Protecting the Core: Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27

This morning, the Supreme Court of Canada handed down its eagerly awaited (at least by s. 96 anoraks) decision in the Court of Quebec reference: Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27 (see here for my post on the Court of Appeal decision). This is a significant contribution to the jurisprudence, though just how significant will depend on whether the Court’s guidance ultimately applies to administrative decision-makers generally or just (as the majority says) to provincial courts, of which the Court of Quebec has a uniquely expansive jurisdiction over private law matters. 

By a majority of 4-3, the Court’s answer to the reference question was that the current jurisdiction of the Court of Quebec is unconstitutional, as it interferes with the “core jurisdiction” of the Quebec superior court.

The majority came to its conclusion based on a new analytical framework for establishing an interference with core jurisdiction:

To determine how much latitude a legislature has should it wish to exceed these historical ceilings, we must consider the various factors of the multi‑factored analysis: the scope of the jurisdiction being granted, whether the grant is exclusive or concurrent, the relationship between the proposed monetary limit and the historical monetary ceilings, appeal mechanisms, the impact of the jurisdiction‑granting provision on the superior court’s caseload, and whether there is an important societal objective. All these factors are weighed in order to strike an appropriate balance between recognition of the provinces’ jurisdiction over the administration of justice and preservation of the nature, the constitutional role and the core jurisdiction of the superior courts of general jurisdiction.

The more the analysis of the above factors suggests that the core jurisdiction of those courts has been infringed on, the less the province will be allowed to depart from the updated historical monetary ceilings. Conversely, the less the analysis of the factors in question suggests that the core jurisdiction of the superior courts has been infringed on, the more the province will be free to depart from those ceilings. This is essentially a continuum. At one end of the spectrum, the grant of a vast jurisdiction that is exclusive, is not accompanied by a mechanism for appealing a decision to a superior court of general jurisdiction, has a significant impact on that court’s caseload and is not justified having regard to an important societal objective will limit the legislature’s freedom and is not constitutional. The impact of such a grant on the superior court of general jurisdiction could be so great that merely complying with the historical monetary ceilings would not suffice under s. 96 . At the other end of the spectrum, the concurrent grant of a more limited jurisdiction — one that is accompanied by a mechanism for appealing a decision to a superior court of general jurisdiction, has little impact on that court’s workload and is justified having regard to an important societal objective — will give the legislature considerable flexibility. In every case, however, there must be a reasonable connection between the monetary ceiling contemplated by the legislature and the updated historical ceilings. The two ceilings must be in a similar range so as to be consistent with the general division of labour at the time of Confederation. In the same way, an exclusive grant cannot “maim” the superior courts by impermissibly infringing on their core jurisdiction (at paras 132-133).

This is an avowedly contextual multi-factor analysis, in keeping with other areas of Canadian public law. The majority’s is a general framework but at the moment there is no other provincial court in Canada which plays a role comparable to that of the Court of Quebec, which has general and exclusive jurisdiction in private law matters up to a monetary threshold of $85,000, with only limited appeal rights to the Court of Appeal. Accordingly, the impact of the decision across the country may be somewhat limited (subject to my comments below about its potential application to administrative tribunals). Quebec legislators will have some work to do, though, to satisfy the requirements set out by the majority (see the advice at para. 142); luckily, they have some time to do so, as the majority suspended its declaration (at paras. 151-159).

The dividing line between the majority and minority was provided by the concept of core jurisdiction. In dissent at para 246, Wagner C.J. took a much narrower view of core jurisdiction:

As long as the superior courts continue to hear a volume of cases that is sufficient in number and proportion and varied enough in nature and importance that they are able to state and develop the civil law in Quebec and the common law in the other provinces, they will, as a result, continue to play their unifying role in Canada’s constitutional and judicial system. Under such conditions, the legislatures can, without infringing on the superior courts’ core jurisdiction in matters of private law, confer subject‑matter jurisdiction on provincially constituted courts to empower them to hear a certain number of civil claims.

So too did Abella J. in her separate dissent at para 301:

  There is no doubt that legislation cannot have the effect of taking away the authority superior courts need in order to make sure that they can effectively adjudicate the claims which are properly before them and to enforce their orders in those cases, but “core” jurisdiction has been held to be a narrow concept, not a malleable one. It is intended to protect only the essential role and function of superior courts. As long as the “essential character” of superior courts is neither undermined nor impaired, provincial legislatures are constitutionally entitled to exercise their jurisdiction under s. 92(14)  by creating and authorizing provincial courts, even exclusively, to respond to local justice needs, not as those needs existed at Confederation, but as they exist now.

About the content of the core of superior court jurisdiction the judges disagreed but there was agreement across the Court that a claim of a violation of s. 96 requires a two-step analysis. The first step is the test set out in Re Residential Tenancies Act, 1979, 1981 CanLII 24 (SCC), [1981] 1 S.C.R. 714 . Here, interestingly, there was no doubt in the judges’ minds that the Court of Quebec satisfies the first part of that test, which looks at whether the superior courts enjoyed exclusive jurisdiction at the time of Confederation. Jurisdiction over private law matters was substantially shared between superior courts and inferior courts in 1867 (compare the conclusion of the BC Supreme Court on personal injury in tort in the case involving the Civil Resolution Tribunal, noted here).

