Reference Re Residential Tenancies Act (N.S.), (1996) 193 N.R. 1 (SCC)

• Judge: Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 22, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 193 N.R. 1 (SCC);35 Admin LR (2d) 169;432 APR 1;149 NSR (2d) 1;60 ACWS (3d) 1142;[1996] SCJ No 13 (QL);50 RPR (2d) 137;[1996] 1 SCR 186;JE 96-455;193 NR 1;1996 CanLII 259 (SCC);131 DLR (4th) 609

Ref. Re Residential Tenancies Act (1996), 193 N.R. 1 (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 by the Lieutenant Governor in Council to the Nova Scotia Court of Appeal, pursuant to the Constitutional Questions Act, R.S.N.S. 1989, c. 89 of certain questions relating to the constitutional validity of provisions of An Act to Amend Chapter 401 of the Revised Statutes, 1989, the Residential Tenancies Act, S.N.S. 1992, c. 31.

The Attorney General of Nova Scotia (appellant) v. D.A. Rollie Thompson (respondent) and The Attorney General for Ontario, The Attorney General of Quebec, The Attorney General of Manitoba and The Attorney General of British Columbia (intervenors)

(24276)

Indexed As: Reference Re Residential Tenancies Act (N.S.)

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.

February 22, 1996.

Summary:

This reference was to determine the con­stitutional validity of unproclaimed sections of the Residential Tenancies Act, S.N.S. 1992, c. 31, which proposed to confer deci­sion making powers in residential tenancy matters on a Director and a Residential Tenancies Board, which persons were not judges appointed under s. 96 of the Consti­tution Act, 1867. Under the proposed new procedure, disputes were referred to a Direc­tor, who attempted to mediate the dispute or, alternatively, decided the matter. An appeal lie to the area Residential Tenancies Board (de novo hearing), whose decision was filed as an order of the Supreme Court. A further appeal lie to the Court of Appeal, with leave, but only on questions of law and jurisdiction. The present procedure involved a court application and a reference to the Residential Tenancies Board. The Board filed its report and recommendations. Either party could file a notice of objection with the Supreme Court, which had broad powers to resolve the dispute.

The Nova Scotia Court of Appeal, Free­man, J.A., dissenting, in a judgment reported 130 N.S.R.(2d) 346; 367 A.P.R. 346, held that the powers conferred on the Director, administrative in nature, were intra vires the province and did not trench upon the s. 96 federal power to appoint judges. The powers conferred on the Residential Tenancies Board were ultra vires, because the Board exercised a judicial func­tion and operated like a s. 96 court. Limiting appeals to ques­tions of law and jurisdiction was not suffi­cient to constitute the required supervis­ory power to be exercised by a s. 96 court of first instance (i.e., the Supreme Court). The Attorney General appealed. The respondent Thompson cross-appealed the decision respecting the constitutional status of the Director.

The Supreme Court of Canada allowed the appeal and dismissed the cross-appeal. Jurisdiction over residential tenancy disputes was not vested exclusively in s. 96 superior courts at the time of Confeder­ation. Inferior courts exercised a significant con­current jurisdiction at or about the time of Confed­eration. Accordingly, the conferral of juris­diction over residential tenancies to the Director and the Residential Tenancies Board did not violate s. 96 of the Constitution Act, 1867.

Constitutional Law - Topic 8601

Judicial power - Appointment of judges (s. 96) - General - The Supreme Court of Canada restated the three step test to de­ter­mine whether prov­incial legislation ap­pointing a tribunal trenched upon the federal power to appoint judges under s. 96 of the Constitu­tion Act, 1867: "(1) Does the challenged power or jurisdiction broadly conform to the power or jurisdic­tion exercised by Superior, Dis­trict or County Courts at the time of Con­feder­ation?; (2) Is the function of the provincial tribunal within its institu­tional setting a judicial function, con­sidered from the point of view of the nature of the question which the tribunal is called upon to decide or, to put it in other words, is the tribunal concerned with a private dispute which it is called upon to adjudicate through the application of a recognized body of rules and in a manner consistent with fairness and impartiality?; and (3) If the power or jurisdiction of the provincial tribunal is exercised in a judicial manner, does its function as a whole in its entire institu­tional context violate s. 96?" - See para­graphs 7, 71.

