SCC File No: 38837 IN THE SUPREME COURT OF (ON APPEAL FROM THE COURT OF APPEAL OF QUEBÉC) BETWEEN: CHIEF JUSTICE, SENIOR ASSOCIATE CHIEF JUSTICE, AND ASSOCIATE CHIEF JUSTICE OF THE SUPERIOR COURT OF QUÉBEC Appellants (Interveners) - and - ATTORNEY GENERAL OF QUÉBEC Respondent (Appellant) - and - ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF BRITISH COLUMBIA, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF ALBERTA, CONSEIL DE LA MAGISTRATURE DU QUÉBEC, CANADIAN ASSOCIATION OF PROVINCIAL COURT JUDGES, ORGANISME D’AUTORÉGLEMENTATION DU COURTAGE IMMOBILIER DU QUÉBEC, CONFÉRENCE DES JUGES DE LA COUR DU QUÉBEC, CHIEF JUSTICE, SENIOR ASSOCIATE CHIEF JUSTICE, ASSOCIATE CHIEF JUSTICE OF THE SUPERIOR COURT OF QUÉBEC Interveners [Style of cause continued on next page]

FACTUM OF THE INTERVENER, CANADIAN ASSOCIATION OF PROVINCIAL COURT JUDGES

MARK C. POWER JENNIFER A. KLINCK AUDREY L. MAYRAND Power Law 130 Albert Street, Suite 1103 Ottawa, ON K1P 5G4 Tel/Fax: 514-367-0874 Email: [email protected]

Counsel for the Intervener, the Canadian Association of Provincial Court Judges ii

*continuation of style of cause AND BETWEEN: CONFÉRENCE DES JUGES DE LA COUR DU QUÉBEC Appellant (Intervener) - and - CHIEF JUSTICE, SENIOR ASSOCIATE CHIEF JUSTICE, AND ASSOCIATE CHIEF JUSTICE OF THE SUPERIOR COURT OF QUÉBEC Respondents (Interveners) - and - ATTORNEY GENERAL OF QUÉBEC Intervener (Appellant) - and - ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF ALBERTA, ATTORNEY GENERAL OF BRITISH COLUMBIA, CONSEIL DE LA MAGISTRATURE DU QUÉBEC, CANADIAN ASSOCIATION OF PROVINCIAL COURT JUDGES, ORGANISME D’AUTORÉGLEMENTATION DU COURTAGE IMMOBILIER DU QUÉBEC Interveners

AND BETWEEN: ATTORNEY GENERAL OF QUÉBEC Appellant (Appellant) - and - CHIEF JUSTICE, SENIOR ASSOCIATE CHIEF JUSTICE, AND ASSOCIATE CHIEF JUSTICE OF THE SUPERIOR COURT OF QUÉBEC Respondents (Interveners) - and - ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF ALBERTA, ATTORNEY GENERAL OF BRITISH COLUMBIA, CONSEIL DE LA MAGISTRATURE DU QUÉBEC, CANADIAN ASSOCIATION OF PROVINCIAL COURT JUDGES, ORGANISME D’AUTORÉGLEMENTATION DU COURTAGE IMMOBILIER DU QUÉBEC, CONFÉRENCE DES JUGES DE LA COUR DU QUÉBEC Interveners

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AND BETWEEN: CONSEIL DE LA MAGISTRATURE DU QUÉBEC Appellant (Intervener) - and - ATTORNEY GENERAL OF QUÉBEC Respondent (Appellant) - and - ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF ALBERTA, ATTORNEY GENERAL OF BRITISH COLUMBIA, CANADIAN ASSOCIATION OF PROVINCIAL COURT JUDGES, ORGANISME D’AUTORÉGLEMENTATION DU COURTAGE IMMOBILIER DU QUÉBEC, CONFÉRENCE DES JUGES DE LA COUR DU QUÉBEC, CHIEF JUSTICE, SENIOR ASSOCIATE CHIEF JUSTICE, ASSOCIATE CHIEF JUSTICE OF THE SUPERIOR COURT OF QUÉBEC Interveners

AND BETWEEN: CANADIAN ASSOCIATION OF PROVINCIAL COURT JUDGES Appellant (Intervener) - and - CHIEF JUSTICE, SENIOR ASSOCIATE CHIEF JUSTICE, AND ASSOCIATE CHIEF JUSTICE OF THE SUPERIOR COURT OF QUÉBEC Respondents (Interveners) - and - ATTORNEY GENERAL OF QUÉBEC Intervener (Appellant) - and - ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF ONTARIO, ATTORNEY GENERAL OF ALBERTA, ATTORNEY GENERAL OF BRITISH COLUMBIA, CONSEIL DE LA MAGISTRATURE DU QUÉBEC, CONFÉRENCE DES JUGES DE LA COUR DU QUÉBEC, ORGANISME D’AUTORÉGLEMENTATION DU COURTAGE IMMOBILIER DU QUÉBEC Interveners iv

