2019 QCCA 1492, 2019 QCCA 1492

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 appellate jurisdiction assigned to the Court of Québec 2019 QCCA 1492 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 appellate jurisdiction assigned to the Court of Québec (Order in Council No. 880-2017) DATE: September 12, 2019 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. MARIE-FRANCE BICH, J.A. NICHOLAS KASIRER, J.A. JACQUES J. LEVESQUE, J.A. MARTIN VAUCLAIR, J.A. ROBERT M. MAINVILLE, J.A. MARIE-JOSÉE HOGUE, J.A.

ATTORNEY GENERAL OF QUEBEC APPLICANT -and- ATTORNEY GENERAL OF CANADA ATTORNEY GENERAL OF BRITISH COLUMBIA CHIEF JUSTICE, SENIOR ASSOCIATE CHIEF JUSTICE AND ASSOCIATE CHIEF JUSTICE OF THE SUPERIOR COURT OF QUEBEC 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 TABLE OF CONTENTS 1. PRELIMINARY QUESTIONS .................................................................................................................................... 10 2.

CONTEXT ................................................................................................................................................................... 13 2.1. The origin and purpose of the relevant constitutional provisions .................................................................. 13 2.2. Context of the first reference question and circumstances under which the Court was seized thereof ... 24

2.3. Context of the second reference question and circumstances under which the Court was seized thereof 31 2.4.

Summary description of the Superior Court and the Court of Québec ........................................................... 39 3. THE FIRST REFERENCE QUESTION ......................................................................................................................... 43 3.1. Preliminary Comments ............................................................................................................................................. 43 3.2.

The respondents’ claims ........................................................................................................................................... 48 3.3. The appropriate analytical framework ................................................................................................................. 50 3.4. Analysis ...................................................................................................................................................................... 62 4.

THE SECOND REFERENCE QUESTION .................................................................................................................... 76 4.1. Preliminary Comments ............................................................................................................................................. 76 4.2. The interveners’ positions ........................................................................................................................................ 78 4.3.

The statutory appeals in question .......................................................................................................................... 81 4.3.1. Act respecting access to documents held by public bodies and the protection of personal information 82 4.3.2. Act respecting the regulation of the financial sector ....................................................................................... 83 4.3.3. Real Estate Brokerage Act .................................................................................................................................... 83 4.3.4.

Act respecting the distribution of financial products and services ................................................................ 84 4.3.5. Act respecting administrative justice .................................................................................................................. 84 4.3.6. Police Act ................................................................................................................................................................ 85 4.3.7.

Act respecting the Régie du logement ............................................................................................................... 85 4.3.8. Act respecting the protection of personal information in the private sector ................................................ 86 4.4. Characterization of the Court of Québec, sitting in appeal, as a court of justice ......................................... 87 4.5. The standard of review applicable to appeals to the Court of Québec ............................................................ 93 4.6.

The Re Residential Tenancies Act , 1979 test ....................................................................................................... 104 4.6.1. Characterization of the impugned powers (step 1) ....................................................................................... 104 4.6.2. Are the impugned powers judicial powers (step 2)? ..................................................................................... 108 4.6.3. Are the impugned powers merely subsidiary or ancillary to an administrative function (step 3)? ........ 108 4.7.

Appeals to the Court of Québec ........................................................................................................................... 110 4.7.1. The judgment in Farrah ..................................................................................................................................... 111 4.7.2. The judgment in Crevier ..................................................................................................................................... 113 4.7.3.

The judgment in Grondin .................................................................................................................................. 115 4.7.4. Conclusions arising from the analysis of these judgments .......................................................................... 116 4.8. The duplication argument .................................................................................................................................... 118 4.9. Conclusions regarding the second reference question ................................................................................... 122 5.

CONCLUSIONS ....................................................................................................................................................... 122 FIRST

SCHEDULE .......................................................................................................................................................................... 126 SECOND

SCHEDULE ..................................................................................................................................................................... 137

OPINION OF THE COURT * Official English Translation of the Judgment of the Court. [ 1 ] By Order in Council 880-2017, dated August 30, 2017, adopted under the Court of Appeal Reference Act , [1] the Government of Quebec referred the following two questions to the Court for hearing and consideration: [2] [ translation provided by applicant’s counsel ] * 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 $85,000 the 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 the application for judicial review, to the appeals to the Court of Québec provided for in sections 147 of the Act respecting access to documents held by public bodies and the protection of personal information (chapter A-2.1 ), 115.16 of the Act respecting the Autorité des marchés financiers (chapter A-33.2 ), 100 of the Real Estate Brokerage Act (chapter C-73.2 ), 379 of the Act respecting the distribution of financial products and services (chapter D-9.2 ), 159 of the Act respecting administrative justice (chapter J-3 ), 240 and 241 of 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 the protection of personal information in the private sector (chapter P-39.1)? [ 2 ] The legislative provisions contemplated in the second question are reproduced in the First

Schedule to this opinion. The first paragraph of

article 35 C.C.P. , [3] which is considered in the first question, grants the Court of Québec exclusive jurisdiction in civil matters where the value of the subject matter of the dispute is less than $85,000, save in family matters (other than adoption) or save where jurisdiction exclusively assigned to another court or body: 35.

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. 35.

La Cour du Québec a compétence exclusive pour entendre les demandes dans lesquelles soit la valeur de l’objet du litige, soit la somme réclamée, y compris en matière de résiliation de bail, est inférieure à 85 000 $, sans égard aux intérêts; elle entend également les demandes qui leur sont accessoires portant notamment sur l’exécution en nature d’une obligation contractuelle.

Néanmoins, elle n’exerce pas cette compétence dans les cas où la loi l’attribue formellement et exclusivement à une autre juridiction ou à un organisme juridictionnel, non plus que dans les matières familiales autres que l’adoption. [ 3 ] The relevant constitutional texts are all contained in the Constitution Act, 1867 [4] and read as follows:

[…] Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom : […] VI.

DISTRIBUTION OF LEGISLATIVE POWERS POWERS OF THE PARLIAMENT […] Considérant que les provinces du Canada, de la Nouvelle-Écosse et du Nouveau-Brunswick ont exprimé le désir de contracter une Union Fédérale pour ne former qu’une seule et même Puissance ( Dominion ) sous la couronne du Royaume-Uni de la Grande-Bretagne et d’Irlande, avec une constitution reposant sur les mêmes principes que celle du Royaume-Uni : […] VI. DISTRIBUTION DES POUVOIRS LÉGISLATIFS POUVOIRS DU PARLEMENT 91.

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, 91.

Il sera loisible à la Reine, de l’avis et du consentement du Sénat et de la Chambre des Communes, de faire des lois pour la paix, l’ordre et le bon gouvernement du Canada, relativement à toutes les matières ne tombant pas dans les catégories de sujets par la présente loi exclusivement assignés aux législatures des provinces; mais, pour plus de garantie, sans toutefois restreindre la généralité des termes ci- haut employés dans le présent article, il est par la présente déclaré que (nonobstant toute disposition contraire énoncée dans la présente loi) l’autorité législative exclusive du parlement du Canada s’étend à toutes les matières tombant dans les catégories de sujets ci-dessous énumérés, savoir : […] […] 27.

