The Constitutional Position of Civil Remedies: Is Access to the Courts Guaranteed?

• Author: David Sgayias
• Profession: Department of Justice
• Pages: 67-91

Civil

remedies

occupy

an

uncertain position

in the

constitutional

firma-

ment. Access

to the

courts

is

guaranteed

in

order

to

enforce

the

Constitution. Beyond

that,

the

constitutional status

of

civil remedies

is

far

from

clear.

The

courts have only recently begun

to

struggle with

the

question

of

constitutional protection

for

civil remedies.

The

jurisprudence

is

sparse,

but

growing. This paper reviews that jurisprudence

in an

effort

to

identify

the

possible

sources

of

guarantees

of

access

to the

civil

courts.

The

starting point

is in

known territory: access

to

remedies

to

enforce

the

constitutional division

of

powers. Also well-established

is

access

to

remedies

to

enforce

the

Charter

of

Rights.

Established,

but not

yet

fully

understood,

is the

constitutionally-protected core jurisdiction

of

the

provincial superior courts. Most controversial

is the

extent

to

which

the

constitutional principle

of the

rule

of law may

protect civil

remedies against legislative intrusion.

Of

the

Manitoba

and

Ontario bars.

The

views expressed

are

those

of the

author

and do not

purport

to

represent

the

position

of the

Department

of

Justice

(Canada).

67

A.

INTRODUCTION

David

Sgayias**

The

Constitutional Position

of

Civil Remedies:

Is

Access

to the

Courts Guaranteed?

*

1)

Declarations

of

Invalidity

Access

to the

courts

is

guaranteed

in

order

to

challenge

the

validity

of

legislation

on

division

of

powers grounds. More particularly, access

to

the

provincial superior courts

is

guaranteed. That

is the

effect

of the

1982

decision

of the

Supreme Court

of

Canada

in

Canada (Attorney

General)

v. Law

Society

of

British

Columbia.1

The

underlying

dispute

in Law

Society

of

B.C.

was as to the

division

of

powers.

The Law

Society brought

an

action

in the

Supreme Court

of

British Columbia

for

declarations that

the

federal competition legisla-

tion

did not

apply

to the Law

Society

and,

if it

did,

it was to

that extent

ultra vires

the

competence

of the

Parliament

of

Canada.

The

jurisdiction

of

the

provincial superior court

was

challenged

on the

basis that

the

jurisdiction

to

grant declaratory

relief

against

the

Crown

and

federal

tri-

bunals

and

officials

rested exclusively

in the

Federal Court.

The

challenge

to

jurisdiction

failed.

The

provisions

of the

Federal

Court

Act2

were read down

on the

basis

that Parliament lacks

the

consti-

tutional authority

to

remove

the

jurisdiction

of the

provincial superior

courts

to

determine

the

constitutional validity

of

federal laws.

Mr.

Justice Estey,

for the

Court, explained:

It

is

difficult

to see how an

argument

can be

advanced that

a

statute

adopted

by

Parliament

for the

establishment

of a

court

for the

better

administration

of the

laws

of

Canada

can at the

same

time

include

a

provision

that

the

provincial

superior

courts

may no

longer

declare

a

statute

enacted

by

Parliament

to be

beyond

the

constitutional

authori-

ty of

Parliament. Sections

17 and 18 of the

Federal

Court

Act

must,

in the

view

of the

appellants,

be so

construed.

In my

view Parliament lacks

the

constitutional

authority

to so

provide.

To do so

would

strip

the

basic

constitutional

concepts

of

judicature

of

this country, namely

the

superior

courts

of the

provinces,

of a

judicial

power

fundamental

to a

1

[1982]

2

S.C.R.

307

[hereinafter

Law

Society

of

B.C.].

The

case

is

also known

by

the

name

of the

companion appeal,

Jabour

v. Law

Society

of

British Columbia.

2

R.S.C.

1970

(2d

Supp.),

c. 10; now

R.S.C.

1985,

c.

F-7. Sections

17 and 18

were

in

issue. Section

17 has

subsequently been amended

to

provide

for

concurrent,

as

opposed

to

exclusive, jurisdiction

in

actions against

the

Crown: S.C. 1990,

c.

8,

s. 3. The

jurisdiction

of the

Federal Court

in

judicial review

of

federal

administrative tribunals remains exclusive:

s. 18 of the

Act.

B.

DIVISION

OF

POWERS

68

David Sgayias