ORIGINAL TO: THE REGISTRAR 301 Wellington Street Ottawa, ON K1A 0K1

COPIES TO: WILLIAM J. ATKINSON, AD. E., PH. D. GABRIEL POLIQUIN

300 des Sommets Avenue, Suite 412 CazaSaikaley LLP Montreal, QC H3E 2B7 220 Laurier Avenue West, Suite 350 Tel: 514-233-2194 Ottawa, ON K1P 5Z9 Fax: 514-233-2194 Tel: 613-564-8272 Email: [email protected] Fax: 613-565-2087 Email: [email protected]

SEAN GRIFFIN VÉRONIQUE ROY Langlois Lawyers, LLP 1250, René-Lévesque Boulevard West 20th floor Montreal, QC H3B 4W8 Tel: 514-842-7872 (Mr. Griffin) Tel: 514-842-7809 (Ms. Roy) Fax: 514-845-6573 Email: [email protected] [email protected]

Counsel for the Respondents, the Chief Agent for the Respondents, the Chief Justice, Senior Associate Chief Justice and Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Associate Chief Justice of the Superior Court of Québec Court of Québec

v

JEAN-YVES BERNARD, AD. E. PIERRE LANDRY FRANCIS DEMERS Bernard, Roy (Justice-Québec) Noel et Associés 1 Notre-Dame East Street, 8th floor 111 Champlain Montreal, QC H2Y 1B6 Gatineau, QC J8X 3R1 Tel: 514-393-2336 ext 51467/51456 Tel: 819-503-2178 Fax: 514-873-7074 Fax: 819-771-5397 Email: [email protected] Email: [email protected] [email protected]

DOMINIQUE ROUSSEAU Lavoie, Rousseau (Justice-Québec) 300 Jean-Lesage Boulevard, Suite 103 Québec, QC G1K 8K6 Tel: 418-649-3524 ext 42072 Fax: 418-646-1656 Email: [email protected]

ROBERT DESROCHES Direction du droit constitutionnel et autochtone Lavoie, Rousseau (Justice-Québec) 1200 de l’Église, 2nd floor Québec, QC G1V 4M1 Tel: 418-643-1477 ext 20759 Fax: 418-644-7030 Email: [email protected]

Counsel for the Appellant, the Attorney Agent for the Appellant, the Attorney General of Québec General of Québec

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BERNARD LETARTE CHRISTOPHER RUPAR IAN DEMERS Department of Justice Department of Justice 284 Wellington Street, T-6060 50 O’Connor Street, Suite 500 Ottawa, ON K1A 0H8 Ottawa, ON K1A 0H8 Tel: 613-946-2776 Tel: 613-670-6290 Fax: 613-952-6006 Fax: 613-954-1920 Email: [email protected] Email: [email protected]

LINDY ROUILLARD-LABBÉ Department of Justice 200 René-Lévesque Boulevard West East Tower, 5th floor Montreal, QC H2Z 1X4 Tel: 514-283-7179 Fax: 514-283-3856 Email: [email protected]

Counsel for the Intervener, the Attorney Agent for the Intervener, the Attorney General of Canada General of Canada

KARRIE WOLFE KAREN PERRON GARETH MORLEY ZACHARY FROESE British Columbia Minister of Justice Borden Ladner Gervais LLP 1001 Douglas Street, 6th floor 1300-100 Queen Street PO Box 9280, Station Prov Govt Ottawa, ON K1P 1J9 Victoria, BC V8W 9J7 Tel: 250-952-7644 (Mr. Morley) Tel: 613-369-4795 Tel: 250-952-7644 ext 7381 (Mr. Froese) Fax: 613-230-8842 Tel: 250-356-6185 (Ms. Wolfe) Email: [email protected] Fax: 250-356-9154 Email: [email protected] [email protected] [email protected]

Counsel for the Intervener, the Attorney Agent for the Intervener, the Attorney General of British Columbia General of British Columbia

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GUY J. PRATTE, AD. E. KAREN PERRON FRANÇOIS GRONDIN ANAÏS BUSSIÈRES MCNICOLL Borden Ladner Gervais LLP Borden Ladner Gervais LLP 1000-900 De La Gauchetière Street West 1300-100 Queen Street Montreal, QC H3B 5H4 Ottawa, ON K1P 1J9 Tel: 514-954-2545 Tel: 613-369-4795 Fax: 514-954-1905 Fax: 613-230-8842 Email: [email protected] Email: [email protected] [email protected] [email protected]

Counsel for the Appellant, the Conférence Agent for the Appellant, the Conférence des juges de la Cour du Québec des juges de la Cour du Québec

ME MARC-ANDRÉ G. FABIEN, AD. E. SOPHIE ARSENAULT ME VINCENT CÉRAT LAGANA Fasken Martineau DuMoulin LLP Fasken Martineau DuMoulin LLP 800 Square-Victoria, Suite 3700 55 Metcalfe Street, Suite 1300 Montreal, QC H4Z 1E9 Ottawa, ON K1P 6L5 Tel: 514-397-7557 (Mr. Fabien) Tel: 613-236-3882 Tel: 514-394-4520 (Mr. Cérat Lagana) Fax: 613-230-6423 Fax: 514-397-7600 Email: [email protected] Email: [email protected] [email protected]

