The Unfortunate Result of the Court of Quebec Reference [2019] QCCA 1492

Last month the Quebec Court of Appeal handed down its opinion in the Renvoi à la Cour d’appel du Québec portant sur la validité constitutionnelle des dispositions de l’article 35 du Code de procédure civile qui fixent à moins de 85 000 $ la compétence pécuniaire exclusive de la Cour du Québec et sur la compétence d’appel attribuée à la Cour du Québec, 2019 QCCA 1492 (the “Court of Quebec Reference”). This is a long, meticulous opinion which repays careful reading and should become a landmark case on section 96 of the Constitution Act, 1867. In brief, the Court of Appeal’s advice is, first, that the monetary limit on the civil jurisdiction of the Court of Quebec is too high, constituting an unconstitutional interference with the jurisdiction of the Quebec Superior Court (which enjoys, by virtue of s.96, as it has been interpreted, pre-eminent status relative to statutory bodies) and, second, that the Court of Quebec’s administrative appeals jurisdiction is constitutional (though, as we shall see, the effect of the Court of Appeal’s advice, consistent with its recent jurisprudence, is to render the Court of Quebec’s appellate jurisdiction meaningless).

I do not have too much to say on the first question in the reference, other than to comment generally on the Court’s approach. Rather than ask whether today’s monetary limit is equivalent to the 1867 limit adjusted for price rises, the Court looked instead to “the historical context as well as the objectives tied to the rule of law and national unity arising from section 96 of the Constitution Act, 1867” according to which it was appropriate “to state that the Superior Court can retain its core jurisdiction to adjudicate civil disputes only if that jurisdiction applies to ‘substantial’ claims of litigants” (at para. 148). This “qualitative rather than quantitative” analysis (at para. 187) led the Court to conclude that the $85,000 limit is unconstitutional: something between $55,000 and $70,000 would, however, be acceptable. The Court’s approach can perhaps fairly be described as originalist but if so it is originalism of the “public meaning” variety, not the disreputable “intended applications” genre.

On the second question, I have previously argued that it is constitutionally problematic for the Court of Quebec to exercise a judicial review function. The problem arises because in Canadian administrative law, clauses providing for appeals from administrative tribunals to generalist courts have been interpreted as requiring the application by the court of a deferential standard to the administrative decision in question. Judicial review by another name. And the Court of Appeal considers that the Supreme Court has resolved the issue as it pertains to the Court of Quebec, “particularly [in] [Association des courtiers et agents immobiliers du Québec v. Proprio Direct inc., 2008 SCC 32 (CanLII), [2008] 2 S.C.R. 195], which is binding on this Court in keeping with the principle of stare decisis and which imposes on appeals before the Court of Québec — a court of justice — a standard akin to that of judicial review of administrative decisions” (at para. 252). So when the Court of Quebec exercises an appellate jurisdiction from various Quebec administrative tribunals, it conducts a judicial review proceeding.

One problem with this arrangement is that it is constitutionally dubious, a point the Court of Appeal recognizes. Applying the three-part Re Residential Tenancies Act, 1979, 1981 CanLII 24 (SCC), [1981] 1 S.C.R. 714 test, for instance, the Court of Appeal comes to the conclusion that the Court of Quebec is exercising a power of the superior courts (at para. 315). Normally this is forbidden territory. But, for the Court of Appeal, the fact that the superior court’s ability to subsequently judicially review the Court of Quebec means that the superior court’s judicial review power has not been excluded as a matter of law (and is thus constitutional: at paras. 347-348).

This still leaves the ‘double deference’ problem: the Superior Court would, in effect, have to conduct a judicial review of a prior judicial review, an assessment of the reasonableness of an assessment of reasonableness. This would involve the Superior Court adopting an uncomfortable posture with front-line administrative illegalities potentially sheltered from its view. To avoid this difficulty, the Court of Appeal in effect adopts the Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 standard for appellate review, whereby a court hearing an appeal from a first-instance judicial review effectively steps into the shoes of the first-instance judge and performs the judicial review analysis afresh:

When the Superior Court hears an application for judicial review of a judgment of the Court of Québec, it must begin by focusing on the administrative decision in order to first determine whether the Court of Québec identified the appropriate standard (which, in Superior Court, is a question of law subject to the correctness standard), and then determine whether it applied the standard properly. Thus, strictly speaking, the judgment of the Court of Québec is set to one side and the impugned administrative decision is the one under review (at para. 352).

The resulting problem is that this arrangement denudes the Court of Quebec of its appellate function. Rather than sitting at the apex of the province’s administrative justice system and generating a Quebec-specific jurisprudence on administrative decision-making, it performs the same role as the Superior Court performs on judicial review. There is a fundamental distinction between statutory appeals and judicial review in the common law tradition: the latter is restricted to legality but the former extends to general scrutiny of the merits of administrative decisions. The Court of Quebec finds itself on the judicial review side of this distinction whereas it is tolerably clear that the provincial legislature envisaged a large and liberal appellate role. Indeed, if the Court of Quebec were a statutory tribunal — the “Quebec Administrative Appeals Tribunal” — it would be able to perform such an appellate role without the slightest constitutional difficulty.

As it happens, the Superior Court judges are not likely to be especially happy with this arrangement either: how many litigants are likely to shell out for a judicial review in the Court of Quebec and then another round in the Superior Court (with the prospect, in some circumstances, of an onward appeal to the Court of Appeal, with the meter still running)? With considerable understatement, the Court of Appeal accepted that this arrangement “makes the system more cumbersome and perhaps stands contrary to the objectives of administrative justice” (at para. 366) but hemmed in by Supreme Court of Canada precedent felt it had no choice in the matter.

One solution would be to reverse the Supreme Court of Canada’s jurisprudence equating statutory appeals from administrative decisions with judicial review. But this is not a gift the Quebec Court of Appeal can give. The Supreme Court of Canada would have to make this change and, indeed, was urged to do so in its administrative law trilogy (currently under reserve), most prominently by the amici curiae. But it is not clear to me that particular problems arising in the province of Quebec would justify a wholesale change to administrative law doctrine rather than a bespoke solution.

Just such a bespoke solution would be to say that the Court of Quebec, when sitting on appeal, is an administrative tribunal (see footnote 335). Even though the goal of so characterizing the Court of Quebec is simply to ensure that it can play its full intended role in the administration of justice, this proposition runs into some contrary jurisprudence and I can understand why the Court insisted that “it forms part of the judicial apparatus (just as when it performs its other judicial functions)” (at para. 241). Nonetheless, given the negative consequences of the current arrangement for all concerned, there is perhaps something to be said for this bespoke solution.

There has been no news yet on whether an appeal will be sought but I suspect one will and that it will ultimately be up to the Supreme Court of Canada to craft a solution which preserves meaningful roles for the Court of Quebec and Superior Court, vindicates the intention of the Quebec legislature, respects constitutional constraints and does not unduly hinder access to justice.

EDIT, October 16, 21.50

I now have it on good authority that the Court of Appeal’s conclusions on both questions are being appealed to the Supreme Court of Canada.

This content has been updated on October 17, 2019 at 02:53.