Re Residential Tenancies Act

Re Residential Tenancies Act
Collection
Supreme Court Judgments
Date
1981-05-28
Report
[1981] 1 SCR 714
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Dickson, Robert George Brian; Estey, Willard Zebedee; McIntyre, William Rogers; Lamer, Antonio
On appeal from
Ontario
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714
Date: 1981-05-28
In the Matter of a Reference to the Court of Appeal pursuant to The Constitutional Questions Act, R.S.O. 1970, Chapter 79, by Order in Council No. 2089/79, respecting The Residential Tenancies Act, 1979
1980: November 25, 26; 1981: May 28.
Present: Laskin C.J. and Martland, Ritchie, Dickson, Estey, Mclntyre and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Constitutional law—Courts—Landlords and tenants—Provincial commission empowered to evict tenants and to enforce obligations of landlords and tenants—Whether or not grant of powers to Commission ultra vires—The Residential Tenancies Act, 1979, 1979 (Ont.), c. 78—British North America Act, R.S.C 1970, s. 96.
The Ontario Legislature enacted The Residential Tenancies Act, 1979, to come into effect on proclamation. The Act contained a legislative code to govern landlords and tenants and established the Residential Tenancy Commission to oversee and enforce the newly enunciated rights and obligations. The Executive Council, responding to questions concerning the authority of the Legislature to make orders evicting tenants from residential premises and to require landlords and tenants to comply with obligations imposed under the Act, referred two questions dealing with those issues to the Ontario Court of Appeal. That Court concluded that it was not within the legislative authority of Ontario to make eviction orders and compliance orders as provided in The Residential Tenancies Act, 1979. This Court was only concerned with the constitutional validity of two powers, the subject matter of the reference, and not with the soundness of the overall legislative scheme.
Held: The appeal should be dismissed.
Royal Commission Reports and Reports of Parliamentary Committees made prior to the passing of a statute were admissible to show the factual context and purpose of the legislation. The practice adopted in the Anti-Inflation Reference of giving timely directions establishing the extraneous materials to be admitted should be followed. Material relevant to the issues before the Court and not inherently unreliable or offending against public policy should be admissible, subject to the provisio that such extrinsic materials are not available for the purpose of aiding in statutory construction.
Section 96 of the British North America Act limited provincial competence to make appointments to a tribunal exercising s. 96 judicial powers and implicitly limited provincial competence to endow a provincial tribunal with such powers. That section, however, could no longer be construed as a bar to a province seeking to vest an administrative tribunal with ancillary “judicial” powers formerly exercised by s. 96 courts, subject to the qualification that the judicial function not be isolated from the rest of the administrative structure of the legislation.
The test was to be formulated in three steps. The first involved consideration, in light of the historical conditions existing in 1867, of the particular power or jurisdiction conferred upon the tribunal. The matter ended there if the power was not broadly conformable to the jurisdiction formerly exercised by s. 96 courts. If, however, the power were identical or analogous to a power exercised by a s. 96 court at Confederation it became necessary to proceed to step two. The second step involved consideration of the function within its institutional setting to determine whether the function was still “judicial”. The subject matter rather than the apparatus of adjudication was determinative and only if the power could still be characterized as judicial was it necessary to proceed to the third step—a review of the tribunal’s function as a whole in order to appraise the impugned function in its entire institutional context. A provincial scheme was only invalid where the adjudicative function was a sole or central function of the tribunal so that it could be said to be operating like a s. 96 court.
Applying step one the Court found that the powers conferred on the Commission were in broad conformity with those historically exercised by the s. 96 courts before and after Confederation. The argument that the power to order eviction had been conferred before Confederation on County Court judges as persona designata, and that that power and by analogy the power to make orders of compliance were therefore outside the superior or county court structure, went too far. The jurisdiction over overholding tenants in pre‑Confederation legislation was merely a modification of the traditional jurisdiction on ejectment exercised by the superior courts. The County Court judges acting under the over‑holding tenants provisions were acting qua judge rather than as persona designata. The submission that the Commission’s jurisdiction was analogous to that exercis- able by courts of summary jurisdiction rather than by s. 96 courts was misconceived. Provinces could not avoid the limitations of s. 96 by taking a function of a s. 96 court, simplifying procedural matters, and then transferring the jurisdiction to a non s. 96 tribunal.