Constitutional Law - Topic 8616

Judicial power - Appointment of judges (s. 96) - Provincial legislation regulating landlord and tenant - Unproclaimed provi­sions of the Residential Tenancies Act proposed to place adjudication of land­lord-tenant disputes in the hands of a Director and a Residential Tenancies Board - Under the proposed new procedure, disputes were referred to a Direc­tor, who attempted to mediate the dispute or, alter­natively, decided the matter - An appeal lie to the area Residential Tenancies Board (de novo hearing), whose decision was filed as an order of the Supreme Court - A further appeal lie to the Court of Appeal, with leave, but only on questions of law and jurisdiction - The Supreme Court of Canada held that the unpro­claimed provisions did not violate s. 96 of the Constitution Act, 1867 - The court held that "the superior courts of Canada did not enjoy exclusive jurisdiction over tenancy disputes at the time of Con­federa­tion. In every former colony inferior courts exercised a significant concurrent jurisdic­tion at or about the time of Con­federation. It follows that the Nova Scotia House of Assembly's conferral of jurisdic­tion over residential tenancies on a provin­cially appointed tribunal does not violate s. 96 of the Constitution Act, 1867." - See para­graphs 1 to 25.

Constitutional Law - Topic 8616

Judicial power - Appointment of judges (s. 96) - Provincial legislation regulating landlord and tenant - Unproclaimed provi­sions of the Residential Tenancies Act proposed to place adjudication of land­lord-tenant disputes in the hands of a Director and a Residential Tenancies Board - At issue was whether the powers con­ferred on the provincial tribunal violated s. 96 of the Constitution Act, 1867 - The Supreme Court of Canada rejected the submission that s. 96 did not apply because the legislation at issue conferred a "novel jurisdiction" - The court stated that the power conferred on provincially appointed officials did not represent new jurisdiction, but only a reorganization for administrative purposes of a jurisdiction which was exercised by superior and inferior tribunals in Canada since before Confederation - The powers conferred were clearly analogous to those exercised by the courts in 1867 - See paragraphs 26 to 40.

Landlord and Tenant - Topic 7021

Regulation - Powers of board or officers - General - [See first Constitutional Law - Topic 8616] .

Cases Noticed:

Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.) et al., [1989] 1 S.C.R. 238; 92 N.R. 179; 90 N.S.R.(2d) 271; 230 A.P.R. 271, refd to. [para. 2].

Residential Tenancies Act of Ontario, Re, [1981] 1 S.C.R. 714; 37 N.R. 158; 123 D.L.R.(3d) 554, refd to. [para. 7].

Quebec (Attorney General) v. Grondin et al., [1983] 2 S.C.R. 364; 50 N.R. 50, refd to. [para. 7].

Reference Re Young Offenders Act and Youth Court Judges, [1991] 1 S.C.R. 252; 121 N.R. 81; 89 Nfld. & P.E.I.R. 91; 278 A.P.R. 91, refd to. [para. 7].

Dupont (A.E.) v. Inglis, [1958] S.C.R. 535; 14 D.L.R.(2d) 417, refd to. [para. 9].

Burke v. Arab and Nova Scotia (Attorney General) (1981), 49 N.S.R.(2d) 181; 96 A.P.R. 181; 130 D.L.R.(3d) 38 (C.A.), leave to appeal refused, [1983] 1 S.C.R. 55; 46 N.R. 596; 55 N.S.R.(2d) 540; 114 A.P.R. 540, refd to. [para. 20].

Nova Scotia (Attorney General) v. Gillis (1980), 39 N.S.R.(2d) 97; 71 A.P.R. 97; 111 D.L.R.(3d) 349 (C.A.), refd to. [para. 20].

Labour Relations Board (Sask.) v. John East Iron Works Ltd., [1949] A.C. 134 (P.C.), refd to. [para. 27].

MacMillan Bloedel Ltd. v. Simpson et al. (1995), 191 N.R. 260; 68 B.C.A.C. 161; 112 W.A.C. 161 (S.C.C.), refd to. [para. 67].

Reference Re Adoption Act, [1938] S.C.R. 398, refd to. [para. 68].

