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Constitution (Non-Charter) - Prescriptive Legislative Jurisdiction (2). Hamid v. Canadian Centre for Professional Legal Education [jurisdiction]
In Hamid v. Canadian Centre for Professional Legal Education (Ont Divisional Ct, 2024) the Ontario Court of Appeal finds that it lacks jurisdiction to hear a JR, which should have been commenced in Manitoba.
Here the court finds that the Divisional Court lacks the jurisdiction to hear matters "made under the legislation of another province", that such a proposition is constitutionally flawed as a matter of inter-provincial jurisdiction and that the applicant fails to meet the Van Breda venue test:[10] This Court does not have jurisdiction to judicially review a decision made under the legislation of another province.
[11] As a statutory court created by s. 18 of the Courts of Justice Act, RSO 1990, c C.43 ("CJA"), the Divisional Court only has jurisdiction, power, and authority in Ontario. As a constitutional matter, provinces cannot legislate beyond their territorial boundaries, and the statutes of one province do not have the force of law in another province. This constitutional limit grounds an interpretive presumption that provincial statutes are not intended to apply extra-territorially.
[12] The Divisional Court also has jurisdiction to perform judicial review, as set out in the Judicial Review and Procedures Act, R.S.O. 1990, c.J.1 ("JRPA"), and specifically, with respect to the exercise or purported exercise of defined "statutory powers." The exercise of "statutory powers" referred to in the JRPA, does not include powers exercised by extra-provincial bodies under other provincial statutes. Ontario courts do not have the authority to grant administrative law remedies with respect to extra-provincial officials carrying out duties under extra-provincial statutes.
[13] In Re Anaskan and The Queen (1977), 1977 CanLII 1199 (ON CA), 15 OR (2d) 515 (C.A.), the Ontario Court of Appeal held that the Court does not have any power to grant administrative law remedies with respect to a Saskatchewan official carrying out duties and responsibilities under Saskatchewan statutes, even if the appellant was physically present in Ontario. The Court cannot quash the orders or decisions made by courts or tribunals in other Provinces, whose powers come from their provincially enacted statutes.
[14] In Dr. Rashidan v. The National Dental Examining Board of Canada, 2020 ONSC 4174, the Divisional Court found that it did not have jurisdiction to hear the matter. The applicant was seeking to qualify as a dentist in British Columbia and had no intention of qualifying in Ontario. The Board's authority arose in British Columbia. The authority to deal with judicial review would therefore be found in British Columbia's legislation, and not Ontario's.
[15] The Applicant seeks qualification in Manitoba. Neither CPLED nor the LSM are regulated by Ontario legislation. The "statutory powers" exercised by CPLED and LSM that the Applicant refers to stem from Manitoba's Legal Profession Act and Fair Registration Practices in Regulated Professions Act.
[16] While the Applicant also raises the issue of breach of contract, it is outside this Court's authority on an Application for Judicial Review. However, even if the issue was within jurisdiction, I find no real and substantial connection to Ontario.
[17] When considering whether this Court has jurisdiction under the common law, both parties submitted that the test to be applied is whether there is a real and substantial connection between the issue and the place (as between nations see: Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 SCR 572 and as between provinces see: Airia Brands Inc. v. Air Canada, 2017 ONCA 792, 417 DLR (4th) 467, and College of Optometrists of Ontario v. Essilor Group, 2019 ONCA 265, 145 OR (3d) 561 (C.A.): also see Dr. Rashidan, at para. 14).
[18] Jurisdiction must be established primarily on the basis of objective factors that connect the legal situation or the subject matter of the litigation to the forum: see Club Resorts, at para. 82. However, in determining whether there is a real and substantial connection, the court must first consider whether there is a presumptive connecting factor.
[19] The only connection to Ontario is that the Applicant lives here. However, the physical presence of one party in the jurisdiction is not, on its own, a sufficient presumptive factor: Club Resorts, at para. 86. Once a presumption is established, it can still be rebutted, which is easily done in this case. The presumption of jurisdiction in this case would be inappropriate.
