Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.)

Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.)
Collection
Supreme Court Judgments
Date
1989-03-02
Report
[1989] 1 SCR 238
Case number
19682
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.; L'Heureux-Dubé, Claire
On appeal from
Nova Scotia
Subjects
Constitutional law
Notes
SCC Case Information: 19682
Decision Content
Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.), [1989] 1 S.C.R. 238
The Attorney General of Nova Scotia
representing Her Majesty The Queen
in right of the Province of Nova Scotia Appellant (Intervener)
and
Clifford George Yeomans and A. Ross Mitchell,
Director of Labour Standards for the Province
of Nova Scotia, and Stephen K. Mont, Henry Martell
and Ann Hebb in their capacity as Chairman and
members respectively of the Labour Standards
Tribunal (Nova Scotia) and the Labour Standards
Tribunal (Nova Scotia) Appellants (Respondents)
v.
Sobeys Stores Limited, a body corporate Respondent (Appellant)
and
The Attorney General of Canada,
the Attorney General of Quebec,
the Attorney General of Manitoba and
the Attorney General of British Columbia Interveners
indexed as: sobeys stores ltd. v. yeomans and labour standards tribunal (n.s.)
File No.: 19682.
1988: February 5; 1989: March 2.
Present: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux-Dubé JJ.
on appeal from the appeal division of the nova scotia supreme court
Constitutional law -- Courts -- Jurisdiction -- Employment law ‑‑ Provincial tribunal affirming decision requiring employee's reinstatement and the retroactive payment of wages -- Whether or not power of provincial official and tribunal to hear and determine disputes and to make orders contravening s. 96 and hence ultra vires -- Constitution Act, 1867, s. 96 -- Labour Standards Code, S.N.S. 1972, c. 10, s. 67A(2), (3).
The appellant Yeomans had been continuously employed by respondent Sobeys for ten years prior to his dismissal. He had been warned orally on at least three occasions about his shortcomings but had been given no written notice of them. Yeomans complained to the Director of Labour Standards for Nova Scotia that he had been dismissed "without just cause" within the meaning of s. 67A of the Labour Standards Code. The Director ordered Yeomans to be reinstated and to be paid lost wages stemming from the unjust dismissal. This decision was upheld by the Labour Standards Tribunal. The Appeal Division of the Nova Scotia Supreme Court allowed Sobeys' appeal holding s. 67A(2) and (3) unconstitutional because they conferred a s. 96 power on a provincially‑appointed tribunal.
The constitutional questions raised on this appeal were (1) whether the province had legislative jurisdiction to empower the Director of Labour Standards and the Labour Standards Tribunal to hear and determine disputes with respect to, and make orders enforcing, s. 67A of the Labour Standards Code in light of s. 96 of the Constitution Act, 1867 ; and (2) whether s. 67A(2) and (3) of the Labour Standards Code were ultra vires the province as contravening s. 96 of the Constitution Act, 1867 .
Held: The appeal should be allowed; the first constitutional question should be answered in the affirmative and the second in the negative.
Per Dickson C.J. and McIntyre, Lamer and Wilson JJ.: Although the Labour Standards Tribunal exercises a jurisdiction broadly conformable to that of s. 96 courts at the time of Confederation, and although in doing so it performs a judicial function, it does so as a necessarily incidental aspect of the broader policy goal of providing minimum standards of protection for non-unionized employees.
The jurisdiction in this case should be characterized as in relation to unjust dismissal. Characterizations of s. 67A as being in relation to employer/employee relations, labour standards or the mandatory performance of an employment contract should be rejected.
Characterization should be determined with reference to the different purposes served by the three stages of the test developed in Re Residential Tenancies Act, 1979. The first stage of that test involves a search for "broad conformity" with the powers of s. 96 courts at the time of Confederation. A relatively strict approach to characterization is necessary at this stage in order to prevent the possibility of large accretions of jurisdiction in the inferior courts which would in turn defeat the purpose of s. 96 . Jurisdiction over the remedy, however, is too narrow. The nature of the dispute should be the guide for the application of the historical test.
If the jurisdiction was exclusive to the superior courts at Confederation, the inquiry must pass to the second and third stages of the test. If the jurisdiction is shared, the legislation under challenge may, in some circumstances, be held valid by the historical test. Jurisdiction need not be entirely or even generally concurrent, for the nature of the inferior-superior court distinction necessarily means that the former's jurisdiction will be subject to a geographical or pecuniary limit. Only if the jurisdiction of the inferior courts is broadly co-extensive with the superior courts will the history of shared jurisdiction validate the contemporary scheme under the historical test.
