Reference re Amendments to the Residential Tenancies Act (N.S.)

Reference re Amendments to the Residential Tenancies Act (N.S.)
Collection
Supreme Court Judgments
Date
1996-02-22
Report
[1996] 1 SCR 186
Case number
24276
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Nova Scotia
Subjects
Constitutional law
Notes
SCC Case Information: 24276
Decision Content
Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186
IN THE MATTER OF a Reference by the Lieutenant
Governor of Nova Scotia in Council to the
Nova Scotia Court of Appeal pursuant to
the Constitutional Questions Act, R.S.N.S. 1989,
c. 89, of certain questions relating to
the constitutional validity of provisions of
An Act to Amend Chapter 401 of the Revised
Statutes, 1989, the Residential Tenancies Act,
S.N.S. 1992, c. 31
The Attorney General of Nova Scotia Appellant
v.
D. A. Rollie Thompson Respondent
and
The Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General of Manitoba and
the Attorney General of British Columbia Interveners
Indexed as: Reference re Amendments to the Residential Tenancies Act (N.S.)
File No.: 24276.
1995: October 5; 1996: February 22.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for nova scotia
Constitutional law ‑‑ Courts ‑‑ Jurisdiction ‑‑ Provincial residential tenancies legislation amended to create new dispute resolution mechanism ‑‑ Whether provisions violate s. 96 of Constitution Act, 1867 ‑‑ Whether jurisdiction conferred on residential tenancies director and residential tenancies board is "novel" ‑‑ Act to Amend Chapter 401 of the Revised Statutes, 1989, the Residential Tenancies Act, S.N.S. 1992, c. 31.
The Nova Scotia Residential Tenancies Act was amended in 1992, but the amendments creating a new dispute resolution mechanism were left unproclaimed pending a ruling on their constitutionality. The legislation gives the provincially appointed Director of Residential Tenancies and his delegates the power to investigate, mediate and adjudicate disputes between landlords and their residential tenants. It empowers the Director to make orders for compliance, termination, repair and possession. An appeal lies from the Director's decision to a Residential Tenancies Board as a trial de novo. The Board can order the same remedies that the Director may prescribe. The decision of the Board can be appealed to the Nova Scotia Court of Appeal, with leave, on questions of law or jurisdiction. The jurisdiction of the Director and Board is exclusive. All residential tenancy disputes must be determined by the procedure specified in the Act, and except for formally entering orders and its limited appellate jurisdiction, the superior court has no power to determine them. On a reference by the Lieutenant Governor in Council, the Court of Appeal decided that the legislative provisions were ultra vires as they pertained to the Residential Tenancies Board and intra vires as they pertained to the Director. The Attorney General of Nova Scotia appealed the decision as of right and the respondent cross‑appealed the decision concerning the Director's constitutional status.
Held: The appeal should be allowed and the cross‑appeal dismissed.
Per La Forest, L'Heureux‑Dubé, McLachlin, Iacobucci and Major JJ.: The first step of the test set out in Re Residential Tenancies Act, 1979 for determining whether a conferral of power on an inferior tribunal violates s. 96 of the Constitution Act, 1867 asks whether the power conferred "broadly conforms" to a power or jurisdiction exercised by a superior, district or county court at the time of Confederation. The function of this step is to determine whether the power is analogous to one exercised by the courts that became s. 96 courts. If the inferior courts before Confederation alone exercised the power, or shared it in a practical way with the future superior courts, s. 96 is not engaged and no further inquiry is required. For the purposes of characterizing the judicial power which is said to be removed by its conferral on a provincially appointed body, the focus of the historical inquiry is on the type of dispute involved. The inquiry must not focus on a technical analysis of remedies, nor should it evaluate the nature and goals of the legislative scheme, which fall to be considered only at the third stage should the inquiry progress that far. The concern is to ascertain whether the type of dispute at issue is broadly conformable to one which fell to be decided exclusively or predominantly by the superior courts at or about the time of Confederation.
The evidence adduced in this case demonstrates that the superior courts of Canada did not enjoy exclusive jurisdiction over tenancy disputes at the time of Confederation. In every former colony inferior courts exercised a significant concurrent jurisdiction at or about the time of Confederation. It follows that the Nova Scotia legislature's conferral of jurisdiction over residential tenancies on a provincially appointed tribunal does not violate s. 96 .
