Historical and Conceptual Analysis in Judicial Review: The Contributions of the Quebec Court of Appeal

Yesterday, I gave a talk to celebrate the 175th anniversary of the Quebec Court of Appeal.

I thought it would be interesting to speak to a topic that identifies unique features of the Quebec Court of Appeal’s thinking — perhaps even some spécificité québécoise — and that has contemporary resonance.

What caught my eye is the fact that the Supreme Court of Canada’s seminal decisions from the 1970s and 1980s on the constitutional limitations on the creation of administrative agencies originated in La belle province. There is, of course, Crevier v. A.G. (Québec), [1981] 2 SCR 220, a decision that continues to be cited and, indeed, debated today (see e.g. here). But Crevier was preceded by Attorney General (Que.) v. Farrah, [1978] 2 SCR 638 and Séminaire de Chicoutimi v. La Cité de Chicoutimi, [1973] SCR 681. And I would also add to the list Three Rivers Boatman Limited c. Conseil Canadien des Relations Ouvrières, [1969] RCS 607, another foundational decision on judicial review of administrative action.

In two ways, the Quebec Court of Appeal decisions in these matters are distinctive: there is an emphasis on history and the importance of ensuring that administrative decision-makers respect jurisdictional limits. The latter point — the importance of jurisdiction — can be linked to the unique Quebec concept of the action directe en nullite, nurtured by the Quebec Court of Appeal in the early 20th century. And both points — the importance of historical and conceptual rigour — are relevant to contemporary debates about the constitutional foundations of judicial review.

In re-reading the Supreme Court decision in Crevier, what is striking is the absence of any historical analysis. Laskin CJ saw “[t]hree issues” arising from the Court of Appeal’s analysis: the first was whether the Professions Tribunal could be considered to be part of an institutional arrangement for the governance of professions, which would bring it onto the safe constitutional ground marked out in Tomko v. Labour Relations Board (N.S.), [1977] 1 SCR 112; the second was the constitutionality of a privative clause purporting to oust judicial review; and the third was the relevance of the Supreme Court’s prior decision in Farrah.

The second issue is the one to which Laskin CJ gave most attention and, indeed, the way he addressed the issue continues to provoke debate and disagreement today. He addressed it in conceptual terms, holding that s. 96 of the Constitution Act, 1867 guarantees a core minimum of judicial review:

…given that s. 96 is in the British North America Act and that it would make a mockery of it to treat it in non-functional formal terms as a mere appointing power, I can think of nothing that is more the hallmark of a superior court than the vesting of power in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review (at p. 237).

Section 96, as is well known, vests the power to appoint superior court judges in the federal government. The logic of this passage is that if there were no judicial review of the limits of a statutory decision-maker’s jurisdiction, the statutory decision-maker could then determine the limits of its own authority, effectively exercising the powers of a s. 96 court even though its members had not been appointed in conformity with s. 96.

Missing from Laskin CJ’s analysis is any historical context. This is all the more curious given that history featured prominently in Paré JA’s reasons in the Court of Appeal:

Je crois qu’il y a lieu de conclure en conséquence qu’à l’époque de la Confédération les lois d’alors régissant les professions et qui traitaient de mesures disciplinaires n’avaient pas attribué exclusivement à la Cour supérieure le rôle de tribunal en la matière. De plus, les deux lois, celle du Barreau et celle du Notariat qui prévoyaient un appel d’une décision disciplinaire avaient attribué cet appel, l’un à la Cour supérieure et l’autre au Conseil général de l’ordre. On doit donc conclure que l’appel d’une décision disciplinaire rendu contre un professionnel n’était pas exclusivement du domaine de la Cour supérieure. Avec respect pour l’opinion contraire je ne crois pas qu’on puisse, sur le critère historique, conclure que la juridiction attribuée en appel au Tribunal des professions sur les décisions des comités de discipline a fait de ce tribunal une Cour exerçant des pouvoirs analogues à l’une des cours mentionnées à l’article 96 de l’Acte de l’Amérique du Nord Britannique. (1979 CarswellQue 605, at paras. 35-36).

How could it not be constitutional, Paré JA asked, given that the superior court had no exclusive authority to regulate the professions in 1867?!

This omission points to a curious development in the Supreme Court’s thinking on s. 96. As Laskin CJ noted, the Court handed down its decision in Re Residential Tenancies Act, [1981] 1 SCR 714 a few weeks before it decided Crevier. There, the Court had reformulated its s. 96 test. But the first step of that reformulated test was to ask whether the statutory decision-maker said to encroach on the prerogatives of the s. 96 court was exercising a power analogous to a power exercised exclusively by the superior courts in 1867. Laskin CJ dealt with the third step of the reformulated test (the Tomko point) but did not engage in any historical analysis.