Counsel for the Appellant, the Conseil de la Agent for the Appellant, the Conseil de la magistrature du Québec magistrature du Québec

SARAH KRAICER MARIE-FRANCE MAJOR Attorney General of Ontario Supreme Advocacy LLP 720 Bay Street, 4th Floor 100-340 Gilmour Street Toronto, ON M7A 2S9 Ottawa, ON K2P 0R3 Tel: 416-894-5276 Tel: 613-695-8855 ext 102 Fax: 416-326-4015 Fax: 613-695-8580 Email: [email protected] Email: [email protected]

Counsel for the Intervener, the Attorney Agent for the Intervener, the Attorney General of Ontario General of Ontario

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RANDY STEELE D. LYNNE WATT Attorney General of Alberta Gowling WLG (Canada) LLP 10025 – 102A Avenue 160 Elgin Street, Suite 2600 11th Floor, Oxford Tower Ottawa, ON K1P 1C3 Edmonton, AB T5J 2Z2 Tel: 613-786-8695 Tel: 780-422-6619 Fax: 613-788-3509 Fax: 780-643-0852 Email: [email protected] Email: [email protected]

Counsel for the Intervener, the Attorney Agent for the Intervener, the Attorney General of Alberta General of Alberta

VANESSA JOANNISSE-GOULET Pelletier avocats 4905 Lapinière Boulevard, Suite 2200 Brossard, QC J4Z 0G2 Tel: 450-462-9800 ext 8420 Fax: 450-676-4454 Email: [email protected]

Counsel for the Intervener, the Organisme d’autoréglementation du courtage immobilier du Québec

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TABLE OF CONTENTS I. OVERVIEW AND STATEMENT OF FACTS ...... 1 II. ISSUES ...... 2 III. STATEMENT OF ARGUMENT ...... 2 A. The Court should decline to answer the second reference question ...... 2 1. The Court may decline to answer a reference question where it is moot or hypothetical ...... 2 2. The second reference question has become purely hypothetical and moot ...... 3 3. The circumstances do not warrant exercising the Court’s discretion to answer the second reference question ...... 4 B. In the alternative, the application of the obligation of deference is consistent with s. 96 of the Constitution Act, 1867 ...... 5 1. Characterization of the jurisdiction in issue ...... 6 2. In any event, the concept of a deferential standard of review did not exist in 1867...... 6 3. The power of judicial review has not been granted to the Court of Québec ...... 8 4. The superior courts’ core jurisdiction to conduct judicial review has not been, and cannot be removed ...... 9 IV. COSTS ...... 10 V. ORDER SOUGHT ...... 10 PART VII: TABLE OF AUTHORITIES ...... 11

1

I. OVERVIEW AND STATEMENT OF FACTS 1. In 2017, the Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Québec (“Chief Justices of the Superior Court”) filed an application alleging, inter alia, that it was inconsistent with s. 96 of the Constitution Act, 18671 for the Court of Québec to apply judicial deference on appeals of administrative decisions. 2. The Government of Québec subsequently referred two questions to the Court of Appeal of Québec, the second of which asks if it is “compatible with s. 96 of the Constitution Act, 1867 to apply the obligation of deference, which characterizes the application for judicial review, to the appeals to the Court of Québec provided for” in eight provincial statutes.2 3. In its opinion, the Court of Appeal of Québec found that the obligation of deference did apply on statutory appeals of administrative decisions to the Court of Québec based on binding precedent of this Court, and confirmed that the exercise of judicial deference by the Court of Québec was consistent with s. 96 of the Constitution Act, 1867. 3 4. The Chief Justices of the Superior Court appealed the Court’s opinion on the second reference question. They argued that, to comply with s. 96, the Court of Québec was required to apply appellate standards of review as defined in Housen.4 5. Ten days later, this Court issued its decision in Vavilov, which revised the standard of review framework in administrative law. The majority held that the appellate standards of review apply on statutory appeals of administrative decisions.5 6. The CAPCJ is a federation of associations that represents the interests of provincial and territorial court judges across Canada. Its mandate includes promoting and defending the dignity