The legislation at issue here does not meet the test for novel jurisdiction. The powers conferred are clearly analogous to those exercised by the courts in 1867. The legislation codifies the existing law and establishes an impartial dispute resolution mechanism for landlords and tenants. Both the Director and the Board decide disputes between the parties. The parties present evidence and make submissions. Appeals are allowed and orders can be enforced by the parties as orders of the court. This is exactly the sort of work courts have traditionally done in relation to residential tenancy disputes. While there is little doubt that the process of urbanization has increased the number of residential tenants living in cities, the number of people renting premises as a percentage of the total population appears to have remained relatively constant over the years. More importantly, the increased urbanization of residential tenancy is not sufficient to transform the subject matter of the jurisdiction. Codifying law cannot create a new jurisdiction, since codification necessarily presumes the jurisdiction previously existed. Moreover, the Act does not fundamentally change the leasehold and contractual nature of residential tenancies. Finally, the fact that the legislation apparently seeks to address a perceived social priority is not sufficient to create a new jurisdiction.
Per Lamer C.J. and Sopinka and Cory JJ.: The proper characterization of the statutory provisions at issue here is "jurisdiction over residential tenancies; disputes between residential landlords and tenants". This jurisdiction is a novel one which did not exist in 1867, and is thus not a jurisdiction that must be exercised by a s. 96 superior court judge. In determining whether a jurisdiction is novel the court should consider whether the legislation is an attempt to respond to a new societal interest and approach regarding the subject matter of the legislation, whether the legislation is based on principles of law that make it distinct from similar legislation, and whether there is an identifiable social policy that is different from the policy goals of analogous legislation. Although the law of landlord and tenant is clearly not novel, the concept of a residential tenancy is largely a phenomenon of modern and urban society. In 1867, while there were no doubt some residential tenancy disputes, there was no jurisdiction over them in the manner contemplated by the contemporary Nova Scotia legislature. The Residential Tenancies Act has carved out a distinct branch of landlord‑tenant law and developed a complete code to govern the residential tenancy relationship. Finally, there is an identifiable social policy that is different from analogous legislation. This is legislation of a clearly social nature which reflects a distinct evolution since 1867 and a completely different notion of residential landlord and tenant relations from that which existed at that time. Further, had this jurisdiction been in existence prior to Confederation, the legislatures in the four confederating provinces would have granted it to their inferior courts. Residential tenancy disputes involve a high volume of repetitive and narrowly defined matters of limited complexity. They are amply suited to resolution by lay persons applying the rules with fairness and common sense. As the challenged jurisdiction in this case does not run afoul of the first branch of the test set out in Re Residential Tenancies Act, 1979 because it is a novel jurisdiction which does not broadly conform to a power or jurisdiction exercised by superior, district or county courts at the time of Confederation, there is no need to consider the second or third branches of that test.
Per Gonthier J.: While the framework set forth by Lamer C.J. for the analysis of whether a jurisdiction conferred on courts is novel for the purpose of applying s. 96 of the Constitution Act, 1867 was agreed with, the legislative scheme does not embody a sufficiently novel social philosophy or approach as to exclude analogy with jurisdiction assigned to the courts at the time of Confederation. For the reasons given by McLachlin J., the superior courts of Canada did not enjoy exclusive jurisdiction over tenancy disputes at the time of Confederation and consequently the impugned provisions of the Residential Tenancies Act do not violate s. 96 of the Constitution Act, 1867 .
Cases Cited
By McLachlin J.
Referred to: Sobeys Stores Ltd. v. Yeomans, [1989] 1 S.C.R. 238; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Attorney General of Quebec v. Grondin, [1983] 2 S.C.R. 364; Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252; Dupont v. Inglis, [1958] S.C.R. 535; Re Burke and Arab (1981), 130 D.L.R. (3d) 38, leave to appeal refused, [1983] 1 S.C.R. 55; Re Attorney‑General of Nova Scotia and Gillis (1980), 111 D.L.R. (3d) 349; Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd., [1949] A.C. 134.
By Lamer C.J.