[20] The Applicant was not attempting to qualify as a lawyer in Ontario. Neither CPLED nor the LSM carry on business, or purport to carry on business in Ontario. CPLED does not provide training or exams for law societies outside of Alberta, Manitoba, Nova Scotia, and Saskatchewan. The LSM does not and cannot qualify lawyers outside of Manitoba. A judicial review of their decisions could only be a review regarding the laws in Manitoba. As the Applicant properly identifies, their decisions would be subject to review under Manitoba's Legal Profession Act and Fair Registration Practices in Regulated Professions Act. Neither of their decisions would be subject to judicial review under the JRPA.
[21] I find that this Court does not have jurisdiction to hear this application. I find that there is no real and substantial connection between the issues at stake and Ontario. Manitoba is the proper forum for the Applicant's application. . 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 considers what has been called the 'prescriptive legislative jurisdiction' (aka 'extra-provincial jurisdiction') [esp. para 34], relying heavily on British Columbia v. Imperial Tobacco Canada Ltd. (SCC, 2005) which held that an action against foreign tobacco companies by the province was constitutionally intra vires as they had a 'strong relationship' with the province:[31] The fundamental issue in this appeal concerns whether s. 11 of the ORA is ultra vires because it falls outside the Province of B.C.’s territorial legislative competence, as established by s. 92 of the Constitution Act, 1867. If s. 11 is found to be unconstitutional, this Court must also consider whether it may be saved by the ancillary powers doctrine.
[32] The appellants challenge the validity of s. 11 on the basis that it fails to respect the territorial limits placed on the Province of B.C. by s. 92 of the Constitution Act, 1867, and is thus of no force and effect under s. 52 of the Constitution Act, 1982. They allege that s. 11 permits the Crown in right of B.C. to take control of, and ultimately determine, the substantive civil rights of other governments. Thus, it must be classified under B.C.’s authority over “Property and Civil Rights” in s. 92(13) of the Constitution Act, 1867. Even if fell under s. 92(14), the appellants argue no province could have a meaningful connection to the substantive claims of other governments, whose sovereignty would be infringed if they cannot legislate respecting the litigation of those claims. Section 11 causes other Crowns to lose their right to control the litigation, which binds future governments and violates the principle of parliamentary sovereignty — all substantive effects which have no meaningful connection to B.C.
[33] For its part, B.C. contends that the dominant characteristic of s. 11 is the creation of a procedural mechanism through which it may prosecute an action in B.C on behalf of other consenting governments seeking recovery for their opioid-related expenses, and as such it should be classified under the Province’s authority over “[t]he Administration of Justice” in s. 92(14). The territorial reach of s. 11 is meaningfully connected to B.C. as it regulates a single claim before the courts of B.C., which will affect other Crowns only if they choose to participate, and it preserves their right to have their individual claims determined in accordance with their own substantive laws. Other governments remain able to legislate regarding the substantive aspects of their causes of action.
V. Analysis
[34] Whether s. 11 properly relates to B.C.’s competence to legislate regarding matters “in the Province” is resolved by the two-part framework established by this Court in Imperial Tobacco. I must first characterize and classify the challenged provision, before determining whether it respects the other provinces’ territoriality. The validity of the law enacted by B.C. ultimately depends on whether it is properly “in the Province”, as s. 92 of the Constitution Act, 1867 requires.
[35] The heart of the appellants’ challenge concerns whether the framework which s. 11 establishes for a national, multi-Crown class action improperly reaches beyond B.C.’s borders, seizes the substantive civil rights of other Crowns, hales them before B.C.’s courts, and binds their governments to the outcome.
[36] I reject this challenge. I conclude that s. 11 is a valid procedural framework to facilitate intergovernmental cooperation and to respect interjurisdictional comity, empowering our federation to meet its modern challenges.
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D. Is Section 11 Improperly Extraterritorial?
[82] Turning to the second stage of the Imperial Tobacco framework, the question is whether the challenged legislation respects the territorial limits of provincial power. These limits are found in both the opening words of s. 92, which state that provincial legislatures may exclusively make laws in relation to the listed subjects “In each Province”, and by the language of several heads of power themselves, which requires that the laws be in relation to matters “in the Province” (e.g., s. 92(8), (12), (13), (14) and (16)).
