|
Constitution - Superior Courts (s.96) (3). Botbyl v. Heartland Farm Mutual Inc.
In Botbyl v. Heartland Farm Mutual Inc. (Ont Div Ct, 2025) the Ontario Divisional Court allowed a LAT SABS appeal, here from a LAT reconsideration decision which overturned an initial decision "that granted the Insureds relief from forfeiture of their insurance policy under s. 129 of the Insurance Act". The central issue here was whether the LAT [under s.280 'Resolution of disputes'] had jurisdiction to grant relief from forfeiture [under IA s.129], even though that provision grants such jurisdiction to the "court".
Here the court considers the argument that interpreting 'court' in this fashion violates Constitution Act, 1867, s.96 ['Appointment of Judges']:Allowing the LAT to apply s. 129 does not violate s. 96 of the Constitution Act, 1867
[52] Akinyimide does not deal with the argument that Heartland advanced before us, namely that to allow an administrative tribunal to grant what is essentially equitable relief like relief from forfeiture would destroy the intended effect of s. 96 of the Constitution Act, 1867. According to Heartland, under s. 96 of the Constitution Act, 1867, the Governor General has the sole power to appoint judges of the Superior, District and County Courts in each province. That power would be destroyed if a province could pass legislation creating a tribunal and then confer on those tribunal members the jurisdiction to grant equitable remedies, which is a s. 96 judicial power.
[53] This is another argument that was not raised before the LAT.
[54] The main case cited by Heartland to support its position on this issue is Re Residential Tenancies Act, 1979, 1981 CanLII 24 (SCC), [1981] 1 S.C.R. 714, where the Supreme Court was asked to determine the constitutional validity of a section conferring on the Residential Tenancy Commission the power to evict tenants and requiring landlords and tenants to comply with obligations under the Act. The Court applied a three-part test which was focused on the remedial power conferred on the Commission to make eviction orders and order compliance:1. Does the power conferred “broadly conform” to a power or jurisdiction exercised by a superior, district or county court at the time of Confederation?
2. If so, is it a judicial power?
3. If so, is the power either subsidiary or ancillary to a predominantly administrative function or necessarily incidental to that function? [55] At the first stage of the inquiry, the Supreme Court held that both powers at issue were analogous to the traditional powers of superior court judges both before and after confederation. At the second step, the Court determined that in substance the tribunal was exercising those powers in roughly the same way as they are exercised by the courts. With respect to the third step, the Court found that the primary purpose of the legislation at issue was to transfer jurisdiction over a large and important body of law whose primary role was not to administer policy or carry out an administrative function but to adjudicate. Therefore, it was not within the legislative competence of the provinces to empower a residential tenancy commission to make orders of eviction or compliance.
[56] However, there has been an important development in the Supreme Court’s jurisprudence since Re Residential Tenancies Act. At the first stage of the test, instead of focusing on the remedies granted to the provincial body at issue, the court now focuses on the type of dispute or its subject matter. In other words, instead of asking whether the remedy was within the exclusive jurisdiction of the superior court at confederation, the question is whether the subject matter of the dispute was within the exclusive jurisdiction of the superior court at confederation.
[57] This reframing first arose in Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.), 1989 CanLII 116 (SCC), [1989] 1 S.C.R. 238, which involved a s. 96 challenge to a provincial legislative scheme that granted the Director of Labour Standards for Nova Scotia the power to order reinstatement of an employee who had been dismissed without just cause. The issue was initially characterized as whether the province had jurisdiction to empower a provincial tribunal to grant the equitable remedy of specific performance of employment contracts. Writing for the majority, Wilson J. eschewed this approach as a “technical analysis of remedies” and found that it is “the type of dispute that must guide us and not the particular remedy sought.” Thus, the power at issue in that case went from the “jurisdiction to order reinstatement” to the “jurisdiction over unjust dismissal”.
[58] As Professors Hogg and Wright point out, this is important because for a tribunal’s power to be held to be a s. 96 power at confederation, it is clear that the impugned power must have been within the exclusive jurisdiction of s. 96 courts at confederation. Thus, if the power or function is characterized more broadly, it is less likely to run afoul of s. 96 as both inferior and superior courts are more likely to have shared concurrent jurisdiction at confederation. In other words, while a tribunal’s remedial powers may have been within the exclusive jurisdiction of the s. 96 courts at confederation, its subject-matter jurisdiction was not: see Peter W. Hogg & Wade Wright, Constitutional Law of Canada, 5th ed. (Toronto: Thomson Reuters Canada, 2020), at § 7:19.
