Reference Re Canada Assistance Plan (B.C.)

Reference Re Canada Assistance Plan (B.C.)
Collection
Supreme Court Judgments
Date
1991-08-15
Report
[1991] 2 SCR 525
Case number
22017
Judges
Lamer, Antonio; La Forest, Gérard V.; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Stevenson, William
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 22017
Decision Content
Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525
IN THE MATTER OF a reference to the Court of Appeal
of the Province of British Columbia, pursuant to the
provisions of the Constitutional Question Act,
R.S.B.C. 1979, c. 63, of the questions contained in
an Order of the Lieutenant Governor in Council of
British Columbia, being No. 287, dated February 27, 1990
and
IN THE MATTER OF the Canada Assistance Plan, R.S.C. 1970,
c. C‑1
and
IN THE MATTER OF a certain agreement, dated March 23,
1967, pursuant to Part I of the Canada Assistance Plan,
between the Government of Canada, represented
by the Minister of National Health and Welfare of
Canada, and the Government of the Province of British
Columbia, represented by the Minister of Social
Welfare of British Columbia
BETWEEN
The Attorney General of Canada Appellant
v.
The Attorney General of British Columbia Respondent
and
The Attorney General for Ontario,
the Attorney General of Manitoba,
the Attorney General for Alberta,
the Attorney General for Saskatchewan,
the Native Council of Canada and
the United Native Nations of British Columbia Interveners
Indexed as: Reference Re Canada Assistance Plan (B.C.)
File No.: 22017.
1990: December 11, 12; 1991: August 15.
Present: Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Federal‑provincial agreements ‑‑ Canada Assistance Plan ‑‑ Federal government contributing 50 per cent of costs of provincial assistance and welfare services pursuant to Canada Assistance Plan and Agreement with province ‑‑ Federal government introducing new legislation reducing its fiscal obligation under Canada Assistance Plan and Agreement ‑‑ Whether federal government has authority to reduce its obligation unilaterally ‑‑ Whether doctrine of legitimate expectations applies ‑‑ Whether Canada Assistance Plan imposes requirements as to "manner and form" of subsequent legislation -- Whether new legislation ultra vires -- Canada Assistance Plan, R.S.C., 1985, c. C‑1.
Constitutional law ‑‑ Reference ‑‑ Questions ‑‑ Whether questions referred to Court of Appeal raised justiciable issues.
In 1990, the federal government, in order to reduce the federal budget deficit, decided to cut expenditures and limit the growth of payments made to financially stronger provinces under the Canada Assistance Plan (the "Plan"). This change was embodied in Bill C‑69, now the Government Expenditures Restraint Act. Under the Plan, the federal government concluded agreements with the provinces to share the cost of their expenditures on social assistance and welfare. Section 5 of the Plan authorizes contributions amounting to half of the provinces' eligible expenditures. These agreements continue to be in force so long as the relevant provincial law remains in operation (s. 8(1)). They may be amended or terminated by mutual consent, or terminated on one year's notice from either party (s. 8(2)). The Plan also provides for regulations, but regulations affecting the substance of agreements are ineffective unless passed with the consent of any province affected (s. 9(2)).
The Lieutenant Governor in Council of British Columbia, in accordance with s. 1 of the Constitutional Question Act of that province, referred to the British Columbia Court of Appeal two constitutional questions to determine: (1) whether the Government of Canada has any authority to limit its obligation under the Plan and its Agreement with British Columbia; and (2) whether the terms of the Agreement, the subsequent conduct of the Government of Canada pursuant to the Agreement and the provisions of the Plan give rise to a legitimate expectation that the Government of Canada would introduce no bill into Parliament to limit its obligation under the Agreement or the Plan without the consent of British Columbia. The Court of Appeal answered the first question in the negative and the second question in the affirmative.
Held: The appeal should be allowed. The first constitutional question is answered in the affirmative. The second constitutional question is answered in the negative.
Justiciability
The reference questions raise matters that are justiciable and should be answered. Both questions have a sufficient legal component to warrant the intervention of the judiciary branch. The first question requires the interpretation of a statute of Canada and an agreement. The second raises the question of the applicability of the legal doctrine of legitimate expectations to the process involved in the enactment of a money bill. A decision on these questions will have the practical effect of settling the legal issues in contention and will assist in resolving the controversy. There is no other forum in which these legal questions could be determined in an authoritative manner.