Applied: Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252; referred to: Re Burke and Arab (1981), 130 D.L.R. (3d) 38, leave to appeal refused, [1983] 1 S.C.R. 55; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Attorney General of Quebec v. Grondin, [1983] 2 S.C.R. 364; Sobeys Stores Ltd. v. Yeomans, [1989] 1 S.C.R. 238; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725; Reference re Adoption Act, [1938] S.C.R. 398; Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd., [1949] A.C. 134; Procureur Général de Québec v. Barreau de la Province de Québec, [1965] S.C.R. 772; Re: B.C. Family Relations Act, [1982] 1 S.C.R. 62; Scowby v. Glendinning, [1986] 2 S.C.R. 226; Massey‑Ferguson Industries Ltd. v. Saskatchewan, [1981] 2 S.C.R. 413; Brooks v. Pavlick, [1964] S.C.R. 108; Asselin v. Industries Abex Ltée (1985), 22 D.L.R. (4th) 212; Walker's Case (1587), 3 Co. Rep. 22a., 76 E.R. 676; Re Pepita and Doukas (1979), 101 D.L.R. (3d) 577; Pajelle Investments Ltd. v. Herbold, [1976] 2 S.C.R. 520.
Statutes and Regulations Cited
Act concerning the City of Halifax, S.N.S. 1864, 27 Vict., c. 81, s. 123.
Act further to enlarge the jurisdiction of the City Court of the City of Saint John, and in amendment of the Law relating to said Court, S.N.B. 1864, 27 Vict., c. 46.
Act relating to the City Court of the City of Saint John, S.N.B. 1860, 23 Vict., c. 57.
Act respecting the Division Courts, C.S.U.C. 1859, c. 19, s. 55(2).
Act to amend an Act intituled An Act to amend the Law relating to the collection of Taxes and small debts in the Parish of Portland, in the City and County of Saint John, and for other purposes in the said Parish, S.N.B. 1867, 30 Vict., c. 36, s. 4.
Act to Amend Chapter 401 of the Revised Statutes, 1989, the Residential Tenancies Act, S.N.S. 1992, c. 31, ss. 7, 8(2) [not yet in force].
Act to enlarge the jurisdiction of the City Court of the City of Saint John, S.N.B. 1859, 22 Vict., c. 38, s. 1.
Act to improve the Administration of the Law, and to reduce the number of Courts of Justice within this Province, and to diminish the expense of the Judiciary therein, S.N.S. 1841, 4 Vict., c. 3.
Act to Incorporate the Town of Halifax, S.N.S. 1841, 4 Vict., c. 55, s. 54.
Act to regulate proceedings before Justices of the Peace in Civil Suits, S.N.B. 1834, 4 Gul. 4, c. 45.
Act to regulate the Summary Trial of Actions before His Majesty's Justices of the Peace, in the Town and Peninsula of Halifax, S.N.S. 1792, 32 Geo. 3, c. 14.
Charter of City of Saint John, S.N.B. 1855, 18 Vict., vol. 3, Appendix.
Constitution Act, 1867, ss. 92(14) , 96 , 97 to 101 .
Of Tenancies and of Forcible Entry and Detainer, R.S.N.S. 1864, c. 140.
Of the Jurisdiction of Justices in Civil Suits, R.S.N.B. 1854, c. 137, s. 53.
Of the Jurisdiction of Justices of the Peace in Civil Cases, R.S.N.S. 1864, c. 128, s. 1.
Residential Tenancies Act, R.S.N.S. 1989, c. 401, ss. 3(1), 7(1), 13 to 17 [rep. & sub. 1992, c. 31, s. 7], 18(3), (4) [rep. & sub. idem, s. 8(2)], 21.
Residential Tenancies Act, S.N.S. 1970, c. 13.
Supreme Court Act, R.S.C., 1985, c. S‑26, s. 36 .
Authors Cited
Acheson, T. W. "The National Policy and the Industrialization of the Maritimes, 1880‑1910", Acadiensis, I, 2 (Spring 1972), pp. 3-28.
Alberta. Institute of Law Research and Reform. Residential Tenancies. Report No. 22. Edmonton: The Institute, 1977.
Beck, J. Murray. The Government of Nova Scotia. Toronto: University of Toronto Press, 1957.
Bell, D. G. "A Perspective on Legal Pluralism in 19th‑Century New Brunswick" (1988), 37 U.N.B.L.J. 86.
British Columbia. Law Reform Commission. Landlord and Tenant Relationships: Residential Tenancies. Project No. 12. Vancouver: The Commission, 1973.
Burpee, Lawrence J. "The Golden Age of Nova Scotia" (1929), 36 Queen's Q. 380.
Elliot, Robin. Comment (1982), 16 U.B.C. L. Rev. 313.
Girard, Philip. "The Rise and Fall of Urban Justice in Halifax, 1815‑1886" (1988), 8:2 Nova Scotia Historical Review 57.
