Reference re Code of Civil Procedure (Que.), art. 35

Reference re Code of Civil Procedure (Que.), art. 35
Collection
Supreme Court Judgments
Date
2021-06-30
Neutral citation
2021 SCC 27
Report
[2021] 2 SCR 291
Case number
38837
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah
On appeal from
Quebec
Subjects
Constitutional law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27, [2021] 2 S.C.R. 291
Appeal Heard: September 24, 2020 Judgment Rendered: June 30, 2021 Docket: 38837
Between:
Conférence des juges de la Cour du Québec Appellant
and
Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec Respondents
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Conseil de la magistrature du Québec, Canadian Association of Provincial Court Judges, Organisme d’autoréglementation du courtage immobilier du Québec, Canadian Council of Chief Judges, Trial Lawyers Association of British Columbia and Canadian Superior Courts Judges Association Interveners
And Between:
Attorney General of Quebec Appellant
and
Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec Respondents
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of British Columbia, Attorney General of Alberta, Conseil de la magistrature du Québec, Canadian Association of Provincial Court Judges, Organisme d’autoréglementation du courtage immobilier du Québec, Conférence des juges de la Cour du Québec, Canadian Council of Chief Judges, Trial Lawyers Association of British Columbia and Canadian Superior Courts Judges Association Interveners
And Between:
Conseil de la magistrature du Québec Appellant
and
Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec Respondents
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Canadian Association of Provincial Court Judges, Organisme d’autoréglementation du courtage immobilier du Québec, Conférence des juges de la Cour du Québec, Canadian Council of Chief Judges, Trial Lawyers Association of British Columbia and Canadian Superior Courts Judges Association Interveners
And Between:
Canadian Association of Provincial Court Judges Appellant
and
Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec Respondents
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Conseil de la magistrature du Québec, Organisme d’autoréglementation du courtage immobilier du Québec, Conférence des juges de la Cour du Québec, Canadian Council of Chief Judges, Trial Lawyers Association of British Columbia and Canadian Superior Courts Judges Association Interveners
And Between:
Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec Appellants
and
Attorney General of Quebec Respondent
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of British Columbia, Attorney General of Alberta, Conseil de la magistrature du Québec, Canadian Association of Provincial Court Judges, Organisme d’autoréglementation du courtage immobilier du Québec and Conférence des juges de la Cour du Québec Interveners
Official English Translation: Reasons of Côté and Martin JJ. and reasons of Wagner C.J.
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Rowe and Martin JJ.
Joint Reasons for Judgment: (paras. 1 to 161)
Côté and Martin JJ. (Moldaver and Karakatsanis JJ. concurring)
Reasons Dissenting in Part: (paras. 162 to 258)
Wagner C.J. (Rowe J. concurring)
Dissenting Reasons: (paras. 259 to 336)
Abella J.
IN THE MATTER OF a Reference to the Court of Appeal of Quebec pertaining to the constitutional validity of the provisions of article 35 of the Code of Civil Procedure, CQLR, c. C‑25.01, which set at less than $85,000 the exclusive monetary jurisdiction of the Court of Québec and to the appellate jurisdiction assigned to the Court of Québec
Conférence des juges de la Cour du Québec Appellant
v.
Chief Justice, Senior Associate Chief Justice and
Associate Chief Justice of the Superior Court of Quebec Respondents
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of British Columbia,
Attorney General of Alberta,
Conseil de la magistrature du Québec,
Canadian Association of Provincial Court Judges,
Organisme d’autoréglementation du courtage immobilier du Québec,
Canadian Council of Chief Judges,
Trial Lawyers Association of British Columbia and
Canadian Superior Courts Judges Association Interveners
‑ and ‑
Attorney General of Quebec Appellant
v.
Chief Justice, Senior Associate Chief Justice and
Associate Chief Justice of the Superior Court of Quebec Respondents
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of British Columbia,
Attorney General of Alberta,
Conseil de la magistrature du Québec,
Canadian Association of Provincial Court Judges,
Organisme d’autoréglementation du courtage immobilier du Québec,
Conférence des juges de la Cour du Québec,
Canadian Council of Chief Judges,
Trial Lawyers Association of British Columbia and
Canadian Superior Courts Judges Association Interveners
‑ and ‑
Conseil de la magistrature du Québec Appellant
v.
