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Civil Litigation - References

. Reference re Code of Civil Procedure (Que.), art. 35

In Reference re Code of Civil Procedure (Que.), art. 35 (SCC, 2021) the Supreme Court of Canada (in a Quebec appeal) recognizes the persuasive impact of 'references' [Ontario's version is under CJA 8], and allows itself to suspend the effect of it's ruling on a reference, similar to Charter orders:
[151] In principle, a reference is merely an advisory procedure. The answer to a reference question may be viewed as a legal opinion for the executive that is analogous to an opinion provided by law officers of the Crown (Reference re Secession of Quebec, at para. 15). In a reference, the Court therefore does not have the power to formally declare a law to be unconstitutional. The only power it has is to answer the question before it (Attorney‑General for Ontario v. Attorney‑General for Canada, 1912 CanLII 407 (UK JCPC), [1912] A.C. 571 (P.C.), at pp. 588‑89; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), 1993 CanLII 119 (SCC), [1993] 1 S.C.R. 839, at p. 863; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1998 CanLII 833 (SCC), [1998] 1 S.C.R. 3 (“Reference re Remuneration of Judges (1998)”), at para. 9).

[152] Notwithstanding their advisory — and therefore, in principle, non‑binding — nature, opinions given in references are in practice treated as judicial decisions and are followed by other courts (Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 40; see also Reference Re Certification in the Manitoba Health Sector, 2019 MBCA 18, [2019] 5 W.W.R. 614, at para. 23; G. Rubin, “The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law” (1960), 6 McGill L.J. 168, at pp. 175‑80). The day after this Court gives an opinion, any trial court considering the same question would in all likelihood apply that opinion because of its persuasive weight (Reference re Remuneration of Judges (1998), at para. 10). It may therefore be appropriate, where the circumstances so require, for this Court to exercise its remedial discretion to suspend the effects of its decision in the context of a reference, as it may do on an appeal.


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