Proceeding to step two the Court found that the impugned power to order eviction or compliance, viewed in its institutional setting, remained essentially a “judicial power” exercised in all cases in the context of a lis between parties. The Commission in deciding contractual and property rights as between individual landlords and tenants also determined rights other than those relating to land and property. Each case involved analysis of law, an application of law to the facts, and a judicial decision and subsequent order.
The third step examined the inter-relationship between the impugned “judicial” powers and other powers under the Act. The central function of the Commission was the resolution of disputes, in the final form by a judicial form of hearing between landlords and tenants. The Commission’s other functions were either ancillary to this central function, or were separate and distinct from it and bore no relation to it. There was no broad legislative scheme to subsume the Commission’s judicial functions. The whole of s. 96 court’s jurisdiction in a certain area, however limited, was transferred to provincially appointed officials.
Walker’s Case (1587), 76 E.R. 676; Attorney-General for Manitoba v. Manitoba Egg and Poultry Association, [1971] S.C.R. 689; Attorney General of Canada v. Reader’s Digest Association (Canada) Ltd., [1961] S.C.R. 775; Home Oil Distributors, Limited v. Attorney General of British Columbia, [1940] S.C.R. 444; Attorney-General for British Columbia v. Attorney General for Canada, [1937] A.C. 368; Ladore and Others v. Bennett and Others, [1939] A.C. 468; Reference re Eskimos, [1939] S.C.R. 104; Swait v. Board of Trustees of Maritime Transportation Unions (1966), 61 D.L.R. (2d) 317; Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373; Attorney-General for Alberta v. Attorney-General for Canada and Others, [1939] A.C. 117; Letang v. Cooper, [1965] 1 Q.B. 232; Pillai v. Mudanayake and Others, [1953] A.C. 514; Edwards and Others v. Attorney-General for Canada and Others, [1930] A.C. 124; Laidlaw v. The Municipality of Metropolitan Toronto, [1978] 2 S.C.R. 736; Re Apogee Investments Ltd. and Saber (1978), 21 O.R. (2d) 663; Re Blok-Glowczynski et al and Stanga et al. (1978), 22 O.R. (2d) 376; Toronto Corporation v. York Corporation, [1938] A.C. 415; Reference re Adoption Act and Other Acts, [1938] S.C.R. 398; Labour Relations Board of Saskatchewan v. John East Iron Works, Limited, [1949] A.C. 134; Tomko v. Labour Relations Board (Nova Scotia) et al., [1977] 1 S.C.R. 112; The Corporation of the City of Mississauga v. The Regional Municipality of Peel et al, [1979] 2 S.C.R. 244; Attorney General of Quebec et al v. Farrah, [1978] 2 S.C.R. 638; Re Pepita and Doukas (1979), 101 D.L.R. (3d) 577; Dupont et al v. Inglis et al, [1958] S.C.R. 535; Pong v. Quong and Chong, [1927] S.C.R. 271; Pajelle Investments Ltd. v. Herbold and Herbold, [1976] 2 S.C.R. 520; Herman et al v. Deputy Attorney General of Canada, [1979] 1 S.C.R. 729; Ross v. The York, Newcastle & Berwick Railway Company (1849), 18 L.J.Q.B. 199; R. v. Mcintosh (1869), 12 N.B.R. 372; Reference Re Proposed Legislation Concerning Leased Premises and Tenancy Agreements (1978), 89 D.L.R. (3d) 460, referred to; Reference Re Validity of Wartime Leasehold Regulations, [1950] S.C.R. 124, not followed.
APPEAL from a decision of the Court of Appeal for Ontario[1], finding the grant of certain powers ultra vires the Ontario Legislature. Appeal dismissed.
Supporting the legislation:
D.W. Mundell, Q.C., John Cavarzan, Q.C., and Lorraine E. Weinrib, for the Attorney General of Ontario.
William J. Atkinson, Henri Brun and Jean-François Jobin, for the intervener the Attorney General of Quebec.
Reinhold M. Endres and Linda Garber, for the intervener the Attorney General of Nova Scotia.