[83] The territorial limitations on provincial powers “reflect the requirements of order and fairness underlying Canadian federal arrangements” (Imperial Tobacco, at para. 27; see also Reference re Upper Churchill Water Rights Reversion Act, 1984 CanLII 17 (SCC), [1984] 1 S.C.R. 297 (Churchill Falls), at p. 328; Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, at para. 31). They serve two purposes: they ensure provincial legislation has a meaningful connection to the province, and that it pays respect to the sovereignty of other provinces within their respective legislative spheres (Imperial Tobacco, at para. 27). Where the pith and substance of the law relates to something intangible, as it does here, the court must ask if the law would respect the dual purposes of the territorial limits in s. 92: does it have a meaningful connection to the enacting province; and does it respect the legislative sovereignty of other territories (para. 36)? If so, the legislation is valid.
(1) Is There a Meaningful Connection Between Section 11 and the Territory of B.C., the Subject Matter of the Provision, and the Parties Who Are Made Subject to It?
[84] The requirement, within the Imperial Tobacco framework, that a law must have a “meaningful connection” to the enacting jurisdiction (para. 27), is based on the concern that state power be exercised legitimately (see Van Breda, at para. 31). A “family of tests” has arisen to assess whether a connection exists between the branch of the state trying to exercise power and the subject over whom the state seeks to exercise power (Sharp, at para. 118). The particular test that applies to the assessment will vary depending on the context, though some factors will inevitably overlap since the underlying purpose behind each test remains the same (para. 118; see also paras. 119-22).
[85] When assessing the constitutional validity of legislation, a “meaningful connection” is tested by assessing the law’s connection to the enacting territory, to the subject matter of the law, and to those made subject to it (Imperial Tobacco, at para. 36). While “strong relationships” among these factors will allow a court to “easily” find a meaningful connection to the province, the search remains one for a “meaningful connection”, and not a connection with no extraterritorial effects (para. 37). Incidental effects outside the province “will not disturb the constitutionality of an otherwise intra vires law” (Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494, at para. 23; see also Imperial Tobacco, at para. 28). Some intrusions on the powers of other governments “are proper and to be expected” in a federation where intergovernmental cooperation on cross-border issues is essential (Canadian Western Bank, at para. 28).
[86] Section 11 concerns a single class action in B.C.’s courts, involving the government of B.C. and defendants who have conducted business in the province and allegedly caused opioid-related harms there.
[87] However, the appellants’ objections to s. 11 require us to consider its meaningful connection to B.C. when foreign Crowns would be affected. The appellants say that s. 11 enables a class action where the substantive claims of foreign Crowns, for alleged wrongs occurring in foreign provinces and territories, according to foreign law, will be prosecuted by the government of B.C. and decided by a B.C. court. They contend this eliminates any meaningful connection which s. 11 might otherwise have had.
[88] I disagree. Section 11 maintains a meaningful connection to B.C. both through the nature of the class action, and through the choice of the foreign Crowns to participate in the proceeding. The provision concerns a single action with commonality of defendants, issues and claims.
[89] Section 11 is consistent with how courts establish jurisdiction over out-of-province class members. Nothing in s. 11 changes that process. A court must still find a real and substantial connection between B.C. and the class as a whole in order to establish jurisdiction, and therefore B.C.’s legislature can only impose its procedural rules on foreign Crowns if the court is first satisfied that a real and substantial connection between B.C. and the class is present. In the proceeding that s. 11 empowers, B.C.’s laws and courts do not reach outside the province unless the court is satisfied there are common issues between the government of B.C. and the proposed class members, and deems that B.C. is the proper venue for their resolution (see CPA, ss. 4(1) and 4.1(1)(a); ORA, s. 11(1)(b)).