1 (UK) 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5 [Constitution Act, 1867]. 2 Act respecting Access to documents held by public bodies and the Protection of personal information, CQLR, c A-2.1, s 154 [ADPBPPI]; Real Estate Brokerage Act, CQLR c C-73.2, s 100 [REBA]; Act respecting administrative justice, CQLR c J-3, s 164 [AAJ]; Police Act, CQLR c P-13.1, ss 241, 253 [PA]; Act respecting the Régie du logement, CQLR c R-8.1, s 91 [ARL]; Act respecting the protection of personal information in the private sector, CQLR c P-39.1, ss 61, 69 [APPIPS]; Act respecting the regulation of the financial sector, CQLR c E-6.1, ss 115.16, 115.22 [ARFS]; Act respecting the distribution of financial products and services, CQLR c D-9.2, s 379 [ADFPS]. 3 Court of Appeal Opinion at paras 252, 367. 4 Factum of the Chief Justices of the Superior Court at paras 1, 48, 76; Housen v Nikolaisen, 2002 SCC 33. 5 Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 37. 2 of, respect for and the authority of provincial and territorial courts and their judges. 7. The CAPCJ submits that this Court’s decision in Vavilov has rendered the second reference question moot and the Court should decline to answer it. In the alternative, the CAPCJ submits that the application of the obligation of deference to statutory appeals to the Court of would neither duplicate, nor remove the superior courts’ supervisory jurisdiction. II. ISSUES 1) Should this Court decline to answer the second reference question? 2) Would it be compatible with s. 96 of the Constitution Act, 1867 to apply the obligation of deference to the appeals to the Court of Québec listed in the second reference question? III. STATEMENT OF ARGUMENT A. The Court should decline to answer the second reference question 1. The Court may decline to answer a reference question where it is moot or hypothetical 8. In the context of a reference, a Court may be asked to answer a question that would not be considered “ripe” for decision in an adversarial context, such as opining on proposed legislation.6 Nonetheless, the question must be one that is “appropriately addressed by a court of law.”7 The “[r]easons why it may be inappropriate to answer a reference, or give a qualified answer, are varied but include: […] mootness […]; excessively abstract questions […]; and an insufficient factual underpinning to the reference to properly answer the question(s).”8 9. Notably, the Court may decline to answer a reference question that is too abstract or hypothetical. In the Reference re Goods and Services Tax, the Court declined to answer a reference question in the absence of a specific legislative proposal from the government.9 10. Similarly, this Court has declined to answer reference questions based on mootness. In the Reference re Remuneration of Judges of the Provincial Court (P.E.I.), this Court declined to determine the constitutional validity of certain statutory provisions on the basis that the repeal

6 Reference re Secession of Quebec, [1998] 2 SCR 217 at para 25 [Re Secession of Quebec]. 7 Ibid at para 26. 8 Reference re Certification in the Manitoba Health Sector, 2019 MBCA 18 at para 24. 9 Reference re Goods and Services Tax, [1992] 2 SCR 445 at 485-486, 497. 3 and replacement of those provisions had rendered the question moot.10 In the Court’s view, it was “unnecessary to consider the constitutionality of the former provisions.”11 The principle is equally applicable where the question is rendered moot by a jurisprudential development.12 11. The Court may exceptionally exercise its discretion to decide a moot issue. As explained in Borowski, circumstances which may justify exercising this discretion include situations where an adversarial relationship prevails, where the decision will have practical effects, where the issue might otherwise evade review, and where the “social cost of continued uncertainty in the law” outweighs concerns for judicial economy.13 Given the nature of a reference, the adversarial relationship should be given less weight in this context.14 12. In the Quebec Veto Reference, this Court exercised its discretion to opine on whether constitutional convention required that Quebec consent to the adoption of the Constitution Act, 1982, despite having found that the coming into force of a new constitutional amendment formula rendered the question moot.15 The Court emphasized the importance of the question and found that it “appears desirable that the constitutional question be answered in order to dispel any doubt over it.”16 In Borowski, the Court noted that this public importance exception applied in the Quebec Veto Reference does not extend to all issues of national importance; there must be “the additional ingredient of social cost in leaving the matter undecided.”17 2. The second reference question has become purely hypothetical and moot 13. The second reference question asks whether it is consistent with s. 96 to apply the “obligation of deference, which characterizes the application for judicial review” to appeals before the Court of Québec provided for in eight specific provincial statutes.18 These eight

10 Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 SCR 3 [Re Remuneration of Judges]. 11 Ibid at para 249. 12 See Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 SCR 839 at 848, where this Court considered mootness, but found that the question was not moot. 13 Borowski v Canada (Attorney General), [1989] 1 SCR 342 at 361-362 [Borowski]. 14 Re Secession of Quebec, supra note 6 at para 26. 15 Re: Objection by Quebec to a Resolution to amend the Constitution, [1982] 2 SCR 793 [Quebec Veto Reference]. 16 Ibid at 806. 17 Borowski, supra note 13 at 362. 18 Court of Appeal Opinion at para 1. 4 statutes all provide for an “appeal” to the Court of Québec from administrative decisions.19 None of the statutes in issue specify the standards of review to be applied by the Court of Québec. 14. Rather, at the time that the reference was commenced, the source of the Court of Québec’s obligation of deference was this Court’s prior jurisprudence establishing that judicial review standards applied on statutory appeals to a court of administrative decisions.20 15. Vavilov has unequivocally overturned this prior jurisprudence. The majority in Vavilov held that, unless the statute explicitly provides otherwise, the appellate standards of review apply where the legislator has provided a statutory appeal to a court from an administrative decision.21 16. As a result, the eight statutory appeal mechanisms referred to in the second reference question are no longer subject to the “obligation of deference” as it is applied in the context of judicial review. Accordingly, the second reference question is purely hypothetical and moot. 3. The circumstances do not warrant exercising the Court’s discretion to answer the second reference question 17. There is no practical utility to answering the second reference question. As the obligation of deference no longer applies on appeals to the Court of Québec, it is unnecessary to determine whether that obligation would be unconstitutional if it were to apply.22 Hypothetically, the question could become relevant if the legislator were to explicitly provide that the obligation of deference applies on a statutory appeal to the Court of Québec, but there has been no suggestion that such legislation would be contemplated. On the contrary, the government of Québec has proposed legislation to explicitly provide that appellate standards apply to appeals to the Court of Québec.23 There is simply no current or reasonably imminent practical utility to the Court

