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. Poorkid Investments Inc. v. Ontario (Solicitor General)

In Poorkid Investments Inc. v. Ontario (Solicitor General) (Ont CA, 2023) the Court of Appeal heard (and allowed) an appeal of a "declaration that s. 17 of the CLPA violates s. 96 of the Constitution Act, 1867 and is of no force and effect", in the course of a class action against the Crown and police regarding allegation of 'under-policing' [my term] with respect to indigenous protests near Caledonia, Ontario. CLPA s.17 requires a plaintiff to obtain prior leave from the court when suing for misfeasance in public office or for "a tort based on bad faith respecting anything done in the exercise or intended exercise of the officer or employee’s powers or the performance or intended performance of the officer or employee’s duties or functions" [CLPA s.17(1)].

In these quotes, the Court of Appeal sets out the constitutional basis of administrative tribunals in relation to the s.96 constitutional superior courts:
The role and jurisdiction of superior courts

[20] Although Canada’s constitutional structure is premised on federalism, Canada’s judicial system is unitary in nature: the judges of provincial superior courts are appointed by the federal government. In Reference re Residential Tenancies Act, 1981 CanLII 24 (SCC), [1981] 1 S.C.R. 714, at p. 728 (“Residential Tenancies”), Dickson J. (as he then was) described the judicature provisions of the Constitution Act, 1867 as supporting a “strong constitutional base for national unity”. In Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27, 459 D.L.R. (4th) 555 (“Quebec Reference”), the Supreme Court emphasized that the judicature provisions, along with s. 92(14), were designed by the Fathers of Confederation to strike a balance between provincial initiatives on the administration of justice and the need to respect the status of the superior courts as the centrepiece of the unitary judicial system. The Court added that the fundamental principles underlying s. 96 and the organization of Canada’s judiciary are national unity and the rule of law: Quebec Reference, at paras. 1-2,4.
Provincial legislative authority

[21] Section 92(14) of the Constitution Act, 1867 establishes the exclusive authority of the provinces over the administration of justice, which includes prescribing the procedure that must be followed in civil matters. As the application judge noted, Ontario has established various procedural mechanisms that govern the ability of litigants to bring their disputes to the superior courts for adjudication, including r. 21.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which permits matters to be determined prior to trial; r. 20 of the Rules of Civil Procedure, which establishes a summary judgment procedure to resolve matters without a trial; rr. 2.1.01 and 2.1.02 of the Rules of Civil Procedure and s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which preclude frivolous or vexatious proceedings; and the Class Proceedings Act, 1992, S.O. 1992, c. 6, which permits class actions by named plaintiffs but requires preliminary motions to certify the proceedings and appoint a representative plaintiff.

[22] There is no question that the CLPA is within Ontario’s legislative authority. However, Ontario’s authority to enact the CLPA must be considered alongside other constitutional provisions to ensure the consistent operation of the Constitution as a whole. Provincial legislative authority under s. 92(14) cannot be exercised in a manner that infringes s. 96 and the core jurisdiction of superior courts that it has been held to protect.
Protecting the core jurisdiction of the superior courts

[23] Section 96 of the Constitution Act, 1867 is ostensibly a simple provision governing the appointment of judges to the superior courts – courts of inherent jurisdiction. It provides as follows:
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.
[24] However, s. 96 has come to be understood as performing a much more significant role: “protecting the special status of the superior courts of general jurisdiction as the cornerstone of our unitary justice system”: Quebec Reference, at para. 4. Doctrine has developed with a view to protecting the special status of the superior courts – ensuring that their jurisdiction is not usurped by Parliament or a provincial legislature, whether by transferring their core powers to inferior courts and administrative tribunals or removing them altogether. If this were to occur, the superior courts would lose their essential nature and the federal-provincial structural balance fundamental to Canada’s justice system would be lost.

[25] Where legislation seeks to establish adjudicative authority in an administrative tribunal or inferior court, the three-part test set out in Residential Tenancies applies. The court asks:
1) Whether the power, function, or jurisdiction purported to be conferred conforms to the power, function, or jurisdiction exercised by s. 96 courts at the time of confederation. If it does, the court asks:

2) Whether, in its institutional context, the power, function, or jurisdiction is judicial in nature. If it is, the court asks:

3) Whether, having regard to the tribunal’s function as a whole, the power is a sole or central function of the tribunal, such that it is operating like a s. 96 court.
[26] In essence, the Residential Tenancies test permits administrative tribunals and inferior courts to exercise authority once exercised by s. 96 courts so long as the exercise of that authority is not the sole or central function of the tribunal or inferior court, such that it is operating like a s. 96 court: Residential Tenancies, at p. 736. The Residential Tenancies test thus aims to protect the historical jurisdiction of superior courts: Quebec Reference, at paras. 55-59.

[27] In MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725, the Supreme Court added that while adjudicative authority can, in some circumstances, be established outside the context of the superior courts, on no account can the inherent or core jurisdiction of the superior courts be transferred exclusively to another court or removed. Lamer C.J., writing for a majority of the Court, acknowledged that the core jurisdiction concept was difficult to define, but said that it is of “paramount importance” to the existence of the superior courts. He endorsed a broad conception set out by I.H. Jacob in “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Legal Probs. 23, in which Jacob described the power of superior courts to maintain their authority and prevent their process from being obstructed as “intrinsic” and the “very life-blood” and “very essence” of superior courts. “Without such a power”, Jacob wrote: “the court would have form but would lack substance. The jurisdiction which is inherent in a superior court of law is that which enables it to fulfil itself as a court of law”: at p. 27.

[28] Thus, core jurisdiction is defining of the superior courts and must be guarded jealously. In MacMillan Bloedel, Lamer C.J. put the matter this highly: removal of any part of the core jurisdiction, he said, “emasculates the court, making it something other than a superior court”: at para. 30.


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