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Judicial Power and S. 96 Jurisdiction

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Larry Chartrand

on 25 November 2016

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Transcript of Judicial Power and S. 96 Jurisdiction

Constitutional Review Power, Reference Authority and the Judicature Provisions of the Constitution
Judicial Power
To what extent can the legislature prevent having to return funds or make restitution under a taxation law found subsequently to be ultra vires?
Protective Status of Constitutional Review
S. 101 Courts
These "advisory opinions of the Court are unique and differ from typical adversarial proceedings in significant ways" (@ 220-221)
When does the granting of judicial powers to provincial inferior courts or administrative agencies violate the principle of judicial independence guaranteed by s.96?
S. 96 of the Constitution Act, 1867
A synthesized general rule based on the jurisprudence is that an administrative tribunal may be clothed with power formerly exclusively exercised by s. 96 courts as determined by a historical assessment of the four original provinces at the time of confederation (1867) (ties to be broken by reference to the United Kingdom), so long as that power (or subject matter jurisdiction) is merely an adjunct of, or ancillary to, a broader administrative or regulatory structure. If the impugned power forms a dominant aspect of the function of the tribunal such that the tribunal is acting "like a court" then the conferral will be ultra vires. And provided further that such power is not a complete transfer of a "core" power to the inferior tribunal.
The Three Stage Test
Amax Potash (1977)
The courts will, of course, not question the wisdom of enactments, ... (@ 215)
But the courts will ensure that the legislature not be allowed to "do indirectly what it could not do directly" (@ 216)
What constitutional remedy did the court apply against the
Proceedings Against the Crown Act
Kingstreet (2007)
Money Bills
Note that under s.53 and s.90 of the Constitution no tax can be levied except with authority of Parliament or the Legislature.
"No taxation without representation"
Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons.

Recommendation of Money Votes 54.

It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue, or of any Tax or Impost, to any Purpose that has not been first recommended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed.
S. 53
"User charges" imposed on plaintiff defined as a tax and ultra vires the province's liquor commission".
However, the view that the government should not return taxes later to be found illegally obtained because of ultra vires legislation was challenged on policy grounds
What was the government's argument?
Relying on dicta from J. Wilson in Air Canada, the court disagreed with privileging policy considerations in the case of ultra vires tax legislation. (@ 218)
However, the court added a gloss to the general rule by nonetheless upholding the Limitation of Actions Act by distinguishing it from the kind of legislation at issue in Amax Potash. (@ 219)
Reference Cases
Under s. 53 of the Supreme Court Act, it is the duty of the court to answer each question referred to it by the Governor-in-Council.
Does a Court have discretion to refuse such a request? If so, under what circumstances?
Reference re: Same Sex Marriage (@ 224)
The normal rule is that the court can refuse to answer a reference question where:

the question is too ambiguous or imprecise ...
the parties have not provided the court with sufficient information to provide a complete answer
In this reference, these traditional reasons were not applicable, but the court nonetheless refused to answer question 4. Why?
Under s. 101 of the Constitution, Parliament has a plenary power to establish a general court of appeal and takes precedence over the province's power to control the administration of justice under s.92(14)
The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.
Quebec Succession Reference
Court reviewed the constitutionality of the advisory function (@ 223)

What did the court conclude and why?
1. No constitutional rule against it.
2. This is a common feature among States.
3. The Canadian Constitution does not insist on a strict separation of powers ... (@ 224, 227)
What is an important purpose of s.96 and the other judicature provisions of the Constitution? (@ 228)
Residential Tenancies (1981)
Importance of Administrative Tribunals
There is much value in creating administrative agencies to manage policies through such mechanisms (Hogg @ 7-44)
The Three Stage Test
1. An historical inquiry into whether the impugned power broadly conforms to a power exclusively exercised by a s.96 court at the time of confederation (Residential Tenancies @ 229). This is to be an inquiry into the four original provinces and in the case of a tie, the United Kingdom (as per Sobey's @ 238)
A. If the power or jurisdiction was exclusive to the superior courts, then go to step 2. If the power was concurrent with inferior courts at the time, the question that needs to be asked is whether the power/jurisdiction exercised by the inferior court was sufficiently extensive (i.e. broadly co-extensive with that of the superior courts) (Sobey's @ 237)
2. If the answer is yes and the power/jurisdiction was exclusive to the superior courts, the second stage asks whether the power/jurisdiction is "judicial" or "administrative" from an institutional setting perspective. The court will consider the following factors:

Is there a dispute between private parties? (@ 230) as opposed to a contest between a person's rights and the public interest ("for the benefit of a common group or policy") (@ 231)
Adjudication through a recognized body of rules (@ 230), (general law vs. specialized rules?)
In a manner consistent with fairness and impartiality.
Is the tribunal composed of individuals with particular technical expertise? (@ 233)
B. In characterizing the power, the court prefers a narrow approach over a broad approach (@ 236) which is consistent with the purpose of s. 96.
3. If the power is "judicial" in nature, then the Courts will examine whether it is an incidental or ancillary part of a broader administrative scheme or structure? The scheme is invalid only if the adjudicative function is a sole or central function of the tribunal. (@ 230). (i.e. not a shadow court ... per McLachlin @ 247)
Residential Tenancies Commission?
Souby's (Labour Standards Tribunal)?
McEvoy (Indictable in Prov. Cts. only)?
Macmillan Bloedel (Youth Court)?
The Doctrine of
(Stage 4)
Supreme Court of Canada
Federal Court of Canada

Appointment of Judges
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.

Selection of Judges in Ontario, etc.

97. Until the Laws relative to Property and Civil Rights in Ontario, Nova Scotia, and New Brunswick, and the Procedure of the Courts in those Provinces, are made uniform, the Judges of the Courts of those Provinces appointed by the Governor General shall be selected from the respective Bars of those Provinces.

Selection of Judges in Quebec

98. The Judges of the Courts of Quebec shall be selected from the Bar of that Province.

Tenure of office of Judges

99. (1) Subject to subsection two of this section, the Judges of the Superior Courts shall hold office during good behaviour, but shall be removable by the Governor General on Address of the Senate and House of Commons.

Termination at age 75

(2) A Judge of a Superior Court, whether appointed before or after the coming into force of this section, shall cease to hold office upon attaining the age of seventy-five years, or upon the coming into force of this section if at that time he has already attained that age.

Salaries, etc., of Judges

100. The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are for the Time being paid by Salary, shall be fixed and provided by the Parliament of Canada.

General Court of Appeal, etc.

101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.

Can Parliament or Provincial Legislatures limit judicial review of constitutionality?
Doctrine of Crown Immunity?
Limitation of liability in respect of things done or omitted in exercise
of power under ultra vires enactment

(7) No proceedings lie against the Crown under this or any other section of this
Act in respect of anything heretofore or hereafter done or omitted and purporting to
have been done or omitted in the exercise of a power or authority under a statute or
a statutory provision purporting to confer or to have conferred on the Crown such
power or authority, which statute or statutory provision is or was or may be beyond
the legislative jurisdiction of the Legislature; and no action shall be brought
against any person for any act or thing heretofore or hereafter done or omitted by
him under the supposed authority of such statute or statutory provision, or of any
proclamation, order in council or regulation made thereunder, provided such action
would not lie against him if the said statute, statutory provision, proclamation,
order in council or regulation is or had been or may be within the jurisdiction of the
Legislature enacting or the Lieutenant Governor making the same.
How else could government, in a sense, keep the money?
The result of the decision seems to suggest that the court has a general discretion to refuse a reference.
what is the nature of an "advisory opinion"?
In Macmillan Bloedel, C. J. Lamer added a fourth inquiry where the power of a superior court is removed (notwithstanding concurrency) by legislation and given exclusively to an inferior court or administrative tribunal.

If the power is within the "core" of the superior court's jurisdiction such as the power to try charges for contempt of court, the exclusive transfer of such a power to an inferior court is an unacceptable infringement on s. 96 of the Constitution. (@ 246)
Strong Dissent by Justice McLachlin:
Why was the McLachlin J., so concerned about Chief Justice Lamer's recognition of a core of inherent powers which neither the federal or provincial governments can limit?
Why does she see this core as being inconsistent with the "rule of law"?
What other concerns did she raise?
In the following cases was the tribunal power found valid, or did it breach s. 96, and if so, at what stage of the test did the power fail?
How would you frame this third category?
Where the government has decided it would proceed by legislation regardless of the answer provided by the court,
and where parties to previous legislation have now relied upon the finality of the judgements and have acted accordingly (thousands of same-sex marriages have taken place)
and where the result may undermine legal uniformity.
Moreover, there is no precedent for hearing a reference where the issue mirrors issues already disposed of in the lower courts and where an appeal was possible but not pursued.
Is McLachlin correct in her interpretation of the proper "balance" between the need to permit Parliament to annex admin. tribunals to their legislative schemes and the need to maintain the constitutional position of the s. 96 courts? (@ 248)
Powers that are inherent to its authority include those that are essential to the administration of justice and the maintenance of the rule of law. (@ 245/6)
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