19 ADPBPPI, supra note 2, s 154; REBA, supra note 2, s 100; AAJ, supra note 2, s 164; PA, supra note 2, ss 241, 253; ARL, supra note 2, s 91; APPIPS, supra note 2, s 61, 69; ARFS, supra note 2, ss 115.16, 115.22; ADFPS, supra note 2, s 379. 20 Dr Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19 at para 21; Pigeon c Daigneault, 2003 CanLII 32934, [2003] RJQ 1090 (QCCA) at paras 34-35, 85-86; Pigeon c Proprio Direct, 2003 CanLII 45825, [2003] JQ no 12802 (QCCA) at para 20; Association des courtiers et agents immobiliers du Québec v Proprio Direct inc, 2008 SCC 32 at paras 18-21. 21 Vavilov, supra note 5 at paras 36-37. 22 See e.g. Re Remuneration of Judges, supra note 10 at para 249. 23 Bill n°32: An Act mainly to promote the efficiency of penal justice and to establish the terms governing the intervention of the Court of Québec with respect to applications for appeal, 1st

5 pronouncing itself on this issue. 18. Further, unlike the question of Quebec’s consent to the of the Constitution,24 there is no social cost to waiting for the legislator to propose applying judicial review standards to the Court of Québec before determining whether doing so would be constitutional. Nor is the issue likely to evade review were it to arise upon a legislative or jurisprudential development. 19. Further, there is no live controversy between the parties. The Chief Justices of the Superior Court’s position is that the Court of Québec should apply appellate standards when reviewing administrative decisions in order to respect the legislator’s intent and to comply with s. 96.25 The other parties that made submissions on the administrative law aspect of the question all agreed that appellate standards should apply, but maintained that applying the obligation of deference was not unconstitutional.26 In sum, none of the parties contest the outcome achieved by the Vavilov decision. The absence of a live issue, while not determinative on a reference, demonstrates that it is neither necessary, nor prudent, for the Court to decide this question. B. In the alternative, the application of the obligation of deference is consistent with s. 96 of the Constitution Act, 1867 20. As set out in the CAPCJ’s factum on the first reference question,27 this Court has established a three-step test for determining whether an area of subject-matter jurisdiction can be validly granted to a non-s. 96 court pursuant to s. 96 of the Constitution Act, 1867.28 The function

Sess, 42nd Leg, 2019, cl 7 (last committee sitting held on December 6, 2019). The Attorney General of Québec’s position in the Court of Appeal was that appellate standards should apply to appeals to the Court of Québec: Court of Appeal Opinion at para 198. 24 Borowski, supra note 13 at 362; Quebec Veto Reference at 806. 25 Factum of the Chief Justices of the Superior Court at paras 1, 48, 76. 26 Court of Appeal Opinion at paras 198, 205. The CAPCJ, the Attorney General of Canada and the Conférence des juges de la Cour du Québec took no position on the administrative law aspect, but maintained that applying deference was constitutional: Court of Appeal Opinion at para 200- 201, 203. The OACIQ only made submissions on the impacts of an opinion declaring the Court of Québec’s appellate jurisdiction invalid: Court of Appeal Opinion at para 207. 27 Appellant’s Factum of the CAPCJ, at paras 14-23. 28 Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 SCR 186 at para 30 [Re Residential Tenancies Act (1996)]; Re Residential Tenancies Act, 1979, [1981] 1 SCR 714 at 734-736 [Re Residential Tenancies Act (1981)]; MacMillan Bloedel Ltd v Simpson, [1995] 4 SCR 725 at para 9 [MacMillan Bloedel]. 6 of three-step test is to prevent the duplication of s. 96 courts’ exclusive subject-matter jurisdiction in the same institutional or policy setting. An additional step applies to determine whether a power cannot be removed from the superior courts because it is an aspect of their core jurisdiction.29 The function of the core jurisdiction test is to preserve “those powers which are essential to the administration of justice and the maintenance of the rule of law.”30 1. Characterization of the jurisdiction in issue 21. The jurisdiction at issue must be defined according to the “type of dispute” (“nature du litige”) or “subject-matter”, rather than the type of remedy or the “apparatus of adjudication.”31 Further, “[t]he purposes of s. 96 require a strict, that is to say a narrow, approach to characterization.”32 22. The second reference question does not put in issue the constitutional validity of granting appellate jurisdiction to the Court of Québec. Indeed, as this Court recognized in Crevier, appeals of administrative decisions were not in the exclusive jurisdiction of the superior courts in 1867.33 Rather, the question asked is whether the application of the obligation of deference on such appeals would be inconsistent with s. 96. The Chief Justices of the Superior Court do not question the validity of granting statutory appeals to the Court of Québec; they argue that it would be inconsistent with s. 96 for that Court to apply the reasonableness standard.34 23. The three-part test prevents the duplication of the superior court’s subject-matter jurisdiction in the same institutional setting. The application of a particular standard of review, such as the reasonableness standard, is not a subject-matter jurisdiction. It is an aspect of the “apparatus of adjudication.”35 In sum, the three-step test imposes no restrictions on applying a deferential standard of review to otherwise valid appeals in the Court of Québec. 2. In any event, the concept of a deferential standard of review did not exist in 1867 24. The first step of the three-part test is a historical inquiry. It involves determining whether