Chief Justice, Senior Associate Chief Justice and
Associate Chief Justice of the Superior Court of Quebec Respondents
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of British Columbia,
Attorney General of Alberta,
Canadian Association of Provincial Court Judges,
Organisme d’autoréglementation du courtage immobilier du Québec,
Conférence des juges de la Cour du Québec,
Canadian Council of Chief Judges,
Trial Lawyers Association of British Columbia and
Canadian Superior Courts Judges Association Interveners
‑ and ‑
Canadian Association of Provincial Court Judges Appellant
v.
Chief Justice, Senior Associate Chief Justice and
Associate Chief Justice of the Superior Court of Quebec Respondents
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of British Columbia,
Attorney General of Alberta,
Conseil de la magistrature du Québec,
Organisme d’autoréglementation du courtage immobilier du Québec,
Conférence des juges de la Cour du Québec,
Canadian Council of Chief Judges,
Trial Lawyers Association of British Columbia and
Canadian Superior Courts Judges Association Interveners
‑ and ‑
Chief Justice, Senior Associate Chief Justice and
Associate Chief Justice of the Superior Court of Quebec Appellants
v.
Attorney General of Quebec Respondent
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of British Columbia,
Attorney General of Alberta,
Conseil de la magistrature du Québec,
Canadian Association of Provincial Court Judges,
Organisme d’autoréglementation du courtage immobilier du Québec and
Conférence des juges de la Cour du Québec Interveners
Indexed as: Reference re Code of Civil Procedure (Que.), art. 35
2021 SCC 27
File No.: 38837.
2020: September 24; 2021: June 30.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Rowe and Martin JJ.
on appeal from the court of appeal for quebec
Constitutional law — Courts — Provincial jurisdiction over administration of justice — Role of superior courts — Exclusive monetary jurisdiction over civil claims for less than $85,000 granted to Court of Québec by provincial legislature — Whether grant of that exclusive jurisdiction is constitutional — Constitution Act, 1867, ss. 92(14) , 96 — Code of Civil Procedure, CQLR, c. C‑25.01, art. 35 para. 1.
On January 1, 2016, art. 35 para. 1 of Quebec’s new Code of Civil Procedure came into force. This provision grants the Court of Québec exclusive jurisdiction over all civil disputes in which the value of the subject matter or the amount being claimed is less than $85,000. The Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec filed an originating application seeking a declaratory judgment of unconstitutionality of art. 35 para. 1 C.C.P. in the Superior Court. In their submission, the provision is incompatible with s. 96 of the Constitution Act, 1867 , because its effect is to deny Quebec litigants the right to file any civil claim in the Superior Court in which the value of the subject matter of the dispute is less than $85,000, thereby preventing the Superior Court from stating and advancing the law with respect to such claims. They also contested the appellate jurisdiction granted to the Court of Québec with respect to certain administrative decisions on the basis that the requirement of deference recognized in the case law is incompatible with the superior courts’ power of judicial review.
In response to those legal proceedings, the Quebec government filed with the Court of Appeal, by order in council, a notice of reference submitting two questions to it: (1) Is art. 35 para. 1 C.C.P. valid with regard to s. 96 of the Constitution Act, 1867 ? and (2) Is the application of the obligation of judicial deference, which characterizes the application for judicial review, to administrative appeals to the Court of Québec compatible with s. 96 of the Constitution Act,1867 ?
On the first question, the Court of Appeal concluded that art. 35 C.C.P. is unconstitutional because it infringes on the core jurisdiction of the Superior Court to adjudicate certain substantial civil disputes. On the second question, however, it was of the view that applying the obligation of judicial deference to administrative appeals to the Court of Québec is compatible with s. 96. This is because the Superior Court retains its full superintending and reforming power over administrative decisions and decisions of inferior tribunals as well as its fundamental role as the guardian of an independent and unified system of justice in Canada. The Conférence des juges de la Cour du Québec, the Conseil de la magistrature du Québec and the Canadian Association of Provincial Court Judges, which were interveners in the Court of Appeal, and the Attorney General of Quebec appeal to the Court as of right on the first question. The Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec, who also intervened in the Court of Appeal, appeal to the Court as of right on the second question.
