Reference Re Constitutional Question Act (B.C.), (1991) 127 N.R. 161 (SCC)

• Judge: Gonthier, Cory, McLachlin and Stevenson, JJ.
• Court: Supreme Court of Canada
• Case Date: August 15, 1991
• Jurisdiction: Canada (Federal)
• Citations: (1991), 127 N.R. 161 (SCC);58 BCLR (2d) 1;83 DLR (4th) 297;[1991] 6 WWR 1;28 ACWS (3d) 652;[1991] SCJ No 60 (QL);[1991] 2 SCR 525;1991 CanLII 74 (SCC);JE 91-1267;1 Admin LR (2d) 1;[1991] ACS no 60;127 NR 161;1 BCAC 241

Ref. Re Constitutional Question Act (1991), 127 N.R. 161 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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In The Matter Of a reference to the Court of Appeal of the Province of British Columbia, pursuant to the provisions of the Constitutional Question Act, R.S.B.C. 1979, c. 63, of the questions contained in an order of the Lieutenant Governor in Council of British Columbia, being No. 287, dated February 27, 1990;

And In The Matter Of the Canada Assistance Plan, R.S.C. 1970, c. C-1;

And In The Matter Of a certain agreement, dated March 23, 1967, pursuant to Part 1 of the Canada Assistance Plan, Between the Government of Canada, represented by the Minister of National Health and Welfare of Canada, and the Government of the Province of British Columbia, represented by the Minister of Social Welfare of British Columbia.

Between:

The Attorney General of Canada (appellant) v. The Attorney General of British Columbia (respondent), The Attorney General for Ontario, The Attorney General of Manitoba, The Attorney General for Alberta, The Attorney General for Saskatchewan, The Native Council of Canada and The United Native Nations of British Columbia (intervenors)

(No. 22017)

Indexed As: Reference Re Constitutional Question Act (B.C.)

Supreme Court of Canada

Lamer, C.J.C., La Forest, Sopinka,

Gonthier, Cory, McLachlin and

Stevenson, JJ.

August 15, 1991.

Summar y:

In 1967 the Government of Canada, pursu­ant to the Canada Assistance Plan, entered into agreements with the provincial govern­ments to pay them contributions toward their expenditures of social assistance and welfare. Amounts paid under the agreements rose from $151 million in 1967 to an estimated $5.5 billion in 1989-90. To reduce expendi­tures and reduce the federal budget deficit, the federal Government enacted legislation (the Government Expenditures Restraint Act), to limit the growth of payments made under the Canada Assistance Plan to finan­cially stronger provinces (currently British Colum­bia, Alberta and Ontario). The Gov­ernment of British Columbia referred two questions to the British Colum­bia Court of Appeal pur­suant to the Consti­tutional Ques­tion Act (B.C.). These ques­tions were:

(1) Has the Government of Canada any authority to limit its obligation under the Canada Assistance Plan or its agreement thereunder with the Province of British Columbia?; and

(2) Do the terms of the agreement between Canada and British Columbia, the subsequent conduct of the federal govern­ment under the agreement and the provisions of the Canada Assistance Plan Act give rise to a legitimate expectation that the federal government would introduce no legislation to limit its obligation under the agreement or the plan without the consent of British Col­umbia?

The British Columbia Court of Appeal, in a decision reported (1990), 46 B.C.L.R.(2d) 73; 71 D.L.R.(4th) 99; 45 Admin. L.R. 34, answered "No" to the first question. Four of the five judges sitting on the reference answered "yes" to the second question, while the other justice would have answered the second question in the negative. The Attor­ney General of Canada appealed.

The Supreme Court of Canada allowed the appeal. The court answered "Yes" to the first question and "No" to the second question.