E. Robert A. Edwards, for the intervener the Attorney General of British Columbia.
Brian F. Squair, for the intervener the Attorney General of Manitoba.
D.A. McKillop, for the intervener the Attorney General of Saskatchewan. William Henkel, Q.C., for the intervener the Attorney General of Alberta.
Opposing the legislation:
John J. Robinette, Q.C., and Peter Atkinson.
T.B. Smith, Q.C., and J.M. Mabbutt, for the intervener the Attorney General of Canada.
Ian Scott, Q.C., and Mary Hogan, for the intervener Federation of Metro Tenants Association et al.
J.H. Melnitzer, for the intervener London Property Management Association et al.
Lawrence Greenspon, on his own behalf.
The judgment of the Court was delivered by
DICKSON J.—The resolution of disputes between landlords and tenants has long been a central preoccupation of the common law courts. As early as 1587, Lord Coke observed that the law of landlord and tenant was vital since, “for the most part, every man is a lessor or a lessee”. (Walker’s Case[2] at p. 680.)
Within the past few years the Province of Ontario, in common with a number of other provinces, has enacted legislation to redress what was perceived to be an imbalance, in favour of landlords, in the landlord and tenant relationship. On June 21, 1979, the Legislative Assembly of Ontario enacted The Residential Tenancies Act, 1979, 1979 (Ont.), c. 78, to come into effect on proclamation. The Act contains a detailed legislative code to govern landlords and tenants and establishes a tribunal, bearing the name the Residential Tenancy Commission, to oversee and enforce the newly enunciated rights and obligations. Questions having been raised as to the authority of the Legislative Assembly of Ontario to empower the Commission to make orders evicting tenants from residential premises and to require landlords and tenants to comply with obligations imposed under the Act, the Executive Council of the Province, pursuant to s. 1 of The Constitution- al Questions Act, R.S.O. 1970, c. 79, referred the following questions to the Court of Appeal of Ontario for hearing and consideration:
1. Is it within the legislative authority of the Legislative Assembly of Ontario to empower the Residential Tenancy Commission to make an order evicting a tenant as provided in The Residential Tenancies Act, 1979?
2. Is it within the legislative authority of the Legislative Assembly of Ontario as provided in The Residential Tenancies Act, 1979 to empower the Residential Tenancy Commission to make orders requiring landlords and tenants to comply with obligations imposed under that Act?
The Court of Appeal delivered a careful and scholarly unanimous judgment in which each of these questions was answered in the negative. The court concluded it was not within the legislative authority of Ontario to empower the Residential Tenancy Commission to make eviction orders and compliance orders as provided in The Residential Tenancies Act, 1979. The importance of the issue is reflected in the fact that five judges of the court, including the Chief Justice and Associate Chief Justice, sat on the appeal.
The Attorney General of Ontario appealed to this Court as of right, under s. 37 of the Supreme Court Act, R.S.C. 1970, c. S-19, as amended. The Attorneys General of Quebec, Nova Scotia, British Columbia, Manitoba, Saskatchewan and Alberta intervened to support the validity of the legislation. Mr. John J. Robinette, Q.C., was invited by the Court of Appeal of Ontario, when the matter came before that court, to argue against the validity of the provisions that were the subject of the reference. Mr. Robinette assisted this Court in like manner during argument of the present appeal.
The Attorney General of Canada intervened to oppose the legislation as did a number of property management associations. The legislation also came under attack from independent community-based legal service clinics and from the Federation of Metro Tenants Association. The Federation is an “umbrella” organization for Metropolitan Toronto, composed of nearly one hundred affiliat- ed tenant associations and some individual tenant members who support and participate in the work of organizing tenants and lobbying in their interests. Owners and tenants alike made common cause in assailing the impugned provisions.
It should be noted that the Court is concerned in this appeal only with the constitutional validity of two powers, the subject matter of the reference, and not with the soundness of the overall legislative scheme or the wisdom of the Legislative Assembly in enacting it. The general subject matter of landlord and tenant rights and obligations is unquestionably within provincial legislative competence and no part of The Residential Tenancies Act, 1979, other than those sections empowering the Commission to issue compliance orders and eviction orders, is in issue.