Held (Wagner C.J. and Rowe J. dissenting in part and Abella J. dissenting): The appeals should be dismissed.
Per Moldaver, Karakatsanis, Côté and Martin JJ.: Article 35 para. 1 C.C.P. is unconstitutional. The monetary limit of the jurisdiction granted to the Court of Québec is too high when considered in its historical and institutional contexts. Because this grant has the effect of transforming the Court of Québec into a prohibited parallel court, the transfer of jurisdiction contemplated by art. 35 para. 1 C.C.P. exceeds the limits established by s. 96 of the Constitution Act, 1867 . The question concerning the Court of Québec’s application of the obligation of judicial deference when it hears an appeal from certain administrative decisions does not need to be answered, since it is now moot as a result of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, and the coming into force of s. 83.1 of the Quebec Courts of Justice Act.
The purpose of s. 96 of the Constitution Act, 1867 is to give effect to the compromise reached at Confederation by protecting the special status of the superior courts of general jurisdiction as the cornerstone of Canada’s unitary justice system. The principles of national unity and the rule of law are central to this organization of the judiciary.
Protecting the superior courts’ status reinforces the national character of the Canadian judicial system. The superior courts form a network of related courts whose role is to unify and ensure the uniformity of justice in Canada. Protecting the essence of the superior courts thus preserves uniformity throughout the country in the judicial system.
The rule of law is maintained through the separation of judicial, legislative and executive functions. This separation allows the courts to implement the three fundamental facets of the rule of law: equality of all before the law, the creation and maintenance of an actual order of positive laws, and oversight of the exercise of public powers. Historically, the superior courts had primary responsibility for this task. Thus, in order to preserve the superior courts’ role as the cornerstone of the judicial system, they must be able to continue acting as primary guardians of the rule of law. This role falls to them because they are ideally placed to ensure the maintenance of the rule of law. Because of their independence and national character, they are best suited to resolving disputes over the division of powers between the provinces and the federal government and ensuring that government actions do not conflict with the fundamental rights of citizens. Moreover, the superior courts’ existence and status enjoy constitutional protection against legislative interference. Subject to constitutional guarantees of judicial independence, legislatures may abolish courts with provincially appointed judges or seriously fetter their powers without falling afoul of the Constitution, whereas superior courts are constitutionally protected from such legislative interference. Only the superior courts have constitutionally protected inherent powers that flow from their very nature, and the particular purpose of those powers is to enable the superior courts to ensure the maintenance of the rule of law in Canada’s legal system. Finally, the superior courts have residual jurisdiction as courts of original general jurisdiction, meaning they may — without statutory authorization — hear any matter that has not been assigned to a statutory court, and this provides them with a comprehensive view of the law, allowing them to preserve the coherence of the judicial system and set its overall directions.
To ensure s. 96 of the Constitution Act, 1867 can play its role to the fullest extent and achieve its purpose, the Court has developed a number of tests over the years in accordance with the living tree doctrine. The jurisprudence on s. 96 must thus not cause judicial functions to be frozen in an 1867 mould, and adaptations must be permitted to allow the legislatures scope to deal effectively with emerging social problems and concerns. However, despite this process of liberalization that has made it possible for s. 96 to be adapted to modern realities, the Court has consistently reiterated the prohibition against establishing parallel courts that usurp the functions reserved to superior courts, as such parallel courts would eviscerate the protection afforded by s. 96.
In Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, the Court articulated the three‑step test that limits the granting of power or jurisdiction over a type of dispute where, at the time of Confederation, the power or jurisdiction came exclusively or primarily within the remit of the superior courts. According to this test, it must first be determined whether the transferred jurisdiction conforms to a jurisdiction that was dominated by superior, district or county courts at the time of Confederation. If so, it must be asked whether the jurisdiction in question was exercised in the context of a judicial function and, if the answer is yes, whether the jurisdiction is either subsidiary or ancillary to an administrative function or necessarily incidental to the achievement of a broader policy goal of the legislature.
