Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27 (38837)

“On January 1, 2016, art. 35 para. 1 of Quebec’s new Code of Civil Procedure came into force. This provision grants the Court of Québec exclusive jurisdiction over all civil disputes in which the value of the subject matter or the amount being claimed is less than $85,000. The Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec filed an originating application seeking a declaratory judgment of unconstitutionality of art. 35 para. 1 C.C.P. in the Superior Court. In their submission, the provision is incompatible with s. 96  of the Constitution Act, 1867 , because its effect is to deny Quebec litigants the right to file any civil claim in the Superior Court in which the value of the subject matter of the dispute is less than $85,000, thereby preventing the Superior Court from stating and advancing the law with respect to such claims. They also contested the appellate jurisdiction granted to the Court of Québec with respect to certain administrative decisions on the basis that the requirement of deference recognized in the case law is incompatible with the superior courts’ power of judicial review.

In response to those legal proceedings, the Quebec government filed with the Court of Appeal, by order in council, a notice of reference submitting two questions to it: (1) Is art. 35 para. 1 C.C.P. valid with regard to s. 96  of the Constitution Act, 1867 ? and (2) Is the application of the obligation of judicial deference, which characterizes the application for judicial review, to administrative appeals to the Court of Québec compatible with s. 96  of the Constitution Act,1867 ?

On the first question, the Court of Appeal concluded that art. 35 C.C.P. is unconstitutional because it infringes on the core jurisdiction of the Superior Court to adjudicate certain substantial civil disputes. On the second question, however, it was of the view that applying the obligation of judicial deference to administrative appeals to the Court of Québec is compatible with s. 96 . This is because the Superior Court retains its full superintending and reforming power over administrative decisions and decisions of inferior tribunals as well as its fundamental role as the guardian of an independent and unified system of justice in Canada. The Conférence des juges de la Cour du Québec, the Conseil de la magistrature du Québec and the Canadian Association of Provincial Court Judges, which were interveners in the Court of Appeal, and the Attorney General of Quebec appeal to the Court as of right on the first question. The Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec, who also intervened in the Court of Appeal, appeal to the Court as of right on the second question.”

The SCC (with two judges writing joint majority reasons, with whom two other judges concurred; the Chief Justice writing dissenting reasons in part, with whom one other judge concurred; and one judge writing separate dissenting reasons) dismissed the appeals.

Justices Côté and Martin wrote as follows (at paras. 3-10, 70, 83, 144, 150, 161):

“The first question raised in these appeals is whether art. 35 para. 1 of the Code of Civil Procedure, CQLR, c. C‑25.01 (“C.C.P.”), is consistent with s. 96  of the Constitution Act, 1867 . Put differently, does granting exclusive jurisdiction over civil claims for less than $85,000 to the Court of Québec create a parallel or shadow court that usurps the role reserved by the Constitution to the superior courts? In this case, the legislature has not transferred a specific jurisdiction to the provincial court, but rather an extensive and exclusive jurisdiction over a vast area at the heart of private law. This case presents an opportunity for this Court to clarify the line that the provinces must not cross in exercising their jurisdiction over the administration of justice. This question represents a new milestone in the evolution of the case law on s. 96 , as it concerns a wholesale court‑to‑court transfer of jurisdiction over contractual and extracontractual obligations below a specific monetary limit, which has the effect of removing these matters from the jurisdiction of the superior courts.

The purpose of s. 96  is to give effect to the compromise reached at Confederation by protecting the special status of the superior courts of general jurisdiction as the cornerstone of our unitary justice system. The principles of national unity and the rule of law are central to this organization of the judiciary. To ensure that s. 96  fulfills its function, this Court has developed various tests over time, the most recent being the three‑step test from Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714 (“Residential Tenancies”), and the core jurisdiction test adopted in MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725. These two tests are based on a shared concern reflected in earlier jurisprudence: the nature and role of superior courts are to be protected, and the creation of courts with provincially appointed judges that mirror or usurp the functions of superior courts is not permitted.

The three‑step Residential Tenancies test limits the granting of power or jurisdiction over a type of dispute where, at the time of Confederation, the power or jurisdiction came exclusively or primarily within the remit of the superior courts. In our view, the application of this test does not on its own render art. 35 para. 1 C.C.P. unconstitutional. Indeed, there was sufficient general involvement by the inferior courts in civil disputes pertaining to the law of contractual and extracontractual obligations in three of the four founding provinces.

The second test aims to determine whether a grant of jurisdiction infringes on the superior courts’ core jurisdiction either through an alteration of their essential nature or because they are prevented from playing their central role conferred by s. 96 . Article 35 para. 1 C.C.P. infringes on the superior courts’ general private law jurisdiction — an essential feature that forms part of their core jurisdiction — in a way that is inconsistent with the Constitution. Both the Superior Court and the Court of Québec play an important part in maintaining the rule of law, enjoy the guarantees of judicial independence, are composed of professional, qualified judges, and promote access to justice. These shared characteristics are essential to the proper functioning of both courts and to the protection of the public. While we acknowledge these realities, the question is nevertheless whether the province’s wholesale transfer of an exclusive jurisdiction to a court with provincially appointed judges complies with s. 96.