Pre-Confederation jurisdiction refers to pre-1867 jurisdiction and not to jurisdiction in a particular province immediately prior to that province's joining confederation. The test of 1867 jurisdiction must include an examination of the jurisdiction in all four original confederating provinces, and if this results in a tie, the jurisdiction in the United Kingdom. A tie existed here. Jurisdiction over unjust dismissal in the United Kingdom in 1867 was therefore examined and found to be the preserve of courts equivalent to Canada's superior, district and county courts. This jurisdiction, accordingly, cannot be conferred on provincially-appointed tribunals today.
In the second stage of the Residential Tenancies test, where the issue of whether or not a function is judicial is considered, the nature of the question which the tribunal is called upon to decide is determinative. A distinction must be drawn between the roles of the Director and the Tribunal. The former does not perform a judicial function even though he deals with private disputes between parties; the latter does.
The third stage of the test examines the `context' in which this power is exercised. It is exercised in the context of a comprehensive scheme for the protection of non-unionised workers. The policy of promoting such protection is a response to changed social conditions since Confederation and is implemented in an administrative as opposed to a court context. Although the Tribunal does carry out a judicial function with regard to s. 67A and many other aspects of the Code, that function is necessarily incidental to the implementation of broader policy goals the Code is designed to achieve.
Per Beetz, La Forest and L'Heureux-Dubé JJ.: The Labour Standards Code's judicial component bears no relationship to the contractual issues assigned to the s. 96 courts in 1867. Its labour relations standards transcend the relationship between the parties and apply independently of any contractual arrangement that may exist. The enforcement mechanisms are essentially conciliatory procedures. The Director and tribunal members are knowledgeable in, and are governed by the dynamics of, labour relations rather than legal norms. There is no requirement that they be legally trained. An appeal from the Director to the Tribunal does not involve a lis between the complainant and the alleged contravenor notwithstanding its judicial component. Labour standards legislation is an integral part of the modern concept of labour relations and the power to enforce these standards, by use of techniques appropriate to the subject-matter, should be vested in specialized bodies by the province. It is inappropriate that the regular enforcement of these standards be by action in s. 96 courts, let alone part of the protected jurisdiction of these courts.
Since the administration and enforcement of modern legislation respecting labour standards form no part of the protected jurisdiction of a s. 96 court, considerations as to the precise nature of the historical inquiry into some aspect of a s. 96 court's jurisdiction were not of immediate relevance. However, it should be noted that the question to consider is whether a tribunal's jurisdiction "broadly" conforms to that of a s. 96 court at Confederation. This is not precisely definable. The experience, not only of the original provinces, but that of other provinces and England, at the time of Confederation, is relevant. Mechanistic assessments should be avoided as well as consideration of a situation peculiar to a province.
Cases Cited
By Wilson J.
Applied: Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; considered: Labour Relations Board of Saskatchewan v. John East Iron Works, Ld., [1949] A.C. 134; Re B.C. Family Relations Act, [1982] 1 S.C.R. 62; Attorney General of Quebec v. Grondin, [1983] 2 S.C.R. 364; disapproved: Asselin v. Industries Abex Ltée, [1985] C.A. 72, 22 D.L.R. (4th) 212; distinguished: Attorney General of Quebec v. Farrah, [1978] 2 S.C.R. 638; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; referred to: The Adoption Reference, [1938] S.C.R. 398; Tomko v. Labour Relations Board (Nova Scotia), [1977] 1 S.C.R. 112; Massey-Ferguson Industries Ltd. v. Saskatchewan, [1981] 2 S.C.R. 413; Séminaire de Chicoutimi v. Cité de Chicoutimi, [1973] S.C.R. 681; Re Cour de Magistrat de Québec, [1965] S.C.R. 772; Canadian Broadcasting Corporation v. Quebec Police Commission, [1979] 2 S.C.R. 618; Dupont v. Inglis, [1958] S.C.R. 535; Evans v. Employment Standards Bd. (1983), 46 B.C.L.R. 198; Re Telegram Publishing Co. and Zwelling (1973), 41 D.L.R. (3d) 176, reversed in part on other grounds (1975), 67 D.L.R. (3d) 404; Attorney General of British Columbia v. McKenzie, [1965] S.C.R. 490; Jones v. Edmonton Catholic School District No. 7, [1977] 2 S.C.R. 872; Reference Re Proposed Legislation Concerning Leased Premises and Tenancy Agreements (1978), 89 D.L.R. (3d) 460; Re Pepita and Doukas (1979), 101 D.L.R. (3d) 577; Re Fort Massey Realties and Rent Review Commission (1982), 132 D.L.R. (3d) 516; Robinson v. Hindman (1800), 3 Esp. 235, 170 E.R. 599; Emmens v. Elderton (1853), 13 C.B. 495, 138 E.R. 1292; Beckham v. Drake (1849), 2 H.L.C. 579, 9 E.R. 1213; Wilkinson v. Gaston (1846), 9 Q.B. 137, 115 E.R. 1227; Hartley v. Harman (1840), 11 Ad. & E. 798, 113 E.R. 617; Smith v. Thompson (1849), 8 C.B. 44, 137 E.R. 424; Re Mitchell and Employment Standards Division, Department of Labour (1977), 82 D.L.R. (3d) 339; Central Canadian Structures Ltd. v. Director of Employment Standards Division, [1984] 4 W.W.R. 182.