The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction , but including the Procedure in Criminal Matters. 27. La loi criminelle, sauf la constitution des tribunaux de juridiction criminelle, mais y compris la procédure en matière criminelle. […] […]

EXCLUSIVE POWERS OF PROVINCIAL LEGISLATURES 92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, […] 14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts . POUVOIRS EXCLUSIFS DES LÉGISLATURES PROVINCIALES 92.

Dans chaque province la législature pourra exclusivement faire des lois relatives aux matières tombant dans les catégories de sujets ci-dessous énumérés, savoir : […] 14. L’administration de la justice dans la province, y compris la création, le maintien et l’organisation de tribunaux de justice pour la province, ayant juridiction civile et criminelle, y compris la procédure en matières civiles dans ces tribunaux; […] […] VII. JUDICATURE VII. JUDICATURE 96 .

The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province , except those of the Courts of Probate in Nova Scotia and New Brunswick. 96. Le gouverneur-général nommera les juges des cours supérieures, de district et de comté dans chaque province , sauf ceux des cours de vérification dans la Nouvelle-Écosse et le Nouveau-Brunswick. […] 98. The Judges of the Courts of Quebec shall be selected from the Bar of that Province. […] 98. Les juges des cours de Québec seront choisis parmi les membres du barreau de cette province. 99.

The Judges of the Superior Courts shall hold Office during good Behaviour, but shall be removable by the Governor General on Address of the Senate and House of Commons . [5] 99 . Les juges des cours supérieures resteront en charge durant bonne conduite, mais ils pourront être démis de leurs fonctions par le gouverneur- général sur une adresse du Sénat et de la Chambre des Communes. 100.

The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are for the Time being paid by Salary, shall be fixed and provided by the Parliament of Canada . 100.

Les salaires, allocations et pensions des juges des cours supérieures, de district et de comté (sauf les cours de vérification dans la Nouvelle-Écosse et le Nouveau-Brunswick) et des cours de l’Amirauté, lorsque les juges de ces dernières sont alors salariés, seront fixés et payés par le parlement du Canada . 101. The Parliament of Canada may , notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada. 101.

Le parlement du Canada pourra , nonobstant toute disposition contraire énoncée dans la présente loi, lorsque l’occasion le requerra, adopter des mesures à l’effet de créer, maintenir et organiser une cour générale d’appel pour le Canada, et établir des tribunaux additionnels pour la meilleure administration des lois du Canada .

IX. MISCELLANEOUS PROVISIONS […] IX. DISPOSITIONS DIVERSES […] 129.

Except as otherwise provided by this Act, all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union, and all Courts of Civil and Criminal Jurisdiction, and all legal Commissions, Powers, and Authorities, and all Officers, Judicial, Administrative, and Ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made; subject nevertheless (except with respect to such as are enacted by or exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland,) to be repealed, abolished, or altered by the Parliament of Canada, or by the Legislature of the respective Province, according to the Authority of the Parliament or of that Legislature under this Act . […] 129.

Sauf toute disposition contraire prescrite par la présente loi, – toutes les lois en force en Canada, dans la Nouvelle-Écosse ou le Nouveau-Brunswick, lors de l’union, – tous les tribunaux de juridiction civile et criminelle , – toutes les commissions, pouvoirs et autorités ayant force légale, – et tous les officiers judiciaires, administratifs et ministériels, en existence dans ces provinces à l’époque de l’union, continueront d’exister dans les provinces d’Ontario, de Québec, de la Nouvelle- Écosse et du Nouveau-Brunswick respectivement, comme si l’union n’avait pas eu lieu; mais ils pourront, néanmoins (sauf les cas prévus par des lois du parlement de la Grande- Bretagne ou du parlement du Royaume-Uni de la Grande-Bretagne et d’Irlande), être révoqués, abolis ou modifiés par le parlement du Canada, ou par la législature de la province respective, conformément à l’autorité du parlement ou de cette législature en vertu de la présente loi. […] 133.

Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec . […] [Emphasis added] 133.

Dans les chambres du parlement du Canada et les chambres de la législature de Québec, l’usage de la langue française ou de la langue anglaise , dans les débats, sera facultatif; mais dans la rédaction des archives, procès-verbaux et journaux respectifs de ces chambres, l’usage de ces deux langues sera obligatoire; et dans toute plaidoirie ou pièce de procédure par- devant les tribunaux ou émanant des tribunaux du Canada qui seront établis sous l’autorité de la présente loi, et par-devant tous les tribunaux ou émanant des tribunaux de Québec, il pourra être fait également usage, à faculté, de l’une ou de l’autre de ces langues. […] [Soulignements ajoutés] 1.

PRELIMINARY QUESTIONS

[ 4 ] On April 26, 2018, the chief justices of the Superior Court made a written application to dismiss Parts 1 and 2 of the expert report of Donald Fyson. [6] They argued that these two parts of the report are primarily an exercise in interpreting legislation in force from 1846 to 1867, an exercise that falls within the expertise of the Court, not that of the report’s author. They also asked that

Part 3 of the report be considered mere documentary evidence, because it does not contain an expert opinion. [ 5 ] Although no representations on this matter were made at the hearing, the Court must first rule on the Demande des juges en chef de la Cour supérieure en irrecevabilité du document Fyson à

titre d’expertise [Application of the chief justices of the Superior Court to dismiss the Fyson document as an expert report], which was referred to it by the Chief Justice. [ 6 ] The application is dismissed for the following reasons. [ 7 ] Donald Fyson, a historian and full professor in the Department of History at the Université Laval, is a specialist in the history of 18th, 19th and 20th century Quebec, particularly its social, sociolegal and sociopolitical aspects. [ 8 ] His report, dated April 10, 2018, was filed by the Attorney General of Quebec.

It is entitled Civil Justice in Mid-Nineteen- Century British North America: Court Structure, Judges and Recourse to the Courts in Lower Canada, Upper Canada, New Brunswick and Nova Scotia and is divided into three parts. [ 9 ]

Part 1 describes the various courts of original civil jurisdiction in pre-Confederation times. It covers the provinces of Lower Canada, Upper Canada, New Brunswick and Nova Scotia and deals with the composition of those courts and the scope of their respective jurisdiction. It is based, notably, on an analysis of the statutes then in force and on certain scholarly publications. [ 10 ] In

Part 2, Professor Fyson describes the process by which judges and magistrates were appointed to those courts, based, once again, on pre-Confederation statutes and on scholarly articles. [ 11 ] Lastly, in

Part 3, he presents the vast amount of statistical and factual data he compiled, on the basis of which he estimates the number of civil suits launched in each court, the amount at stake in those suits, the percentage of the population involved and the number of judgments rendered by each court. [ 12 ] In essence, as indicated in paragraph [4] hereinabove, the chief justices submit that the first two parts of the report are inadmissible because the expert interprets and opines on the jurisdiction of the courts of justice in 1867, a task they argue is reserved to the Court in connection with this reference.

They also ask that the third part be considered to be mere documentary, rather than expert, evidence, arguing that the author of the report only reproduces data he has compiled, but does not express an opinion. *** [ 13 ] It is true that the task of interpreting the law usually belongs, not to experts, but to judges, who have judicial notice of the law. [7] There are, however, exceptions to this rule, both as regards the law currently in force and as it existed in the past. [8] [ 14 ] Thus, the courts will allow expert evidence if it contains a complex contextual discussion of the former law, [9] examines legislative facts on reasonably debatable points, particularly when those points deal with a matter that could be decisive, [10] or establishes the social and historical context of the issue under consideration. [11] [ 15 ] Statutes are sources of historical knowledge and historians often use them to establish and understand certain facts.

