Section 96: Striking a Balance between Legal Centralism and Legal Pluralism

“Section 96: Striking a Balance between Legal Centralism and Legal Pluralism” in Richard Albert, Paul Daly and Vanessa MacDonnell eds., The Canadian Constitution in Transition (University of Toronto Press, Toronto, 2019) 84-102

Despite its modest origins, section 96 of the Constitution Act, 1867 has become a cornerstone of the Canadian constitutional order. Early on, it came to be associated with a traditional conception of superior court jurisdiction. In recent decades, however, the Supreme Court of Canada has chipped away at this traditionalist conception and in doing so has carved out a space for institutional pluralism.

Administrative law is the most important example, because the Court preaches deference to administrative decision-makers, allowing them interpretive space in which to pursue their statutory objectives. Similar developments can be perceived in civil procedure, where a concern for access to justice has led to a less traditionalist approach. Openness to institutional pluralism also permits legislatures to experiment with alternative models of dispute resolution, from Quebec’s administrative tribunal, to Ontario’s tribunal clusters, to British Columbia’s online claims system.

Yet these developments cause tension: between deference and the long-understood judicial role in enforcing the law of the land; and between innovative methods of accessing justice and the role of the section 96 courts in safeguarding the fundamental pillars of Canada’s legal order. In this chapter I set out the changed judicial understanding of section 96, account for these tensions and suggest a framework for their resolution.

This content has been updated on May 2, 2023 at 18:03.