Question 1
In presenting Bill C-69 to Parliament, the Government of Canada acted in accordance with the Agreement. While the language of the Plan is, in general, duplicated in the Agreement, the contribution formula, which authorizes payments to the provinces, appears only in s. 5 of the Plan. Being part of the Plan, the formula is subject to amendment by virtue of the principle of parliamentary sovereignty reflected in s. 42(1) of the federal Interpretation Act , which states that "Every Act shall be construed as to reserve to Parliament the power of repealing or amending it...". Under s. 54 of the Constitution Act, 1867 , a money bill, including an amendment to a money bill like the Plan, can only be introduced on the initiative of the government. In these circumstances, the natural meaning to be given to the Agreement is that Canada's obligation is to pay the contributions which are authorized from time to time and not the contributions that were authorized when the Agreement was signed. The insertion of the formula for payment in the Plan only was a very strong indication that the parties did not intend that the formula should remain forever frozen. To assert that the federal government could prevent Parliament from exercising its powers to legislate amendments to the Plan would be to negate the sovereignty of Parliament. As well, Parliament did not intend to fetter its sovereign legislative power in restricting, in s. 9(2) of the Plan, the federal government's regulatory powers. Finally, the Agreement could be amended otherwise than in accordance with s. 8 of the Plan. The Agreement, which is subject to the amending formula in s. 8 , obliges Canada to pay the amounts which Parliament has authorized Canada to pay pursuant to s. 5 of the Plan. Hence, the payment obligations under the Agreement are subject to change when s. 5 is changed. That provision contains its own process of amendment by virtue of the principle of parliamentary sovereignty.
Question 2
The federal government did not act illegally in invoking the power of Parliament to amend the Plan without obtaining the consent of British Columbia. The doctrine of legitimate expectations does not create substantive rights ‑‑ in this case, a substantive right to veto proposed federal legislation. The doctrine is part of the rules of procedural fairness which can govern administrative bodies. Where it is applicable, it can only create a right to make representations or to be consulted. Moreover, the doctrine does not apply to the legislative process. The government, which is an integral part of this process, is thus not constrained by the doctrine from introducing a bill to Parliament. A restraint on the executive in the introduction of legislation would place a fetter on the sovereignty of Parliament itself. This is particularly true when the restraint relates to the introduction of a money bill. It is also fundamental to our system of government that a government is not bound by the undertakings of its predecessor. The doctrine would derogate from this essential feature of democracy.
The Plan does not purport to control the "manner and form" of subsequent legislation. Where a statute is of a constitutional nature and governs legislation generally, rather than dealing with a specific statute, it can impose requirements as to manner and form. But where, as in this case, a statute has no constitutional nature, it will be very unlikely to evidence an intention of the legislative body to bind itself in the future. Sections 8(2) and 9(2) of the Plan, read together, do not reveal, by necessary implication, a requirement that subsequent legislation cannot alter the Plan unless the consent of the affected province or provinces is obtained. They address only amendments to the Agreement and to the regulations under the Plan, and say nothing about amendments to the Plan. Moreover, any "manner and form" requirement in an ordinary statute must overcome the clear words of s. 42(1) of the Interpretation Act . This provision requires that federal statutes ordinarily be interpreted to accord with the doctrine of parliamentary sovereignty. This doctrine prevents a legislative body from binding itself as to the substance of its future legislation.
Section 2 of the Government Expenditures Restraint Act is intra vires Parliament. First, Parliament was not disabled from unilaterally changing the law so as to change the Agreement once it had been authorized by Parliament and executed by the parties. The Agreement was between British Columbia and the federal government. It did not bind Parliament. The applicable constitutional principle is the sovereignty of Parliament. Second, the new legislation does not amount to regulation of an area outside federal jurisdiction. Bill C‑69 was not an indirect, colourable attempt to regulate in provincial areas of jurisdiction. It is simply an austerity measure. Further, the simple withholding of federal money, which had previously been granted to fund a matter within provincial jurisdiction, does not amount to the regulation of that matter. The new legislation simply limits the growth of federal contributions. While the Government Expenditures Restraint Act impacts upon a constitutional interest outside the jurisdiction of Parliament, such impact is not enough to find that a statute encroaches upon the jurisdiction of the other level of government. The Court should not, under the "overriding principle of federalism", supervise the federal government's exercise of its spending power in order to protect the autonomy of the provinces. Supervision of the spending power is not a separate head of judicial review. If a statute is neither ultra vires nor contrary to the Canadian Charter of Rights and Freedoms , the courts have no jurisdiction to supervise the exercise of legislative power.