Before a court proceeds with the first step of the test, it must characterize the jurisdiction at issue. In this case, the jurisdiction granted to the Court of Québec by art. 35 para. 1 C.C.P. must be characterized as one over civil disputes concerning contractual and extracontractual obligations. While this characterization is not narrow as required by Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.), [1989] 1 S.C.R. 238, its generality is a product of the expansive language of art. 35 para. 1 C.C.P.
The result of applying the first step of the test to this case is that there was a general shared involvement or a meaningful concurrency of power in the area of jurisdiction at issue: three of the four founding provinces’ inferior courts had, at the time of Confederation, sufficient practical involvement in matters relating to contractual and extracontractual obligations. Accordingly, the Residential Tenancies test does not lead to the conclusion that art. 35 para. 1 C.C.P. is unconstitutional with respect to the types of disputes in question. It is therefore unnecessary to proceed to the second and third steps.
A characterization like the one required by the provision at issue inappropriately favours a finding of general shared involvement, which leads to a rather strange result: the broader a grant of jurisdiction, the greater the chance that it will escape the restrictions of the Residential Tenancies test. Thus, even though it was developed to prohibit the creation of parallel courts, that test does not deal effectively with the very jurisdiction‑granting provisions that are the most likely to establish such courts because of their generality. This is why such a grant requires a tailored analytical framework for the purpose of determining whether a parallel court that undermines the role of the superior courts has been created.
It is therefore necessary to apply a second test, the core jurisdiction test adopted in MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, which must be adapted to better reflect the principles underlying s. 96. This second test aims to do more than simply protect historical jurisdiction, as its purpose is to determine whether a grant of jurisdiction infringes on the superior courts’ core jurisdiction either through an alteration of their essential nature or because they are prevented from playing their central role conferred by s. 96. Depending on the circumstances, there are various factors that can be helpful when it comes to determining whether, by granting a jurisdiction to a court with provincially appointed judges, a legislature has created a prohibited parallel court that impairs the superior court by preventing it from playing its constitutional role.
The core jurisdiction of the superior courts includes their ability to act as courts of original general jurisdiction, that is, to hear and determine matters not exclusively assigned by law to other courts. It therefore encompasses, by necessary implication, general jurisdiction over private law matters, which must be accompanied by a subject‑matter jurisdiction that is broad enough to preserve the superior courts’ role in providing jurisprudential guidance on private law. This requires significant involvement in the resolution of disputes falling under the most fundamental branches of private law, such as property law, the law of succession and the law of obligations. A province may assign portions or offshoots of these fields to courts whose judges it appoints, but cannot limit the superior court’s involvement significantly without contravening s. 96.
In this case, the weighing of the six relevant factors leads to the conclusion that the grant to the Court of Québec of exclusive jurisdiction over civil claims for less than $85,000 prevents the Quebec Superior Court from playing its role under s. 96 in cases concerning private law matters.
First of all, the scope of the jurisdiction granted to the Court of Québec is indicative of a significant encroachment on the general private law jurisdiction of the superior courts of general jurisdiction. Article 35 para. 1 C.C.P. grants to the Court of Québec almost the entirety of the law of obligations, the real heart of private law, for claims of less than $85,000. Based on its scope and because of the fundamental nature of the field of law in question, the block of jurisdiction granted to the Court of Québec is unquestionably similar to the general private law jurisdiction exercised by the superior courts of general jurisdiction.
The exclusivity of the transfer accentuates the encroachment on the core jurisdiction of the superior courts. In this case, civil suits concerning contractual and extracontractual matters for less than $85,000 have been removed from the Superior Court’s jurisdiction, thereby undermining its role as the cornerstone of a unitary system of justice. The role left to the Quebec Superior Court in this field is minimal in comparison with the role of superior courts elsewhere in Canada.
The monetary ceiling of less than $85,000 fixed by art. 35 para. 1 C.C.P. represents an increase of approximately 29 percent over the historical ceiling of $100, which corresponds in today’s dollars to an amount of between $63,698 and $66,008. It is true that this increase is not clearly disproportionate to the historical ceiling, and the adopted amount can reasonably be connected to that ceiling insofar as it falls into a similar range. However, a monetary limit is merely one of several factors to weigh, and it cannot be determinative in itself. It must therefore be analyzed in its context and in light of the other factors.