Haliburton, Thomas C. An Historical and Statistical Account of Nova Scotia. Halifax: Joseph Howe, 1829.
Halsbury's Laws of England, vol. 1, 3rd ed. London: Butterworth & Co., 1952.
Historical Atlas of Canada, vol. II, The Land Transformed 1800-1891. Toronto: University of Toronto Press, 1993.
Inwood, Kris E. "Maritime Industrialization from 1870 to 1910: A Review of the Evidence and Its Interpretation", Acadiensis, XXI, 1 (Autumn 1991), pp. 132‑55.
Lamont, Donald H. L. The Landlord and Tenant Act Part IV: A Section by Section Analysis of the First Amendments to the Landlord and Tenant Act in Over 50 Years. Toronto: Carswell, 1970.
Lederman, W. R. "The Independence of the Judiciary" (1956), 34 Can. Bar Rev. 769, 1139.
MacNeil, Michael. "Property in the Welfare State" (1983), 7 Dalhousie L.J. 343.
Murdoch, Beamish. Epitome of the Laws of Nova Scotia, vol. III. Halifax: Joseph Howe, 1833.
Nova Scotia. Report of the Nova Scotia Court Structure Task Force, Appendix 1, "History of Nova Scotia Courts". March 1991.
Ontario. Law Reform Commission. Interim Report on Landlord and Tenant Law Applicable to Residential Tenancies. Toronto: Department of the Attorney General, 1968.
Oxner, Sandra E. "The Evolution of the Lower Court of Nova Scotia". In Law in a Colonial Society: The Nova Scotia Experience. Edited by Peter Waite, Sandra Oxner and Thomas Barnes. Toronto: Carswell, 1984.
Patterson, George. "The Establishment of the County Court in Nova Scotia" (1943), 21 Can. Bar Rev. 394.
Townsend, Charles J. "Historical Account of the Courts of Judicature in Nova Scotia" (1899), 19 Can. L.T. 25.
Williams' The Canadian Law of Landlord and Tenant, 4th ed. By F. W. Rhodes. Toronto: Carswell, 1973.
Woodfall's Law of Landlord and Tenant, 28th ed. By V. G. Wellings. London: Sweet & Maxwell, 1978.
APPEAL and CROSS‑APPEAL from a judgment of the Nova Scotia Court of Appeal (1994), 115 D.L.R. (4th) 129, 130 N.S.R. (2d) 346, 27 Admin. L.R. (2d) 196, on a reference concerning the constitutional validity of certain statutory provisions. Appeal allowed and cross‑appeal dismissed.
Alexander M. Cameron, for the appellant.
D. A. Rollie Thompson, solicitor appointed to act as respondent.
Janet E. Minor and Dale E. Ives, for the intervener the Attorney General for Ontario.
Jean Bouchard and Isabelle Harnois, for the intervener the Attorney General of Quebec.
Donna J. Miller, Q.C., and Deborah L. Carlson, for the intervener the Attorney General of Manitoba.
Deborah K. Lovett, for the intervener the Attorney General of British Columbia.
The reasons of Lamer C.J. and Sopinka and Cory JJ. were delivered by
1 Lamer C.J. -- This is an appeal from a judgment of the Nova Scotia Court of Appeal on a reference concerning the constitutionality of certain provisions of An Act to Amend Chapter 401 of the Revised Statutes, 1989, the Residential Tenancies Act, S.N.S. 1992, c. 31.
I. Introduction
2 As our society has become more urbanized, complex and regulated, the need for efficient and speedy dispute resolution has become an important goal of provincial administration. This case requires us once again to consider the limits placed by s. 96 of the Constitution Act, 1867 and its jurisprudence on the ability of provinces to reorganize their court structure and allocate judicial functions to administrative agencies. We must determine whether provincial appointees may adjudicate residential tenancies disputes.
II. Factual Background
3 In 1970, Nova Scotia responded to the perceived needs of its growing and increasingly urban population by enacting residential tenancy legislation. Clear-cut statutory rights and duties were substituted for common law contract and property law principles, which had been evolving since feudal times. This simplified the issues that could arise between landlords and tenants, and residential tenancy boards composed of lay persons were given jurisdiction to settle their disputes. The intention of the legislature to make the Residential Tenancies Act, S.N.S. 1970, c. 13, a complete code was frustrated when the dispute settlement mechanism was struck down by the Nova Scotia Court of Appeal in Re Burke and Arab (1981), 130 D.L.R. (3d) 38 (leave to appeal refused as there was no longer a dispute between the parties, [1983] 1 S.C.R. 55) because it failed to pass constitutional muster under the s. 96 test established by this Court in Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714.