I appreciate that this might just be a question of framing. If the issue is as Laskin CJ put it, whether judicial review can be ousted then the answer might well be that from a historical perspective one arrives at the same result: judicial review was a core function of the superior courts in 1867 and cannot be removed. But if the issue is whether judicial control of discipline decisions — in respect of disciplinary orders that did not exist in 1867 — can be ousted then the answer might look quite different. In a sense, this is simply to restate a problem that the Supreme Court had to address in a series of subsequent cases about the level of abstraction at which the superior courts’ jurisdiction in 1867 is defined. Nonetheless, it is a striking omission from Laskin CJ’s analysis.

The other interesting point about the Court of Appeal decision in Crevier is the insistence of the majority judges that judicial review for jurisdictional error was preserved, notwithstanding the presence of a privative clause. For Jacques JA, it was fundamental that review for jurisdictional error remained available (at para. 57), whatever the statute said. Paré JA was evidently of a similar mind, though he believed there was no jurisdictional error in the instant case (at para. 48).

Historical analysis was important for the Court of Appeal in Farrah too. There, legislation created a transportation commission with authority over transportation matters in the province. But the legislation also created a Transport Tribunal, staffed by non-s.96 judges, with authority over (amongst other things) questions of law raised by decisions of the commission; this authority was protected by privative clauses. In a two-page judgment, Tremblay CJ held that it was unlawful to give a statutory tribunal the sole and exclusive mission of deciding questions of law. This analysis was historically grounded, as it was the fact that the authority had been vested in the superior courts in 1867 that made taking it away subsequently constitutionally problematic:

Il est donc bien établi que l’exercice du droit de surveillance, de réforme et de contrôle sur les Tribunaux de jurisdictions inférieures et les corps politiques est, d’une façon générale, conforme au genre de juridiction exercée en 1867 par les cours décrites à l’article 96 de la Constitution. Or, la question de savoir si un organisme a excédé sa compétence, soit en négligeant d’observer les formalités nécessaires à l’exercice de sa jurisdiction, relève de l’exercice de ce droit de surveillance, de réforme et de contrôle et cette question est évidemment une question de droit ([1976] CA 467, at p. 468).

In Farrah, Laskin CJ wrote a set of plurality reasons. History was not entirely absent, as he noted that the jurisdiction given to the Transport Tribunal had previously been vested in the courts (at p. 644) but again his analysis did not engage with history in any meaningful way. In his majority reasons, Pratte JA did consider the issue from a historical perspective, ultimately finding that the Transport Tribunal was unconstitutionally constituted because the legislation — the “net combined effect” of the privative clauses and jurisdiction to consider questions of law (at p. 656) — stripped the superior courts of their ability to correct jurisdictional errors:

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 (at p. 654).

In the Chicoutimi case, the issue was the constitutionality of a statute giving the municipal court (a statutory body whose members were not appointed in accordance with s. 96) the authority to quash municipal by-laws for illegality.

History played a central role in the argument before the Court of Appeal.  The parties saw fit to “quote at length from statutes enacted both before and after Confederation in an attempt to determine what court had at that time authority to set aside municipal by-laws” [1970] CA 413, at p. 417. In the end, Montgomery JA found that the authority resided in a superior court in 1867. He then reasoned by analogy to a previous case in which the British Columbia Supreme Court had found that the province’s  19th century mining courts were unlawful. In Burk v. Tunstall (1890), 2 BCR 12, Drake J commented:

We here find a very large and extended jurisdiction vested in the Gold Commissioner, unlimited as to amount, and limited only by the fact that the questions to be decided by him must be between persons engaged in mining, or in respect of supplies furnished to persons engaged in mining. This jurisdiction is, in reality, in excess of the powers vested in the County Courts, uncontrolled by any rules and unfettered by any restrictions. The issues that can be raised under these sections may involve property of a very great magnitude, and questions of the greatest importance. In addition to these judicial powers, the Gold Commissioner is vested with certain functions respecting the recording of claims, defining of boundaries of claims, laying over claims, and other matters of considerable importance to a mining community, but which are not involved in the question now before me.

Ultimately, for Montgomery J, the analogy with the mining courts was apt and the legislation unconstitutional because it “involved the adjudication of claims involving property rights of unlimited value” ([1970] CA 413, at p. 418). Here, the Supreme Court did carefully situate the impugned power in historical perspective ([1972] SCR 681, at pp. 686-689).