Indeed, it would be difficult to draw a picture of the public institutions that existed at a given time without referring to the legislation that created them. [ 16 ] This is likely why Chief Justice Dickson used the expression “historical inquiry” to refer to the first step of the three-step process that must generally be followed when applying

section 96 of the Constitution Act, 1867 , which suggests that certain findings to be made at that stage are factual and historical. [12] [ 17 ] That being said, recently, in R. v. Comeau , [13] the Supreme Court pointed out that these exceptions must not result in judges abdicating their role in favour of expert opinions. [ 18 ] How does the foregoing apply to Professor Fyson’s report? [ 19 ] As mentioned above, Parts 1 and 2 of the report identify the courts of civil jurisdiction prior to 1867 and the manner in which judges and magistrates of those courts were appointed.

Professor Fyson consulted and analyzed numerous statutes in order to draw a comprehensive picture of the justice system at that time. He did not express a legal opinion per se or analyze the impact of his findings on the legality of the current system. His discussion was limited to the situation that existed at the time.

Although his analysis was based, among other things, on the statutes then in force, his report was essentially intended to establish historical facts. [ 20 ] It can easily be seen that he did not in any manner usurp the role of the Court, but merely stated historical facts without drawing any legal conclusions therefrom. [ 21 ] The chief justices fault him for having consulted factums filed in the Supreme Court in cases dealing with the scope of s. 96 of the Constitution Act, 1867 and contend that this shows that his report borders on a legal opinion. [ 22 ] This Court does not share this view. [ 23 ] Professor Fyson explained that he consulted these factums to ensure he had not missed any major elements, while recognizing that these are “ evidently neither primary sources (for the state of the courts in the mid-nineteenth century) nor scholarly publications

subject to normal peer review, and thus must be treated with caution ”. [14] He therefore consulted these factums in an effort to be thorough, so as to substantiate the exhaustive nature of his approach and its outcome. [ 24 ] Under these circumstances, although Professor Fyson’s report relies on statutes, articles and other scholarly works and, incidentally, on factums filed in the Supreme Court of Canada, the Court finds that it is admissible because it establishes legislative facts and paints a picture of the prevailing situation in pre-Confederation times, without encroaching on the role of the Court. *** [ 25 ] The chief justices of the Superior Court also asked the Court to order the Minister of Justice of Quebec and the Minister of Justice of Canada to pay them a “provision for costs” intended to pay the extrajudicial fees and the disbursements they incurred to participate in the reference.

They agreed, however, that this application would not be dealt with at the hearing on the reference itself. Although the Court has now rendered its opinion on the reference questions, it is still seized of the chief justices’ application, which application will be referred to another panel of the Court for hearing and adjudication. 2.

CONTEXT [ 26 ] Before delving into the analysis of the two questions before the Court, it is useful first to examine the context, that is, the origin and purpose of the provisions of the Constitution Act, 1867 dealing with the courts and the organization of justice, the circumstances under which the first and second reference questions were brought before the Court and, briefly, the current functioning of the Superior Court and the Court of Québec. 2.1. The origin and purpose of the relevant constitutional provisions [ 27 ] As stated in the

preamble to the Constitution Act, 1867 , the purpose pursued at Confederation was to establish a constitution for Canada similar in principle to that of the United Kingdom. [15] The essentially unitary nature of the United Kingdom’s constitution, however, presented certain challenges when developing a constitution for a federal state. These challenges are reflected in several aspects of the Constitution Act, 1867 , the division of powers between the central government and the provinces being the most striking example.

Shaping Canada’s constitution based on that of the United Kingdom was just as delicate a task when addressing the organization and administration of the various judicial systems of the pre-Confederation provinces, which also originated from the English system or were informed by it. [ 28 ] The English justice system has long been based on a dichotomy between the royally appointed courts, referred to as the “superior courts”, and the inferior courts, referred to as the “subordinate magistrates”.

As Blackstone stated as early as 1765, the English superior courts had a guaranteed general jurisdiction and their judges had the necessary privileges to ensure their impartiality, including an immutable appointment and guaranteed salary: […] But at present, by the long and uniform usage of many ages, our kings have delegated their whole judicial power to the judges of their several courts; which are the grand depositary of the fundamental laws of the kingdom, and have gained a known and stated jurisdiction, regulated by certain and established rules, which the crown itself cannot now alter but by act of parliament. […] And now, by the noble improvement of that law […] the judges are continued in their offices during their good behaviour […] and their full salaries are absolutely secured to them during the continuance of their commissions; his Majesty having been pleased to declare, that “he looked upon the independence and uprightness of the judges, as essential to the impartial administration of justice; as one of the best securities of the rights and liberties of his subjects; and as most conducive to the honour of the crown.” [16] [ 29 ] By contrast with the royally appointed “superior” courts of justice, there were and continue to be so-called “subordinate” or “inferior” courts in England. [17] At the end of the 18th century, Blackstone listed a number of them, the principal ones being the sheriffs, coroners, justices of the peace and overseers of the poor. [18] These officers exercised functions we would refer to today as ministerial or administrative, while playing a role in local criminal and civil justice.

For purposes of the reference, the Court need not deal with their jurisdiction over criminal matters. [19] In civil matters, the sheriffs, within their respective counties, decided, notably, matters of 40 shillings or less, while the coroners had jurisdiction over matters involving shipwrecks and treasure-troves, justices of the peace handled certain civil cases based on the commissions under which they had been appointed and overseers of the poor were charged with ensuring the well-being of the indigent and making the necessary decisions in that regard, including those relating to their rights of settlement. [20] [ 30 ] All inferior courts in England were, since at least the 18th century, subject to the supervision of the royal superior courts, primarily by means of the writ of certiorari : […] The broad notion was that the king’s courts should keep all lesser authorities within the procedural and jurisdictional bounds set by the law, and provide the subject with a remedy if tribunals or officials exceeded their legal authority or gave orders which were patently contrary to law. […] [By the] eighteenth century, […] the proper course was to state cases formally for the King’s Bench. […] By the end of the seventeenth century the King’s Bench had a flourishing jurisdiction as a court of review for both

summary convictions and orders of quarter sessions relating to such matters as public works, licensing, and the settlement of the poor. The essential features of the jurisdiction were settled by Holt CJ: certiorari would lie to any body created by statute which acted judicially, even if it was not a court of common law […] [21] [ 31 ] In Les tribunaux administratifs et la Constitution , Professor Gilles Pépin cites Halsbury in order to specify the fundamental difference between a superior court and an inferior court: [ translation ]

The courts of justice in each Canadian province can be grouped into two classes, in accordance with the Anglo-Saxon tradition which has had a profound impact on them: the superior courts and the inferior courts. This classification should not be confused with the more universal classification that distinguishes trial courts from appellate courts. In differentiating between superior courts and inferior courts, the jurisprudence usually refers to Halsbury: 818.

The origin of the inferior courts, of which there are many varieties, may be traced back to the principle that justice should be taken to every man’s door by constituting as many courts as there were manors in the Kingdom… They derived their general title of inferior courts because they were and are, in the great majority of cases, subject to the control and supervision of the Court of King’s Bench or King’s Bench Division as a superior court.