4 Under the present dispute resolution regime, a landlord or tenant can bring a complaint under the Residential Tenancies Act, R.S.N.S. 1989, c. 401, to the Supreme Court of Nova Scotia. The court then refers the complaint to the Residential Tenancies Board, where the hearing takes place before a one-member board. A decision is reached in the form of a report. The Board's report is submitted back to the court for approval, which is rarely withheld unless either party files a notice of objection. On considering the objection the court can dismiss it, return the matter to the Board, call for further information, and vary the report. There is a further appeal to the Nova Scotia Court of Appeal on questions of law and jurisdiction.
5 The Residential Tenancies Act was amended in 1992 pursuant to An Act to Amend Chapter 401 of the Revised Statutes, 1989, the Residential Tenancies Act. The amendments creating a new dispute resolution mechanism were left unproclaimed pending our answer to its constitutionality. The amendments provide for a Director of Residential Tenancies who has three duties -- investigation, mediation and decision making. The Director is also empowered to order a landlord or tenant to comply with the provisions of a lease, not to breach a lease again, pay compensation, terminate a tenancy and order a tenant to vacate, determine the disposition of security deposits, and direct that the tenant pay rent in trust to the Director pending performance of a duty by the landlord. An appeal lies from the Director's decision to a Residential Tenancies Board as a trial de novo. The Board can order the same remedies that the Director may prescribe. The decision of the Board can be appealed to the Nova Scotia Court of Appeal, with leave, on questions of law or jurisdiction.
6 The question of the constitutionality of the unproclaimed amendments was referred by the Lieutenant Governor-in-Council of Nova Scotia to the Nova Scotia Court of Appeal by Order in Council dated November 2, 1993. The Nova Scotia Court of Appeal decided (4:1) that the legislative provisions were ultra vires as they pertained to the Residential Tenancies Board and (5:0) that the legislative provisions were intra vires as they pertained to the Director: (1994), 115 D.L.R. (4th) 129, 130 N.S.R. (2d) 346, 27 Admin. L.R. (2d) 196. The Attorney General of Nova Scotia appeals as of right the decision of the Nova Scotia Court of Appeal pursuant to s. 36 of the Supreme Court Act, R.S.C., 1985, c. S-26 . The respondent cross-appeals the decision of the Nova Scotia Court of Appeal concerning the constitutional status of the Director.
III. Relevant Constitutional and Statutory Provisions
7 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.
8 Section 7 of An Act to Amend Chapter 401 of the Revised Statutes, 1989, the Residential Tenancies Act (the "Act") repeals ss. 13 to 17 of the Residential Tenancies Act and replaces them with the following sections:
APPLICATION TO DIRECTOR
13 (1) Where a person applies to the Director
(a) to determine a question arising under this Act; or
(b) alleging a breach of a tenancy agreement or a contravention of a provision of this Act,
and, not more than ninety days after the termination of the tenancy, files with the Director the form prescribed by the regulations, together with the fee, if any, prescribed by the regulations, the Director is the exclusive authority, at first instance, to investigate and endeavour to mediate a settlement.
(2) Upon making an application pursuant to subsection (1), the applicant shall, in accordance with the regulations, serve the other parties to the matter with a copy of the application.
(3) The Director may, on the Director's own initiative, investigate and determine a matter arising pursuant to a tenancy agreement or this Act.
(4) In exercising authority pursuant to this Section, the Director may determine and adopt the most expeditious method of investigating, mediating and determining a matter.
(5) On receiving an application pursuant to subsection (1), the Director shall investigate and, subject to subsections (7) and (8), endeavour to mediate a settlement of the matter.
(6) If a matter is settled by mediation, the Director shall make a written record of the settlement which shall be signed by both parties and which is binding on the parties and is not subject to appeal.
(7) If, after investigating the matter, the Director is of the opinion that the parties are unlikely to settle it by mediation within fourteen days, or if the matter is urgent and it involves the safety or security of the landlord, the tenant or other tenants, the Director may make a decision or order in accordance with Section 14.
(8) The Director may refuse to accept an application or continue a proceeding where, in the Director's opinion, the matter is trivial, frivolous, vexatious or has not been initiated in good faith, and may, subject to the approval of the Minister, issue an order to that effect.