The fact that there is no accessible appeal mechanism that would enable the superior court of general jurisdiction to review decisions of the Court of Québec reinforces the conclusion that the two courts are parallel. This means that there is no hierarchical distinction between the two courts and the superior court of general jurisdiction has no sway over decisions of the court with provincially appointed judges. Furthermore, given that the threshold for an appeal as of right is fixed at $60,000, litigants who wish to have decisions of the Court of Québec reviewed must, in most cases, go through a screening process in order to obtain leave to appeal. The Court of Québec’s decisions are thus, to some extent, more shielded from appellate review than those of the Superior Court. This factor suggests that art. 35 para. 1 C.C.P. transforms the Court of Québec into a prohibited parallel court that undermines the role of the superior court of general jurisdiction.
Finally, the statistical evidence produced in this case does not make it possible to determine with certainty that art. 35 para. 1 C.C.P. has only a minimal impact on the Superior Court’s caseload in the area of obligations. Similarly, no evidence was tendered to show that a ceiling of less than $85,000 is needed in order to achieve an important societal objective such as promoting access to justice.
In its current form, therefore, art. 35 para. 1 C.C.P. is not valid with regard to s. 96, given that it encroaches impermissibly on the role the Constitution reserves to the superior court of general jurisdiction.
Per Wagner C.J. and Rowe J. (dissenting in part): The appeals relating to the first question should be allowed, but the appeal relating to the second question should be dismissed. Article 35 C.C.P. is not contrary to s. 96 of the Constitution Act, 1867 . When properly characterized in terms of its subject matter, the jurisdiction conferred by art. 35 C.C.P. on the Court of Québec is civil jurisdiction over contractual and extracontractual obligations. This jurisdiction was not vested exclusively in the s. 96 courts at the time of Confederation. Moreover, art. 35 C.C.P. does not remove from the Quebec Superior Court any power that is within its core jurisdiction.
Sections 96 and 92(14) of the Constitution Act, 1867 , taken together, reflect one of the important compromises reached by the Fathers of Confederation with respect to the administration of justice in Canada. On the one hand, s. 92(14) gives each province the power and responsibility to legislate in relation to the administration of justice, including for the purpose of creating, transforming or abolishing judicial offices. The provinces’ power is a wide one that gives them a great deal of flexibility, allowing them, among other things, to organize their courts in a manner that favours access to justice and strengthens public confidence in the judiciary while at the same time taking their specific needs and challenges into account. On the other hand, this provincial power is subject to what s. 96 subtracts in favour of Parliament, including the power to appoint the judges of the superior courts in each province. This power of appointment implicitly limits provincial competence to endow a provincial tribunal with the powers of s. 96 courts. However, it does not follow that s. 96 freezes the civil jurisdiction of the inferior courts at what it was at the time of Confederation. The scope of s. 96 remains limited to what is necessary to ensure that the underlying objectives of the Confederation compromise are achieved, and primarily the objective of ensuring a unified judicial presence throughout Canada. Section 96 should therefore not be given an overly broad scope that would unduly limit the provinces’ ability to address complex and emerging legislative challenges related to the administration of justice.
The s. 96 analytical framework has two stages, which are concerned with the historical jurisdiction and the core jurisdiction of the superior courts. In accordance with Residential Tenancies, the first stage of the s. 96 analytical framework is to determine whether the grant of jurisdiction in question is permissible. The second stage is to decide whether the Superior Court’s jurisdiction can be ousted, that is, whether an exclusive grant of jurisdiction is permissible.
The analytical framework for the historical jurisdiction of the superior courts consists of a three‑step analysis that serves to determine the constitutionality of a provincial grant of jurisdiction. The first step, the historical test, involves answering the following question: Does the impugned power or jurisdiction broadly conform to an exclusive power or jurisdiction exercised by the superior, district or county courts at the time of Confederation? In the application of this test, all courts that existed in pre‑Confederation Canada must be considered, and not only those of the province in question. If the impugned jurisdiction was exercised concurrently by the superior and inferior courts at the time of Confederation, it must be determined whether the inferior courts had a general shared involvement or a meaningful concurrency of power in this regard. If so, the grant will be considered valid under the historical test. On the other hand, if the jurisdiction was exclusive to the superior courts, then it is necessary to proceed to the second and third steps of the analytical framework.