A part of the original inherent jurisdiction of the Court of King’s Bench was to examine and correct all errors committed by the inferior courts, whether in matter of law or in exceeding the jurisdiction that had been conferred upon them. 819. The jurisdiction of an inferior court is defined by its constitution… Such jurisdiction is generally limited to matters between residents in a certain locality, or to causes of action arising within prescribed metes and bounds, or to actions where the amount claimed is under a certain specified limit. 820.

It is in connection with jurisdiction that we find the chief distinctions between superior and inferior courts. The jurisdiction of the superior courts… extends in civil cases over the whole of England and Wales… Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court.

An objection to the jurisdiction of one of the superior courts of general jurisdiction must show what other court has jurisdiction, so as to make it clear jurisdiction is unnecessary. [22] [ 32 ] This fundamental dichotomy between the superior and inferior courts was still characteristic of the justice system in England during the 19th century, including when the Constitution Act, 1867 was enacted.

At that time, the principal debate regarding judicial administration in England was focused on the unification of the various superior courts, resulting in the 1873 Judicature Act , which, notably, created a High Court of Justice that was invested with the jurisdiction of various courts which the statute abolished. [23] [ 33 ] This same dichotomy existed in the judicial organization of the territories that were to become Canada. [24] Although judicial administration in each pre-Confederation province reflects the history of that province, a common thread emerges: the existence of superior courts tasked with applying the law and overseeing the inferior courts that had varying mandates and dispensed criminal and civil justice in a

summary manner or according to equity. [ 34 ] Professor Fyson’s description, in his expert report, of pre-Confederation judicial administration in the four founding Canadian provinces confirms this duality.

He specifies that it was, in fact, a “three-tiered system” consisting of a superior court, intermediate courts and inferior courts: 1.1 LOWER CANADA After having been established in 1764 as a simplified version of the court system of England, the court structure of Quebec and then of Lower Canada underwent a number of fairly dramatic changes over the decades that followed, with a final major reorganization in 1849.

This established a three-tiered system of courts with general civil jurisdiction: a Superior Court for the most important civil cases (such as those involving large sums of money, or title to land), a Circuit Court for intermediate and smaller cases, and Commissioners’ Courts for cases involving smaller amounts. While the overall court structure did not change much thereafter until after Confederation, a major territorial reorganization was undertaken in 1857-1858, when the colony’s seven existing judicial districts were replaced by 20 districts.

The new or newly-defined districts were mostly made up of one, two or three of the counties into which the colony was already divided for the purposes of political representation. Each new district received a full complement of the usual courts of civil jurisdiction: a Superior Court, a Circuit Court or Courts, and a Commissioners’ Court. Each district also had a considerable number of justices of the peace.

There were also specialized courts in the colony with focused civil jurisdiction: Recorder’s Courts and Police Courts in Montreal and Quebec City, Trinity Houses in both cities as well, and a Court of Vice-Admiralty in Quebec City. [25] […] 1.2. UPPER CANADA The court system of Upper Canada in the 1850s and 1860s was the product of multiple and progressive reforms that had been undertaken since the establishment of the colony in 1791, culminating in major reforms in the late 1830s and early 1840s and again in 1849.

The system established from that point onwards, and which remained in place until 1867 and beyond, was three-tiered. There was a pair of superior law courts, the Court of Queen’s Bench and the Court of Common Pleas, with original jurisdiction over all civil matters; there were intermediate County and District Courts, with monetarily-limited jurisdiction; and there were local Division Courts, with even more limited jurisdiction. There were also specialized courts: by the 1860s, the Court of Chancery and the Surrogate Courts.

Upper-Canadian justices of the peace and municipal courts did have some civil jurisdiction, but less than in the other three colonies. [26] […] 1.3 NEW BRUNSWICK Until the very end of the period under examination here, New Brunswick maintained a three-tiered court system, with a Supreme Court with unlimited original civil jurisdiction, Inferior Courts of Common Pleas with intermediate jurisdiction, and justices of the peace and municipal courts in Saint-John and in Portland with jurisdiction over smaller civil claims. Up to 1867, the only notable change came in 1854, with the abolition of the Court of Chancery.

The colony also had specialized courts for particular types of cases, notably Probate Courts, a Court of Divorce and Matrimonial Causes, and a Court of Vice-Admiralty. […] [27]

1.4 NOVA SCOTIA Up until 1841, Nova Scotia had a three-tiered system of common law courts with original jurisdiction in common law civil cases, much like New Brunswick’s. There was a Supreme Court based in Halifax hearing the most important cases, which also went on circuit into the counties; Inferior Courts of Common Pleas established in each of the counties; and justices of the peace throughout the colony with

summary civil jurisdiction. In 1841, the Inferior Courts of Common Pleas were abolished and their business taken over by the Supreme Court in circuit and the JPs, giving the colony a two-tiered court system. In 1841, the colony also had a range of specialized courts: a Court of Chancery for equity jurisdiction, a Court of Marriage and Divorce for divorce hearings, Probate Courts in each county for matters relating to estates, and a Court of Vice-Admiralty with jurisdiction over Admiralty cases. There was also a Mayor’s Court or City Court in Halifax with

summary civil jurisdiction.

The court system as it stood after 1841 remained largely in place through to 1867, with the exception of the abolition of the Court of Chancery in 1855 and the transfer of its equity jurisdiction to the Supreme Court. […] [28] [References omitted] [ 35 ] It is therefore with reference to this historical and factual context that we must examine the provisions of the Constitution Act, 1867 dealing with the organization of the judicial system in Canada, which – as stated above – seeks to reflect the United Kingdom’s judicial system. [29] [ 36 ] The organization of the courts is one of the greatest constitutional challenges for any federal state. [30] A number of approaches may be considered, including a purely central or federal model, a purely local or provincial model or a model in which each government, central and local, creates its own courts to interpret and apply its own laws, this last model being the American model and the one that was best known at the time of the constitutional discussions that led to the enactment of the Constitution Act, 1867 .

According to this model, the federal state and each constituent state administers its own separate judicial system tasked with applying either the federal law or state law, depending on the nature of the dispute.

It is precisely this American model that the Canadian drafters rejected. [31] [ 37 ] Instead, they opted for a unique hybrid model, inspired by pragmatic considerations: each province administers justice within its borders, but the central government appoints all the judges of the superior courts and intermediate courts, [32] which includes all the judges who, according to the English model, state the law, develop the common law, and control and supervise the inferior courts.

By having both the central government and the governments of the provinces participate in organizing the superior courts (including the intermediate courts), the Canadian drafters avoided copying the American system, which is characterized by federal courts and state courts that are independent of one another. The Canadian approach was closer to the English unitary judicial system, which was marked by the dichotomy between the superior courts and the inferior courts, and was a better reflection of the existing judicial organization in each province at the time of Confederation.

The central government could therefore entrust the

interpretation and application of its own laws to so-called “provincial” courts, because decisions would be made by federally appointed judges in each province. [ 38 ] As Peter H. Russell noted: Comparatively speaking, the Canadian judicial system ranks as one of the most integrated, or least federalized. The judicial provisions of the Canadian Constitution lean strongly in the direction of the judicial system of a unitary state .