(9) An applicant may withdraw an application at any time before an order or decision is made.
(10) For greater certainty, the landlord and the tenant have the right to be represented by legal counsel at any stage of the proceedings.
14 (1) A decision or order made by the Director pursuant to Section 13 may
(a) require a landlord or tenant to comply with a lease or an obligation pursuant to this Act;
(b) require a landlord or tenant not to again breach a lease or an obligation pursuant to this Act;
(c) require any repair or action to be taken by the landlord or tenant to remedy a breach, and require the landlord or tenant to pay any reasonable expenses associated with the repair or action;
(d) order compensation to be paid for any loss that has been suffered or will be suffered as a direct result of the breach;
(e) terminate the tenancy on a date specified in the order and order the tenant to vacate the residential premises on that date;
(f) determine the disposition of a security deposit;
(g) direct that the tenant pay the rent in trust to the Director pending the performance by a landlord of any act the landlord is required by law to perform.
(2) A decision or order made by the Director pursuant to Section 13 is, and is deemed to be, when no appeal is made pursuant to Section 15 within the time provided by that Section, a decision or order of a board.
APPEALS
15 (1) Except as otherwise provided in this Act, any person, directly affected by a decision or order of the Director, may appeal the decision or order to the residential tenancies board for the area in which the residential premises to which the decision or order relates are situate.
(2) An appeal may be commenced by filing with the Director, within ten days of the making of the decision or order, a notice of appeal in the form prescribed by the regulations and paying to the Director, within the said period of ten days, a fee in the amount prescribed by the regulations.
(3) The appellant shall, in the manner prescribed by the regulations, give a copy of the notice of appeal to all persons directly affected by the decision or order.
(4) The board shall give reasonable notice of the hearing to the parties by public notice given in the manner prescribed by the regulations, by personal service or by registered mail.
(5) The board shall conduct a hearing in respect of a matter for which a notice of appeal is filed.
(6) The board shall determine its own practice and procedure but shall give full opportunity for the parties to present evidence and make submissions.
(7) The board may conduct a hearing orally, including by telephone, or in writing or partly in writing and partly orally.
(8) Evidence may be given before the board in any manner that the board considers appropriate, and the board is not bound by rules of law respecting evidence applicable to judicial proceedings.
16 (1) Within seven days of holding a hearing pursuant to Section 15, the board shall
(a) confirm, vary or rescind the decision or order of the Director;
(b) make any decision or order that the Director could have made.
(2) The board shall compile a record of a hearing which shall consist of
(a) the decision or order of the Director that was appealed from;
(b) the notice of appeal to the board;
(c) the notice of hearing by the board;
(d) any written submissions received by the board; and
(e) the decision or order of the board and any reasons for the decision or order.
. . .
17A (1) Subject to subsections (2) and (3), any person who is a party to an appeal to a board pursuant to this Act may, if that person took part in the hearing, appeal the decision or order of the board to the Appeal Division of the Supreme Court.
(2) An appeal pursuant to this Section may only be taken on a question of law or jurisdiction and only with leave obtained from a judge of the Appeal Division of the Supreme Court.
(3) An application for leave to appeal shall be made within fourteen days of the decision or order of the board or within such further time as the judge allows.
(4) The board is entitled to be heard, by counsel or otherwise, on the argument of an application for leave to appeal and on an appeal pursuant to this Section.
(5) The Appeal Division of the Supreme Court, on hearing an appeal pursuant to this Section, may
(a) make any decision or order that in its opinion ought to have been made;
(b) quash, vary or confirm the decision of the board;
(c) refer the matter back to the board with the direction of the Court.
9 Section 8(2) repeals ss. 18(3) and (4) of the Residential Tenancies Act and replaces them with the following subsections:
. . .
(4B) It is the function of a board and the board has the power to hear appeals from decisions or orders of the Director.
IV. The Constitutional Issues
10 I stated the following constitutional questions on December 6, 1994:
1.Are the unproclaimed provisions of An Act to Amend Chapter 401 of the Revised Statutes, 1989, the Residential Tenancies Act, S.N.S. 1992, c. 31 (the "Act"), within the legislative jurisdiction of the House of Assembly of Nova Scotia to the extent that those provisions confer authority respecting residential tenancies upon persons other than judges appointed pursuant to s. 96 of the Constitution Act, 1867 , and, most particularly, are the following provisions of the Act within the legislative jurisdiction of the House of Assembly of Nova Scotia?