Quebec (Procureur général) v. Barreau de la Province de Québec, [1965] S.C.R. 772, refd to. [para. 68].

Family Relations Act of British Columbia, Re, [1982] 1 S.C.R. 62; 40 N.R. 206, refd to. [para. 68].

Scowby et al. v. Glendinning et al., [1986] 2 S.C.R. 226; 70 N.R. 241; 51 Sask.R. 208, refd to. [para. 69].

Massey-Ferguson Industries Ltd. et al. v. Saskatchewan, [1981] 2 S.C.R. 413; 39 N.R. 308, refd to. [para. 71].

Brooks v. Pavlick, [1964] S.C.R. 108, refd to. [para. 77].

Asselin v. Industries Abex Ltée (1985), 22 D.L.R.(4th) 212 (Que. C.A.), refd to. [para. 77].

Walker's Case (1587), 3 Co. Rep. 220; 76 E.R. 676, refd to. [para. 81].

Pepita v. Doukas (1979), 101 D.L.R.(3d) 577 (B.C.C.A.), refd to. [para. 90].

Herbold v. Pajelle Investments Ltd., [1976] 2 S.C.R. 520; 7 N.R. 461, refd to. [para. 91].

Statutes Noticed:

Administration of the Law, and to reduce the number of Courts of Justice within this Province, and to diminish the expense of the Judiciary therein, An Act to improve the, S.N.S. 1841, c. 3, gen­erally [para. 102].

Charter of City of Saint John, S.N.B. 1855, vol. 3, Appendix [para. 103].

City of Halifax, An Act concerning the, S.N.S. 1864, c. 81, sect. [para. 33].

Constitution Act, 1867, sect. 96 [para. 48].

Division Courts, An Act Respecting the, C.S.U.C. 1859, c. 19, sect. 55(2) [para. 23].

Jurisdiction of Justices in Civil Suits, An Act Respecting, R.S.N.B. 1854, c. 137, sect. 53 [para. 103].

Jurisdiction of Justices of the Peace in Civil Cases, An Act Respecting, R.S.N.S. 1864, c. 128, sect. 1 [para. 102].

Justices of the Peace in Civil Suits, An Act to Regulate Proceedings before the, S.N.B. 1854, c. 45 [para. 103].

Residential Tenancies Act, An Act to Amend, S.N.S. 1992, c. 31, sect. 7 [para. 49]; sect. 8(2) [para. 30].

Residential Tenancies Act, R.S.N.S. 1989, c. 401, sect. 3(1) [para. 92]; sect. 13, sect. 14, sect. 15, sect. 16, sect. 17A [para. 49]; sect. 18(4B) [para. 50].

Summary Trial of Actions before His Majesty's Justices of the Peace, in Town and Peninsula of Halifax, An Act to regulate the, S.N.S. 1792, c. 14, gen­erally [para. 102].

Tenancies and Forcible Entry and Detainer, An Act Respecting, R.S.N.S. 1864, c. 140, generally [para. 102].

Town of Halifax, An Act to incorporate the, S.N.S. 1841, c. 55, generally [para. 102].

Authors and Works Noticed:

Acheson, T.W., The National Policy and the Industrialization of the Maritimes, 1880-1910, Acadiensis 1, 2 (1972), p. 3 [para. 82].

Alberta, Institute of Law Research and Reform, Residential Tenancies, Report No. 22 (1977), generally [para. 83].

Beck, J. Murray, The Government of Nova Scotia (1957), p. 129 [para. 102].

Bell, D.G., A Perspective on Legal Plural­ism in 19th-Century New Brunswick (1988), 37 U.N.B.L.J. 86, pp. 92, 93 [para. 103].

British Columbia, Law Reform Commis­sion, Landlord and Tenant Relationships: Residential Tenancies, Project No. 12 (1973), generally [para. 85].

Burpee, Lawrence J., The Golden Age of Nova Scotia (1929), 36 Queen's Q. 380, generally [para. 82].

Canada, Census (1871), Table I, p. 82, Ta­ble XXI, p. 100 [para. 84].

Canada, Census (1911), vol. 1, Table V, p. 522 [para. 84].