Cases Cited
Applied: Reference re Resolution to amend the Constitution, [1981] 1 S.C.R. 753; Reference re Objection by Quebec to a Resolution to amend the Constitution, [1982] 2 S.C.R. 793; referred to: Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49; Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; Reference re Magistrate's Court of Quebec, [1965] S.C.R. 772; Lord's Day Alliance of Canada v. Attorney‑General for Manitoba, [1925] A.C. 384; Attorney‑General for Ontario v. Attorney‑General for Canada, [1912] A.C. 571; Reference re Waters and Water‑Powers, [1929] S.C.R. 200; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170; Bates v. Lord Hailsham, [1972] 3 All E.R. 1019; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Penikett v. Canada (1987), 45 D.L.R. (4th) 108, leave to appeal refused, [1988] 1 S.C.R. xii; West Lakes Ltd. v. South Australia (1980), 25 S.A.S.R. 389; Attorney‑General for New South Wales v. Trethowan, [1932] A.C. 526; R. v. Mercure, [1988] 1 S.C.R. 234; R. v. Drybones, [1970] S.C.R. 282; Hogan v. The Queen, [1975] 2 S.C.R. 574; Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297.
Statutes and Regulations Cited
Bill C‑69, An Act to amend certain statutes to enable restraint of government expenditures, 2nd sess., 34th Parl. (assented to on February 1, 1991).
Canada Assistance Plan, S.C. 1966‑67, c. 45, s. 5(2)(c).
Canada Assistance Plan, R.S.C. 1970, c. C‑1, ss. 4, 5(1), (2)(c), 6(2), (3), 8(1), (2), 9(1), (2).
Canada Assistance Plan, R.S.C., 1985, c. C‑1, ss. 4, 5(1), (2)(c), 5.1 [ad. 1991, c. 9, s. 2], 6(2), (3), 8(1), (2), 9(1), (2).
Canadian Charter of Rights and Freedoms .
Constitution Act, 1907.
Constitution Act, 1867, ss. 54 , 92(13) , (16) .
Constitution Act, 1982, s. 36(1) .
Constitutional Question Act, R.S.B.C. 1979, c. 63, ss. 1, 6.
Emergencies Act, R.S.C., 1985, c. 22 (4th Supp .), s. 40(1) , (2) .
Government Expenditures Restraint Act, S.C. 1991, c. 9, s. 2.
Interpretation Act, R.S.C., 1985, c. I‑21, ss. 10 , 42(1) .
Statute Revision Act, R.S.C., 1985, c. S-20, s. 6 (e), (f).
Supreme Court Act, R.S.C., 1985, c. S‑26, s. 36 .
Authors Cited
Beaudoin, Gérald‑A. La Constitution du Canada. Montréal: Wilson & Lafleur, 1990.
Bagehot, Walter. The English Constitution. London: Henry S. King & Co., 1872.
APPEAL from a judgment of the British Columbia Court of Appeal (1990), 46 B.C.L.R. (2d) 273, 71 D.L.R. (4th) 99, 45 Admin. L.R. 34, in the matter of a reference concerning the federal government's authority to limit its obligation under the Canada Assistance Plan. Appeal allowed.
W. I. C. Binnie, Q.C., Peter W. Hogg, Q.C., and Maureen E. Baird, for the appellant.
E. Robert A. Edwards, Q.C., and Patrick O'Rourke, for the respondent.
Christopher D. Bredt and Tanya Lee, for the intervener the Attorney General for Ontario.
Vic Toews, for the intervener the Attorney General of Manitoba.
Stan Rutwind, for the intervener the Attorney General for Alberta.