[59] This broadening is partly a response to the concern expressed by Wilson J. in Sobeys: “The courts have recognized that s. 96 should not stand in the way of new institutional approaches to social or political problems”: at p. 253.
[60] Following Sobeys, the Supreme Court similarly held in Reference re Amendments to the Residential Tenancies Act (N.S.), 1996 CanLII 259 (SCC), [1996] 1 S.C.R. 186:[34] Two characterizations of the jurisdiction of the Director and Residential Tenancies Board have been advanced by the parties. The appellant along with the Attorneys General of British Columbia, Manitoba, Ontario and Quebec argue that the jurisdiction should be characterized as “jurisdiction over residential tenancies; disputes between residential landlords and tenants”. On the other hand, the respondent argues that the jurisdiction should be characterized as determining “residential tenancies disputes, including the power to make orders for compliance, repair, compensation, termination and possession and related matters.”
[35] The problem with the characterization advanced by the respondent and the majority of the court below is that it runs afoul of the principles set out in Sobeys Stores. It limits the historical inquiry to remedies over which the superior court exercised jurisdiction at Confederation and ignores the purpose and subject matter of the legislation. Consequently, I agree with the appellant that the proper characterization of the unproclaimed provisions is “jurisdiction over residential tenancies; disputes between residential landlords and tenants.” This characterization captures the “raison d'être of the legislation. The Residential Tenancies Act of Nova Scotia is not meant to be a replica of landlord and tenant law. It sets up a complete and comprehensive code independent of landlord and tenant law which is specifically designed for governing the residential tenancy relationship. [61] The subject matter of the jurisdiction at issue in this case is “the resolution of disputes in respect of an insured person’s entitlement to SABs or in respect of the amount of SABs to which an insured person is entitled”: Stegenza v. Economical Mutual Insurance Company, 2019 ONCA 615, 147 O.R. (3d) 65, at para. 37. Statutory accident benefits are a provincially created entitlement to solve a social problem that did not exist at the time of confederation. Therefore, they could not have been within the exclusive jurisdiction of the superior court at that time. Thus, granting the LAT the power to order relief from forfeiture would not run afoul of s. 96.
[62] Our view on this question is reinforced by the fact that many provincial statutes provide administrative tribunals with the power to grant remedies that are equivalent to equitable remedies. The Arbitration Acts of Alberta, British Columbia, Manitoba, New Brunswick, Ontario and Saskatchewan expressly entitle arbitral tribunals to decide a dispute in accordance with law, including equity, and to order specific performance, injunctions and other equitable remedies. . BizTech v. Accreditation Canada
In BizTech v. Accreditation Canada (Div Ct, 2025) the Divisional Court considered what are essentially two JRs, these opposing decisions by Accreditation Canada and the Superintendent of Career Colleges [under the Ontario Career Colleges Act, 2005], these resulting in the revocation of a college's educational program which "triggered a statutory right by BizTech students in the DMS Program to a full refund of their fees."
The court considers the constitutional status of judicial reviews (JR), here in the context of determining whether JR can be "a proceeding" under Arbitration Act s.7(1) ['Stay'] and thus whether the court can exercise it's discretion to hear it or not:[133] When it comes to the stay of this judicial review proceeding, the starting point of the analysis is that judicial review by the courts is protected by s. 96 of the Constitution Act, 1867. It is a cornerstone of our justice system. And legislative lawmakers cannot remove the court’s ability to conduct judicial review: Ontario Place Protectors v. Ontario, 2025 ONCA 183, at para 33; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 563, at para. 24. Thus, the fact the JRPA does not include mandatory language excluding arbitration is legally irrelevant given the constitutional status of judicial review, its relationship to the rule of law and the status of superior courts. As Lorne Sossin J.A. explains in Practice and Procedure Before Administrative Tribunals (Toronto: Ontario: Thomson Reuters), § 38:2. Nature, Source and Purpose of Judicial Review:Judicial review refers to the constitutional power, right and responsibility of the superior courts to ensure that state authority is exercised in accordance with the law. It is a vital aspect of the rule of law. As such the ability of courts to judicially review state action is not dependant on a legislature creating such a right. Unlike a right of appeal, which exists only to the extent that a legislature creates it, judicial review exists independent of legislative desire or creation as an inherent power of the superior courts flowing from sections 96 to 101 of the Constitution Act, 1867.