The application of the historical test must begin with a proper characterization of the jurisdiction in issue. The characterization of the impugned jurisdiction must go beyond a technical analysis of remedies, it must not be focused on the particular remedy sought, and its effect must not be to freeze the jurisdiction of the inferior courts at what it was in 1867. In addition, the allegedly exclusive nature of the jurisdiction cannot be included in its characterization. If a grant of jurisdiction satisfies both stages of the s. 96 analytical framework, then it can be exclusive. The exclusivity of the grant therefore results from the fact that both stages are met. It cannot be allowed to influence the analysis by being included in the characterization prematurely.
A proper characterization of the jurisdiction in issue must be focused rather on the type of dispute, the area of jurisdiction and the subject‑matter of the decision. This is a crucial question, as the manner in which the jurisdiction in issue is characterized can be determinative in the application of the historical test. Monetary limits are only one factor in the overall assessment among several others, including the geographic reach of the jurisdiction and the range of disputes the court could decide. There are two additional factors for assessing the extent of the courts’ shared involvement in exercising the jurisdiction in question, namely the percentage of the population that would have used the inferior courts and the frequency with which disputes amenable to their process arose. Depending on the context, certain factors will have more weight than others.
The second stage of the s. 96 analytical framework, that is, the analysis of the core jurisdiction of the superior courts, requires that two questions be answered. First, is the power in question within the core jurisdiction of the superior courts? Second, does the law have the effect of removing the power from their core jurisdiction?
The core jurisdiction of the superior courts comprises those powers which are essential to the administration of justice and the maintenance of the rule of law. This jurisdiction is therefore a very narrow one which includes only critically important jurisdictions. Removing such powers from a superior court would, in other words, make it something other than a superior court and deprive it of its essential character. Section 96 of the Constitution Act, 1867 gives the superior courts a core jurisdiction that allows them to resolve disputes between individuals and decide questions of private and public law. This power is meaningful only if the superior courts, as courts of original general jurisdiction, have substantial jurisdiction that allows them to state and develop the civil law in Quebec and the common law in the other provinces. The question is therefore not whether the superior court can still adjudicate substantial civil disputes, but rather whether its jurisdiction in this regard is substantial enough that it is capable of ensuring this development.
Three quantitative and qualitative factors are relevant in determining whether a statutory provision removes from a superior court part of its core jurisdiction in matters of private law: (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. 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.
In this case, the analysis of the historical test shows that the vast majority — at least 80 percent — of civil disputes in pre‑Confederation Canada, with the exception of Lower Canada, came before the inferior courts. Although that jurisdiction was subject to monetary limits in several matters, it nevertheless indicates that there was significant coextensive involvement by the inferior courts in contractual and extracontractual matters. With regard to the Superior Court’s core jurisdiction in civil matters, the application of the three factors shows that the Superior Court continues to deal with a large number of civil cases, that the number of cases opened at the Superior Court in comparison with those opened at the Court of Québec remains relatively stable, and that the Superior Court continues to hear claims on a variety of subjects as well as the judicial applications that are the most substantial in monetary terms. Article 35 C.C.P. therefore does not have the effect of removing from the Quebec Superior Court its jurisdiction over substantial civil claims.
Per Abella J. (dissenting): The appeal should be allowed. Article 35 C.C.P. is valid with regard to s. 96 of the Constitution Act, 1867 . Both the superior and provincial courts shared jurisdiction over substantial monetary claims at Confederation and the expansion of the jurisdiction of the provincial Court of Québec by $15,000, from $70,000 to $85,000, does not impair the core of the Superior Court’s jurisdiction in any way.
Section 92(14) of the Constitution Act, 1867 empowers provincial governments to create provincial courts and to appoint their judges. Since Confederation, provincial courts have been a key component of Canada’s justice system, playing an indispensable role in the development of the law. The significance of the provincial courts in Canada today cannot be overstated. Parties appear before provincial court judges to have their liberty or livelihood or support and custody rights determined. Provincial courts combine with the superior courts to form a strong network of courts for litigants across Canada.