By La Forest J.
Referred to: Scowby v. Glendinning, [1986] 2 S.C.R. 226; Labour Relations Board of Saskatchewan v. John East Iron Works, Ld., [1949] A.C. 134; Asselin v. Industries Abex Ltée, [1985] C.A. 72, 22 D.L.R. (4th) 212; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714.
Statutes and Regulations Cited
Act respecting Master and Servant, C.S.U.C. 1859, c. 75, ss. 3, 4, 7, 12.
Act respecting Masters and Servants in the Country Parts, C.S.L.C. 1861, c. 27, s. 5.
Act respecting the Division Courts, C.S.U.C. 1859, c. 19, s. 55.
Constitution Act, 1867, s. 96 .
County Courts Act (Eng.), 9 & 10 Vict., c. 95, s. 58.
Employers and Workmen Act, 1875 (Eng.), 38 & 39 Vict., c. 90, s. 4.
Employment of Children Act, R.S.N.S. 1967, c. 88.
Equal Pay Act, S.N.S. 1969, c. 8.
Halifax City Charter, S.N.S. 1864, c. 81, s. 115.
Industrial Standards Act, R.S.N.S. 1967, c. 142.
Labour Standards Code, S.N.S. 1972, c. 10, ss. 1(b), 4, 15(1), (9), 18(2), 19(1), (2), (3), (8), 20, 24, 67A(1), (2), (3), 90.
Limitation of Hours of Labour Act, R.S.N.S. 1954, c. 154.
Master and Servant Act (Eng.), 30 & 31 Vict., c. 141.
Master and Servant Act (Eng.), 4 Geo. 4, c. 34.
Master and Servant Act (Eng.), 20 Geo. 2, c. 19, s. 2.
Minimum Wage Act, R.S.N.S. 1967, c. 186.
Of Masters, Apprentices and Servants, R.S.N.S. 1864, c. 122, ss. 11-15.
Of Municipalities, R.S.N.S. 1864, c. 133, ss. 64, 96-109, 123.
Of Regulations for Seamen, R.S.N.B. 1854, c. 86, s. 10.
Of Regulations for Shipping Seamen at the Port of Saint John, R.S.N.B. 1854, c. 87, s. 9.
Of Shipping and Seamen, R.S.N.S. 1864, c. 75, ss. 12, 18.
Of Stipendiary or Police Magistrates, R.S.N.S. 1864, c. 129, s. 18.
Of the Jurisdiction of Justices in Civil Suits, R.S.N.B. 1854, c. 137, s. 1.
Of the Jurisdiction of Justices of the Peace in Civil Cases, R.S.N.S. 1864, c. 128, s. 1.
Of the Supreme Court and its Officers, R.S.N.S. 1864, c. 123, s. 1.
Vacation Pay Act, R.S.N.S. 1967, c. 322.
Authors Cited
Christie, Innis. Employment Law in Canada. Toronto: Butterworths, 1980.
England, G. "Unjust Dismissal in the Federal Jurisdiction: The First Three Years" (1982), 12 Man. L.J. 9.
Freedland, Mark Robert. The Contract of Employment. Oxford: Clarendon Press, 1976.
Gagnon, Robert P., Louis LeBel et Pierre Verge. Droit du travail. Québec: Presses de l'Université Laval, 1987.