2.If the aforesaid provisions of the Act are not within the legislative jurisdiction of the House of Assembly of Nova Scotia, in what particular respects are those provisions ultra vires?
V.The Decision of the Nova Scotia Court of Appeal (1994), 115 D.L.R. (4th) 129
The Majority (Clarke C.J.N.S., and Matthews, Chipman and Roscoe JJ.A.)
11 Clarke C.J.N.S., writing for the majority, applied the s. 96 test that was set out in Re Residential Tenancies Act, 1979, supra. Characterization of the impugned provisions was the first issue. The majority appeared to adopt the characterization advanced by the respondent as jurisdiction "to determine residential tenancies disputes, including the power to make orders for compliance, repair, compensation, termination and possession, and related matters" (p. 140). Applying the historical analysis, the majority concluded that jurisdiction over landlord and tenancy matters was vested in s. 96 courts in 1867 in three of the confederating provinces (Ontario, Nova Scotia and New Brunswick) and concurrent or shared in one (Quebec).
12 The majority was satisfied that the historical picture for Ontario was settled in the Supreme Court of Canada's decision in Re Residential Tenancies Act, 1979. So too for Nova Scotia, the majority was satisfied that its earlier decision in Burke, supra, settled the historical issue in Nova Scotia. In Burke, the court had concluded that jurisdiction over disputes between landlord and tenants, including eviction orders, were within the exclusive domain of the superior courts. Although in the instant case, the court had before it certain historical information regarding the Inferior Court of Common Pleas that may not have been before the court in Burke, they were satisfied that the conclusion in Burke was correct.
13 Clarke C.J.N.S. then reviewed the New Brunswick situation. On June 17, 1867 legislation was passed to confer jurisdiction over tenancy matters on the County Court, and the Inferior Court of Common Pleas (which had, until this time, shared jurisdiction over tenancy matters with the Supreme Court) was abolished. The majority thus concluded that it was an undisputed historical fact that on July 1, 1867 there was no longer an Inferior Court of Common Pleas and that jurisdiction to deal with landlord and tenant law was vested in the County Court (a s. 96 court). Clarke C.J.N.S. concluded his historical inquiry by finding that the result of the historical analysis in Quebec was determined by the Supreme Court of Canada in Attorney General of Quebec v. Grondin, [1983] 2 S.C.R. 364. In that case, the Supreme Court found that while the Superior Court and Circuit Court had jurisdiction over relations between lessors and lessees, jurisdiction was shared with an inferior court system province-wide, so that the Quebec legislation was upheld.
14 With regard to the second step in the Re Residential Tenancies Act, 1979 test, Clarke C.J.N.S. examined the Director separately from the Board. He found the thrust of the Director's role to be one of mediation and investigation and that the legislation was designed as a means for landlords and tenants to settle disputes in a speedy and uncomplicated fashion. Mediation and investigation were desirable goals and were the essence of alternative dispute resolution that avoided the "trappings" of the courts. Noting that under the present system substantially more than one-half of the complaints are settled during the informal mediation processes that are presently in place, Clarke C.J.N.S. found that investigation and mediation by the Director and through the Director by residential tenancies officers of provincial appointment was a desirable social and economic goal designed to meet a societal need. In considering the decision-making process vested in the Director, Clarke C.J.N.S. found that a person dissatisfied by a decision or order of the Director could appeal to the Residential Tenancies Board, which would conduct a hearing de novo at which the parties would be given a full opportunity to be heard. Consequently, Clarke C.J.N.S. found it difficult to conclude that the judicial function predominated at the first level of the dispute. He concluded that the nature of the function of the Director was administrative. No further examination was required and he held the provincial appointment process of the Director and the Director's delegation to residential tenancies officers was intra vires.
15 Clarke C.J.N.S. next considered the procedure by which the Residential Tenancies Board would operate and found that adjudication was the principal and dominant function of the board. He found that the Board is required to decide private disputes between parties. It is neither a mediator nor an investigator and it is not empowered to devise or implement a regime of broad social policy but rather it must find facts and apply the law to those facts.