Unlike the American Constitution, which refers to the “judicial Power of the United States” and vests that jurisdiction in the Supreme Court of the United States and such federal courts as Congress may establish, and the Australian Constitution, which similarly vests “the judicial power of the Commonwealth’ in the High Court of Australia and such federal courts as the national Parliament creates,” the Canadian Constitution does not refer to a federal judicial power.

The only judicial arrangements specifically provided for in the Constitution are the very essence of an integrated federal-provincial system: federally appointed judges of provincial superior and intermediate courts.

No other federation has this element of judicial integration . [33] [Emphasis added] [ 39 ] Unlike the distinction it establishes for institutions within the legislative and executive branches in Canada, the Constitution Act, 1867 does not create a clear distinction between institutions within the judicial branch; it does not establish federal judicial institutions exercising their jurisdiction throughout Canada within the federal sphere and provincial judicial institutions exercising their jurisdiction in each province within the provincial sphere. [34] Indeed, the rejection of the American model of administration of justice is a hallmark of the Canadian constitution [35] . [ 40 ] As a result, it is up to the superior courts (which are administered by the provinces, but whose members are appointed by the central government) to interpret and apply all of the rules of law and all legislation, whether federal or provincial, within each province.

Indeed, Resolution 32 of the October 1864 Quebec Conference provided that all courts and judges of the various provinces were required to assist the central government in the exercise of its powers and, as such, would be considered to be courts and judges of the central government. [36] As for Resolution 33, it stated that the central government would appoint and pay the judges of the superior courts in each province and of the county courts in Ontario. [37] These resolutions gave rise to s. 96 of the Constitution Act, 1867 (as well as s. 100 ). [ 41 ] The courts quickly decided that Parliament need not establish new courts to apply federal legislation, because it is entitled to entrust such duties to the “provincial” superior courts, whose judges are federally appointed, without trenching on the provincial jurisdiction over the administration of justice.

Ritchie, J. confirmed this arrangement in the early days of Confederation in the 1879 judgment in Valin v.

Langlois : […] while they have clearly the power of establishing a new Dominion Court, they have likewise the power, when legislating within their jurisdiction, to require the established courts of the respective Provinces, and the judges thereof, who are appointed by the Dominion, paid out of the treasury of the Dominion, and removable only by address of the House of Commons and Senate of the Parliament of the Dominion, to enforce their legislation. [38] [ 42 ] As a result of their jurisdiction over all legislation, whether federal or provincial, the judges of the superior courts play a unifying role in Canada. [39] The provisions of the Constitution Act, 1867 , however, go beyond merely permitting the superior courts to

interpret and apply federal legislation. They also reflect the notions of independence and impartiality of the superior courts which originate from the United Kingdom’s unwritten constitution, and incorporate them into the Canadian constitution as immutable principles.

In doing so, they also ensure that superior courts in each province will always enjoy this guarantee of independence and impartiality, without being subject to the political whims of the governments of the day, be they federal or provincial, as the Supreme Court pointed out in McEvoy : The traditional independence of English Superior Court judges has been raised to the level of a fundamental principle of our federal system by the Constitution Act, 1867 and cannot have less importance and force in the administration of criminal law than in the case of civil matters.

Under the Canadian constitution the Superior Courts are independent of both levels of government. […] [40] [ 43 ] Author Luc Huppé explains that this is a fundamental aspect of the Canadian constitution: [ translation ] […] From then on, one source – the country’s Constitution rather than the sparse provisions of colonial legislation – gave them this [immutable] status, which does not depend on the favour of any of the public bodies created by the Constitution Act, 1867 . Compared with their English counterparts under the Act of Settlement (1700), as of that moment Canadian judges had an enviable status.

Even more than the parliamentarians and members of the various governments, Canada’s superior court judges found, in the provisions of the Constitutional Act, 1867 , the foundations for their cohesion, which the fragmentation of the Canadian territory into separate colonies did not yet permit. [41] [ 44 ] Federally appointed judges therefore have a particular status within the Canadian constitutional order, just like their counterparts in English superior courts.

Their core jurisdiction and the crucial role they play in the justice system within each province are constitutionally guaranteed, as Lamer, C.J. stated in MacMillan Bloedel : […] The superior courts have a core or inherent jurisdiction which is integral to their operations. The jurisdiction which forms this core cannot be removed from the superior courts by either level of government, without amending the Constitution.

Without this core jurisdiction, s. 96 could not be said either to ensure uniformity in the judicial system throughout the country or to protect the independence of the judiciary. […] [42] [ 45 ] This core jurisdiction extends particularly and minimally to the following elements: (1) the preservation of the rule of law; [43] (2) the exercise of a superintending and reforming power over the provincial courts of inferior jurisdiction and provincial public bodies; [44] (3) the scrutiny of the constitutionality of federal and provincial legislation; [45] (4) the resolution of disputes on issues of private and public law; [46] and (5) the oversight of its own procedure, notably through the use of means to ensure a fair trial, prevent abuse of process and secure compliance with its orders. [47] [ 46 ] It goes without saying that, under the Constitution, it is not permissible to abolish the superior courts or remove their core powers. [48] [ 47 ] There is also a prohibition against creating courts with provincially appointed judges that exercise, in whole or in part, the jurisdiction of the superior courts as “shadows” or “mirrors” thereof. [49] In this regard, in civil matters, the Supreme Court of Canada generally applies a three-part test: [50] 1.

Does the power or jurisdiction broadly conform to the power or jurisdiction exercised by superior, district or county courts at the time of Confederation? 2. Is the function of the provincial tribunal within its institutional setting a judicial function, considered from the point of view of the nature of the question which the tribunal is called upon to decide or, to put it in other words, is the tribunal concerned with a private dispute which it is called upon to adjudicate through the application of a recognized body of rules and in a manner consistent with fairness and impartiality? 3.

If the power or jurisdiction of the provincial tribunal is exercised in a judicial manner, does its function as a whole in its entire institutional context violate s. 96 ? 2.2. Context of the first reference question and circumstances under which the Court was seized thereof [ 48 ] The first reference question fits within a specific context and highlights the core jurisdiction of the superior courts over the resolution of judicial disputes in matters of private law.

As McLachlin, C.J. pointed out in Trial Lawyers Association : [32] The historic task of the superior courts is to resolve disputes between individuals and decide questions of private and public law . Measures that prevent people from coming to the courts to have those issues resolved are at odds with this basic judicial function. The resolution of these disputes and resulting determination of issues of private and public law, viewed in the institutional context of the Canadian justice system, are central to what the superior courts do . Indeed, it is their very book of business.

To prevent this business being done strikes at the core of the jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867 . […] [51]

[Emphasis added] [ 49 ] Both before and after Confederation, the superior courts acted, throughout Canada, as courts of original general jurisdiction in civil matters.