Hébert, Gérard et Gilles Trudeau. Les normes minimales du travail au Canada et au Québec. Cowansville, Qué.: Yvon Blais, 1987.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
Holdsworth, W. A. The Law of Master and Servant. London: George Routledge and Sons, 1876.
Labour Law: Cases, Materials and Commentary, 4th ed. Compiled by the Labour Law Casebook Group. Kingston, Ont.: Industrial Relations Centre, Queens University, 1986.
Pépin, Gilles. "The Problem of Section 96 of the Constitution Act 1867 ," in Clare F. Beckton and A. Wayne Mackay, eds. The Courts and the Charter. Toronto: University of Toronto Press, 1985.
Summers, Clyde W. "Individual Protection Against Unjust Dismissal: Time for a Statute" (1976), 62 Va. L. Rev. 481.
APPEAL from a judgment of the Appeal Division of the Nova Scotia Supreme Court (1985), 70 N.S.R. (2d) 391, 166 A.P.R. 391, 24 D.L.R. (4th) 573, allowing an appeal from an order of the Labour Standards Tribunal affirming the decision of the Director of Labour Standards. Appeal allowed; the first constitutional question should be answered in the affirmative and the second in the negative.
Rheinhold M. Endres and Alison Scott, for the appellant the Attorney General of Nova Scotia.
Peter McLellan and Ian Holloway, for the appellants Clifford George Yeomans, et al.
David A. Miller and David P. S. Farrar, for the respondent.
James M. Mabbutt, for the intervener the Attorney General of Canada.
Jean Bouchard, for the intervener the Attorney General of Quebec.
Valerie J. Matthews Lemieux, for the intervener the Attorney General of Manitoba.
Robert Vick Farley, for the intervener the Attorney General of British Columbia.
//Wilson J.//
The judgment of Dickson C.J. and McIntyre, Lamer and Wilson JJ. was delivered by
WILSON J. -- The issue in this appeal is whether s. 67A(2) and (3) of the Labour Standards Code, S.N.S. 1972, c. 10, as amended, offends s. 96 of the Constitution Act, 1867 .
1. The Facts
The respondent Sobeys Stores Limited ("Sobeys") operates a chain of grocery supermarkets in the Atlantic provinces. The appellant Clifford Yeomans was continuously employed by Sobeys from April 16, 1973 until August 6, 1983 when he was dismissed for alleged unsatisfactory performance. At the time of his dismissal he was the manager of a Sobeys outlet in Dartmouth, Nova Scotia. He had been warned orally on at least three occasions about what management considered to be his shortcomings but had been given no written notice of them.
Yeomans complained to the Director of Labour Standards for Nova Scotia that he had been dismissed "without just cause" within the meaning of s. 67A of the Code. On May 22, 1984 the Director ordered that Yeomans be reinstated and that Sobeys pay him $21,242 in lost wages stemming from the unjust dismissal. This decision was upheld by the Labour Standards Tribunal. Sobeys' appeal to the Appeal Division of the Nova Scotia Supreme Court was allowed. The court held that subss. (2) and (3) of s. 67A of the Code were unconstitutional because they conferred a s. 96 power on a provincially appointed tribunal.
2. The legislative provisions
Section 96 of the Constitution Act, 1867 provides:
96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.
It is well established that by necessary implication s. 96 operates both to prevent the creation of provincial tribunals charged with exercising the jurisdiction of superior courts and to prevent legislatures conferring superior court jurisdiction on existing provincial tribunals: see Labour Relations Board of Saskatchewan v. John East Iron Works, Ld., [1949] A.C. 134 (P.C.); Attorney General of Quebec v. Farrah, [1978] 2 S.C.R. 638; Hogg, Constitutional Law of Canada (2nd ed. 1985), at pp. 150-52; Pépin, "The Problem of Section 96 of the Constitution Act 1867 ", in Beckton and Mackay, eds., The Courts and the Charter (1985), at pp. 225-27.
Section 67A of the Code reads:
67A (1) Where an employee's period of employment with an employer is ten years or more, the employer shall not discharge or suspend that employee without just cause unless that employee is a person within the meaning of person as used in clause (d), (e), (f), (g), (h) or (i) of subsection (3) of Section 68.
(2) An employee who is discharged or suspended without just cause may make a complaint to the Director in accordance with Section 19.
(3) An employee who has made a complaint under subsection (2) and who is not satisfied with the result may make a complaint to the Tribunal in accordance with Section 21 and such complaint shall be and shall be deemed to be a complaint within the meaning of subsection (1) of Section 21.