I
In advance of the hearing before the Ontario Court of Appeal, the Attorney General of Ontario filed with the court the 1968 report of the Ontario Law Reform Commission entitled “Interim Report on Landlord and Tenant Law Applicable to Residential Tenancies”; the 1972 report of the Commission on Part IV of The Landlord and Tenant Act; the 1976 report of the Commission entitled “Report on Landlord and Tenant Law”; and a Green Paper published in 1978 by the Ministry of Consumer and Commercial Relations entitled “Policy Options for Continuing Tenant Protection”. In the Court of Appeal, a question was raised as to whether, and the extent to which, this material was properly before the court. Although there was some argument, it was not pressed to the point where the Court of Appeal felt called upon to rule on it. The court was content to receive the material for whatever assistance it might afford as “background”, and to leave its relevance and weight until the conclusion of the submissions advanced during the hearing. In the outcome the Court of Appeal was persuaded that little, if anything, turned on the reception of this material.
The same four documents were before us, and it seems appropriate at this time to rule whether properly so. There is little authority to guide decision.
Professors Whyte and Lederman correctly point out in chapter 4 of their work on Canadian Constitutional Law that a classification process is at the heart of judicial determination of the distribution or limitation of primary legislative powers. That process joins logic with social fact, value decisions and the authority of precedents. A court faces particular difficulty in a constitutional reference when only the bare bones of the statute arrive for consideration. The Chief Justice of this Court made this point in the “chicken and egg” reference, Attorney‑General for Manitoba v. Manitoba Egg and Poultry Association[3]. There is normally a dearth of relevant facts from which to draw logical inferences, determine social impact, make value decisions and select governing precedents. As Whyte and Lederman note, p. 229, “…the challenge of ultra vires raises a need for evidence of facts of social context and legislative effect…”
In my view a court may, in a proper case, require to be informed as to what the effect of the legislation will be. The object or purpose of the Act in question may also call for consideration though, generally speaking, speeches made in the Legislature at the time of enactment of the measure are inadmissible as having little evidential weight.
It now seems reasonably clear that Royal Commission Reports and the Reports of Parliamentary committees made prior to the passing of a statute are admissible to show the factual context and purpose of the legislation although Cartwright J., as he then was, said in Attorney General of Canada. v. Reader’s Digest Association (Canada) Ltd.[4], that the general rule is that if objected to they should be excluded. If the reports are relevant it is not entirely clear why they should be excluded upon objection of one of the parties. In Home Oil Distributors, Limited v. Attorney-General of British Columbia[5], Kerwin J., with the concurrence of Rinfret J., took into consideration a report of a Commission under the circumstances there existing, for showing what was in the mind of Parliament. The same course was adopted by the Privy Council in Attorney-General for British Columbia v. Attorney‑General for Canada[6] and in Ladore and Others v. Bennett and Others[7]. In Reference re Eskimos[8], in preliminary proceedings, this Court appointed the Registrar to hold hearings and take evidence as to whether Eskimos were “Indians” within the meaning of the B.N.A. Act. In Swait v. Board of Trustees of Maritime Transportation Unions[9], the Quebec Court of Queen’s Bench, Appeal Side, admitted the Norris Report on Disruption of Shipping in the Great Lakes for the purpose of establishing the facts upon which Parliament based the purpose and object of an Act passed essentially to put an end to a danger threatening the national interest.
Although admittedly a far different case from the present, in Reference re Anti-Inflation Act[10], this Court admitted extrinsic evidence relating to the then prevailing level of inflation, including the White Paper tabled in the House by the Minister of Finance. I think it can be taken from the conduct of the the Anti-Inflation Reference and the use of extrinsic materials by the members of the Court in that case that the exclusionary rule expressed in obiter by Rinfret C.J. in Reference Re Validity of Wartime Leasehold Regulations[11], can no longer be taken as a correct statement of the law. We should be loathe, it seems to me, to enunciate any inflexible rule governing the admissibility of extrinsic materials in constitutional references. The effect of such a rule might well be to exclude logically relevant and highly probative evidence. It is preferable, I think, to follow the practice adopted in the Anti-Inflation Reference and give timely directions establishing the evidence or extraneous materials to be admitted to serve the ends of the Court in the particular reference.