In this regard, Quebec is no different: the Superior Court was expressly given this role as of 1849 by a statute providing for the replacement of the Court of Queen’s Bench with a “Superior Court”. [52] As of then, the Superior Court exercised general civil jurisdiction across Lower Canada [53] (subject to matters falling under the admiralty jurisdiction or the jurisdiction of the Circuit Court), as well as a superintending and reforming power over public bodies and inferior courts. [54] [ 50 ] It is also important to note the existence, prior to Confederation, of the Circuit Court (an “intermediate” court), which determined all matters of lesser importance in a

summary manner (fifty pounds or less) or according to equity (six pounds five shillings or less). [55] [ 51 ] In contrast, the pre-Confederation inferior courts in Quebec did not have original civil jurisdiction; their jurisdiction was limited by the amount and location in question and, moreover, by the type of case. [ 52 ] In 1866, the Code of Civil Procedure of Lower Canada [56] adopted this judicial structure. This is an important legislative text, because it was enacted contemporaneously with the Constitution Act, 1867 and in anticipation thereof.

It is therefore a reflection of the political vision of the post-Confederation judicial structure. [ 53 ] This code confirmed the Superior Court’s status as the court of original civil jurisdiction as well as its superintending and reforming role. [57] [ 54 ] It also conferred exclusive jurisdiction on the Circuit Court – the intermediate court – over cases where the value in dispute was less than $100, which cases were decided in a

summary manner, and over those for $100 and more, but not more than $200, which could not be appealed. [58] Under the Code , the Circuit Court also had a superintending and reforming power, concurrently with the Superior Court, over certain inferior courts. [59] It is worth remembering that the Circuit Court is a court included in the list set out in

section 96 of the Constitution Act, 1867 and is considered a superior court. [60] [ 55 ] By contrast, under the 1866 Code of Civil Procedure of Lower Canada , the inferior courts, namely, the commissioners’ courts, the justices of the peace and the recorders’ courts, did not have general civil jurisdiction, even less so over the entire territory of the province. They were not courts of original general jurisdiction, because their civil jurisdiction was subject to a geographic and monetary limit and a limit on the subject matters they could adjudicate; moreover, their decisions were essentially rendered in a

summary manner or in equity, and they were subject to the superintending power of the superior courts. [61] [ 56 ] The history of the so-called “judicial” courts with provincially appointed judges in Quebec was described by this Court in 1964, in Renvoi concernant la constitutionnalité de la Cour de magistrat , [62] particularly in the reasons of Choquette, J.A. It is not necessary to repeat the lengthy analysis in that judgment, but a

summary of its main points is useful. [ 57 ] In 1869, the province created the magistrate’s courts, whose judges were provincially appointed, and conferred upon them the criminal and penal jurisdiction of the judges of the sessions of the peace, the recorders, the stipendiary magistrates and any two justices of the peace. [63] This statute also allowed the provincial government to confer upon a magistrate’s court, in place of the former commissioners’ court, the jurisdiction to hear and determine civil suits whose value did not exceed $25, [64] which jurisdiction was increased to $50 in 1871. [65] This was essentially a reorganization of the civil jurisdiction of the province’s inferior courts. [ 58 ] In 1888, however, the province attempted to abolish the Circuit Court for the district of Montreal and replace it with a magistrate’s court. [66] The federal government disallowed this statute on the ground that it violated

section 96 of the Constitution Act, 1867 . [67] A statute enacted in 1889 [68] to establish a magistrate’s court in the district of Montreal, without abolishing the Circuit Court, was also disallowed. [69] This crisis was resolved in 1893 by the creation of a special Circuit Court of the District of Montreal, presided by federally appointed judges other than judges of the Superior Court. [70] [ 59 ] Be that as it may, the civil jurisdiction of the magistrate’s courts very gradually increased, reaching nearly $100 in 1921. [71] As of 1922, the civil jurisdiction of the Circuit Court was transferred to a magistrate’s court in the districts in which such a court existed. [72] The civil jurisdiction of the magistrate’s courts increased to $200 in 1946. [73] In 1953, the province abolished the Circuit Court, without a court challenge or disallowance, [74] and conferred exclusive jurisdiction upon the Magistrate’s Court to hear and determine civil disputes where the value in dispute was less than $200. [75] [ 60 ] In 1963, the province enacted a statute to increase the civil jurisdiction of the Magistrate’s Court to $500. [76] Given the uncertainty regarding the constitutionality of the broadened jurisdiction, the Government of Quebec proceeded by way of reference to this Court, which unanimously found the statute to be unconstitutional. [77] It was of the opinion that the Magistrate’s Court was the equivalent of the Circuit Court and that its judges could not act unless appointed by the federal government. [ 61 ] The matter went to the Supreme Court of Canada.

While Fauteux, C.J. did not disavow the Court’s conclusions, he found that it had not answered the question it had been asked: [ translation ] I would therefore say, with the greatest respect for the Court of Appeal, that, in my view, the text of the

preamble on which the order in council is based, as well as the text of the question defined in the order show that the opinion the executive council seeks concerns the statute specifically mentioned therein, and no other statute, and has no purpose other than to know whether, given its particular object – which is to change the monetary limit – the statute is unconstitutional so long as the Judges of the Court contemplated in the statute are not appointed in accordance with s. 96 of the British North America Act . […] […]

In the present case, to which the scope of my opinion is limited, the broadening of the jurisdiction of the Magistrate’s Court, by increasing the number of dollars, viewed in light of the current value of the dollar , does not, in and of itself, have the effect, when added to the jurisdiction that is peculiar to it as an Inferior Court not contemplated in s. 96, of making it a s. 96 Court. It follows that the statute under consideration is not unconstitutional .

From this finding, one must not infer that I consider the various provincial statutes that extend the jurisdiction of the Magistrate’s Court – other than through a monetary increase – to be constitutionally valid , which statutes the Court of Appeal considered.

As for the opinions expressed by the Court of Appeal on this matter, I neither dissent nor concur . [78] [Underlining and bold added] [ 62 ] Shortly thereafter, the Magistrate’s Court was renamed the “Provincial Court”. [79] In 1966, its civil jurisdiction was increased to $1,000 with the enactment of the new Code of Civil Procedure . [80] In 1969, it increased to $3,000, [81] and then to $6,000 in 1979, [82] to $10,000 in 1982 [83] and to $15,000 in 1984. [84] [ 63 ] It should be noted that as of the 1960s, every Canadian province had established provincial courts with broad powers over criminal and penal matters, as well as limited civil jurisdiction. [85] This development of criminal and penal law created somewhat of a transformation in the Canadian judicial landscape. [86] [ 64 ] The enactment of the Canadian Charter of Rights and Freedoms [87] in 1982 led the Supreme Court of Canada to define the independence of the judges of the provincial courts hearing criminal or penal matters, based on s. 11(

d) of the Canadian Charter . [88] The constitutional basis for the independence of the provincial courts was reinforced in 1997 in the Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island , [89] where Lamer, C.J., speaking for the majority, based his remarks on the

preamble to the Constitution Act, 1867 , the unwritten constitutional rules and s. 11(

d) of the Canadian Charter to find that provincial courts enjoy constitutional guarantees similar to those of the superior courts. [90] [ 65 ] In 1988, the Court of Québec was created by merging the Provincial Court, the Court of Sessions of the Peace and the Youth Court. [91] The civil jurisdiction of this new court was increased to $30,000 in 1995, [92] and then to $70,000 in 2002. [93] Finally, on January 1, 2016, when the new Code of Civil Procedure came into force, the civil jurisdiction of the Court of Québec was increased to $85,000. [94] [ 66 ] In

summary, since the Supreme Court of Canada’s 1965 judgment, the civil jurisdiction of the Magistrate’s Court and its provincial successors grew from $500 to $85,000, a very significant increase at first sight. [ 67 ] Moreover, save for so-called “small claims” files with a value of no more than $15,000, which are decided in a

summary manner, [95] all the other civil matters before the Court of Québec are, for the most part, governed by the same scheme as matters coming before the Superior Court: the Court of Québec applies the same rules of procedure and evidence as the Superior Court, gives reasons for its judgments in the same manner, sits in the same courthouses and shares the same courtrooms.