The Director is an officer of the Department of Labour charged with administering the Code (s. 1(b)) and the Tribunal is a provincially-appointed body (s. 15(1)). Their respective roles are set out in ss. 19, 20 and 24:
19 (1) Where the Director receives a complaint in any form alleging that there has been a failure to comply with this Act he or a person designated by him shall inquire into the complaint and endeavour to effect a settlement.
(2) Where the Director has reasonable grounds to believe that there has been a failure to comply with this Act he or a person designated by him may inquire into the matter and endeavour to effect a settlement.
(3) Where the Director concludes that an employer or an employee has contravened a provision of this Act within the preceding six months, and he has been unable to effect a settlement, or an employer or employee has contravened the terms of a settlement under this Section the Director may, in writing, order the contravening employer or employee to
(a) do any act or thing that in the opinion of the Director constitutes full compliance with this Act; and
(b) rectify an injury caused to the person injured or make compensation therefor;
. . .
(5) Any employer or employee against whom the Director has made an order under subsection (3) may, within ten days after the order is served upon him, file an appeal to the Tribunal in accordance with the regulations, and where no such appeal is filed for the purpose of Section 84 the Director's order is deemed to be an order of the Tribunal.
. . .
20 In any proceeding before the Tribunal with respect to any matter arising under Section 19, including any matter arising under Section 77, the parties shall be,
(a) the Director, who shall have the carriage of the matter;
(b) the person alleged by the Director to have failed to comply with this Act;
(c) the complainant, if any;
(d) any other person specified by the Tribunal upon such notice as the Tribunal may determine, provided that at the hearing he is given an opportunity to be heard against his joinder as a party.
24 (1) The Tribunal in determining any matter under this Act
(a) shall decide whether or not a party has contravened this Act; and
(b) shall make an Order in writing.
(2) Where the Tribunal decides that a party has contravened a provision of this Act the Tribunal may order the contravening party to
(a) do any act or thing that, in the opinion of the Tribunal, constitutes full compliance with the provision; and
(b) rectify an injury caused to the person injured or to make compensation therefor.
Appeals from Tribunal decisions are permitted by s. 18(2):
18 . . .
(2) Any party to an order or decision of the Tribunal may, within thirty days of the mailing of the order or decision, appeal to the Appeal Division of the Supreme Court on a question of law or jurisdiction.
3. The Decision of the Labour Standards Tribunal
The principal issue before the Tribunal was whether the phrase "just cause" in s. 67A(1) meant that Yeomans was entitled to progressive discipline such as written warnings and notice prior to being dismissed. Employees normally obtain such rights only under collective agreements. Sobeys argued that "just cause" should have its common law meaning and that once cause for dismissal at common law is established the employer is free to terminate forthwith without written notice or reasons.
The Tribunal decided that it "does not view the actions of the Complainant in this case as being actions of misconduct, if anything they would best be described as examples of incompetence". It then held that under the Code an employee of ten years' standing, even if incompetent, was entitled to greater protection than that traditionally afforded at common law:
The Tribunal is of the view that in the particular circumstances of this case Sobeys did not fulfil their duty to provide sufficient notice to Mr. Yeomans, that they viewed his performance as being incompetent such that it would warrant dismissal.
The Tribunal accepts the argument of counsel for the Complainant that in considering the issue of just cause one must examine the doctrine of progressive discipline. The Tribunal is of the view that an employee may be guilty of some conduct which justifies discipline of some nature but yet not on its own justify the ultimate penalty of dismissal.
In the present case there is no evidence that Sobeys attempted any other disciplinary measures short of dismissal. Other disciplinary measures would have demonstrated to Mr. Yeomans the seriousness of the situation and may have caused him to attempt to rectify the problem.
It is the view of this Tribunal that in dismissing an employee for just cause after ten years of service, in light of Section 67A, an employee is entitled to know the reasons for his dismissal. An employee should not have to come before the Labour Standards Tribunal or a court of law to find out why he was dismissed.
...
It is the finding of this Tribunal that the Respondent company Sobeys Stores Limited has failed to comply with the provisions of Section 67A of the Labour Standards Code.