29 MacMillan Bloedel, supra note 28 at para 18. 30 Ibid at para 38. 31 Sobeys Stores Ltd v Yeomans and Labour Standards Tribunal (NS), [1989] 1 SCR 238 at 255 [Sobeys Stores]; Re Residential Tenancies Act (1996), supra note 28 at para 76. 32 Ibid at 253-254. 33 Crevier v Attorney General (Québec), [1981] 2 SCR 220 at 230-231 [Crevier]. 34 Factum of the Chief Justices of the Superior Court at paras 1-2, 73. 35 Re Residential Tenancies Act (1996), supra note 28 at para 76; See e.g. Delorme c Agence du revenu du Québec, 2018 QCCQ 3311 at para 54. 7 the jurisdiction at issue “broadly conforms” to a jurisdiction exercised exclusively36 by superior, district or county courts at the time of Confederation.37 If the jurisdiction at issue was not exercised exclusively by s. 96 courts in 1867 or if the jurisdiction at issue is entirely “new”, it may validly be granted to a non-s. 96 court.38 25. Even if the three-step test could apply to the obligation of deference, review on a deferential standard could not possibly have been in the exclusive jurisdiction of the superior courts in 1867, for the simple reason that the concept of a deferential standard of review did not exist in 1867. The concept of deferential review that pervades administrative law today was developed by the courts starting in the 1970s,39 as the culmination of a jurisprudential and doctrinal dispute over how to respond to the 20th century administrative state. 26. Before the 1970s, judicial review was not governed by a standard of review framework: correctness was “the only known standard.”40 Errors of law on the face of the record and jurisdictional errors were reviewable without any deference; other errors were not reviewable.41

36 Sobeys Stores, supra note 31 at 256. 37 Re Residential Tenancies Act (1981), supra note 28 at 734. 38 Sobeys Stores, supra note 31 at 283, 288 (Justice LaForest, for the minority); Reference Re Young Offenders Act (PEI), [1991] 1 SCR 252 at 270-271 (Justice Lamer, with the majority on this point). 39 Dunsmuir v Nouveau-Brunswick, 2008 SCC 9 at para 35 [Dunsmuir]; Vavilov, supra note 5 at paras 198, 210-211 (per Abella and Karakatsanis JJ.). 40 Justice Joseph T. Robertson, “Judicial Deference to Administrative Tribunals: A Guide to 60 Years of Supreme Court Jurisprudence” in Justice Joseph T. Robertson, Peter A. Gall and Paul Daly, Judicial Deference to Administrative Tribunals in Canada: Its History and Future (Markham, ON: LexisNexis Canada, 2014) [Robertson] at 76, see also 15, 53-54. 41 Philip Murray, “Process, Substance and the History of Error of Law Review” in John Bell, Mark Elliott, Jason Varuhas and Philip Murray (eds), Public Law Adjudication in Common Law Systems: Process and Substance (Oxford: Hart Publishing, 2016) at 94, 98 [Murray]; Robertson, supra note 40 at 22, 38, 76. The concept of “reasonableness” that applied exceptionally to the review of ministerial discretion and municipal by-laws was not like contemporary reasonableness review: rather, it involved identifying specific errors such as considering legally incorrect factors or acting in bad faith: Associated Provincial Picture Houses Ltd v Wednesbury Corporation, [1948] 1 KB 223 at 229; Kruse v Johnson, [1898] 2 QB 91 at 99-100; City of Montreal v Beauvais, (1909) 42 SCR 211; Roncarelli v Duplessis, [1959] SCR 121; S. A. de Smith, Judicial Review of Administrative Action (New York: Oceana Publications, 1959) at 214-221. 8