Generally speaking, for the purpose of constitutional characterization of an act we should not deny ourselves such assistance as Royal Commission reports or Law Reform Commission reports underlying and forming the basis of the legislation under study, may afford. The weight to be given such reports is, of course, an entirely different matter. They may carry great, little, or no weight, but at least they should, in my view, generally be admitted as an aid in determining the social and economic conditions under which the Act was enacted. See Attorney-General for Alberta v. Attorney-General for Canada and Others[12] (Alberta Bank Taxation case). The mischief at which the act was directed, the background against which the legislation was enacted and institutional framework in which the act is to operate are all logically relevant. See Letang v. Cooper[13], at p. 240 and Pillai v. Mudanayake and Others[14], at p. 528.
A constitutional reference is not a barren exercise in statutory interpretation. What is involved is an attempt to determine and give effect to the broad objectives and purpose of the Constitution, viewed as a “living tree”, in the expressive words of Lord Sankey in Edwards and Others v. Attorney-General for Canada and Others[15]. Material relevant to the issues before the court, and not inherently unreliable or offending against public policy should be admissible, subject to the proviso that such extrinsic materials are not available for the purpose of aiding in statutory construction. See Laidlaw v. The Municipality of Metropolitan Toronto[16] at p. 743 and generally, Strayer, Judicial Review of Legislation in Canada (1968), c. 6; Hogg, “Proof of Facts in Constitutional Cases” (1976), 26 U. of T.L.J. 386; Buglass, “The Use of Extrinsic Evidence and the Anti-Inflation Act Reference” (1977), 9 Ottawa L. Rev. 183.
II
In 1964, the Legislature of Ontario enacted The Ontario Law Reform Commission Act, 1964 (Ont.), c. 78, R.S.O. 1970, c. 321, establishing the Ontario Law Reform Commission. The Commission was to inquire into and consider any matter relating to reform of the law having regard to the statute law, the common law and judicial decisions. On December 10, 1968, the Law Reform Commission submitted to the Attorney General of Ontario an Interim Report on Landlord and Tenant Law applicable to Residential Tenancies in which the Commission recommended substantial changes in matters of substantive law governing the relations of landlord and tenant relating to residential tenancies. Following thereon The Landlord and Tenant Act, 1968-69 (Ont.), c. 58, was enacted. This Act added a new Part IV entitled “Residential Tenancies” to The Landlord and Tenant Act. Part IV contained provisions on most of the matters recommended by the Law Reform Commission and some additional matters. Section 106(1) provided:
106. (1) Unless a tenant has vacated or abandoned rented premises, the landlord shall not regain possession of the premises on the grounds he is entitled to possession except under the authority of a writ of possession obtained under section 105 or under Part III.
Thus the landlord’s right of self-help, through direct repossession, was abolished. It became necessary for a landlord to bring proceedings by way of writ to recover possession except in cases where the tenant had given it up. The Act also provided for the establishment of Landlord and Tenant Advisory Bureaux by the councils of municipalities to receive complaints and mediate disputes between landlords and tenants. The reform in the law of landlord and tenant in 1968-69 preserved the constitutional authority of s. 96 courts to terminate tenancies, issue writs of possession, and enforce compliance.
In 1972 the Law Reform Commission reported upon a review which the Commission had made, at the request of the Attorney General, on certain provisions of the new Part IV of The Landlord and Tenant Act applying to residential tenancies. The Commission made a number of recommendations directed at shortening the time for taking steps in the proceedings for eviction and providing for the entry by the clerk of the court of default judgments where a landlord’s application for a writ of possession was not contested. The Landlord and Tenant Amendment Act, 1972, 1972 (Ont.), c. 123, was enacted amending the procedure for applying for writs of possession and providing for default proceedings in the manner recommended by the Law Reform Commission.