4. The Judgment of the Appeal Division
Sobeys appealed on a variety of grounds including the issue of whether common law or arbitral standards should be used to interpret "just cause". Its principal contention, however, and the only issue decided by the Appeal Division, was that the legislation violated s. 96 of the Constitution Act, 1867 by conferring a superior court power on an inferior tribunal. Following a review of the jurisprudence Hart J.A., for a unanimous five-person bench -- see (1985), 70 N.S.R. (2d) 391 -- applied the three-stage test laid down by this Court in Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714 [hereinafter Residential Tenancies].
The first stage of the test required an assessment "in the light of the historical conditions existing in 1867" of "whether the power or jurisdiction conforms to the power or jurisdiction exercised by superior, district or county courts at the time of Confederation": see Residential Tenancies, per Dickson J., as he then was, at p. 734. Hart J. A. held that the jurisdiction conferred by s. 67A was jurisdiction in relation to "wrongful dismissal" and that claims in wrongful dismissal had historically "always been commenced and conducted in the superior courts". Section 67A therefore failed to meet the historical test. He rejected an argument that s. 96 courts had not exercised the particular jurisdiction contemplated by s. 67A of the Code because the courts refused to issue decrees of specific performance for contracts of employment. He held instead, at p. 399, that "the failure to grant a remedy available to the court because of its deemed inappropriateness at a particular time is not an abdication of that jurisdiction but simply a suspension of it for the time being. The power to grant reinstatement under a contract of employment has always rested with the Supreme Court and did so at the time of Confederation".
The legislation having failed the historical test, Hart J.A. moved to the second stage of the Residential Tenancies test and inquired if the function of the Tribunal, within its institutional setting, was a judicial one. If not, the legislation would not violate s. 96 . Hart J.A. had no doubt that the Tribunal's function under s. 67A was judicial. It resolved "the type of dispute between parties that traditionally falls for resolution to the superior courts".
Section 67A was also unable to survive the third stage of the test, a "review [of] the Tribunal's function as a whole in order to appraise the impugned function in its entire institutional context". The scheme may still be valid if the judicial powers are "merely subsidiary or ancillary to general administrative functions" or "necessarily incidental to the achievement of a broader policy goal of the legislature" (Residential Tenancies, at p. 736). Hart J.A. could find no such institutional justification for conferring judicial power on the Tribunal which simply adjudicated private disputes between parties. He stated at p. 400:
In my opinion it is completely unnecessary to pass the question of whether or not an employee has been unjustly dismissed to a provincial tribunal. The question is simply a matter of dispute between two parties to a contract of employment and is not a matter ancillary to the broad social purpose of obtaining industrial peace as held in the Labour Relations Board cases. Section 67A is simply one piece of social legislation which was coupled together with a group of others relating to labour standards as a convenient single statute. There is, in my opinion, no valid need to have the determination of such a dispute resolved by the Labour Standards Tribunal.
The Appeal Division did not invalidate s. 67A(1), the subsection which gives qualifying employees the right to apply for reinstatement. It invalidated subss. (2) and (3) which vest the administration of subs. (1) in the Director and the Tribunal.
5. The Constitutional Issues
The constitutional issues raised on this appeal are reflected in the following two constitutional questions:
1. Is it within the authority of the Legislature of Nova Scotia to empower the Director of Labour Standards and the Labour Standards Tribunal respectively, to hear and determine disputes with respect to, and make orders enforcing, s. 67A of the Labour Standards Code, S.N.S. 1972, c. 10, as amended, as provided in that Act, in light of s. 96 of the Constitution Act, 1867 ?
2. Are ss. 67A(2) and (3) of the Labour Standards Code, S.N.S. 1972, c. l0, as amended ultra vires the Legislature of Nova Scotia as contravening s. 96 of the Constitution Act, 1867 ?
The Attorneys General of Canada, British Columbia, Manitoba and Quebec all intervened and presented arguments in support of the legislative scheme. No submissions were made on the issue of whether arbitral or common law standards should be used to determine the meaning of "just cause" in s. 67A. The respondent did, however, request that if the appeal were allowed the case be referred back to the Appeal Division to deal with this ground of appeal.
6. Section 96
A. The Historical Inquiry
The Appeal Division correctly held that the test to be applied in s. 96 cases is that laid down by this Court in the Residential Tenancies case. This three-step test represents a consolidation of the principles enunciated in a number of previous decisions, in particular The Adoption Reference, [1938] S.C.R. 398; John East Iron Works, Ld., supra; and Tomko v. Labour Relations Board (Nova Scotia), [1977] 1 S.C.R. 112. The first stage requires us to consider whether "the challenged power or jurisdiction broadly conform[s] to the power or jurisdiction exercised by Superior, District or County Courts at the time of Confederation": per Laskin C.J. in Massey-Ferguson Industries Ltd. v. Saskatchewan, [1981] 2 S.C.R. 413, at p. 429. But before addressing this question it is necessary to examine three preliminary issues which were raised during the hearing of the appeal:
(1) how broadly should the power or jurisdiction be characterized for purposes of the historical analysis?