By virtue of the concept of the rule of law, all exercises of public authority must find their source in law. Furthermore, all decision-making powers have legal limits, derived from the enabling legislation, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep these limits. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. [134] The JRPA is thus distinct from other statutes in this regard.
[135] However, this recognition does not answer the question before me. As urged in Peace River, the answer depends very much on the legal context, the terms of the arbitration agreement, and the specific facts of the case.
[136] The constitutional right to seek judicial review does not mean “a right to require the court to undertake judicial review” regardless of the nature of the question before it: Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] 1 S.C.R. 3, at para. 30; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), 1989 CanLII 73 (SCC), [1989] 2 S.C.R. 49, at p. 93.
[137] Discretion is inherent in undertaking the task of judicial review. At minimum, the court must determine whether judicial review is appropriate. In deciding that, if the court determines that one of the discretionary bases for refusing a remedy is present, they may decline to consider the merits of the judicial review application. The court also has the discretion to refuse to grant a remedy, even if they find that the decision under review is unreasonable: Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8, 489 D.L.R. (4th) 191, at para. 54; ss. 2(2), (5) of the JRPA. . Ontario Place Protectors v. Ontario
In Ontario Place Protectors v. Ontario (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, this from a dismissal of an earlier application challenging the ROPA (Rebuilding Ontario Place Act, 2023) legislation under s.96 ['Judicature'] Constitution Act, 1867 grounds.
Here the court considers limitations placed on ROPA to civil litigation:[2] The appellant brought an application challenging the constitutionality of ROPA, arguing that it insulates state action from judicial scrutiny and so violates s. 96 of the Constitution Act, 1867. Additionally, the appellant argued that the exemptions from the Environmental Assessment Act, Heritage Act, and municipal noise regulations constitute a breach of public trust. The application judge denied the appellant public interest standing to pursue its application, and in the alternative ruled that its challenge to ROPA failed in any event.
[3] Although I conclude that the application judge erred in denying the appellant public interest standing, I agree that the constitutional challenge to ROPA fails. ROPA does not contravene s. 96 of the Constitution Act, 1867. As this court has explained, s. 96 immunizes neither the substantive content of the law nor the procedure governing litigation: Poorkid Investments Inc. v. Ontario (Solicitor General), 2023 ONCA 172, 479 D.L.R. (4th) 469. The establishment, amendment, or repeal of causes of action does not affect the superior courts’ core jurisdiction and so does not infringe s. 96. ....
....
The legislation
[8] The focus of the application is s. 17 of ROPA. Section 17(1) of ROPA eliminates causes of action against the Crown and related entities; s. 17(2) precludes the award of costs, compensation, damages, and other remedies; s. 17(3) prohibits proceedings from being brought; and s. 17(4) preserves applications for judicial review. I set out s. 17 in full:Extinguishment of causes of action
17(1) No cause of action arises against the Crown, the Corporation, any current or former member of the Executive Council or any current or former employee, officer or agent of or advisor to the Crown or the Corporation as a direct or indirect result of,
(a) the enactment, amendment or repeal of any provision of this Act;
(b) the making, amendment or revocation of any provision of a regulation, order, directive, notice, report or other instrument under this Act;
(c) anything done or not done in accordance with this Act, or a regulation, order, directive, notice, report or other instrument under this Act;
(d) any modification, revocation, cessation or termination of rights in real property, contractual rights or other rights resulting from anything referred to in clauses (a) to (c); or
(e) any representation or other conduct that is related, directly or indirectly, to the actual or potential transfer of vested real property or any part thereof, whether the representation or other conduct occurred before or after section 2 of Schedule 2 to the New Deal for Toronto Act, 2023 came into force.
No remedy
(2) Except as otherwise provided under section 4, in an order under section 13 or in a regulation under clause 19(c), if any, no costs, compensation or damages, including for loss of revenues or loss of profit, are owing or payable to any person and no remedy, including but not limited to a remedy in contract, restitution, tort, misfeasance, bad faith, trust or fiduciary obligation, any equitable remedy or any remedy under any statute, is available to any person in connection with anything referred to in subsection (1) against any person referred to in that subsection.