[90] This Court and many others across Canada have endorsed the idea that the common issues shared between the non-resident class plaintiffs and the resident representative plaintiff suffice to establish a real and substantial connection for adjudicatory jurisdiction over the class (see, e.g., Dutton, at paras. 52-54; Vivendi Canada Inc. v. Dell’Aniello, 2014 SCC 1, [2014] 1 S.C.R. 3, at paras. 61-63; Endean, at paras. 6, 17 and 58; Airia Brands Inc. v. Air Canada, 2017 ONCA 792, 417 D.L.R. (4th) 467, at para. 107; Harrington v. Dow Corning Corp., 2000 BCCA 605, 193 D.L.R. (4th) 67, at para. 96; Meeking v. Cash Store Inc., 2013 MBCA 81, 367 D.L.R. (4th) 684, at para. 97; Thorpe v. Honda Canada Inc., 2011 SKQB 72, [2011] 8 W.W.R. 529, at para. 135; Wilson v. Servier Canada Inc. (2000), 2000 CanLII 22407 (ON SC), 50 O.R. (3d) 219 (S.C.J.); see also C. Jones, “The Case for the National Class” (2004), 1 C.C.A.R. 29, at pp. 46-47; T. J. Monestier, “Personal Jurisdiction over Non-Resident Class Members: Have We Gone Down the Wrong Road?” (2010), 45 Tex. Int’l L.J. 537, at pp. 546-48; J. Walker, Canadian Conflict of Laws (7th ed. (loose-leaf)), at § 4.03). Section 11 of the ORA and the relevant provisions of the CPA do not extend or change the court’s jurisdiction over these extraterritorial plaintiffs or issues. This jurisdiction arises from the court’s plenary authority, anchored by the real and substantial connection from the plaintiffs’ common issues (Dutton, at paras. 19-24, 33-34 and 39; Meeking, at paras. 92-97; Thorpe, at paras. 119 and 135; Jones, at pp. 46-47; Walker, at § 4.03). Section 11 of the ORA and the relevant provisions of the CPA merely provide the procedural rules for the court once jurisdiction is established. It is a legitimate exercise of power for a province to set the procedural rules for proceedings within its jurisdiction.
[91] Thus, s. 11 authorizes the government of B.C. to bring an action that maintains a meaningful connection to B.C. through the common issues within the B.C. litigation, the court’s jurisdiction over those issues, and the consent of all participating Crowns. The provision will affect foreign Crowns only if they do not opt out of the proceeding (ORA, s. 11(2); CPA, s. 16). No governments are compelled to participate against their will, and the opt-out mechanism lets them make informed and voluntary decisions about whether to subject themselves to B.C.’s courts and procedural rules (Lépine, at paras. 42-43). If they choose to participate, they consent to the court’s jurisdiction to preside over the resolution of the common issues which they accept are essentially the same as those of the representative plaintiff, further linking their independent claims and the province of B.C. (see Harrington, at para. 99; see also Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, at para. 37; Morguard, at pp. 1103-4; Van Breda, at para. 79; Walker, at § 2.02). And if they do not consent to participate, that is the end of the matter.
[92] The appellants’ argument that the foreign nature of the Crowns’ claims negates a meaningful connection is also flawed. Superior courts often adjudicate cases with claims arising elsewhere or requiring the application of foreign law (see, e.g., Van Breda). Applying foreign law to a foreign party does not necessarily destroy a “real and substantial connection” for the court’s jurisdiction over the claim; nor does it undermine the “meaningful connection” between the procedural law facilitating that action and the province which enacted it. Neither test demands the complete absence of all connections to other provinces (see Imperial Tobacco, at paras. 37-38).
[93] Accepting the appellants’ arguments on this point would contradict decades of established jurisprudence affirming that superior courts can preside over class actions that are national in scope. When courts preside over these claims, they must follow their home province’s procedural rules, while often applying the substantive laws from other provinces to each class members’ individual claims. This Court has endorsed national class actions in several decisions (see, e.g., Dutton; Vivendi Canada Inc.; Endean). They are increasingly an important vehicle for many Canadians to access justice in the modern world.
