Is Deference Constitutional (in Canada)?

The move by the judges of Quebec’s Superior Court to bring an action claiming that the jurisdiction of the Court of Quebec (a statutory court created by the province) unconstitutionally encroaches on the Superior Court’s jurisdiction has created great excitement in the province (see here). A swift backlash, prompted by the spectacle of judges suing other judges (though surely this is no less edifying a scenario than judges suing the government, for which there is plenty of Canadian precedent), has not put an end to the matter. Indeed, the Quebec government has referred the constitutionality of the Court of Quebec’s jurisdiction to the Quebec Court of Appeal — you can see the details here.

Most of the public comment about the litigation has concerned the question of the Court of Quebec’s monetary jurisdiction. Now at $85,000, the threshold is at such a level that most civil litigation in the province now occurs in the Court of Quebec, not the Superior Court, which, especially in regional areas sees its dockets dominated by criminal and family law. Similar issues were raised in respect of a decision in the 1960s to increase the monetary limit of the now-defunct Magistrate’s Court: Renvoi touchant la constitutionnalité de la loi concernant la juridiction de la Cour de Magistrat [1965] RCS 772. It is high time that the question of the constitutionally appropriate monetary limit of provincial statutory courts was addressed again. Analytically, a provincial statutory court’s jurisdiction cannot increase indefinitely: there must surely come a point where its jurisdiction becomes so large that it usurps the jurisdiction of the Superior Court. Some guidance from the Court of Appeal (and eventually, I suspect, from the Supreme Court of Canada) as to how to determine when this point has been reached would be very useful.

Of greater interest to administrative lawyers is the second question the Court of Appeal has been asked to opine on. It is worth quoting in full:

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 (chapterJ-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)?

This is a longstanding bone of contention in Quebec. Since the Supreme Court of Canada’s reorganizational efforts in Dunsmuir v New Brunswick [2008] 1 SCR 190, the Quebec Court of Appeal has repeatedly insisted that the Court of Quebec, when exercising a statutory jurisdiction on appeal from an administrative agency, must apply judicial review principles: see e.g. Frères Maristes (Iberville) c. Laval (Ville de), 2014 QCCA 1176 (leave to apply refused (bafflingly!) by the Supreme Court). The justification cited for this is the Supreme Court’s decision in Association des courtiers et agents immobiliers du Québec v. Proprio Direct inc. [2008] 2 SCR 195. However, although the Court of Appeal (per Bich J.A.: 2006 QCCA 978) grappled in that case with whether the Court of Quebec, as a statutory court exercising a statutory appellate jurisdiction, should apply judicial review principles, the Supreme Court of Canada simply did not address the issue. In Quebec, the Supreme Court decision in Proprio Direct and the Quebec Court of Appeal decision in Frères Maristes have been taken as settling this question but in truth it has never been comprehensively and satisfactorily addressed. A good overview can be found in Holcim (Canada) inc. (Ciment St-Laurent inc.) c. Cour du Québec, Division administrative et d’appel 2016 QCCS 4853, at paras. 37-40.

I argue in “Les appels administratifs au Canada” (2015) 93 Canadian Bar Review 71, at pp. 82-85, that requiring the Court of Quebec to apply principles of judicial deference in the exercise of its statutory jurisdiction is unconstitutional. In the first place:

This power of the Superior Court to correct certain types of illegalities committed by inferior tribunals in the exercise of their jurisdiction was an integral part of the Court’s supervisory authority as it existed in 1867; it is therefore clear that such control power cannot be validly transferred by the Legislature from the Superior Court to a court that is not comprised within the enumeration contained in s. 96 of the B.N.A. Act.

Attorney General (Que.) et al. v. Farrah [1978] 2 SCR 638 at p. 654. See similarly Séminaire de Chicoutimi v. City of Chicoutimi, 1972 CanLII 153 (SCC), [1973] S.C.R. 681.

Alternatively — to the extent that this principle has been supplanted by subsequent decisions that focus on an exclusive transfer of power — requiring a statutory body to perform a judicial review which will subsequently be subject to judicial review in the Superior Court makes it impossible for the Superior Court to perform its constitutionally guaranteed role of ensuring that statutory bodies remain within their jurisdiction. The Superior Court does not ask whether the initial decision was reasonable; it asks whether the Court of Quebec’s decision to uphold or quash the initial decision was reasonable! The effect of such ‘double deference’ is to shelter unreasonable exercises of governmental power from judicial oversight.

The Quebec Court of Appeal has mitigated this problem by requiring the Superior Court to step into the shoes of the Court of Quebec, turning what would be a judicial review of the Court of Quebec into an appeal: St-Pie (Municipalité de) c. Commission de protection du territoire agricole du Québec 2009 QCCA 2397; see also Holcim, above. This might be efficient and practical, but it is obviously at odds with settled law on the interaction of appellate and administrative-law standards of review. It takes the principle that when a judicial review decision has been appealed the Court of Appeal should step into the shoes of the Superior Court and transplants the principle into the completely different context of a judicial review of a statutory decision. Moreover, this approach deprives the Court of Quebec of an appellate jurisdiction that the legislature plainly intended it to have. Even the Attorney General of Quebec has argued in open court that that the Quebec Court of Appeal’s approach has, wrongly, limited the Court of Quebec’s appellate jurisdiction: Québec (Procureure générale) c. Cour du Québec 2016 QCCS 554, at paras. 29-32.

Both of the issues referred to the Quebec Court of Appeal are very important. I am glad they will finally receive authoritative resolution.

This content has been updated on October 12, 2017 at 21:21.