Administrative Law - Topic 2007

Natural justice - Circumstances when rules inapplicable - The Supreme Court of Canada stated that "... the rules governing procedural fairness do not apply to a body exercising purely legislative functions" - See paragraph 58.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate ex­pectation - The Supreme Court of Canada stated that "there is no support in Canadian or English cases for the position that the doctrine of legitimate expectations can create substantive rights. It is part of the rules of procedural fairness which can govern administrative bodies. Where it is applicable, it can create a right to make representations or to be consulted. It does not fetter the decision following the repre­sentations or consultation" - See paragraph 57 - Further, "the rules governing pro­cedural fairness do not apply to a body exercising purely legislative functions" - See paragraph 58.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate ex­pectation - The government of British Columbia argued that the terms of a feder­al provincial agreement under the Canada Assistance Plan Act, the conduct of the federal government pursuant to the agree­ment and the provisions of the Plan gave rise to a legitimate expectation that the federal government would introduce no bill into Parliament to limit its obligation under the agreement or the Plan without the consent of the British Columbia govern­ment - The Supreme Court of Canada rejected British Columbia's argument because the doctrine of legitimate expecta­tions does not apply to the legislative process - See paragraphs 29 to 85.

Constitutional Law - Topic 23

General principles - Raising constitutional questions - Requirement of justiciability - The British Columbia Constitutional Ques­tion Act allowed the Lieutenant Governor in Council to refer "any matter" to the court - The Supreme Court of Canada stated that "this broad wording imposed no limit on the type of question which may be asked. Nevertheless, the court has a dis­cretion to refuse to answer questions which are not justiciable" - The court thereafter discussed how to determine whether ques­tions are justiciable - See paragraph 25.

Constitutional Law - Topic 23

General principles - Raising constitutional questions - Requirement of justiciability - The Lieutenant Governor in Council of British Columbia posed two questions to the British Columbia Court of Appeal under the Constitutional Question Act (B.C.) - The questions were (1) whether the federal government had authority to limit its obligations under the Canada Assistance Plan and a federal/provincial agreement thereunder, and (2) whether the federal government's conduct gave rise to a legit­imate expectation that the govern­ment would not change its obligations under the Plan and the agreement without the consent of British Columbia - The Supreme Court of Canada held that these questions raised matters that were justiciable and should be answered by the court - See paragraphs 25 to 28.

Constitutional Law - Topic 409

Powers of Parliament and the Legislatures - Power of a sovereign body to restrict itself respecting the "manner and form" of subsequent legislation - In 1967 the Gov­ernment of Canada, pursuant to the Canada Assistance Plan, entered into agreements with the provincial governments to pay them contributions toward their expendi­tures on social assistance and welfare - In 1990, to reduce expenditures, the federal Government enacted legislation to amend the Plan and limit the growth of payments to financially stronger provinces (Govern­ment Expenditures Restraint Act, s. 2) - It was argued that s. 2 was ultra vires because the federal Parliament had restricted itself in the Plan respecting the "manner and form" of subsequent legisla­tion - The Supreme Court of Canada rejected this argument - See paragraphs 67 to 74.

Constitutional Law - Topic 8863

Spending powers - Federal/provincial agreements - Canada Assistance Plan - The following question was posed under the British Columbia Constitutional Ques­tion Act: Has the Government of Canada any statutory, prerogative or contractual authority to limit its obligation under the Canada Assistance Plan, R.S.C. 1970, c. C-1, and its Agreement with the Govern­ment of British Columbia dated March 23, 1967, to contribute 50% of the cost to British Columbia of assistance and welfare services? - The Supreme Court of Canada answered "Yes" to this question - See paragraphs 29 to 48.

Constitutional Law - Topic 8863

Spending powers - Federal/provincial agreements - Canada Assistance Plan - The following question was posed under the British Columbia Constitutional Ques­tion Act: Do the terms of the Canada Assistance Plan and a federal/provincial agreement thereunder, or the conduct of the federal government give rise to a legit­imate expectation that the federal govern­ment would not introduce legislation to amend the agreement or Plan without the consent of British Columbia - The Supreme Court of Canada answered "No" to this question - The court held that the doctrine of legitimate expectations was part of the procedural rules governing administrative bodies, but the doctrine was not applicable to body exercising purely legislative functions - See paragraphs 29 to 85.

