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Constitution (non-Charter) - Co-operative Federalism. Sanis Health Inc. v. British Columbia
In Sanis Health Inc. v. British Columbia (SCC, 2024) the Supreme Court of Canada dismissed an appeal, that against a BCCA decision dismissing an appeal, that of a dismissal by the BC Superior Court of an application by the corporate defendants in a consumer opioid damages class action, who sought an interlocutory division-of-powers ultra vires declaration against a class-action-supporting BC statutory provision [the 'Opioid Damages and Health Care Costs Recovery Act, s.11'].
Here the court reviews the doctrine of co-operative federalism:[37] This Court has long recognized that the “rigid, watertight compartments approach to the division of legislative power” risks hindering cooperative regulatory regimes undertaken in the public interest (see Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693 (Quebec (Attorney General)), at para. 17). Between the federal government and the provinces, this idea of cooperation arises in the principle of “cooperative federalism”, an interpretative principle for approaching the division of powers (see GGPPA Reference, at para. 50). Horizontally, between provinces, valid cooperation can manifest as shared participation in interprovincial trade agreements to ensure seamless regulatory schemes (see, e.g., Fédération des producteurs de volailles du Québec v. Pelland, 2005 SCC 20, [2005] 1 S.C.R. 292, at paras. 4 and 15), in cooperative capital market regulatory systems (see, e.g., Reference re Pan-Canadian Securities Regulation, 2018 SCC 48, [2018] 3 S.C.R. 189, at paras. 1-7, 19, 21-22 and 130), and in interlocking class proceedings mechanisms like those created by the CPA and its equivalents in other provinces.
[38] In addition to legislative and executive cooperation, this Court has stressed the need for adjudicative comity between the provinces’ superior courts. A level of national cooperation between them is vital to serve the ends of justice for our federation in the 21st century (see, e.g., Morguard, at pp. 1099-1100; Hunt, at pp. 324-25; Endean v. British Columbia, 2016 SCC 42, [2016] 2 S.C.R. 162, at paras. 4, 17 and 58). Given the comparable quality of justice offered by our courts, and the many aspects of modern life that transcend provincial borders, this Court held that full faith and credit between courts is a constitutional imperative whenever there is a real and substantial connection between the matter and the court’s territory (Hunt, at p. 324; see also Sharp v. Autorité des marchés financiers, 2023 SCC 29, at paras. 110-22).
[39] An appropriate level of cooperation is therefore necessary between the legislative, executive, and judicial branches of government in our constitutional structure. In the analysis which follows, I explain why the mechanism chosen by the Province of B.C. to facilitate this cooperation is constitutionally valid.
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