In 1975 the Legislature of Ontario introduced The Residential Premises Rent Review Act, 1975, 1975 (Ont.), c. 12, to establish rent control. The ability of the province to administer a rent review system, of course, in no way encroached on the traditional jurisdiction of the s. 96 courts to order termination, eviction and compliance. A companion Act, 1975, (Ont.), c. 13, amended The Landlord and Tenant Act to make substantial changes in the substantive law of landlord and tenant. This latter Act established security of tenure for tenants by providing for automatic renewal of tenancy agreements upon expiration of the term, unless the agreement had been lawfully terminated in accordance with the Act. A tenant might terminate it by agreement or by giving notice in the form and at the time prescribed by the statute. A landlord might terminate only for specified causes and at specified times. The rules for proceedings by the county or district judge were relaxed and simplified. The powers of these judges were expanded to cover most of the issues that might arise between a landlord and a tenant, including power to declare a tenancy agreement terminated. After the 1975 statutes were passed the courts continued to exercise the functions traditionally performed by s. 96 courts since Confederation, and to the present time, to order termination of leases, make eviction orders and compel compliance with the provisions of a lease of residential premises. See, as examples, Re Apogee Investments Ltd. and Saber[17] and Re Blok-Glowczynski et al. and Stanga et al.[18]
On February 10, 1978 a Government Green Paper was released relating to policy options for continuing tenant protection. The Green Paper made reference to the very large number of Ontario citizens whose lives are governed in part by the law of landlord and tenant. From 1961 to 1971 the number of tenants grew by 70 per cent from 483,500 to 825,000. It was estimated that there were more than one million rental households in Ontario constituting about 36 per cent of all households.
A reading of the Green Paper would suggest that at least three factors led to the establishment of the Residential Tenancy Commission. First, the legislature had removed the landlord’s traditional right to employ ‘self-help’ remedies (i.e. repossession) and now required a landlord to apply for an order of eviction. It was felt that the demands of this “new business” would clog an already overburdened court system. A specialized Commission was seen as a convenient method for ensuring prompt and efficient resolution of landlord-tenant disputes. A second major factor was the belief that the regular court system was too formal in structure for the resolution of landlord and tenant disputes; that such disputes could best be adjudicated in an informal, summary proceeding before a tribunal where individual complainants would feel less inhibited in presenting their own cases. Third, the Green Paper saw the creation of a Tenancy Commission as a convenient method of consolidating functions which had previously been performed by different organizations. The new tribunal would be a centralized body which could provide authoritative advice to landlords and ten- ants. By combining administrative functions with judicial functions, the tribunal would be able to offer a wider range of remedies to individuals than the regular court system. The Paper noted that while many had hailed the development of tenancy boards and tribunals as an effective means of realizing the rights embodied in the residential tenancy legislation, others had pointed out that such “rough justice” might run counter to well-established principles of procedure. The Green Paper recommended a “mediation-adjudication” approach under which authority to mediate would be combined with jurisdiction to adjudicate a dispute. In this approach, an official would listen to both sides of the case and attempt to guide the parties toward a mutually agreeable solution. If agreement could not be reached, the official would convene a hearing with the parties present, hear evidence and arrive at a determination according to the law. The decision would be legally enforceable.
The Residential Tenancies Act was enacted to implement the recommendations of the Green Paper. As I have said, the Act set up a new tribunal, the Residential Tenancy Commission, to oversee and enforce the obligations of landlords and tenants in Ontario. The tribunal is given wide-ranging powers and functions. Some of these are purely administrative in nature, for example, the Commission is charged with the obligation of informing members of the public as to their rights under the legislation. But by far the most significant role to be played is in the resolution of disputes between landlords and tenants. The mechanism for dispute resolution is triggered ‘upon application’ by either the landlord or the tenant. In one or two circumstances the process is put in motion by application by a third party—e.g. a neighbouring tenant.
The Residential Tenancies Act is not directed solely to low rental housing. It applies to every residential tenancy, including the most expensive housing, and leases of great value, and any length of term, in city or country. III
As Professor Hogg has noted in his work on Constitutional Law of Canada (1977), p. 129, there is no general “separation of powers” in the British North America Act, 1867. Our Constitution does not separate the legislative, executive, and judicial functions and insist that each branch of government exercise only its own function. Thus it is clear that the Legislature of Ontario may confer non-judicial functions on the courts of Ontario and, subject to s. 96 of the B.N.A. Act, which lies at the heart of the present appeal, confer judicial functions on a body which is not a court.