Constitutional Law - Topic 8863

Spending powers - Federal/provincial agreements - Canada Assistance Plan - In 1967 the Government of Canada, pursuant to the Canada Assistance Plan, entered into agreements with the provincial govern­ments to pay them contributions toward their expenditures on social assistance and welfare - In 1990, to reduce expenditures, the federal Government enacted legislation to amend the Plan and limit the growth of payments to financially stronger provinces (Government Expenditures Restraint Act, s. 2) - It was argued that s. 2 was ultra vires because the federal government lacked jurisdiction to amend the law so as to change the agreement - The Supreme Court of Canada rejected this argument - See paragraphs 75 to 84.

Cases Noticed:

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Attorney General of Canada, [1980] 2 S.C.R. 735; 33 N.R. 304; 115 D.L.R.(3d) 1, refd to. [para. 10].

Constitutional Amendment References 1981 (Manitoba, Newfoundland and Quebec), [1981] 1 S.C.R. 753; 39 N.R. 1; 11 Man.R.(2d) 1; 34 Nfld. & P.E.I.R. l; 95 A.P.R. 1, appld. [para. 13 et seq.].

Auditor General of Canada v. Canada (Minister of Energy, Mines and Resources) et al., [1989] 2 S.C.R. 49; 97 N.R. 241, refd to. [para. 26].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 26].

Quebec Constitutional Amendment Refer­ence (No.2); Attorney General of Quebec v. Attorney General of Canada et l'Association Canadienne-Française de l'Ontario and Grand Council of the Crees (of Quebec), [1982] 2 S.C.R. 793; 45 N.R. 317, refd to. [para. 27].

Reference Re Magistrate's Court of Quebec, [1965] S.C.R. 772, refd to. [para. 51].

Lord's Day Alliance of Canada v. Attor­ney-General for Manitoba, [1925] A.C. 384, refd to. [para. 51].

Attorney General for Ontario v. Attorney General for Canada, [1912] A.C. 571 refd to. [para. 51].

Reference Re Waters and Water-Powers, [1929] S.C.R. 200, refd to. [para. 51].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134, refd to. [para. 56].

Bates v. Lord Hailsham, [1972] 3 All E.R. 1019, refd to. [para. 58].

Martineau v. Matsqui Institution Disciplin­ary Board, [1980] 1 S.C.R. 602; 30 N.R. 119; 106 D.L.R.(3d) 385; 13 C.R.(3d) 1; 50 C.C.C.(2d) 353, refd to. [para. 58].

Yukon Territory (Commissioner) v. Canada (1987), 45 D.L.R. (4th) 108, leave to appeal refused [1988] 1 S.C.R. xii; 88 N.R. 320, refd to. [para. 58].

Penikett v. Canada - see Yukon Territory (Commissioner) v. Canada.

West Lakes Ltd. v. South Australia (1980), 25 S.A.S.R. 389 (So. Aust. S.C.), refd to. [paras. 62, 74].

Attorney General for New South Wales v. Trethowan, [1932] A.C. 526 (P.C.), refd to. [para. 68].

Mercure v. Saskatchewan, [1988] 1 S.C.R. 234; 83 N.R. 81; 65 Sask.R. 1, refd to. [para. 68].

R. v. Mercure - see Mercure v. Sas-katchewan.

R. v. Drybones, [1970] S.C.R. 282, refd to. [para. 72].

R. v. Hogan, [1975] 2 S.C.R. 574; 2 N.R. 343, refd to. [para. 72].

Upper Churchill Water Rights Reversion Act, 1980, Re, Churchill Falls (Labrador Corp. Ltd. et al. v. Newfoundland (At­torney General) et al., [1984] 1 S.C.R. 297; 53 N.R. 268; 47 Nfld. & P.E.I.R. 125; 139 A.P.R. 125, refd to. [para. 79].

Reference Re Upper Churchill Water Rights Reversion Act - see Upper Churchill Water Rights Reversion Act, 1980, Re.