Proceedings barred
(3) No proceeding that is directly or indirectly based on or related to anything referred to in subsection (1) may be brought or maintained against any person referred to in that subsection.
Application
(4) Subsection (3) does not apply with respect to an application for judicial review, but does apply with respect to any other court, administrative or arbitral proceeding claiming any remedy or relief, including specific performance, injunction, declaratory relief or the enforcement of a judgment, order or award made outside Ontario. [Emphasis added.]
Retrospective effect
(5) Subsections (1) to (3) apply regardless of whether the cause of action on which a proceeding is purportedly based arose before, on or after the day this subsection came into force.
No costs awarded
(6) No costs shall be awarded against any person in respect of a proceeding that cannot be brought or maintained under subsection (3).
Aboriginal or treaty rights
(7) This section does not apply to a cause of action that arises from any aboriginal or treaty right that is recognized and affirmed by section 35 of the Constitution Act, 1982.
No expropriation or injurious affection
(8) Nothing referred to in subsection (1) constitutes an expropriation or injurious affection for the purposes of the Expropriations Act or otherwise at law.
Proceedings by Crown not prevented
(9) This section does not apply with respect to proceedings brought by the Crown. ....
(2) Section 17 of ROPA does not violate s. 96 of the Constitution Act, 1867
The core jurisdiction of the superior courts
[29] The legal principles governing s. 96 of the Constitution Act, 1867 were discussed at length in Poorkid and it suffices to summarize them here.
[30] Section 96 establishes that the authority to appoint superior court judges belongs exclusively to the federal government. This authority has generated a body of doctrine designed to protect the special status of the superior courts by ensuring that their decision-making authority is not usurped, whether by transferring their core powers to inferior courts and administrative tribunals or removing them altogether.
[31] The “core jurisdiction” of the superior courts has always been understood as a narrow concept that includes “only critically important jurisdictions which are essential to the existence of a superior court of inherent jurisdiction”: Reference re Amendments to the Residential Tenancies Act (N.S.), 1996 CanLII 259 (SCC), [1996] 1 S.C.R. 186, at para. 56. The Supreme Court re-emphasized the narrow character of the superior courts’ core jurisdiction in Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27, [2021] 2 S.C.R. 291. The majority explained that the core jurisdiction is concerned with the essential business of a superior court: “review of the legality and constitutional validity of laws, enforcement of its orders, control over its own process, and its residual jurisdiction as a court of original general jurisdiction”: at para. 68.
[32] The appellant argues that ROPA violates the core jurisdiction of the superior courts in two distinct ways: first, by denying judicial review remedies, and second, by removing the superior courts’ ability to grant any remedies under any statute, effectively establishing absolute Crown immunity from liability. I will address each of these arguments in turn.
ROPA does not remove judicial review remedies
[33] Neither Parliament nor provincial legislatures can remove the court’s ability to conduct judicial review, as the Supreme Court explained in Crevier v. A.G. (Québec) et al., 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220, at pp. 236-37, and affirmed in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 24. But ROPA does not do so. The continued availability of judicial review is clear from a plain reading of its provisions.
[34] Section 17(3) of ROPA precludes various proceedings from being brought, but s. 17(4) exempts an “application for judicial review” from its operation. An “application for judicial review” is a concept established in the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the “JRPA”). That Act, which standardizes the procedure governing judicial review of administrative action, permits a single application to be brought for relief in the nature of the prerogative writs – mandamus, prohibition, and certiorari, the forms of relief historically available to control the exercise of public authority. In addition, declarations and injunctions may be granted on an application for judicial review where the exercise of a “statutory power of decision” is concerned: JRPA, s. 2(1).
[35] The appellant argues that s. 17(4) of ROPA fails to preserve judicial review because it does not exclude s. 17(2), which precludes all remedies against the Crown arising out of any action taken in connection with ROPA. The appellant says that all remedies otherwise available under the JRPA are ousted, along with any other statutory remedies. According to the appellant, where the Legislature intended to preserve a remedy, it did so specifically, as for example with causes of action arising from aboriginal and treaty rights: ROPA, s. 17(7). The Legislature did not specifically preserve judicial review remedies and so must be taken to have ousted them.
