Minority would have upheld right of provincial judges to expand breadth of cases it could hear
Quebec provincial courts do not have the constitutional right to hear cases with a monetary value higher than $70,000 in order to be consistent with s. 96 of the Constitution Act, 1867, the Supreme Court of Canada ruled on Wednesday in dismissing an appeal from the Conférence des juges de la Cour du Québec.
The 4/3 decision in Reference re Code of Civil Procedure (Que.), art. 35 concerned provincial jurisdiction over the administration of justice, the role of superior courts, and exclusive monetary jurisdiction over civil claims for less than $85,000 that was granted to the Court of Quebec by the provincial legislature.
In the three sets of reasons issued, Justices Suzanne Côté and Sheilah Martin wrote for the majority (also on behalf of Justices Michael Moldaver and Andromache Karakatsanis) in finding art. 35 unconstitutional, Chief Justice Richard Wagner dissented in part (Justice Malcolm Rowe agreeing), and Justice Rosalie Abella wrote separate dissenting reasons.
“I don't think there was a huge difference, certainly, between the majority and Chief Justice Wagner on the kind of analytical framework that you use” for determining jurisdiction of superior courts, says Paul Daly, who holds the chair in administrative law and governance at the University of Ottawa’s Common Law section.
“They disagreed about how exactly you define the core jurisdiction of the superior court. They agree that the superior courts are fundamental, a central pillar in Canada's constitutional architecture.”
The court system in Quebec also gives a much more important role to the provincial court than do other provinces, says Daly. The repercussions of the decision will be significant for Quebec, he adds, and the National Assembly will have to figure out how to design a Court of Quebec with monetary jurisdiction and appeal mechanisms that satisfy the requirements of the majority. However, the decision is not likely to have significant repercussions for other provinces, although may affect tribunal decisions.
Quebec’s amended Code of Civil Procedure
In January 2016 Quebec’s new Code of Civil Procedure came into force, and art. 35 increased the upper monetary limit for the Court of Quebec’s exclusive jurisdiction over civil claims from $70,000 to $85,000. The change was intended to facilitate access to justice via provincial courts, in order to reduce the need for travel to larger urban centres where the superior courts are located.
In response to the change to art. 35, the Chief Justices of the Superior Court of Quebec filed an application challenging the constitutional validity of art. 35. They argued that it was inconsistent with s. 96 of the Constitution Act, 1867, which concerns Canada’s superior courts, and to which the federal government appoints all judges. In Quebec, the Superior Court and the Court of Appeal are the superior courts. They also contested the appeal powers granted to the Court of Québec with respect to certain administrative decisions.
The Government of Quebec then referred two questions to the Court of Appeal of Quebec: first, whether art. 35 is constitutional, and second, whether certain powers of the Court of Quebec pertaining to appeals of administrative decisions infringed on the powers of the Superior Court.
The Court of Appeal unanimously held that article 35 was unconstitutional in removing from Superior Court jurisdiction civil claims between $70,000 and $85,000; on the second question, though, it found that the appeal powers of the Court of Québec in administrative matters had no effect on those of the Superior Court.
The Supreme Court heard the case in September 2020 with a panel of seven judges. Justice Nicholas Kasirer had sat on the Quebec Court of Appeal panel which made its decision in the case, and so was recused, and Justice Russell Brown dropped off in order to keep the panel at an odd number.
Supreme Court’s decision
In answering the first question, the majority of four judges concluded that article 35 was unconstitutional, in part on historical grounds. When the Constitution was enacted in 1867 the monetary ceiling for lower courts was $100, which based on expert evidence they agreed would be equivalent to between $63,698 and $66,008 today – well below the new threshold of $85,000.
Determining whether the new ceiling was actually too high depended on several other factors, and the majority concluded that the monetary increase gave the Court of Québec the exclusive jurisdiction to handle too wide a range of legal matters. This prevented the Superior Court from exercising its constitutionally protected right to decide on many legal matters at the heart of Quebec private law, the majority found.
They also found that the Quebec government failed to prove that access to justice was facilitated by the increase in the monetary ceiling for cases heard by the Court of Quebec.
“For the majority judges, what matters is that in private law -- in disputes, in contracts, and in torts, property -- that the superior courts really have to have pride of place in resolving disputes between individuals,” Daly told Canadian Lawyer.
For Chief Justice Wagner, who found art. 35 of the Civil Code of Procedure constitutional, “what's necessary is only that [the Superior Court has] the ability to clearly and authoritatively state the law [and] the general legal principles. As long as that's not interfered with, the provinces can create whatever provincial court structures they desire.”
The majority had a much broader vision of the core functions of superior courts, Daly adds, “and set out a test which looked at things like the monetary jurisdiction, but also the extent to which the provincial courts are controlled by superior courts, and being subject to appeal and oversight. That was the key difference between their approach and Chief Justice Wagner's approach.”
The court did not address the second question -- whether certain powers of the Court of Quebec infringed on the powers of the Superior Court – because it determined it to be moot given the court’s recent decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, and the effects of a recent Quebec law limiting how the Court of Quebec exercises its appeal powers over administrative decisions. Chief Justice Wagner agreed that the second question was moot.
Justice Abella would have allowed the appeals, finding that the increase in monetary threshold was valid. Like Chief Justice Wagner, she agreed with the Government of Quebec about the beneficial effects of art. 35 in increasing access to justice.
“The atavistic suggestion that this $15,000 increase [in monetary value for provincial court cases] adversely affects the very constitutional foundation of superior courts in Quebec, let alone the rule of law and national unity, is neither constitutionally mandated, historically accurate, nor desirable, and ignores what this Court has said about the importance, independence and impartiality of provincial court judges,” Justice Abella wrote.
“It would also come as a surprise to the millions of people who have appeared before provincial court judges over the years in criminal, family and civil cases whose outcomes, to those people, have no less serious consequences than what occurs in superior courts.”
Application to tribunals
Although the majority indicated its decision affected only provincial courts, and not administrative tribunals, the decision could have an impact on administrative tribunals, says Daly. For example, in British Columbia the constitutionality of the Civil Resolutions Tribunal, an online tribunal that aims to decrease litigation, is being challenged with respect to its authority over certain motor vehicle accidents.
“Where you try to create a class of subjects, like motor vehicle accidents under $50,000, and you place them in an administrative tribunals rather than in the superior court, the framework that the majority sets out might arguably be relevant to determining whether or not that is constitutional.”