The second step is to assess whether there is an interference with “core” jurisdiction. If so, even if the Residential Tenancies test has been passed, a provincial court might have such expansive jurisdiction as to become a ‘shadow’ s. 96 court. On this point, I have more sympathy with the approaches of the dissenters (see especially at para. 247, per Wagner C.J.). 

Nonetheless, as a firm believer in the constitutional primacy of the superior courts, I am glad to see a resounding endorsement of the importance and scope of superior court jurisdiction by the majority, who extolled the rule-of-law and national-unity virtues of the backbone of Canada’s judicial system (at paras. 32-52). I do wonder, though, how one squares the confident assertion that the superior courts’ jurisdiction gives them a “comprehensive view of the law, allowing them to preserve the coherence of the judicial system and set its overall directions” (at para. 51) with the recent decision in Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22 (noted here).

Now to the firmly buried lede: what does the majority’s analysis presage for administrative tribunals, the creation of which may also violate s. 96? Nothing, the majority says at para. 144:

In closing, it would seem appropriate to clarify the scope of these reasons and their impact on the other tests developed with respect to s. 96 . The multi‑factored analysis we are adopting here is not intended to replace the current law. The analysis under s. 96  continues to involve two tests. The first — the Residential Tenancies test — continues to apply to any transfer of historical jurisdiction of the superior courts to an administrative tribunal or to another statutory court. The second — the core jurisdiction test — continues to apply in order to determine whether a statutory provision has the effect of removing or impermissibly infringing on any of the attributes that form part of the core jurisdiction of the superior courts. Where a transfer to a court with provincially appointed judges has an impact on the general private law jurisdiction of the superior courts, the question whether the infringement on the core jurisdiction is permissible or impermissible should be answered having regard to the factors discussed above. Those factors give the provincial legislature sufficiently clear guidance to determine what latitude it has under s. 96  when it wishes to grant a court whose judges are appointed by the province jurisdiction over a significant portion of the common law without creating a parallel court.

This conclusion is, in my view, too fast. Of course, no administrative tribunal has the vast jurisdiction of the Court of Quebec. But in the Civil Resolution Tribunal Case, the BC Supreme Court characterized the relevant jurisdiction as jurisdiction over personal injury matters. Other tribunals have been accorded tranches of jurisdiction by legislation, such as the Condominium Authority of Ontario. The contextual analysis of core jurisdiction would, it seems to me, be appropriate in such cases notwithstanding the reticence of the majority.

It is also worth considering whether this contextual approach will bleed over into the Residential Tenancies test. Indeed, it was the stated inadequacy of the first part of the Residential Tenancies test which moved the majority to develop its contextual approach to core jurisdiction. Precisely because, the majority explained, the vastness of the jurisdiction transferred cut against a finding that the first part of the test had been failed (as an expansive jurisdiction over private law matters was certainly shared between different levels of court in 1867) it was necessary to develop a “tailored analytical framework for the purpose of determining whether a parallel court that undermines the role of the superior courts has been created” (at para. 78).

Similarly, a contextual approach could be useful in providing more guidance on when exactly a function given to an administrative tribunal remains “judicial” in nature (the second part of the Residential Tenancies test) or is “ancillary” or “incidental” to the operations of an administrative tribunal or a statutory scheme for the purposes of the third part of the test. The jurisprudence on this point is patchy (see at para. 309, per Abella J.), patchy enough to invite courts to draw upon the majority’s analysis to fill in “gaps” in the Residential Tenancies test, especially parts two and three (at para. 145).

In this regard, it is also worth highlighting Wagner CJ’s three “quantitative and qualitative” factors (at para. 245): “(a) the impact on the number of cases that the Superior Court continues to deal with; (b) the impact on the proportion of cases within the Superior Court’s jurisdiction compared with those within the jurisdiction of a provincially constituted court; (c) the impact on the nature and importance of the cases within the Superior Court’s jurisdiction”. These do not speak directly to parts two or three of the Residential Tenancies test, but they do sound awfully authoritative as to the circumstances in which it will be appropriate or inappropriate to empower administrative tribunals.

Lastly, today’s decision provides some guidance on how to characterize the decision in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31 . Is it part of the two-step inquiry or something else entirely? For Abella J. in dissent at para. 299, Trial Lawyers is something else entirely:

In my respectful view, B.C. Trial Lawyers did not broaden the core monetary jurisdiction of superior courts. The case stands for the proposition that when hearing fees leave litigants without the opportunity to access a public, independent and impartial tribunal, superior court judges must have discretion to waive those fees. It does not stand for the principle that litigants have an unfettered constitutional right to bring all civil disputes to a superior court.

The majority drew on Trial Lawyers in ascertaining the content of the core, which is consistent with Abella J.’s view that it is something else entirely. Perhaps the Federal Court of Appeal will weigh in on this point when it hears the appeal in Prairies Tubulars (noted here).  

And, last but not least, the Supreme Court did not address the old ‘double deference‘ problem in the Quebec regime. This issue was mooted by Vavilov (at paras. 146-150). Those of us who perceived a problem with that regime can at least take comfort in the fact that our arguments were “not unreasonable” (at para. 150). No doubt the issue will crop up in some other form, some other day.

This content has been updated on October 25, 2021 at 19:04.