[36] There is no merit to this argument.
[37] Section 17(4) preserves judicial review remedies because s. 17(2) expressly states that it does. Section 17(2) does not extinguish all remedies; it extinguishes remedies “[e]xcept as otherwise provided under section [17(4)]”. Section 17(4) states that the broad preclusion of proceedings under s. 17(3) “does not apply with respect to an application for judicial review”, without itself referring to s. 17(2). Thus, s. 17(4) exempts judicial review proceedings from the otherwise complete bar on proceedings, and in conjunction with the terms of s. 17(2) exempts judicial review remedies from the otherwise complete bar on remedies. In this way, ROPA preserves applications for judicial review and the remedies contemplated by the JRPA.
ROPA does not remove the core jurisdiction of the courts
[38] The appellant accepts that it is open to the Legislature to exclude some remedies and damages but argues that s. 17(2) is different in kind – “completely unprecedented” – because it excludes all remedies and liabilities under every Ontario statute and regulation. The appellant submits that a line must be drawn between constitutionally permissible and impermissible exclusions of remedies and liabilities. Wherever the line is to be drawn, ROPA is necessarily on the wrong side of it because it removes all remedies and liabilities. The result, according to the appellant, is complete governmental immunity, something that the Supreme Court described as “intolerable” in Just v. British Columbia, 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228, at p. 1239. Finally, the appellant argues that Power holds that Crown immunity is not absolute and that damages must be available under s. 24(1) of the Charter. Section 17(2) eliminates all damages and so directly offends that proposition.
[39] These arguments must be rejected.
[40] The fundamental error underlying the appellant’s position arises out of a confusion between amending or abolishing a cause of action, which the Legislature is free to do, and interfering in the adjudication of an action or the exercise of the court’s inherent powers, which the constitution prohibits.
[41] This point was made plain in Poorkid. That case concerned legislation that established a screening mechanism that made it more difficult to sue the Crown in respect of misfeasance in public office or bad faith in the exercise of public duties or functions. Although that screening mechanism was a procedural provision rather than an immunity from suit, Poorkid made clear that s. 96 of the Constitution Act, 1867 “immunizes neither the substantive content of the law nor the procedure governing litigation against legislative reform”: at para. 48. The Legislature is free to establish, amend, or repeal causes of action in addition to establishing procedural requirements governing litigation unless doing so usurps the core jurisdiction of the superior courts – and that occurs only if the superior courts are prevented from serving as courts of inherent general jurisdiction: Poorkid, at para. 45.
[42] ROPA does not prevent the superior courts from serving as courts of general jurisdiction. It does not usurp their core adjudicative function. It does not transfer or remove any of their core functions. It simply immunizes the Crown against liability in respect of the Ontario Place redevelopment and removes the redevelopment from legislation to which it would otherwise be subject. This is neither exceptional nor constitutionally objectionable. Section 96 does not preclude the Legislature from extinguishing a cause of action, whether legislative or common law, against the Crown or a private individual, nor does it preclude the establishment of a more comprehensive immunity.
[43] Nor does the Supreme Court’s decision in Just preclude comprehensive Crown immunity. The Supreme Court’s comment about Crown immunity from tortious liability having become “intolerable” referred to the reason for the passage of legislation establishing Crown liability. The court made similar comments in Nelson (City) v. Marchi, 2021 SCC 41, [2021] 3 S.C.R. 55, at para. 38, describing complete Crown immunity as “untenable”. These comments cannot be read out of context. Neither Just nor Marchi limits the Legislature’s authority to establish immunities.
[44] Finally, the Supreme Court’s decision in Power is irrelevant to this case. Power is not a s. 96 case. Power concerns the limited circumstances in which the state may be liable for damages under s. 24(1) of the Charter for enacting legislation that violates the Charter. Section 17(2) of ROPA does not purport to immunize the Ontario government from liability for acts in breach of the constitution and could not do so in any event.
[45] In summary, ROPA immunizes the Crown from liability in respect of the Ontario Place redevelopment by extinguishing statutory and common law causes of action while preserving the availability of judicial review proceedings and remedies. It does not interfere with the core jurisdiction of the superior courts and does not violate s. 96 of the Constitution Act, 1867.
|