Under s. 92(14) of the B.N.A. Act the provincial legislatures have the legislative power in relation to the administration of justice in the province. This is a wide power but subject to subtraction of ss. 96 to 100 in favour of the federal authority. Under s. 96 the Governor General has the sole power to appoint the judges of the Superior, District and County Courts in each province. Under s. 97 the judges who are to be appointed to the Superior, District and County Courts are to be selected from the respective bars of each province. Under s. 100 the Parliament of Canada is obliged to fix and provide for their salaries. Section 92(14) and ss. 96 to 100 represent one of the important compromises of the Fathers of Confederation. It is plain that what was sought to be achieved through this compromise, and the intended effect of s. 96, would be destroyed if a province could pass legislation creating a tribunal, appoint members thereto, and then confer on the tribunal the jurisdiction of the superior courts. What was conceived as a strong constitutional base for national unity, through a unitary judicial system, would be gravely undermined. Section 96 has thus come to be regarded as limiting provincial competence to make appointments to a tribunal exercising s. 96 judicial powers and therefore as implicitly limiting provincial competence to endow a provincial tribunal with such powers. IV
The belief that any function which in 1867 had been vested in a s. 96 court must forever remain in that court reached its apogee in the judgment of Lork Atkin in Toronto Corporation v. York Corporation[19]. Describing s. 96 as one of the “three principal pillars in the temple of justice… not to be undermined”, Lord Atkin held that the Ontario Municipal Board could not validly receive “judicial authority”. At the same time, he held that the Municipal Board was in ‘pith and substance’ an administrative body, and the impugned ‘judicial functions’ were severable from the administrative powers given to the Board under its enabling legislation. There was no analysis of the inter-relationship between the judicial and administrative features of the legislative scheme; the assumption was that any attempt to confer a s. 96 function on a provincially-appointed tribunal was ultra vires the legislature.
This sweeping interpretation of s. 96, with its accompanying restrictive view of provincial legislative authority under s. 92, was limited almost immediately by the judgment of this Court in the Reference re Adoption Act and Other Acts[20]. Chief Justice Duff held that the jurisdiction of inferior courts was not “fixed forever as it stood at the date of Confederation”. On his view, it was quite possible to remove jurisdiction from a Superior Court and vest it in a court of summary jurisdiction. The question which must be asked was whether “the jurisdiction conferred upon magistrates under these statutes broadly conform[s] to a type of jurisdiction generally exercisable by courts of summary jurisdiction rather than the jurisdiction exercised by courts within the purview of s. 96”. In the Adoption Reference, Duff C.J. looked to the historical practice in England and concluded that the jurisdiction conferred on magistrates under the legislation before the Court in the Reference was analogous to the jurisdiction under the English Poor Laws, a. jurisdiction which had belonged to courts of summary nature rather than to Superior Courts. On this basis, the legislation was upheld. The Adoption Reference represented a liberalization of the view of s. 96 adopted by the Privy Council in Toronto v. York, at least in the context of a transfer of jurisdiction from a Superior Court to an inferior Court.
The same process of liberalization, this time in the context of a transfer of jurisdiction from a Superior Court to an administrative tribunal, was initiated by the Privy Council in Labour Relations Board of Saskatchewan v. John East Iron Works, Limited[21]. Lord Simonds proposed a two-fold test. The first limb of the test is to ask whether the board or tribunal exercises “judicial power”. Lord Simonds did not propose a ‘final’ answer to the definition of “judicial power”, but he suggested that,
…the conception of the judicial function is inseparably bound up with the idea of a suit between parties, whether between Crown and subject or between subject and subject, and that it is the duty of the court to decide the issue between those parties, with whom alone it rests to initiate or defend or compromise the proceedings. [p. 149]
If the answer to the initial question as to “judicial power” is in the negative, then that concludes the matter in favour of the provincial board. If, however, the power is in fact a judicial power, then it becomes necessary to ask a second question: in the exercise of that power, is the tribunal analogous to a superior, district or county court?