Donald J. Dow, for the intervener the Attorney General for Saskatchewan.
Marvin R. V. Storrow, Q.C., and Maria Morellato, for the interveners the Native Council of Canada and the United Native Nations of British Columbia.
//Sopinka J.
The judgment of the Court was delivered by
Sopinka J. -- This is an appeal by the Attorney General of Canada from a decision of the British Columbia Court of Appeal, answering two questions which were referred to it under the Constitutional Question Act, R.S.B.C. 1979, c. 63. The issues raised by the questions include whether and in what circumstances a court should answer questions referred to it that have a political connotation, the interpretation and binding effect of federal-provincial agreements, and whether the doctrine of legitimate expectations applies to prevent the Cabinet from introducing a money bill.
The Attorneys General for Ontario, Manitoba and Alberta intervened in the Court of Appeal, as did the Native Council of Canada and the United Native Nations of British Columbia. In addition, the Attorney General for Saskatchewan intervened in this Court.
1. The Background
The Canada Assistance Plan (the "Plan") was enacted by S.C. 1966-67, c. 45; it is now R.S.C., 1985, c. C-1. By its s. 4, it authorizes the Government of Canada to enter into agreements with the provincial governments to pay them contributions toward their expenditures on social assistance and welfare. Section 5 of the Plan authorizes payments to the provinces pursuant to such agreements, and broadly speaking it authorizes contributions amounting to half of the provinces' eligible expenditures. The Plan (s. 6(2)) specifies certain prerequisites for eligibility of provincial expenditures, but leaves for the provinces the determination of which programmes will be operated and how much money will be spent. By its s. 8(1), the Plan further provides that agreements under it shall continue in force so long as the relevant provincial law remains in operation; but, that they may be terminated by consent or on one year's notice from either party (s. 8(2)). Agreements can also be amended by consent (s. 8(2)). The Plan provides (s. 9(1)) for regulations under it to govern such things as how eligible costs are to be calculated; but, regulations affecting the substance of agreements are ineffective unless passed with the consent of any province affected (s. 9(2)). The Plan is silent as to the authority of Parliament to amend the Plan.
The Government of Canada entered into agreements with each of the provincial governments in 1967. It entered into an agreement with the Government of British Columbia on March 23, 1967. Amounts paid to the provinces under all agreements rose from $151 million in 1967-68 to an estimated $5.5 billion in 1989-90. The Plan itself has never been amended, although the regulations under it have been.
In 1990 the federal government decided to cut expenditures in order to reduce the federal budget deficit. The government has created an Expenditure Control Plan. One feature of this Plan is to limit the growth of payments made to financially stronger provinces under the Canada Assistance Plan. Such payments are to grow no more than 5 per cent per annum for fiscal 1991 and fiscal 1992. The provinces affected are those which are not entitled to receive equalization payments from the federal government; currently, this means British Columbia, Alberta and Ontario. This change, and others, were embodied in Bill C-69, An Act to amend certain statutes to enable restraint of government expenditures. That Bill was introduced in the House of Commons on March 15, 1990. It received royal assent on February 1, 1991, and is now the Government Expenditures Restraint Act, S.C. 1991, c. 9.
On February 27, 1990, Order in Council No. 287 was approved and ordered by the Lieutenant Governor of British Columbia. Via this Order, the Government of British Columbia referred the following questions to the British Columbia Court of Appeal:
(1)Has the Government of Canada any statutory, prerogative or contractual authority to limit its obligation under the Canada Assistance Plan Act [sic], R.S.C. 1970, c. C-1 and its Agreement with the Government of British Columbia dated March 23, 1967, to contribute 50 per cent of the cost to British Columbia of assistance and welfare services?
(2)Do the terms of the Agreement dated March 23, 1967 between the Governments of Canada and British Columbia, the subsequent conduct of the Government of Canada pursuant to the Agreement and the provisions of the Canada Assistance Plan Act [sic], R.S.C. 1970, c. C-1, give rise to a legitimate expectation that the Government of Canada would introduce no bill into Parliament to limit its obligation under the Agreement or the Act without the consent of British Columbia?