(2) do the words "broadly conform" to Superior Court jurisdiction mean that such jurisdiction must have been exclusive to those courts at Confederation?
(3) should the court look only at the jurisdiction of the courts of the province in which the case arose or should the inquiry embrace all or most of the provinces?
(i)Characterization of the Power or Jurisdiction at Issue
In argument before this Court both the Attorney General of Nova Scotia (appellant) and the respondent Sobeys initially characterized the jurisdiction under s. 67A as jurisdiction in relation to the equitable remedy of specific performance of employment contracts. Each argued that such a characterization would be determinative in his favour, the appellant because traditionally the courts did not grant such a remedy and the respondent because the remedy, whether actually granted or not, was equitable and therefore clearly part of the exclusive jurisdiction of superior courts at Confederation. This was not, however, the only characterization offered to the Court. When the argument progressed to the second and third stages of the Residential Tenancies test the same parties suggested broader characterizations such as "unjust dismissal", "employer-employee relations" and "labour standards". Counsel for the other appellant, Yeomans, argued consistently throughout that the jurisdiction was over "master-servant relations". In the Appeal Division, Hart J.A., while rejecting the argument that specific performance of an employment contract was not a superior court power just because the remedy was never granted, characterized s. 67A as a provision relating to "unjust dismissal". In so doing he rendered nugatory the arguments over specific performance.
It seems to me that this raises two problems pertaining to the characterization of the jurisdiction. How broadly should it be characterized, and can a broader or narrower characterization be used for the different steps of the Residential Tenancies test? These questions do not appear to have been canvassed in any previous decision of the Court, yet they could clearly be important. The way in which the power or jurisdiction is characterized can have significant consequences for the historical inquiry in which the courts must search for analogous jurisdiction in inferior courts. Although in the present case both the Attorney General and Sobeys saw an advantage for themselves in a narrow characterization, that is probably only so because of the unusual remedy at issue. In general, those challenging legislation will probably favour the narrower view as more likely to bring success through the historical test. Those supporting the legislation will no doubt advocate a more expansive view on the assumption that the broader the characterization the more likely it will be that at least some aspects of the jurisdiction will have been within the purview of inferior courts at Confederation.
To resolve these questions on characterization one must look to the different purposes served by the three stages of the Residential Tenancies test. The test represents a reconciliation of jurisprudence from two different types of cases, those that dealt with attempted expansions of inferior court jurisdiction and those that involved the assignment of subject areas of superior court jurisdiction to administrative tribunals. This distinction between the two principal types of s. 96 cases was noted in a different context by then Chief Justice Laskin in Re B.C. Family Relations Act, [1982] 1 S.C.R. 62, at p. 68. The first line of cases establish the proposition that, while the jurisdiction of the inferior courts will not be frozen as of the date of Confederation, neither will it be substantially expanded so as to undermine the independence of the judiciary which s. 96 protects: see The Adoption Reference, supra; Re B.C. Family Relations Act, supra; Séminaire de Chicoutimi v. Cité de Chicoutimi, [1973] S.C.R. 681; Re Cour de Magistrat de Québec, [1965] S.C.R. 772; Canadian Broadcasting Corporation v. Quebec Police Commission, [1979] 2 S.C.R. 618. The second line of cases, those dealing with administrative tribunals, provide what might be called permissible exceptions to the constitutional stricture against the reduction of superior court jurisdiction. The courts have recognized that s. 96 should not stand in the way of new institutional approaches to social or political problems. Departures from the strict rule against devolving superior court jurisdiction on inferior tribunals are permitted only if the scheme meets the criteria of the second or third stage of the test. Otherwise bald grants of superior court jurisdiction to inferior courts are precluded.
