.

The Superior Court also has exclusive jurisdiction over class actions and injunctions (art. 33 para. 2 C.C.P. ), a general power of judicial review (art. 34 para. 1 C.C.P. ) and jurisdiction to hear and determine a number of civil proceedings provided for in federal legislation, such as applications relating to bankruptcy and insolvency. [ 16 ] The Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec (“Chief Justice of the Superior Court et al.”) argue that the effect of art. 35 C.C.P. is to deny Quebec litigants the right to file any civil claim in the Superior Court in which the value of the subject matter of the dispute is less than $85,000.

They argue this provision

prevents the Superior Court from stating and advancing the law with respect to such claims. The Chief Justice of the Superior Court et al.challenge the constitutionality of art. 35 C.C.P. on this basis. [17] For this very reason, at the time of the Code of Civil Procedure reform, the Chief Justice of the Superior Court etal. urged the Quebec legislature not to raise the ceiling of the Court of Québec’s civil jurisdiction from $70,000 to $85,000.

Moreover,they asked the Quebec government to submit a reference to the Quebec Court of Appeal to ask that court to rule on the constitutionalityof the Court of Québec’s civil jurisdiction. After these requests were denied, the Chief Justice of the Superior Court et al. filed anoriginating application on July 19, 2017, seeking a declaratory judgment of unconstitutionality in the Superior Court.

In their application,they also contested the appellate jurisdiction granted to the Court of Québec with respect to certain administrative decisions on the basisthat the requirement of deference recognized in the case law is incompatible with the superior courts’ power of judicial review. [18] In August 2017, in response to those legal proceedings, the Quebec government issued Order in Council 880-2017,Concernant un renvoi à la Cour d’appel portant sur la validité constitutionnelle des dispositions de l’article 35 du Code de procédurecivile qui fixent à moins de 85 000 $ la compétence pécuniaire exclusive de la Cour du Québec et sur la compétence d’appel attribuée àla Cour du Québec, (2017) 149 G.O.

II, 4495. In October 2017, the Attorney General of Quebec (“AGQ”) filed with the Court of Appeala notice of reference submitting the following questions: [translation] 1. Are the provisions of the first paragraph of

article 35 of the Code of Civil Procedure (chapter C-25.01), setting at less than $85,000the limit to the exclusive monetary jurisdiction of the Court of Québec, valid with regard to

section 96 of the Constitution Act, 1867,given the jurisdiction of Quebec over the administration of justice under paragraph 14 of

section 92 of the Constitution Act, 1867? 2. Is it compatible with

section 96 of the Constitution Act, 1867 to apply the obligation of judicial deference, which characterizes theapplication for judicial review, to the appeals to the Court of Québec provided for in sections 147 of the Act respecting access todocuments held by public bodies and the protection of personal information (chapter A-2.1), 115.16 of the Act respecting the Autoritédes marchés financiers (chapter A-33.2), 100 of the Real Estate Brokerage Act (chapter C-73.2), 379 of the Act respecting thedistribution of financial products and services (chapter D-9.2), 159 of the Act respecting administrative justice (chapter J-3), 240 and 241of the Police Act (chapter P-13.1), 91 of the Act respecting the Régie du logement (chapter R-8.1) and 61 of the Act respecting theprotection of personal information in the private sector (chapter P-39.1)? (Order in Council, at p. 4496) III.

Quebec Court of Appeal, 2019 QCCA 1492 [19] The Court of Appeal first outlined the origin and purpose of the provisions of the Constitution Act, 1867 relating tothe courts and the organization of justice, namely ss. 96 to 100, 129 and 133. Noting that these provisions are intended to reflect theUnited Kingdom’s judicial system, the court concluded that the Constitution does not allow superior courts to be abolished or deprived oftheir core powers.

Similarly, the court held that there is “a prohibition against creating courts with provincially appointed judges thatexercise, in whole or in part, the jurisdiction of the superior courts as ‘shadows’ or ‘mirrors’ thereof” (paras. 35 and 46-47 ). TheCourt of Appeal noted that the test developed in Residential Tenancies is generally used for this purpose. [20] The Court of Appeal considered whether art. 35 C.C.P. infringes on the core jurisdiction of the Quebec SuperiorCourt (para. 102). Relying on Trial Lawyers Association of British Columbia v.

British Columbia (Attorney General), 2014 SCC 59,[2014] 3 S.C.R. 31, the court held that the Quebec legislature may increase the amount of the Court of Québec’s monetary jurisdictiononly if it can do so without altering the core jurisdiction of the superior courts to “resolve disputes between individuals and decidequestions of private . . . law” (para. 141, quoting Trial Lawyers, at para. 32). [21] To identify the monetary limit beyond which an infringement on the core jurisdiction could not be justified, the Courtof Appeal reviewed the structure of the courts in the other provinces.

It then concluded that, “[i]n light of the historical context as well asthe objectives tied to the rule of law and national unity arising from

section 96 of the Constitution Act, 1867 . . . the Superior Court canretain its core jurisdiction to adjudicate civil disputes only if that jurisdiction applies to ‘substantial’ claims of litigants” (para. 148(emphasis added)). [22] The Court of Appeal took the amount of $100 as the starting point for its analysis, because that was the amount of“t

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