2. Relevant Provisions of Statutes and the Agreement
Canada Assistance Plan, R.S.C. 1970, c. C-1
The questions on this reference ask about the meaning of the Plan in the Revised Statutes of Canada 1970. The reason for this is not clear, as the Revised Statutes of Canada, 1985 came into force on December 12, 1988, and Order in Council No. 287 containing the questions was approved and ordered on February 27, 1990. The only difference between the R.S.C. 1970 version and the R.S.C. 1985 version which could be relevant to this reference is in s. 5(2)(c), and will be discussed below.
4. Subject to this Act, the Minister [of National Health and Welfare] may, with the approval of the Governor in Council, enter into an agreement with any province to provide for the payment by Canada to the province of contributions in respect of the cost to the province and to municipalities in the province of
(a) assistance provided by or at the request of provincially approved agencies; and
(b) welfare services provided in the province by provincially approved agencies,
pursuant to the provincial law.
5. (1) The contributions payable to a province under an agreement shall be paid in respect of each year and shall be the aggregate of
(a) fifty per cent of the cost to the province and to municipalities in the province in that year of assistance provided by or at the request of provincially approved agencies, and
(b) fifty per cent of either
(i)The amount by which
(A) the cost to the province and to municipalities in the province in that year of welfare services provided in the province by provincially approved agencies
exceeds
(B) the total of
(I) the cost to the province, in the fiscal year of the province coinciding with or ending in the period commencing April 1, 1964 and ending March 31, 1965, of welfare services provided in the province, and
(II) the cost to municipalities in the province, in the fiscal years of such municipalities coinciding with or ending in the period commencing April 1, 1964 and ending March 31, 1965, of welfare services provided in the province,
or
(ii) the cost to the province and to municipalities in the province in that year of the employment by provincially approved agencies of persons employed by such agencies
(A) wholly or mainly in the performance of welfare services functions, and
(B) in positions filled after March 31, 1965,
at the election of the province made at such time or times and in such manner as may be prescribed.
(2) In this section, "cost" does not include,
...
(c) any cost that Canada has shared or is required to share in any manner with the province, or that Canada has borne or is required to bear, pursuant to any other Part or pursuant to any Act of the Parliament of Canada passed before, on or after the 15th day of July 1966;
(Section 5.1, added to the Plan effective February 1, 1991 by the Government Expenditures Restraint Act, S.C. 1991, c. 9, s. 2, is set out below in an extract from the latter Act.)
6. . . .
(2) An agreement shall provide that the province . . . [there is a series of provincial obligations which must appear in an agreement].
(3) An agreement shall provide that Canada
(a) will pay to the province the contributions or advances on account thereof that Canada is authorized to pay to the province under this Act and the regulations; . . . [and certain other obligations].
8. (1) Every agreement shall continue in force so long as the provincial law remains in operation.
(2) Notwithstanding subsection (1),
(a) an agreement may, with the approval of the Governor in Council, be amended or terminated at any time by mutual consent of the Minister and the province;
(b) any schedule to an agreement may be amended at any time by mutual consent of the Minister and the province;
(c) the province may at any time give to Canada notice of intention to terminate an agreement; and
(d) Canada may, at any time on or after the 31st day of March 1969, give to the province notice of intention to terminate an agreement;
and, where notice of intention to terminate is given in accordance with paragraph (c) or (d), the agreement shall cease to be effective for any period after the day fixed in the notice or for any period after the expiration of one year from the day upon which the notice is given, whichever is the later.
9. . . .
(2) No regulation that has the effect of altering any of the agreements or undertakings contained in an agreement entered into under this Part with a province, or that affects the method of payment or amount of payments thereunder, is effective in respect of that province unless the province has consented to the making of such regulation.
The Agreement of March 23, 1967
2. The Province agrees
[the obligations required by s. 6(2) of the Plan are set out].
3.(1) Canada agrees
(a)subject to this clause and to Clause 4, to pay to the province of British Columbia the contributions or advances on account thereof that Canada is authorized to pay to that province under the Act and the Regulations;
[the other obligations required by s. 6(3) of the Plan are set out].
6. . . .
(2) Subject to subclause (3), this agreement shall continue in force so long as the provincial law remains in operation.