Canada, Census (1921), vol. 1, Table 18, p. 354 [para. 84].

Canada, Census (1991), Table 3, p. 62 [para. 84].

Canada, Census (1991), Part A, Table 1, pp. 6, 42 [para. 84].

Canada, Census (1991), Table 5, pp. 41, 44 [para. 84].

Elliot, Robin, Comment (1982), 16 U.B.C. L. Rev. 313, p. 327 [para. 69].

Girard, Philip, The Rise and Fall of Urban Justice in Halifax, 1815-1886 (1988), Nova Scotia Historical Review 57, p. 59 [para. 102].

Haliburton, Thomas C., A Historical and Statistical Account of Nova Scotia (1829), generally [para. 102].

Halsbury's Laws of England (3rd Ed. 1952), vol. 1, p. 26 [para. 102].

Historical Atlas of Canada (1993), vol. 2, generally [para. 84].

Inwood, Kris E., Maritime Industrialization from 1870 to 1910: A Review of the Evidence and Its Interpretation, Aca­diensis, XXI (1991), pp. 132 to 155 [para. 82].

Lamont, Donald H.L., The Landlord and Tenant Act Part IV: A Section by Sec­tion Analysis of the First Amendments to the Landlord and Tenant Act in Over 50 Years (1970), Preface [para. 86].

Lederman, W.R., The Independence of the Judiciary (1956), 34 Can. Bar Rev. 1139, p. 1178 [para. 67].

MacNeil, Michael, Property in the Welfare State (1983), 7 Dalhousie L.J. 343, p. 355 [para. 90].

Murdoch, Beamish, Epitome of the Laws of Nova Scotia (1883), vol. III, pp. 57, 58, 60, 61 [para. 102].

Nova Scotia, Report of the Nova Scotia Court Structure Task Force (1991), Ap­pendix 1, History of Nova Scotia Courts, generally [para. 102].

Ontario, Law Reform Commission, Interim Report on Landlord and Tenant Law Applicable to Residential Tenancies (1968), generally [para. 85].

Oxner, Sandra E., The Evolution of the Lower Court of Nova Scotia, in Law in a Colonial Society: The Nova Scotia Experience (1984), pp. 59, 76 [para. 102].

Patterson, George, The Establishment of the County Court in Nova Scotia (1943), 21 Can. Bar Rev. 394, p. 397 [para. 102].

Townsend, Charles J., Historical Account of the Courts of Judicature in Nova Scotia (1899), 19 Can. L.T. 25, p. 144 [para. 102].

Williams, Canadian Law of Landlord and Tenant (4th Ed. 1973), generally [para. 86].

Woodfall, Law of Landlord and Tenant (28th Ed. 1978), generally [para. 86].

Counsel:

Alexander M. Cameron, for the appellant;

D.A. Rollie Thompson, solicitor appointed to act as respondent;

Janet E. Minor and Dale E. Ives, for the intervener, the Attorney General for Ontario;

Jean Bouchard and Isabelle Harnois, for the intervener, the Attorney General of Quebec;

Donna J. Miller, Q.C., and Deborah L. Carlson, for the intervener, the Attorney General of Manitoba;

Deborah K. Lovett, for the intervener, the Attorney General of British Columbia.

Solicitors of Record:

Alexander M. Cameron, Halifax, Nova Scotia, for the appellant;

D.A. Rollie Thompson, Halifax, Nova Scotia, appointed to act as respondent;

Ministry of the Attorney General, Toronto, Ontario, for the intervener, the Attorney General for Ontario;

Isabelle Harnois and Jean Bouchard, Sainte-Foy, Quebec, for the intervener, the Attorney General of Quebec;

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

Ministry of Attorney General, Victoria, British Columbia, for the intervener, the Attorney General of British Columbia.

This appeal and cross-appeal were heard on October 5, 1995, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gon­thier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

On February 22, 1996, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

McLachlin, J. (La Forest, L'Heureux-Dubé, Iacobucci and Major, JJ., con­curring) - see paragraphs 1 to 41;

Lamer, C.J.C. (Sopinka and Cory, JJ., concurring) - see paragraphs 42 to 108;

Gonthier, J. - see paragraph 109.