27. At least from 1841 to 1922, courts consistently applied a “limited and clearly articulated conception of jurisdiction.”42 Then, in response to the growing importance of administrative decision-making in the 20th century, courts broadened the concept of jurisdictional error to justify reviewing a broader range of questions.43 As of the 1970s, courts developed standards of review, including forms of reasonableness review, which enabled broad supervision of the modern administrative state, while respecting its expertise and legitimacy.44 It is therefore anachronistic to speak of a power of judicial review characterized by the obligation of deference in 1867. 28. As set out below, s. 96 protects the superior courts’ inherent power to supervise the legality of administrative decision-making.45 However, it does not constitutionally entrench any specific approach to judicial review. Approaches to judicial review have been “in a constant state of evolution over the years.”46 Section 96 certainly does not constitutionally entrench a specific judicial attitude of deference that emerged over 100 years after Confederation. 3. The power of judicial review has not been granted to the Court of Québec 29. Even if one were to characterize the jurisdiction at issue more broadly as the power of judicial review, this power cannot have been granted to the Court of Québec. 30. The defining characteristic of judicial review is not a particular standard of review, but rather that it is a general and inherent power to supervise the legality of all exercises of public authority.47 This supervisory function entails an ultimate hierarchical position: the superior court has the power to review the exercise of legal authority by all others, but it is not itself subject to jurisdictional review by any other body. By its very nature, this power cannot be conferred on a statutory tribunal simply by granting a statutory appeal with a deferential standard of review. The only way to grant a statutory tribunal the power of judicial review is to insulate it with an absolute privative clause, which places the tribunal in the superior court’s position in the hierarchy. As

42 Murray, supra note 41 at 99, 101-102, citing R v Bolton, (1841) 1 QB 66 and R v Nat Bell Liquors Ltd, [1922] 2 AC 128 (PC) at 154. 43 Murray, supra note 41 at 102-104; Robertson, supra note 40 at 17-21; Dunsmuir, supra note 39 at para 35. 44 Dunsmuir, supra note 39 at para 35; C.U.P.E., Local 963 v New Brunswick Liquor Corp, [1979] 2 SCR 227; Robertson, supra note 40 at 20, citing National Corn Growers Assn v Canada (Import Tribunal), [1990] 2 SCR 1324 at 1335 (per Wilson J), see also 22. 45 Crevier, supra note 33 at 236-237; MacMillan Bloedel, supra note 28 at para 35; Noël v Société d’énergie de la Baie James, 2001 SCC 39 [Noël] at para 27. 46 Dunsmuir, supra note 39 at para 32; see also Vavilov, supra note 5 at para 4. 47 Dunsmuir, supra note 39 at paras 28, 31. 9 explained in Crevier, it is “excluding any supervisory recourse” to the superior court that “create[s] a s. 96 court.”48 The superior court’s position in the legal hierarchy is robustly protected because absolute private clauses are unconstitutional and ineffective.49 31. In contrast, the Court of Québec has been granted specific statutory appeals of eight types of administrative decisions which, as is discussed below, all remain subject to the power of judicial review of the Superior Court.50 The constitutional validity of granting such statutory appeals to the Court of Québec is not questioned. The fact that, prior to Vavilov, the Court of Québec applied the reasonableness standard in the context of such statutory appeals, which is itself not a defining characteristic of judicial review, cannot have had the effect of conferring the power of judicial review on the Court of Québec. 4. The superior courts’ core jurisdiction to conduct judicial review has not been, and cannot be removed 32. Given its role in maintaining the rule of law, judicial review is protected by s. 96 as a component of the core jurisdiction of superior courts.51 Indeed, the power of supervision and control over “inferior” courts is a hallmark of a superior court; it is what makes it a “superior” court.52 Therefore, this power can never be taken away from the superior courts.53 33. The consequence of this constitutional protection is to render “absolute” privative clauses, which purport to entirely oust judicial review, ineffective.54 Since Farrah and Crevier, this Court found that absolute private clauses cannot oust the power of judicial review, and that such clauses were instead a factor in favor of applying the reasonableness standard.55 The majority in Vavilov confirmed that the legislator could not oust judicial review and further eroded the significance of privative clauses, finding that they now “serve no independent or additional function in

48 Crevier, supra note 33 at 238; Attorney General of Quebec v Farrah, [1978] 2 SCR 638 at 647 [Farrah]. 49 Crevier, supra note 33 at 236-237; Farrah, supra note 48 at 647. 50 See e.g. Québec (Procureure générale) c Montréal (Ville), 2016 QCCA 2108 at para 44 [Ville de Montréal]; Lebel c Kanafani, 2013 QCCA 200 at para 40 [Kanafani]; Compagnie Wal-Mart du Canada c Commission des relations du travail, 2006 QCCA 422 at paras 17, 29-30 [Wal- Mart]; Harelkin v University of Regina, [1979] 2 SCR 561 at 592-593 [Harelkin]. 51 MacMillan Bloedel, supra note 28 at para 34. 52 Crevier, supra note 33 at 236-237; Ibid at para 35; Noël, supra note 45 at para 27. 53 MacMillan Bloedel, supra note 28 at para 15. 54 Crevier, supra note 33 at 238. 55 Pasiechnyk c Saskatchewan (Workers’ Compensation Board), [1997] 2 SCR 890 at para 16; Dunsmuir at paras 31, 52.