Similarly, in all these respects, the functioning of the Court of Québec in the exercise of the jurisdiction exclusively conferred upon it (such as in matters of adoption or recovery of property taxes) is the same as that of the Superior Court. [ 68 ] Faced with this situation, the chief justices of the Superior Court asked the government of the province not to increase the ceiling for the Court of Québec’s civil jurisdiction to $85,000, but their request was denied.

They also asked, again unsuccessfully, that the constitutionality of the Court of Québec’s civil jurisdiction be decided by means of a reference to this Court or to the Supreme Court of Canada prior to the enactment or coming into force of the legislative amendment. [ 69 ] Given these refusals, on July 19, 2017, the chief justices of the Superior Court instituted proceedings for a declaratory judgment challenging the civil jurisdiction of the Court of Québec over matters other than those in which the value in dispute does not exceed $10,000.

Subsequent to those legal proceedings, the provincial government adopted Order in Council 880-2017, dated August 30, 2017, referring the first question to the Court. 2.3. Context of the second reference question and circumstances under which the Court was seized thereof [ 70 ] The context of the second question, which deals with the Court of Québec’s appellate jurisdiction, is somewhat different. [ 71 ] The twentieth century was characterized by a phenomenal increase in the role of governments and public administration bureaucracy.

This gave rise to the development of a multitude of so-called “administrative” bodies and tribunals to adjudicate the numerous disputes arising from the various government programs that are inherent in an interventionist state. [96] Authors Slapper and Kelly provide a

summary, which applies just as well to Canada, of the origin and scope of this phenomenon in the United Kingdom: Although attention tends to be focused on the operation of the courts as the forum within which legal decisions are taken, it is no longer the case that the bulk of legal and quasi-legal questions are determined within that court structure. There are, as an alternative to the court system, a large number of tribunals that have been set up under various acts of Parliament to rule on the operation of the particular schemes established under those Acts.

Almost one million cases are dealt with by tribunals each year, and as the Royal Commission on Legal Services (Cmnd 7648) pointed out in 1979, the number of cases then being heard by tribunals was six times greater than the number of contested civil cases dealt with by the High Court and county court combined. It is evident, therefore, that tribunals are of major significance as alternatives to traditional courts in dealing with disputes.

The generally accepted explanation for the establishment and growth of tribunals in Britain since 1945 was to provide a specialist forum to deal with cases involving conflicts between an increasingly interventionist welfare state, its functionaries and the rights of private citizens. It is certainly true that, since 1945, the welfare state has intervened more and more in every aspect of people’s lives. The intention may have been to extend the various social benefits to a wider constituency, but in so doing, the machinery of the welfare state,

and in reality those who operate that machinery, have been granted powers to control access to its benefits, and as a consequence have been given the power to interfere in and control the lives of individual subjects of the State. By its nature, welfare provision tends to be discretionary and dependent on the particular circumstances of a given case. As a consequence, State functionaries were extended discretionary power over the supply/withdrawal of welfare benefits.

As the interventionist State replaced the completely free market as the source of welfare for many people, so access to the provisions made by the State became a matter of fundamental importance, and a focus for potential contention, especially given the discretionary nature of its provision. At the same time as welfare state provisions were being extended, the view was articulated that such provisions and projects should not be under the purview and control of the ordinary courts.

It was felt that the judiciary reflected a culture that tended to favour a more market-centred, individualistic approach to the provision of rights and welfare and that their essentially formalistic approach to the resolution of disputes would not fit with the operation of the new projects. [97] [ 72 ] The superintending and reforming role of the superior courts with respect to these numerous new public bodies and administrative tribunals therefore needed adjustment.

As a result, the Supreme Court of Canada rendered a series of judgments in which it opened the door for the development of Canadian administrative law while, at the same time, establishing the boundaries required to maintain the superintending and reforming power of the superior courts, a power which, it must be noted, is constitutionally guaranteed to litigants.

In order to establish the context within which the second reference question was formulated, two judgments merit particular consideration: Farrah [98] and Crevier . [99] [ 73 ] The 1978 judgment in Farrah dealt with the constitutionality of a provincial regulatory agency in respect of public and private transport, the Transport Tribunal, comprised of three judges of the Provincial Court and tasked with hearing and determining appeals from decisions of the Quebec Transport Commission.

The Transport Tribunal had, in particular, “jurisdiction, to the exclusion of any other court, to hear and dispose of […] in appeal, on any question of law, any decision of the [Quebec Transport] Commission which terminates a matter”; [100] this grant of jurisdiction was coupled with an absolute privative clause insulating the decisions of that tribunal from the Superior Court’s superintending and reforming power.

All the justices of the Supreme Court of Canada expressed the opinion that this jurisdiction was unconstitutional in that it did not respect the superintending and reforming power of the Superior Court guaranteed under

section 96 of the Constitution Act, 1867 . While recognizing that a provincial legislature is, in principle, competent to reduce the scope of the supervisory power of a superior court by precluding the review by that court of the decisions of an inferior tribunal which are tainted with certain irregularities, [101] Pratte, J., speaking for the majority, concluded that the statute could not, however, entirely exclude that supervisory power. He explained that “[t]he net combined effect of s. 58(

a) and of the privative clauses (ss. 24 and 72 of the Transport Act ) [was] therefore to transfer to the Transport Tribunal part of the inherent supervisory authority that was vested in the Superior Court at the time of Confederation”, [102] which was contrary to

section 96 of the Constitution Act, 1867 . [103] [ 74 ] For its part, the 1981 judgment in Crevier considered the constitutionality of the Quebec Professions Tribunal, which was also comprised of judges of the Provincial Court charged with hearing appeals from any decision of a disciplinary committee of a professional order governed by the Quebec Professional Code . [104] In a unanimous decision, the Supreme Court of Canada declared the tribunal, as then constituted, unconstitutional.

To arrive at this finding, the Supreme Court considered three questions. [ 75 ] The first concerned the integration of the appeal within the administrative scheme of the disciplinary system under the Professional Code .

The Supreme Court concluded that since “[t]he Professions Tribunal is given no function other than that of a general tribunal of appeal […] and it was, therefore, impossible to see its final appellate jurisdiction as part of an institutional arrangement by way of a regulatory scheme for governance of the various professions”. [105] In that regard, Laskin, C.J. referred to the remarks of Dickson, J. in Re Residential Tenancies Act , 1979 , [106] made shortly before, in holding that if the adjudicative function is the only – or central – function of a tribunal, so that the tribunal can be said to be operating like a court provided for in

section 96 of the Constitution Act, 1867 , [107] the administrative appellate function is no longer merely subsidiary, ancillary or necessarily incidental to the achievement of an administrative policy objective; that is, the function is no longer exercised as part of the administrative scheme, but as a substitute to the superintending and reforming power of a superior court. Here are the specific remarks of Dickson, J.: […] It is no longer sufficient simply to examine the particular power or function of a tribunal and ask whether this power or function was once exercised by s. 96 courts.