Statutes Noticed:

Bill C-69, An Act to amend certain stat­utes to enable restraint of government expenditures, 2nd sess., 34th Parl. (assented to on Feb. 1, 1990), generally [para. 5 et seq.].

Canada Assistance Plan, S.C. 1966-67, c. 45, sect. 5(2)(c) [para. 43].

Canada Assistance Plan, R.S.C. 1970, c. C-1, sect. 4, sect. 5(1), sect. 5(2)(c), sect. 6(2), sect. 6(3), sect. 8(1), sect. 8(2), sect. 9(2) [para. 7 et seq.].

Canada Assistance Plan, R.S.C. 1985, c. C-1, sect. 4, sect. 5(1), sect. 5(2)(c), sect. 5.1, sect. 6(2), sect. 6(3), sect. 8(1), sect. 8(2), sect. 9(2) [para. 7 et seq.].

Canadian Charter of Rights and Freedoms, 1982, generally [para. 59].

Constitution Act, 1907, generally [para. 22].

Constitution Act, 1867, sect. 54 [paras. 30, 59, 63]; sect. 92(13), sect. 92(16) [para. 80].

Constitution Act, 1982, sect. 36(1) [para. 21].

Constitutional Question Act, R.S.B.C. 1979, c. 63, generally [para. 1 et seq.]; sect. 1, sect. 6 [para. 7].

Emergencies Act, R.S.C. 1985 (Fourth Supp.), c. 22, sect. 40(1), sect. 40(2) [para. 41].

Government Expenditures Restraint Act, S.C. 1991, c. 9, generally [para. 5]; sect. 2 [paras. 7, 68 et seq.].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 10 [para. 43]; sect. 42(1) [paras. 7, 33, 70].

Statute Revision Act, R.S.C. 1985, c. S-20, sect. 6(e), sect. 6(f) [para. 43].

Supreme Court Act, R.S.C. 1985, c. S-26, sect. 36 [para. 7].

Authors and Works Noticed:

Bagehot, Walter, The English Constitution (2nd Ed. 1872), p. 14 [para. 61 Eng.].

Bagehot, Walter, La Constitution anglaise, 1869, p 19 [para. 61 Fr.].

Beaudoin, Gérald-A., La Constitution du Canada, 1990, p. 92 [para. 59].

Counsel:

W.I.C. Binnie, Q.C., Peter W. Hogg, Q.C., and Maureen E. Baird, for the appellant;

E. Robert A. Edwards, Q.C., and Patrick O'Rourke, for the respondent;

Christopher D. Bredt and Tanya Lee, for the intervenor, the Attorney General for Ontario;

Vic Toews, for the intervenor, the Attor­ney General of Manitoba;

Stan Rutwind, for the intervenor, the At­torney General for Alberta;

Donald J. Dow, for the intervenor, the Attorney General for Saskatchewan;

Marvin R. V. Storrow, Q.C., and Maria Morellato, for the intervenor, the Native Council of Canada and the United Nations of British Columbia.

Solicitors of Record:

John C. Tait, Q.C., Ottawa, Ontario, for the appellant;

Ministry of the Attorney General, Victoria, B.C., for the respondent;

Attorney General for Ontario, Toronto, Ontario, for the Attorney General for Ontario;

Department of Justice Winnipeg, Manitoba, for the Attorney General of Manitoba;

Attorney General's Department, Edmonton, Alberta, for the Attorney General for Alberta;

Brian Barrington-Foote, Regina, Saskatchewan, for the Attorney General for Saskatchewan;

Blake, Cassels & Graydon, Vancouver, B.C., for the Native Council of Canada and the United Native Nations of B.C.

This appeal was heard on December 11 and 12, 1990, before Lamer, C.J.C., La Forest, Sopinka, Gonthier, Cory, McLachlin and Stevenson, JJ., of the Supreme Court of Canada. The following decision was de-livered for the court in both official lan­guages by Sopinka, J., on August 15, 1991.