(3) (a) Notwithstanding subsection (1)
(i)any schedule to this Agreement may be amended at any time; and
(ii)the Agreement may, with the approval of the Governor-in-Council, be amended or terminated at any time,
by mutual consent of the Minister and The Province;
(b) The Province may at any time give to Canada notice of intention to terminate this Agreement and Canada may at any time on or after the 31st day of March, 1969, give to The Province notice of intention to terminate this agreement; and where notice of intention to terminate is given in accordance with this paragraph (b), the Agreement shall cease to be effective for any period after the day fixed in the notice or for any period after the expiration of one year from the day that notice is given, whichever is the later.
Government Expenditures Restraint Act, S.C. 1991, c. 9
2. The Canada Assistance Plan is amended by adding thereto, immediately after section 5 thereof, the following section:
"5.1 (1) Notwithstanding sections 5 and 8 and any agreement, where no fiscal equalization payment is payable to a province pursuant to section 3 of the Federal-Provincial Fiscal Arrangements and Federal Post-Secondary Education and Health Contributions Act for the year ending on March 31, 1991, the contributions to that province in respect of that year shall not exceed the product obtained by multiplying
(a) the amount of the contributions payable to the province for assistance and welfare services provided in the year ending on March 31, 1990
by
(b) 1.05.
(2) Notwithstanding sections 5 and 8 and any agreement, where no fiscal equalization payment is payable to a province pursuant to section 3 of the Federal-Provincial Fiscal Arrangements and Federal Post-Secondary Education and Health Contributions Act for the year ending on March 31, 1992, the contributions to that province in respect of that year shall not exceed the product obtained by multiplying
(a) the amount of the contributions payable to the province for assistance and welfare services provided in the year ending on March 31, 1990
by
(b) 1.1025."
Interpretation Act, R.S.C., 1985, c. I-21
42. (1) Every Act shall be so construed as to reserve to Parliament the power of repealing or amending it, and of revoking, restricting or modifying any power, privilege or advantage thereby vested in or granted to any person.
Constitutional Question Act, R.S.B.C. 1979, c. 63
1. The Lieutenant Governor in Council may refer any matter to the Court of Appeal or to the Supreme Court for hearing and consideration, and the Court of Appeal or the Supreme Court shall then hear and consider it.
6. The opinion of the Court of Appeal or the Supreme Court is deemed a judgment of the Court of Appeal or of the Supreme Court, as the case may be, and an appeal lies from it in the manner of a judgment in an ordinary action.
Supreme Court Act, R.S.C., 1985, c. S-26
36. An appeal lies to the Court from an opinion pronounced by the highest court of final resort in a province on any matter referred to it for hearing and consideration by the lieutenant governor in council of that province whenever it has been by the statutes of that province declared that such opinion is to be deemed a judgment of the highest court of final resort and that an appeal lies therefrom as from a judgment in an action.
3. Judgment Below
The case was argued in the British Columbia Court of Appeal before Hinkson, Lambert, Toy, Southin and Legg JJ.A. Judgments were delivered by Lambert, Toy and Southin JJ.A. The case is reported at (1990), 46 B.C.L.R. (2d) 273 (sub nom. Reference re Constitutional Question Act), and at (1990), 71 D.L.R. (4th) 99, 45 Admin. L.R. 34 (hereinafter cited to B.C.L.R.).
Toy J.A., Hinkson and Legg JJ.A. concurring
On Question 1, Toy J.A. said that the Attorney General of Canada did not seriously contend that the federal government could limit its obligations under the current Plan and the Agreement except by legislation. The very introduction of Bill C-69 was aimed at limiting those obligations. Turning to Question 2, he began by considering the doctrine of legitimate expectations. He reviewed some of the leading cases in this area.
Toy J.A. accepted British Columbia's contention that it had a legitimate expectation that the federal government would proceed in accordance with the terms of the Plan and the Agreement. He quoted from the judgment of Estey J. in Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, at p. 758, to the effect that even the decisions of the federal cabinet are reviewable in respect of whether they are made within the parliamentary mandate which authorizes them.
Toy J.A. rejected the submission of the Attorney General of Canada that Question 2 is non-justiciable. He then turned to the submission that the principle of parliamentary sovereignty is a complete answer to Question 2. He said that this did not meet the complaint of the Attorney General of British Columbia, since that party's submission was directed, not to Parliament's powers, but to the conduct of the Government of Canada.