[94] The subject matter of s. 11 is, therefore, a proceeding brought by the government of B.C. in the Supreme Court of British Columbia. Before certification, only B.C. and the defendants are subject to it. Post-certification, only consenting foreign Crowns with common issues with the government of B.C. are subject to it. Thus, a meaningful connection exists between B.C.’s Legislative Assembly, a provision which deals with its courts’ procedures, and parties who choose to participate in such proceedings where their common issues will be resolved collectively. The passages at paras 95-107 ['Does Section 11 Respect the Legislative Sovereignty of Other Canadian Governments?'] are quite interesting for the isolation of the Crown's private litigation autonomy:IV. Issues and Positions of the Parties
(2) Does Section 11 Respect the Legislative Sovereignty of Other Canadian Governments?
[95] The appellants argue that s. 11 fails to respect the legislative sovereignty of other Canadian governments by forcing them to either opt out of the proceeding, or else opt in and fetter their sovereignty by giving away their ability to legislate regarding their substantive opioid-related healthcare cost recovery rights or their litigation autonomy over those rights. They say that the support of the other governments for this legislation is irrelevant.
[96] As I have explained, the appellants’ concerns about the binding effects on another province’s litigation autonomy does not undermine its sovereignty. Litigation involves consequences and those consequences may be inescapable, especially when they occur in jurisdictions beyond the control of a government’s legislature. There is no constitutional principle against this. The appellants’ arguments blur the distinction between legislative and executive authority. *** The legislature of one level of government cannot transfer its primary authority to legislate to another level of government (Reference re Pan-Canadian Securities Regulation, at paras. 75-76). However, no such rule applies to the executive delegation of litigation conduct.
[97] Of course, a government cannot displace existing laws through executive action and the “legislature is entitled to enact legislation inconsistent with the government’s commitments under a prior agreement” (Canada (Attorney General) v. British Columbia Investment Management Corp., 2019 SCC 63, [2019] 4 S.C.R. 559, at para. 92). Thus, as a general constitutional principle, neither the executive, nor the legislature itself, can bind a future legislature in its exercise of authority (Reference re Pan-Canadian Securities Regulation, at paras. 54-59; Wells v. Newfoundland, 1999 CanLII 657 (SCC), [1999] 3 S.C.R. 199, at para. 37; Reference re Canada Assistance Plan (B.C.), 1991 CanLII 74 (SCC), [1991] 2 S.C.R. 525, at p. 560).
[98] But this general principle hits its limit when a Crown exercises its civil rights, in its capacity as a natural person, in areas where its legislature has no authority to enact laws. Aside from effects on a Crown’s desire to litigate as they wish in foreign territory, when Crowns act in their capacity as a natural person in other jurisdictions they may also have to accept legal consequences that fall outside their legislative competence, such as the creation of private rights and duties in other provinces. For example, when a Crown enters into a contract in another province, that contract will fall under the legislative competence of that other province’s authority over “Property and Civil Rights in the Province” (s. 92(13) of the Constitution Act, 1867). The contracting Crown’s legislature could not enact a law to cancel those extra-provincial contractual rights, and it will be bound by that contractual obligation in the same way as an individual (see Churchill Falls, at pp. 332-33; see also Bank of Montreal v. Attorney General (Quebec), 1978 CanLII 173 (SCC), [1979] 1 S.C.R. 565, at p. 574).
[99] So when a Crown exercises the same civil rights as an individual, it will be bound by the consequences of its actions undertaken in another province when those actions fall under that other province’s legislative sovereignty. Despite being sovereign in its own territory over these subject matters, a Crown cannot legislate itself out of situations it might have controlled at home. Nothing forces one province to engage in activities elsewhere, but when they do, they must abide by the laws of that other province (see D. Gibson, “Interjurisdictional Immunity in Canadian Federalism” (1969), 47 Can. Bar Rev. 40, at p. 60; Hogg and Wright, at § 10:20).
[100] This is the case when a Crown exercises its civil rights by participating as a non-representative plaintiff in a class action in another province. It will find itself subject to that province’s procedural rules governing class actions, including procedural rules relating to the binding nature of the court’s judgments or any settlements negotiated by the parties (CPA, ss. 26 and 35).