16 The majority's finding that the Residential Tenancies Board is exercising a judicial function required the court to apply the third branch of the Re Residential Tenancies Act, 1979 test. Clarke C.J.N.S. noted that in adjudicating on the matters described in the unproclaimed legislation, the Board was not exercising powers that were subsidiary or ancillary to general administrative functions. It did not have administrative functions. Clarke C.J.N.S. found that adjudication that was judicial in nature was the core and central function of the Board. The Board determined rights and obligations of competing parties; it heard the lis de novo; and made its own determination on the facts and issues. The central function of the Board was to deal with a subject that by historical analysis was within the jurisdiction of s. 96 courts at the time of Confederation. He found that the powers given could not be sustained as a necessary incident "to the achievement of a broader policy goal of the Legislature" (p. 158). The Board was designed to decide issues, almost all of which were legal, between competing parties in an impartial and evenhanded manner.
17 Clarke C.J.N.S. found that the powers and functions of the Board could not survive the three Re Residential Tenancies Act, 1979 tests. The proposed Board fell within the constitutional rules that prohibited delegation of the powers the provinces proposed to endow the Board with. However, Clarke C.J.N.S. was of the opinion that a Board presided over by persons of provincial appointment, other than s. 96 judges, would be competent to exercise these functions if there was a supervisory jurisdiction exercised by a s. 96 court of first instance and if the powers of appeal to the Court of Appeal were not limited to questions of law or jurisdiction. The majority therefore concluded that the powers purported to be conferred on the Director were intra vires while the powers purported to be conferred on the Residential Tenancies Board were ultra vires.
The Dissent (Freeman J.A)
18 Freeman J.A. stated that the jurisdiction which the unproclaimed provisions would remove from the Supreme Court has two aspects: a largely nominal supervisory jurisdiction, and a jurisdiction analogous in part to appellate jurisdiction in those cases when a party files a notice of objection. He characterized the jurisdiction as a whole as jurisdiction over the settlement of disputes between residential landlords and tenants. He determined that the unproclaimed amendments should be upheld on an historical analysis.
19 Applying that historical analysis, Freeman J.A. found that if the test in Grondin, supra, could be applied to Nova Scotia, the answer was apparent. In 1864 the Legislative Assembly of Nova Scotia enacted the Halifax City Charter that created a city court and gave it powers constitutionally indistinguishable from the powers of the Montreal Recorder's Court in Grondin. He also found that this enactment demonstrated that the pre-Confederation legislature "recognized that jurisdiction over lessor-lessee relations could be conferred on lower courts" (p. 173). He noted that these powers were concurrent with and analogous to the landlord-tenant jurisdiction of the Supreme Court. Therefore, it was more probable than not that the inferior courts of Nova Scotia enjoyed a jurisdiction that was broadly co-extensive with that of the Supreme Court in landlord-tenant matters.
20 As for Quebec, his Lordship stated that Grondin had established that the inferior courts of Quebec exercised a similar jurisdiction. For the present purposes, he accepted that the inferior courts in Ontario did not share such a jurisdiction, although he did not find the narrow characterization of the issue in Re Residential Tenancies Act, 1979, supra, conclusive of the question.
21 Freeman J.A. turned the historical lens to New Brunswick. He reviewed legislative provisions and concluded that the Inferior Courts of Common Pleas appeared to have been inferior courts in a s. 96 sense, although much of their jurisdiction was to be found in the District and County courts after Confederation. The jurisdiction of the inferior courts was greater in New Brunswick than in Nova Scotia because of the historical reluctance of Supreme Court judges to go on circuit. The Inferior Courts of Common Pleas were largely lay courts and answerable to the Supreme Court on writs of error. Since the Inferior Courts of Common Pleas were abolished and the jurisdiction transferred to the County Courts as of June 17, 1867, technically inferior court jurisdiction in landlord and tenant matters was never exercised in New Brunswick after Confederation. Freeman J.A. found it significant that jurisdiction over landlord-tenant matters was identified not as a matter exclusively for superior courts in New Brunswick, but one which could be concurrently exercised by inferior courts.
22 Freeman J.A. moved to the question of the meaning of "analogous" legislation in the s. 96 context. His Lordship contrasted the functions of superior courts with those of inferior courts. Section 96 courts at the time of Confederation had broad judicial power, were presided over by professional judges who had been formally trained in the law and caseloads were geared to unique, difficult and complex matters. On the other hand, inferior courts in Nova Scotia and generally in the other confederating provinces as well as in England exercised limited statutory jurisdiction, were subject to supervision of the superior courts, were presided over by lay persons without formal legal training who were to resolve disputes by finding the facts and applying simple legal principles, and dealt with a high volume of repetitive matters of limited complexity.
23 According to Freeman J.A., the residential t