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Constitution (Non-Charter) - Property and Civil Rights [The Constitution Act, 1867, s.92(13)]. 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'].
The court addresses the constitutional 'division of powers' analysis of the case, here at the second division of power 'classification' stage (the first is the pith and substance 'characterization' stage):C. Is Section 11 Classified Under Section 92(13), “Property and Civil Rights”, or Under Section 92(14), “The Administration of Justice”?
[77] After determining a law’s pith and substance, it must be “classified” by assigning it to one of the legislative heads of power within ss. 91 and 92 of the Constitution Act, 1867 (Quebec (Attorney General), at para. 32).
[78] First, I have concluded that s. 11 is procedural and does not deal with substantive rights. Accordingly, s. 11 does not fall under s. 92(13), as the pith and substance of s. 11 does not deal with “Property and Civil Rights”.
[79] Instead, I conclude that s. 11 is properly classified under s. 92(14) of the Constitution Act, 1867, which grants the provinces the authority to legislate in relation to “[t]he Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.” This language is intentionally broad, since “[b]efore Confederation, the Provinces exercised untrammeled powers in respect of the Administration of Justice, both civil and criminal” (Di Iorio v. Warden of the Montreal Jail, 1976 CanLII 1 (SCC), [1978] 1 S.C.R. 152, at p. 204). Hence, this provision provides a non-exhaustive list of examples that the provinces may legislate in relation to, without limiting the provinces’ authority to those matters alone (pp. 204-5).
[80] Under this head of power, the provinces may “enact laws and adopt regulations pertaining to courts, rules of court and civil procedure” (Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 33; see also Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511, at para. 79). A law will generally fall under s. 92(14) when it applies to the administrative functioning of a province’s courts or to the procedural functioning of actions taking place before the province’s courts (Castillo v. Castillo, 2005 SCC 83, [2005] 3 S.C.R. 870, at para. 37, per Bastarache J., concurring; see also Criminal Lawyers’ Association of Ontario, at para. 33).
[81] Section 11 of the ORA is a procedural mechanism which operates with the purely procedural CPA and presumptively authorizes the government of B.C. to act on behalf of a class of consenting Canadian governments. Like all procedural rules, s. 11 will play a role in the resolution of substantive rights and affects them to some extent, but s. 11 neither creates nor changes substantive rights. Rather, s. 11 helps Crowns to cooperate in a collective pursuit of their individual claims, and assists B.C.’s courts in presiding over that pursuit.
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VI. Conclusion
[109] Section 11 of the ORA is a procedural mechanism through which the claims of consenting foreign Crowns can be determined in a single proceeding before the courts of B.C., with the government of B.C. acting as the representative plaintiff. This procedural mechanism falls within the Province’s authority over the “Administration of Justice in the Province” under s. 92(14). It is meaningfully connected to the province and respects the legislative sovereignty of other governments. As a result, s. 11 is intra vires the province, and it is unnecessary to consider the ancillary powers doctrine. . Sri Lankan Canadian Action Coalition v. Ontario (Attorney General)
In Sri Lankan Canadian Action Coalition v. Ontario (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of an application (JR?) for a "declaration of constitutional invalidity", dealing with the 'Tamil Genocide Education Week Act, 2021' - what I call a 'heritage/awareness statute'.
Here the court briefly considers the 'property and civil rights' provincial head of powers [The Constitution Act, 1867, s.92(13)]:[93] To begin, we reject Ontario’s submission that the TGEWA constitutes an exercise of the province’s powers over private rights in the province under s. 92(13). As the Coalition Appellants submit, for that power to apply, a province must create or modify private interpersonal “rights”, with juridical effect: Murray-Hall, at para. 72; Reference re Validity of the Combines Investigation Act and of s. 498 of the Criminal Code, 1929 CanLII 90 (SCC), [1929] S.C.R. 409, at p. 414. The TGEWA has no such effect – it is purely hortatory.
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