Nonetheless, over the years, the Court has occasionally limited the provinces’ authority under s. 92(14) because s. 96 guarantees that some jurisdiction must remain in the hands of federally appointed superior courts. In an effort to operationalize the jurisprudence’s approach to resolving the tension between ss. 92(14) and 96, a three‑stage test was developed in Residential Tenancies for analyzing the validity of a provincial grant of jurisdiction. It is essentially an historical inquiry. The first stage of the test asks whether superior, district or county courts at the time of Confederation had exclusive jurisdiction over the subject matter now being given to the provincial court. If provincial courts in a majority of the four original provinces had a practical involvement in adjudicating cases related to the particular subject matter at Confederation, there could be no finding of exclusive jurisdiction for s. 96 courts, since the jurisdiction was shared at the time. If the jurisdiction at issue was exclusively held by a s. 96 court at Confederation, the second stage of the analysis asks whether the provincial body is acting in a judicial capacity. If it is, the third stage of the analysis is triggered, which involves the assessment of the provincial court or tribunal in its institutional context in order to determine whether it is exercising a judicial power that is merely subsidiary or ancillary to general administrative functions, or one that is necessary to achieve a broad policy goal. In either of these circumstances, the grant is constitutionally permissible.
A layer was added to the test in MacMillan Bloedel, when the Court concluded that the legislature may not, even if its grant of jurisdiction passed the Residential Tenancies test, reduce or impair the core of superior court jurisdiction. The focus of this new requirement was determining whether a grant of exclusive jurisdiction to a provincial body frustrated the ability of superior courts to execute their functions.
As the jurisprudence shows, the first step in analyzing the validity of a provincial grant of jurisdiction is to characterize that grant. The boundaries of provincial court jurisdiction need not be drawn along the precise borders that existed at Confederation; rather, the inquiry centers on the type of case being heard. It is a functional approach which examines the purpose of the grant of jurisdiction. In determining the historical involvement of provincial courts in deciding civil claims, it is instructive to look at the proportion of cases that were heard by different courts at Confederation. At the time, in most provinces, a majority of civil claims were heard by provincial courts; therefore, the superior courts did not have exclusive jurisdiction over civil claims in general. Any exclusive jurisdiction was limited to a small proportion of civil claims above a certain monetary threshold. This threshold was not, however, a marker which indicated when claims became substantial, it simply aimed to maintain a balance between the different types of courts in operation at the time. In this case, the comparison of the proportion of cases heard at Confederation with today’s distribution shows that a grant of $85,000 of civil jurisdiction not only continues to respect the balance struck at the time of Confederation, but leaves superior courts with more civil jurisdiction than they had at that time. The Residential Tenancies test is therefore met.
At the “core jurisdiction” stage of the test, the Court has held 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. However, 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. The notion that superior courts have inherited some core power over the development of private law from the pre‑Confederation English courts of inherent jurisdiction is irreconcilable with the fact that superior courts, since Confederation, have shared that role with a number of provincial courts. Superior courts have never had the exclusive responsibility of guiding the development of private law. This role, therefore, cannot be part of superior courts’ core jurisdiction.
Although the classic application of the Residential Tenancies/MacMillan Bloedel test is dispositive of the appeal, this case reveals some of the fault lines of that approach. It may be time to consider replacing the test in a way that updates the law on the relationship between ss. 92(14) and 96 and synchronizes it with the Court’s approach to constitutional interpretation generally and, in particular, with the defining admonition that the Constitution is a living tree to be interpreted flexibly. Cooperative federalism is an approach to federalism that not only accepts that an overlap between federal and provincial powers is inevitable, but is also useful because it allows governments to respond to a complex interplay of issues. There is no reason why such an approach should not be extended to the understanding of the relationship between ss. 92(14) and 96. There is a need for a generous approach to the authority of provincial governments to make jurisdictional grants to provincial adjudicative bodies since provincial governments are closer to the issues affecting most people who use the courts and to the realities of local issues. They are therefore better placed to recognize and address local concerns with the justice system.
The benefits of cooperative federalism were not a particular concern in Residential Tenancies. Rather, it was animated by a number of protective aspirations for s. 96 courts. The first was the desire to promote national unity through the preservation of a unitary court