This would be examining the power or function in a “detached” manner, contrary to the reasoning in Tomko . What must be considered is the “context” in which this power is exercised. Tomko leads to the following result: it is possible for administrative tribunals to exercise powers and jurisdiction which once were exercised by the s. 96 courts. It will all depend on the context of the exercise of the power.

It may be that the impugned “judicial powers” are merely subsidiary or ancillary to general administrative functions assigned to the tribunal (John East; Tomko) or the powers may be necessarily incidental to the achievement of a broader policy goal of the legislature (Mississauga). In such a situation, the grant of judicial power to provincial appointees is valid.

The scheme is only invalid when the adjudicative function is a sole or central function of the tribunal (Farrah) so that the tribunal can be said to be operating “like a s. 96 court”. [108] [ 76 ] The second question in Crevier considered the effect of a privative clause on

section 96 of the Constitution Act, 1867 . The Supreme Court concluded that such a privative clause can validly exclude judicial review by a superior court on questions of law, but not on questions of jurisdiction. [109] Laskin, C.J. stated the following: It is true that this is the first time that this Court has declared unequivocally that a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction.

In my opinion, this limitation, arising by virtue of s. 96 , stands on the same footing as the well-accepted limitation on the power of provincial statutory tribunals to make unreviewable determinations of constitutionality. There may be differences of opinion as to what are questions of jurisdiction but, in my lexicon, they rise above and are different from errors of law, whether involving statutory construction or evidentiary matters or other matters.

It is now unquestioned that privative clauses may, when properly framed, effectively oust judicial review on questions of law and, indeed, on other issues not touching jurisdiction. […] [110] [ 77 ] Lastly, the third question concerned the impact of the judgment in Farrah , which Laskin, C.J. described as follows: “In short, what the Farrah case decided was that to give a provincially-constituted statutory tribunal a jurisdiction in appeal on questions of law without limitation, and to reinforce this appellate authority by excluding any supervisory recourse to the Quebec Superior Court, was to

create a s. 96 court.” [111] [ 78 ] Following that decision, the provincial legislature amended the Professional Code in order to replace the absolute privative clauses contained therein [112] and add the words “except on a question of jurisdiction”, [113] thereby confirming that the Professions Tribunal is subject to the superintending and reforming power of the Superior Court on such questions of jurisdiction.

It is worth noting that, in general, privative clauses contained in Quebec statutes from that point forward have contained this same exception regarding questions of jurisdiction. [ 79 ] Farrah and Crevier raised certain doubts regarding the possibility, constitutionally speaking, for a provincial legislature to confer an appellate function on questions of law to a tribunal that was neither a superior court contemplated in

section 96 of the Constitution Act, 1867 nor an administrative appellate body forming an integral part of a provincial administrative scheme.

At least that was the conclusion of author Jean-François Jobin in his book L’article 96 de la Loi constitutionnelle de 1867 et les organismes inférieurs d’appel : [ translation ] In this context, it seems arguable that an appeal limited to questions of law is, at least as regards its purpose, akin to the inherent superintending and reforming power of the superior courts insofar as it seeks primarily to oversee the legality of the lower body’s decision rather than its merits.

Consequently, such a power should only be granted to judges appointed by the Governor General, or, as the minority in Farrah seems to have accepted, to a “provincial” body whose primary functions are administrative. […] The decisive element in the ratio in Farrah should therefore be the indisputable fact that the appellate jurisdiction conferred in that case upon the Transport Tribunal was limited to questions of law, as Pratte, J. pointed out.

That being said, such an appeal may, rightly so, be likened to the superintending and reforming power exercised by the superior courts; in both situations, the crux of the matter under supervision concerns the legality of the decisions of the inferior body. The object of the power exercised by the inferior body is therefore of little import, because the appellate power conferred is, in and of itself, akin to an analogous power exercised in 1867 by

section 96 courts. The attribution of an appellate jurisdiction limited to questions of law, therefore, does not pass the first step of the jurisprudential test, that is, the historical step.

Thus, such appeals will have been validly entrusted to a body whose members are appointed by a province only if they truly appear to be merely ancillary to the overall general administrative functions assigned to that body. […] [114] [Emphasis added] [ 80 ] It was, in fact, for this reason that the 1987 Ouellette report, which dealt with Quebec’s administrative tribunals, recommended to the Government of Quebec that it abolish appeals of decisions of administrative bodies to the Provincial Court on questions of law or jurisdiction. [115] A similar recommendation was made in 1994, albeit for different reasons, in the Garant report, which led to the creation of the Administrative Tribunal of Québec as the appellate tribunal for a number of the province’s administrative bodies. [116] [ 81 ] Nonetheless, subsequent to the Farrah and Crevier judgments, and notwithstanding the recommendations of the Ouellette and Garant reports, the Quebec legislature decided instead to give the Court of Québec a greater role within the province’s administrative justice system. [117] This spectacular growth in the Court of Québec’s jurisdiction led Professor Garant to conclude that [ translation ] “the Quebec legislature had shown great favour towards it”, [118] so much so that, in his view, this raised the question: [ translation ] “Is there a difference, in our legal tradition and in Quebec culture, between the mission of the Superior Court and that of the Court of Québec, particularly as superintendent of the administrative apparatus?” [119] Professor Garant’s answer was a resolute “no”, and he noted that in [ translation ] “the context of a sophisticated administrative justice tailored to contemporary reality, it seems obvious that the state does not need two superior courts with substantially the same mission.

There is one too many. Which one?” [120] It must be noted, however, that Professor Garant’s comments were made after the Supreme Court judgment in Proprio Direct [121] and can be largely explained by that judgment, which we will now address. [ 82 ] Indeed, there is no better illustration of the problem related to the respective roles of the Superior Court and the Court of Québec within the administrative justice system than the development of the jurisprudence dealing with standards of review.

According to this Court’s most recent jurisprudence, set out in a series of judgments in which the constitutional issue was not raised, appeals from decisions of administrative tribunals to the Court of Québec are, in principle, subject to the standards of review applicable to judicial review. [122] This jurisprudence was cited by the Supreme Court of Canada in Proprio Direct [123] and subsequently by this Court, but not without certain questions being raised. [124] [ 83 ] It should be noted that the jurisprudence of the Supreme Court of Canada addressing the standard of review applicable to appeals from decisions of administrative tribunals to the courts was developed in the context of appeals to superior courts, be it a provincial superior court, [125] a provincial court of appeal [126] or a federal court. [127] Indeed, no province other than Quebec, with its Court of Québec, has allowed a court of justice with provincially appointed judges (as opposed to an administrative appellate tribunal) to hear and determine appeals. [ 84 ] As this Court noted in Parizeau , it has been acknowledged that appeals of administrative decisions to administrative appellate tribunals are not governed by standards of judicial review. [128] Thus, insofar as the constitutionality of the Court of Québec’s appellate jurisdiction relies on the integration of that appeal within the administrative scheme in question, one may well query why the Court of Québec sitting in appeal of such an administrative decision should act like the equivalent of a court of judicial review. [129] In so doing, would it not be usurping the Superior Court’s review jurisdiction? [ 85 ] This is, in fact, the conclusion asserted by the chief justices

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