Toy J.A. stated his conclusion in this way (at p. 311):
In my opinion, upon the basis of the doctrine of legitimate expectations, the government of Canada was required to obtain the consent of British Columbia under the existing circumstances.
He said that precipitate action without consent might be justified in some circumstances. He did not comment on the interveners' submissions. He answered "No" to Question 1 and "Yes" to Question 2.
Lambert J.A.
Lambert J.A. noted that the court was not bound to answer the questions exactly as phrased, but rather was free to address the "matter" in question (citing Reference re Resolution to amend the Constitution, [1981] 1 S.C.R. 753).
Pursuant to the concession of the Attorney General of Canada, Lambert J.A. answered the first question in the negative. Looking at the second question, he said (at p. 287):
In my opinion, if there is an obligation, binding on Canada, to pay to British Columbia 50 per cent of the cost of providing assistance to those in need in British Columbia as determined under the Canada Assistance Plan and the Canada-British Columbia Assistance Agreement, then there would be and should be a legitimate expectation on the part of British Columbia that Canada would not break that binding obligation. In those circumstances, British Columbia could also hold a legitimate expectation that the government of Canada would not introduce a bill into Parliament which would break the binding obligation.
Lambert J.A. then turned to the matter of whether there was indeed an obligation on Canada to pay 50 per cent of the expenditures in question. He said that in this case the ordinary private law rules of interpretation should govern the determination of the scope of the obligations imposed by the Agreement.
Lambert J.A. set out clause 3(1)(a) of the Agreement, which is required by s. 6(1)(a) of the Plan and which provides that Canada undertakes to make the contributions authorized under the Plan. He then stated the issue in this way (at p. 290):
The question is whether, when the agreement was made in 1967, that clause meant that Canada must pay the contribution proportion that it was authorized to pay when the agreement was made in 1967, or whether, on the other hand, Canada was to be required to pay each year the contribution proportion that it was authorized to pay under the Act [the Plan] and the regulations as the Act and regulations were currently in effect and as they might be amended by Canada from time to time.
He concluded that the former is correct, and gave six reasons. These will be discussed in more detail later in this judgment.
Since he thought that the Government of Canada was obliged to pay contributions at the levels authorized in 1967, Lambert J.A. concluded that if the federal government were to pay to British Columbia less than 50 per cent of the eligible expenditures made by British Columbia, then that would be a breach of an undertaking and a breach of an obligation. This would be so even if this action were pursuant to Bill C-69, now the Government Expenditures Restraint Act. Lambert J.A. said that the introduction of Bill C-69 was a form of anticipatory breach. He said that the Government Expenditures Restraint Act would authorize and in fact require the breach, but the non-payment would still be a breach of Canada's undertaking and of its obligations under the Agreement.
Lambert J.A. noted that if the federal government asserted that its actions were required by a state of national emergency, then the questions might be non-justiciable; but no such assertion was made.
In the result, because the proposed federal action would be a breach of an obligation, Lambert J.A. answered "Yes" to Question 2. He stated that British Columbia could have had a legitimate expectation that Canada would not breach its obligations; but he stressed that he was using the words "legitimate expectation" in a non-technical way. Lambert J.A. also summarized all of the other arguments made, although he did not accept or reject any of them.
Southin J.A.
Southin J.A. agreed that the answer to Question 1 is "No." She said that the Constitutional Question Act does not authorize references on questions concerning practices, usages, customs, or conventions of the Constitution, and so Question 2 must be interpreted as asking a legal question.
She looked at some old constitutional learning and said that the executive aspect of the federal government is subordinate to the legislative aspect; that is, executive action is subject to the expressed will of Parliament. She noted that there have been many decisions interpreting the Constitution, and said (at pp. 314-15):
I am not aware of any decision since Confederation which suggests there is any limitation on the exercise of the Executive Power conferred on the Governor General in Council and on the Lieutenant Governor in Council by, respectively ss. 9 -13 and ss. 58 and 65 of the Constitution Act, 1867 , save those limitations within the [Constitution] Acts themselves.