11

PART VII: TABLE OF AUTHORITIES

Cases Cited in para. Associated Provincial Picture Houses Ltd v Wednesbury Corporation, 26 [1948] 1 KB 223 Association des courtiers et agents immobiliers du Québec v Proprio Direct 14 inc, 2008 SCC 32 Attorney General of Quebec v Farrah, [1978] 2 SCR 638 30, 33 Borowski v Canada (Attorney General), [1989] 1 SCR 342 11, 12, 18

Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 5, 7, 15, 19, 25, 28, 31, 33, 35 C.U.P.E., Local 963 v New Brunswick Liquor Corp, [1979] 2 SCR 227 27 City of Montreal v Beauvais, (1909) 42 SCR 211 26 Compagnie Wal-Mart du Canada c Commission des relations du travail, 31, 34 2006 QCCA 422 Crevier v Attorney General (Québec), [1981] 2 SCR 220 22, 28, 30, 32, 33 Cummings c Québec (Ville de), 2016 QCCA 1018 35 Delorme c Agence du revenu du Québec, 2018 QCCQ 3311 23 Deslongchamps c Commissaire à la déontologie policière, 2017 QCCA 128 35 Dr Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 14 19 Dunsmuir v New Brunswick, 2008 SCC 9 25, 27, 28, 30, 33 Harelkin v University of Regina, [1979] 2 SCR 561 31 Housen v Nikolaisen, 2002 SCC 33 4 Kruse v Johnson, [1898] 2 QB 91 26 Lebel c Kanafani, 2013 QCCA 200 31, 34 MacMillan Bloedel Ltd v Simpson, [1995] 4 SCR 725 20, 28, 32 Noël v Société d’énergie de la Baie James, 2001 SCC 39 28, 32 12

Pasiechnyk c Saskatchewan (Workers’ Compensation Board), [1997] 2 SCR 33 890 Pigeon c Daigneault, 2003 CanLII 32934, [2003] RJQ 1090 (QCCA) 14

Pigeon c Proprio Direct, 2003 CanLII 45825, 127 ACWS (3d) 592 (QCCA) 14

Procureure générale du Québec c Ville de Montréal, 2016 QCCA 2108 31, 34, 35 Re Residential Tenancies Act, 1979, [1981] 1 SCR 714 20, 24 Re: Objection by Quebec to a Resolution to amend the Constitution, [1982] 2 12, 18 SCR 793 Reference re Amendments to the Residential Tenancies Act (NS), [1996] 1 20, 21, 23 SCR 186 Reference re Certification in the Manitoba Health Sector, 2019 MBCA 18 8 Reference re Goods and Services Tax, [1992] 2 SCR 445 9 Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 SCR 10 839 Reference re Remuneration of Judges of the Provincial Court (P.E.I.), 10, 17 [1997] 3 SCR 3 Reference re Secession of Quebec, [1998] 2 SCR 217 8, 11 Reference Re Young Offenders Act (PEI), [1991] 1 SCR 252 24 Roncarelli v Duplessis, [1959] SCR 121 26 Sobeys Stores Ltd v Yeomans, [1989] 1 SCR 238 21, 24 Legislation and Other Legal Instruments Cited in para. Act respecting Access to documents held by public bodies and the Protection 2, 13, 34 of personal information, CQLR, c A-2.1 Act respecting administrative justice, CQLR c J-3 2, 13, 34 Act respecting the regulation of the financial sector, CQLR c E-6.1 2, 13, 34 Act respecting the distribution of financial products and services, CQLR c 2, 13, 34 D-9.2 Act respecting the protection of personal information in the private sector, 2, 13, 34 CQLR c P-39.1 Act respecting the Régie du logement, CQLR c R-8.1 2, 13, 34 13

Bill n°32: An Act mainly to promote the efficiency of penal justice and to 17 establish the terms governing the intervention of the Court of Québec with respect to applications for appeal, 1st Sess, 42nd Leg, 2019, cl 7 (last committee sitting held on December 6, 2019)

Constitution Act, 1867, (UK) 30 & 31 Vict, c 3, reprinted in RSC 1985, passim Appendix II, No 5

Police Act, CQLR c P-13.1 2, 13, 34 Real Estate Brokerage Act, CQLR c C-73.2 2, 13, 34 Secondary Sources Cited in para. Justice Joseph T. Robertson, “Judicial Deference to Administrative 26, 27 Tribunals: A Guide to 60 Years of Supreme Court Jurisprudence” in Justice Joseph T. Robertson, Peter A. Gall and Paul Daly, Judicial Deference to Administrative Tribunals in Canada: Its History and Future (Markham, ON: LexisNexis Canada, 2014) Philip Murray, “Process, Substance and the History of Error of Law Review” 26, 27 in John Bell, Mark Elliott, Jason Varuhas and Philip Murray (eds), Public Law Adjudication in Common Law Systems: Process and Substance (Oxford: Hart Publishing, 2016) S. A. de Smith, Judicial Review of Administrative Action (New York: 26 Oceana Publications, 1959).