I would offer two comments on these decisions. First, the analysis in the Court of Appeal was invariably historically grounded. Front and centre in the minds of the judges was the extent to which the legislative assembly sought to encroach upon the prerogatives of the superior courts in 1867. History seems to have carried somewhat less weight in the more wide-ranging discussions of the Supreme Court and was strangely absent from Crevier. Second, the Court of Appeal judges were certainly committed to a robust role for the superior courts in exercising a superintending and reforming power over administrative agencies. This was clear in Chicoutimi and Farrah but also in Crevier where — remember — the Quebec Court of Appeal would not have given effect to the privative clause at all.

Consider, lastly, the Three Rivers Boatmen case. The issue here was whether decisions of the Canada Labour Relations Board — a federal entity — were reviewable in the Quebec courts. This, of course, was in an era before the creation of the Federal Court of Canada: indeed, this litigation was a major factor in the adoption, soon after, of the Federal Court Act. Montgomery JA held that the Board was not subject to review in Quebec, as the former Code of Civil Procedure did not extend the “superintending and reforming power” of the superior court outside the confines of the competence of the Quebec legislative assembly ([1968] BR 575, at p. 577). He came to this conclusion because ss. 33 and 846 (read together) imposed a textual limitation by referring to Quebec’s legislative jurisdiction. But he did recognize the force of the argument that the inherent supervisory jurisdiction of the superior court trumped this textual limitation. All he could offer in response was the lame though predictable excuse that the applicants had chosen the wrong remedy and the courts could not rewrite their pleadings for them.

This point about the power of the supervisory jurisdiction deserves emphasis, for it leads me to consider the true spécifité québécoise in the world of judicial review, namely the action directe en nullité.

The first mention of this creature in the electronic databases comes from 1919, in Montréal (Cité) c. Paiement, 28 Que. K.B. 381. By then, the action directe en nullité already was evidently well known, Lamothe CJ pithily describing its essence as follows “cette action tend à faire déclarer la sentence arbitrale inexistante”; it is not an appeal, “parce que cette action découle d’un autre ordre d’idées”.

Its scope encompassed stark injustice, abuse of power, bad faith and fraud, as well as ultra vires actions:

Si ce défaut est établi, il est évident que l’action en nullité de l’article 50 doit être favorablement accueillie. Quelque système qu’on adopte et sous toutes les interprétations, c’est pour remédier à un mal pareil qu’un pouvoir de contrôle a été accordé à la Cour supérieure; car il y aurait nullité absolue, à cause du défaut de juridiction (St-Ulric-de la Rivière Blanche (Village) c. Matane, 1924 CarswellQue 111, at para. 22).

There was, thus, always a way to hold administrative decision-makers to account for trespassing outside their jurisdiction (Vachon v. Attorney General (Quebec), [1979] 1 SCR 555). As Professor Garant observed in the first edition of Droit administratif, the remedy had a “vocation très large” (at p. 865).

Now I do not want to suggest that the common law knew nothing at all of an action directe en nullité: the declaration, a statutory remedy that gained in popularity in the 20th century bears at least a passing resemblance. But I should acknowledge that the action directe en nullité is a uniquely québécois concept and that it was nurtured by the Quebec Court of Appeal. Its raison d’être is insisting on probity in public administration, including the respect for jurisdictional boundaries.

That leads me to the contemporary lessons to draw from the cases mentioned above. To me they teach that sensitivity to history and the importance of ensuring that decision-makers are kept within their lawful authority.

Today, the precise contours of the core constitutional minimum of judicial review of administrative action are contested. Crevier remains the subject of passionate debate. History can help, I think. It shows, in Quebec and beyond, that the courts have long been concerned to keep decision-makers within the boundaries of their authority: judges in past centuries have not relied too heavily, in this regard, on hard-and-fast distinctions between questions of law and questions of fact and so on. Rather, they have been concerned, as with the Quebeckers who invented the action directe en nullité and their successors on the Court of Appeal, with probity in public administration, including respect for jurisdictional boundaries.

History suggests that those boundaries will naturally shift over time, in response to changes in public administration and changes in the law of judicial review. They may be broader or narrower at any given point in time. At this point in time, I happen to think the constitutionally required boundary-setting power is quite broad. Regardless of whether I am right or wrong about this, history and conceptual rigour will give us confidence in our ability to mark out those boundaries.

This content has been updated on October 18, 2024 at 13:55.