This formulation represented a subtle modification of the test proposed by Duff C.J. in the Adoption Reference. Duff C.J. had suggested it was necessary to determine whether the impugned jurisdiction was more analogous to a summary type of jurisdiction exercised at the time of Confederation rather than to a jurisdiction traditionally exercised by s. 96 courts. The formulation of Duff C.J. froze the provincial jurisdiction to that of summary courts. Lord Simonds in John East suggested that it was not absolutely necessary to consider whether there was a true analogy between the impugned jurisdiction and the jurisdiction of summary courts; it would be sufficient, for constitutional purposes, to establish that the power or jurisdiction was not one traditionally falling within s. 96. Lord Simonds makes this clear in the following passage:
At this stage their Lordships reach the conclusion that the jurisdiction exercisable by the board is not such as to constitute it a court within s. 96 of the British North America Act. They do not think it necessary to consider whether it is a jurisdiction more nearly analogous to that exercised at the time of confederation by justices of the peace—a matter to which much argument was directed—nor would they pursue the comparison with the jurisdiction of the Workmen’s Compensation Board, which was also pressed on them by counsel. It is sufficient to say that it is not, in their opinion, analogous to that of a superior, district or county court, [p. 152]
In John East, the Privy Council did not find it necessary to give any final answer to the initial question, namely, whether the power in issue was ‘judicial’. The case was resolved solely on the ground that, in exercising the power, the tribunal was not analogous to a superior, county or district court.
It is apparent that John East represented a break with the line of jurisprudence developed in Toronto v. York. The approach of Toronto v. York, in which the sole issue was whether the tribunal was being clothed with a s. 96 ‘judicial power’, had been effectively, though not expressly, repudiated.
In Tomko v. Labour Relations Board (Nova Scotia) et al.[22], the issue was the validity of the Nova Scotia Labour Relations Board’s authority to issue a “cease and desist” order. It was argued that this jurisdiction was analogous to the jurisdiction of s. 96 courts to issue mandatory injunctions to halt illegal activity. The Chief Justice, speaking for eight members of the Court, held that this consideration was not conclusive, since “…it is not the detached jurisdiction or power alone that is to be considered but rather its setting in the institutional arrangements in which it appears and is exercisable under the provincial legislation”. A consideration of the ‘institutional setting’ indicated that the power to make cease and desist orders was merely one aspect of a broad legislative scheme for the peaceful regulation of collective bargaining, an area which the courts had not entered. Thus, the Labour Board had been validly clothed with the power impugned.
The recent decision of this Court, The Corporation of the City of Mississauga v. The Regional Municipality of Peel et al.[23], is, in the words of the Chief Justice in that case, “…a prime illustration of the proposition laid down in Tomko”. In Mississauga, the Ontario Municipal Board had been given certain powers to resolve disputes over assets between amalgamating municipalities. Noting that Toronto v. York must be viewed with ‘considerable qualification’, it was stated that the power to adjudicate was merely one “…incident …in the over-all picture of the general restructuring of the municipalities in which the Municipal Board is given an important part to play…” Viewed in their “institutional setting, the ‘judicial powers’ to determine rights and liabilities under provincial legislation had been validly granted to the Municipal Board”.
I do not think it can be doubted that the courts have applied an increasingly broad test of constitutional validity in upholding the establishment of administrative tribunals within provincial jurisdiction. In general terms it may be said that it is now open to the provinces to invest administrative bodies with ‘judicial functions’ as part of a broader policy scheme. There will still be situations, however, as in Attorney General of Quebec et al. v. Farrah[24], where a s. 96 ‘judicial function’ is isolated from the rest of the administrative structure of the relevant legislation. In Farrah, a Transport Tribunal was given appellate jurisdiction over the Quebec Transport Commission. The Tribunal performed no function other than deciding questions of law. Since this function was normally performed by s. 96 courts and divorced from the broader institutional framework of the Act, the impugned sections were held to be unconstitutional. Subject to this type of situation, s. 96 can no longer be construed as a bar to a province seeking to vest an administrative tribunal with ancillary ‘judicial’ powers formerly exercised by s. 96 courts.
The teaching of John East, Tomko, and Mississauga is that one must look to the ‘institutional setting’ in order to determine whether a particular power or jurisdiction can validly be conferred on a provincial body. But these cases are merely the