Viewed against this background the first step of the Residential Tenancies test, which is drawn from the "inferior court" cases, represents a kind of threshold test, a method of deciding whether, in a formal sense, s. 96 has been violated at all. The second and third steps serve to validate some legislative schemes despite the fact that they trench on the traditional jurisdiction of s. 96 courts. The purposes of s. 96 require a strict, that is to say a narrow, approach to characterization at the first stage. Given what I have to say below on concurrent superior/inferior court jurisdiction at Confederation, any other approach would potentially open the door to large accretions of jurisdiction and thereby defeat the purposes of the constitutional provision. I would therefore reject as too broad characterizations of the s. 67A jurisdiction as being in relation to employer/employee relations or labour standards.
Having rejected broad characterizations, the court is given a choice between two possible narrow ones, jurisdiction over reinstatement or jurisdiction over unjust dismissal. Dealing with a very similar provision in the Quebec Labour Standards Act that province's Court of Appeal in Asselin v. Industries Abex Ltée, [1985] C.A. 72, 22 D.L.R. (4th) 212, characterized the jurisdiction as being in relation to the mandatory performance of an employment contract. As a result Nolan J.A. concluded that reinstatement "was not a power which the s. 96 courts could exercise in Lower Canada before Confederation" (p. 89 C.A., p. 236 D.L.R.)
I would, however, reject this characterization, preferring again to resolve the issue by reference to the language and purpose of the Residential Tenancies test. At the first stage the search is for "broad conformity" with the powers of s. 96 courts at Confederation. It is a search for analogous, not precisely the same, jurisdiction. Even if I were to accept the appellant's contention that the remedy of reinstatement was outside the purview of s. 96 courts, as was done in Asselin, I do not think that should be determinative in s. 96 cases. To do so would be to freeze the jurisdiction of those courts at 1867 by a technical analysis of remedies. It is, in my view, the type of dispute that must guide us and not the particular remedy sought. The question of new remedies for traditional causes of action is better suited to the second and third steps of the Residential Tenancies test which are specifically designed to allow the courts to consider new approaches to old problems, approaches which are more responsive to changing social conditions. Thus, the jurisdiction in this case should, in my view, be characterized as jurisdiction in relation to unjust dismissal.
The fact that the different stages of the Residential Tenancies test serve different purposes also, in my view, militates against any "broadening" of the characterization as the analysis progresses from one stage to another. The characterization chosen is irrelevant to a consideration at stage two of whether the Tribunal is functioning judicially or not. A broad characterization at the third stage would be equally unnecessary because this aspect of the test requires the courts to view the particular power or jurisdiction within a broad context. Thus, in this case, for example, a broadening of the characterization to "labour standards" would require the court to assess whether such a power or jurisdiction is "so integrated with the valid regulatory regime" (Residential Tenancies, at p. 736) of labour standards legislation as to take on a different character. The inquiry would have become a tautological one and the Residential Tenancies test would be deprived of its essential purpose.
(ii)Must the Superior Court Jurisdiction at Confederation be Exclusive?
The Appeal Division held that jurisdiction over unjust dismissal was exclusively the preserve of Nova Scotia's superior courts in 1867. In his reasons for judgment Hart J.A., speaking for the Court, said at p. 399:
This was not the type of jurisdiction exercised by any of the inferior courts in existence at that time....The action for wrongful dismissal in Nova Scotia has always been commenced and conducted in the superior courts.
The appellants presented historical evidence in this Court to demonstrate that inferior courts also exercised jurisdiction over unjust dismissal and other breaches of employment contracts. They do not deny that the Supreme Court of Nova Scotia dealt with such matters but argue that because various inferior courts also did so the legislation can be upheld under the historical test. The relevance of such evidence of "shared jurisdiction" depends on the resolution of an issue left uncertain by previous judgments of this Court. It is obvious that at the first stage s. 96 will be violated if provincial tribunals are accorded a power or jurisdiction that belonged exclusively to s. 96 courts at Confederation. It is equally trite law that there will be no violation if the power or jurisdiction was the exclusive preserve of inferior courts. These propositions, however, leave unclear what the consequences are of discovering a shared, or concurrent, jurisdiction between the two levels of court. Moreover, if concurrent jurisdiction will enable the provincial tribunal to pass the historical test, it is necessary to ask how much shared jurisdiction will suffice for this purpose.
As I noted above, these issues have not previously been directly addressed by this Court. In Residential Tenancies Dickson J. made no reference to the question of exclusivity or concurrency. He merely said at p. 734:
The question here is whether the power or jurisdiction conforms to the power or jurisdiction exercised by superior, district or county courts at the time of Confederation.
. . .
If, however, the historical evidence indicates that the impugned power is identical or analogous to a power exercised by s. 96 courts at Confederation,