[101] However, the application of those procedural rules to the foreign, participating Crowns does not determine which substantive laws will apply to those Crowns (see Wilson, at para. 83; Thorpe, at para. 135; Walker, at § 4.03). Here, the harms underlying each Crown’s causes of action occurred in their own jurisdictions and thus are subject to their own substantive law (see Tolofson v. Jensen, 1994 CanLII 44 (SCC), [1994] 3 S.C.R. 1022, at pp. 1050 and 1064-65; Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40, [2003] 2 S.C.R. 63, at paras. 25 and 80; Van Breda, at para. 37; Walker, at § 1.02[2][e]). That substantive law remains subject to each legislature’s sovereignty, including their own ORA-type legislation to establish their causes of action.
[102] I also do not agree that s. 11 fails to respect the sovereignty of other governments because of the potential for overlap and conflict between their various ORA-type statutes and the litigation they authorize. Multi-jurisdictional legislative overlap is normal in a federation; so long as it occurs within the proper legislative authority of the enacting governments, it is not problematic (see Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, at para. 62; Canadian Western Bank, at paras. 36-37). Multi-Crown participation in a national class action, where each is authorized by its own law, represents cooperation between different governments and comity between the courts.
[103] Intergovernmental cooperation in Canada recognizes that some amount of overlap is inevitable regarding national issues like the opioid epidemic, and that “governments should be permitted to legislate for their own valid purposes in these areas of overlap” (PHS Community Services Society, at para. 62). While the courts remain the ultimate arbiters of the constitutionality of governments’ efforts to regulate nationwide issues like these, the day-to-day task of maintaining the balance of powers regarding cooperative legislative schemes “falls primarily to governments” (Canadian Western Bank, at para. 24).
[104] Here, nearly every provincial and territorial government in Canada has chosen to cooperate by enacting virtually identical statutes, by indicating their intent to participate as class members, and by intervening in this appeal supporting B.C. The federal government, which also intervened in support of the respondent, has indicated its intent to participate in the class action as well (House of Commons Debates, vol. 151, No. 216, 1st Sess., 44th Parl., June 19, 2023, at p. 16247 (Hon. Carolyn Bennett)). This multi-Crown participation is in harmony with our Court’s approach to intergovernmental cooperation on national issues, where collaboration between the executives and legislatures of both provincial and federal governments is vital. Especially given the presumption of constitutionality of legislation, a court should exercise considerable caution before it finds that this cooperation between multiple executive and legislative branches is unconstitutional (see Murray-Hall, at paras. 79 and 82; Reference re Impact Assessment Act, at para. 69; Kitkatla, at paras. 72-73; OPSEU, at pp. 19-20).
[105] As for the judicial branch of government, this Court has recognized that “[g]reater comity is required in our modern era when international transactions involve a constant flow of products, wealth and people across the globe” (Hunt, at p. 292). The courts in our federation provide a comparable quality of justice, and so demand the same level of faith in one another’s judgments where jurisdiction has been properly exercised (Morguard, at p. 1099). If overlapping litigation arises, courts acting in respect of one another have the tools to prevent any abuse of process (see, e.g., CPA, ss. 4(3) to 4.1). Comity between our federation’s courts helps with access to justice in a world where people and problems cross borders without heed for which legislature or court has authority over them.
[106] This is true in class actions, whose “purpose is to facilitate access to justice for citizens who share common problems and would otherwise have little incentive to apply to the courts on an individual basis to assert their rights” (Bisaillon, at para. 16). This Court has noted that class actions serve judicial economy, promote access to justice, and modify the behaviour of wrongdoers who might otherwise escape accountability for their actions (Dutton, at paras. 27-29; Hollick, at para. 15). These goals are met where governments cooperate with one another to have their claims litigated efficiently, in one action, before one province’s superior court, whose proceedings and judgment will be respected through the principle of comity in the other courts of our federation.
[107] Section 11 of the ORA therefore respects the legislative sovereignty of foreign Crowns. It is an example of the important role that national class actions play in matters which span the country, by providing a mechanism to help multiple governments cooperate while working toward the same goal.
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(3) Conclusion on Territoriality
[108] Section 11 is meaningfully connected to the Province of B.C. and respects the legislative sovereignty of other Canadian governments. Any extraterritorial effects on foreign Crowns’ substantive rights are incidental and do not affect its validity.
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