In this distinct context, we have looked to a wide range of factors to answer that question: the scope of the jurisdiction granted by art. 35 para. 1 C.C.P., the exclusivity of the grant, the high monetary limit, the available appeal mechanisms, and the absence of a societal objective capable of justifying the legislation. The weighing of the relevant factors leads us to conclude that the grant to the Court of Québec of exclusive jurisdiction over civil disputes concerning contractual and extracontractual obligations up to a value of less than $85,000 unduly compromises the position of s. 96  courts and is unconstitutional. The scope of the jurisdiction granted by art. 35 para. 1 C.C.P., combined with the various features of the institutional context in which that jurisdiction is exercised, transforms the Court of Québec into a prohibited parallel court and impermissibly infringes on the core jurisdiction of the Superior Court. This necessarily undermines the crucial role the Quebec Superior Court plays in the Canadian judicial system.

We agree with the Court of Appeal that the monetary limit is too high when considered in its historical and institutional contexts. It is noteworthy that the transfer of jurisdiction to the Court of Québec not only grants a broad civil jurisdiction in the area of obligations that is circumscribed by a monetary limit, but also removes that jurisdiction from the Quebec Superior Court. This improperly impinges on the Superior Court’s ability to hear and rule on disputes in a field at the heart of Quebec private law. No other court with provincially appointed judges in Canada has a comparable exclusive jurisdiction in civil matters: the other provinces retain a form of concurrent jurisdiction between courts with provincially appointed judges and s. 96  courts.

Other characteristics of the Court of Québec likewise support the conclusion that the impugned article oversteps the bounds of constitutionality. Both courts hear civil cases involving contractual and extracontractual matters and apply the same laws and procedural rules in adjudicating them. Further, the Court of Québec’s decisions can be appealed directly to the Quebec Court of Appeal. As a result, the jurisdiction provided for in art. 35 para. 1 C.C.P. gives the Court of Québec every appearance of being a parallel court and undermines the central role reserved to the superior courts in the Canadian judicial system by ss. 96  to 100  of the Constitution Act, 1867 . It is difficult to see what remains to distinguish the Court of Québec from a constitutionally protected superior court.

In our view, the second reference question, which relates to the Court of Québec’s application of the obligation of judicial deference when it hears an appeal from an administrative decision under certain provincial statutes, is now moot as a result of this Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, and the coming into force of s. 83.1 of the Courts of Justice Act, CQLR, c. T‑16. We therefore decide not to address it.

In short, a review of this Court’s jurisprudence highlights the prohibition against creating parallel courts or striking at the very essence of superior courts, which gives full effect to the compromise reached at Confederation. Although the applicable tests may have changed over the years, they are not ends in and of themselves; they are simply expressions of the principles that underlie s. 96. Accordingly, it is important not to apply these tests in a purely mechanical fashion; on the contrary, they must be approached with those principles in mind.

In our view, the superior courts’ core jurisdiction presupposes a broad subject‑matter jurisdiction whose scope corresponds, at the very least, to the central divisions of private law to which more specific fields of law are often attached. This can be explained by the superior courts’ historical origins and their nature as courts of original general jurisdiction, as well as by the principles of national unity and of the rule of law that underpin s. 96.

In closing, it would seem appropriate to clarify the scope of these reasons and their impact on the other tests developed with respect to s. 96 . The multi‑factored analysis we are adopting here is not intended to replace the current law. The analysis under s. 96  continues to involve two tests. The first — the Residential Tenancies test — continues to apply to any transfer of historical jurisdiction of the superior courts to an administrative tribunal or to another statutory court. The second — the core jurisdiction test — continues to apply in order to determine whether a statutory provision has the effect of removing or impermissibly infringing on any of the attributes that form part of the core jurisdiction of the superior courts. Where a transfer to a court with provincially appointed judges has an impact on the general private law jurisdiction of the superior courts, the question whether the infringement on the core jurisdiction is permissible or impermissible should be answered having regard to the factors discussed above. Those factors give the provincial legislature sufficiently clear guidance to determine what latitude it has under s. 96  when it wishes to grant a court whose judges are appointed by the province jurisdiction over a significant portion of the common law without creating a parallel court.

It is not unreasonable to argue that the intermediate step of appealing to a court with provincially appointed judges before applying for judicial review to the superior court might be unconstitutional because it is likely to deprive the superior courts of a considerable number of such applications. However, we wish to be clear that we are not ruling on whether the Court of Québec’s appellate jurisdiction is constitutional, as that is not the question before us. That matter is therefore left for another day.

For the foregoing reasons, we would dismiss the appeals without costs. This opinion should not be implemented for a period of 12 months from the date of its release. Any originating proceedings filed in the Court of Québec before or during this suspension period can be pursued to the conclusion of the proceedings even if the proceedings conclude after the 12‑month period has expired.”