It has generally been accepted that the Executive Power so conferred cannot go beyond the applicable Legislative Power and, of course, is subject to statutes restricting that Executive Power.
What Mr. Edwards postulates is a limitation on Executive Power.
But he cannot point to any provision in the Constitution Acts which expressly or by necessary intendment creates the limitation which he postulates.
He asks us to engraft onto the Executive Power of the Constitution Acts a doctrine of "legitimate expectation".
In my opinion, the duty of the judiciary, when confrontations take place between a province and Canada, is limited to the interpretation of the Constitution Acts.
Southin J.A. noted that s. 36(1) of the Constitution Act, 1982 expressly says it does not alter the legislative authority of the several legislative bodies. She said that it would be wrong to engraft upon the Constitution a doctrine limiting the powers which are therein declared. This is especially so of the doctrine of legitimate expectations, which is a recent development in cases having nothing to do with our Constitution. She said (at p. 316):
There is not a word in the Constitution Acts about "legitimate expectation" and I, for one, am not prepared to put such words into the legal framework of Canada.
Southin J.A. said that this dispute is a quarrel about money, and cannot be resolved in the courts. She rejected other arguments, saying that the Plan does not purport to control the "manner and form" of subsequent legislation; that since the question posed was a legal one, issues of conventions did not arise for resolution; and that the provinces have no proprietary right to receive money from the federal government (save under the Constitution Act, 1907). Hence her answer to Question 2 was "No".
In the result, all five judges answered the first question "No". Four of them answered the second question "Yes", while one would have answered it "No".
4. Issues
The issues raised are as follows:
(1) Are the matters raised in the questions justiciable? The Attorney General of Canada submits that the questions are political in nature and that therefore the Court should not answer them.
(2) If the questions raise justiciable issues which should be answered by the Court, the questions must first be interpreted and then answered.
5. Justiciability
The Constitutional Question Act, like similar enactments of other provincial legislatures, allows the Lieutenant Governor in Council to refer "any matter" to the court. This broad wording imposes no limit on the type of question which may be asked. Nevertheless, the court has a discretion to refuse to answer questions which are not justiciable. In Reference re Resolution to amend the Constitution, supra, the majority in Part I said (at p. 768):
The scope of the [reference] authority in each case is wide enough to saddle the respective courts with the determination of questions which may not be justiciable and there is no doubt that those courts, and this Court on appeal, have a discretion to refuse to answer such questions.
While there may be many reasons why a question is non-justiciable, in this appeal the Attorney General of Canada submitted that to answer the questions would draw the Court into a political controversy and involve it in the legislative process. In exercising its discretion whether to determine a matter that is alleged to be non-justiciable, the Court's primary concern is to retain its proper role within the constitutional framework of our democratic form of government. See Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49, at pp. 90-91, and Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at p. 362. In considering its appropriate role the Court must determine whether the question is purely political in nature and should, therefore, be determined in another forum or whether it has a sufficient legal component to warrant the intervention of the judicial branch. In Reference re Resolution to amend the Constitution, supra, at p. 884, the majority in Part II of the judgment said:
We agree with what Freedman C.J.M. wrote on this subject in the Manitoba Reference [Reference Re Amendment of the Constitution of Canada (1981), 117 D.L.R. (3d) 1 (Man. C.A.)] at p. 13:
In my view, this submission goes too far. Its characterization of Question 2 as "purely political" overstates the case. That there is a political element embodied in the question, arising from the contents of the joint address, may well be the case. But that does not end the matter. If Question 2, even if in part political, possesses a constitutional feature, it would legitimately call for our reply.
In my view, the request for a decision by this Court on whether there is a constitutional convention, in the circumstances described, that the Dominion will not act without the agreement of the Provinces poses a question that it [sic], at least in part, constitutional in character. It therefore calls for an answer, and I propose to answer it.
This was reiterated in Reference re Objection by Quebec to a Resolution to amend the Constitution, [1982] 2 S.C.R. 793, at p. 805. The Court reaffirmed the validity of the above passage from the judgment of Freedman C.J.M. While the passage speaks to a "constitutional feature", it is equally applicable to a question which possesses a sufficient legal component to warrant a decision by a court. Since only a court can authoritatively resolve a legal question, its decision will serve to res