The “Core” of Section 96 in the 21st Century
Following on from my first s. 96 entry, here are some sceptical thoughts about what the protected “core” might mean today….
Yet these judicial references to a protected “core” that is beyond the reach of the legislative and executive branches have to be reconciled with the realities of modern litigation. Earlier cases set up tribunals presided over by judges as an ideal-type of superior court jurisdiction, with their “powers of examination, inspection and discovery of documents, power to hear witnesses on oath, to give costs, and the rest”. In particular, a “litigant’s ‘day in court’, in the sense of a trial, may have traditionally been regarded as the essence of procedural justice and its deprivation the mark of procedural injustice”. To this one might add Pickup C.J’s observation that the “twin pillars” of the Canadian Constitution are parliamentary sovereignty and “the supremacy of a common law administered in the ordinary Courts independent of the Executive”.
Today, however, few litigants are likely to have their rights and entitlements determined by a traditional trial in front of a judge in an oak-panelled courtroom. Rather, the key decisions that shape the lives of litigants and individuals will most likely be taken by administrative decision-makers, arbitrators or a motions judge who does not hear live testimony.
Indeed, the Supreme Court of Canada’s decision in Hryniak v. Mauldin offers some contrasting tones to its veneration of the “core” of superior court jurisdiction in Trial Lawyers Association. This case concerned the use of the summary judgment procedure in Ontario, a procedure that has equivalents in the other common-law provinces. Ontario’s Rules of Civil Procedure permit judges to resolve claims by weighing evidence, evaluating credibility or drawing inferences from the evidence without a trial or viva voce evidence where “satisfied that there is no genuine issue requiring a trial” (or on consent of the parties), unless it would be “in the interest of justice for such powers to be exercised only at a trial”.
Karakatsanis J. began her analysis by noting “a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system”, which “entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case”. Trials will not always be required and are not to be set up as an ideal-type against which “a fair and just adjudication” shall be measured.As Karakatsanis J. counselled in a notable passage, “[t]he interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability”.
Moreover, judges are no longer passive observers of counsel and witnesses, but must “actively manage the legal process” to achieve more efficient dispute resolution, recognizing all the while that “new models of adjudication can be fair and just”. Far from remaining a neutral arbiter perched above the fray as counsel cite jurisprudence and question witnesses, the modern judge must become a proactive case manager as parties try to settle their differences as swiftly and efficiently as possible; indeed, Quebec’s new Code de procédure civile urges judges to attempt to « concilier les parties qui y consentent » in most cases and sets down expressly that in family law and small claims cases, « il entre dans la mission du juge de favoriser la conciliation des parties ». Counsel, too, must “act in a way that facilitates rather than frustrates access to justice”, an idea also now formally enshrined in Quebec’s new Code.
A particularly striking application of this principle is found in British Columbia’s Civil Dispute Resolution Tribunal Act, which permits the Tribunal to require that: “before a person makes a request for tribunal resolution, the person must attempt to resolve the dispute using online dispute resolution services provided by the tribunal”. Moreover, the Tribunal “may use electronic communication tools in conducting all or part of a tribunal proceeding” and even “require…parties or other persons” to use those tools in relation to matters within the Tribunal’s jurisdiction. Some legal disputes over land and cases in which less than $25,000 is at stake will thus be resolved without the parties ever seeing the inside of a courthouse or looking a decision-maker in the eye.
That is not all. Consistent with “the principle of primacy of private ordering” in the Canadian legal system, individuals may give up their right to access a court altogether: “Parties to an arbitration agreement have the freedom to identify those disputes that will be resolved through arbitration, choose the person who will resolve their dispute, and set out the procedure they will follow during the arbitration process or alternatively have the arbitrator determine the rules of procedure they will follow”. Adhesion clauses in consumer contracts often, subject to judicially or legislatively imposed limitations, require individuals to submit to arbitration or alternative dispute resolution processes in the case of a dispute. Moreover, even though provincial legislatures have created statutory rights of appeal from arbitration decisions, these rights of appeal are often restrictively drawn and judges must accordingly be “careful” not to open the courthouse door too wide.
For all the importance of the “core” of superior court jurisdiction, then, the “core” may be smaller than one would instinctively think. At the same time, there is only a contrast between Trial Lawyers Association and Hyrniak, not a contradiction: “A norm which would strive to provide access to the courts for everyone would better reflect the underlying attitude and it might be better expressed by stating that everyone has a right to access to the courts, but not necessarily to a trial”. Trial Lawyers Association guarantees access to a judge but not necessarily to trial-type procedures, Hyrniak confirms that access to justice need not mean access to a trial, and the principle of private ordering indicates that access to justice need not even mean direct – or perhaps any – access to the judicial system.
 John Willis, “Section 96 of the British North America Act” (1940), 18 Canadian Bar Review 517, at p. 542. See generally Québec (Procureur général) c. Slanec,  2 D.L.R. 279 (Quebec C.A.).
 Irving Ungerman Ltd. v. Galanis (1991), 4 O.R. (3d) 545, at p. 550 (Ont. C.A.), per Morden A.C.J.O. Emphasis added.
 Re Scott (1954), 4 D.L.R. 546, at p. 554.
 See e.g. John H. Langbein “The Disappearance of Civil Trial in the United States” (2012), 122 Yale Law Journal 522
  1 S.C.R. 87.
 R.R.O. 1990, Reg. 194, Rule 20.
  1 S.C.R. 87, at para. 2.
  1 S.C.R. 87, at para. 50.
  1 S.C.R. 87, at para. 56.
  1 S.C.R. 87, at para. 32.
  1 S.C.R. 87, at para. 2.
 R.L.R.Q. c. C-25, art. 4.3.
  1 S.C.R. 87, at para. 32.
 R.L.R.Q. c. C-25, art. 4.2 :
Dans toute instance, les parties doivent s’assurer que les actes de procédure choisis sont, eu égard aux coûts et au temps exigés, proportionnés à la nature et à la finalité de la demande et à la complexité du litige; le juge doit faire de même à l’égard des actes de procédure qu’il autorise ou ordonne.
 S.B.C. 2012, c. 25, s. 5.
 S.B.C. 2012, c. 25, s. 19. See also s. 39(1): “In resolving a dispute, the tribunal may conduct a hearing in writing, by telephone, videoconferencing or email, or through use of other electronic communication tools, or by any combination of those means”.
 BG Checo International Ltd. v. British Columbia Hydro and Power Authority,  1 S.C.R. 12, at p. 27, per La Forest J.
 0927613 B.C. Ltd. v. 0941187 B.C. Ltd., 2015 BCCA 457, at para. 61.
 See e.g. Tilden Rent-A-Car Co. v. Clendenning (1978), 83 D.L.R. (3d) 400 (Ont. C.A.); Seidel v. TELUS Communications Inc.,  1 S.C.R. 531.
 Sattva Capital Corp. v. Creston Moly Corp.,  2 S.C.R. 633, at para. 54, per Rothstein J.
 W.A. Bogart, “Summary Judgment: A Comparative and Critical Analysis” (1981), 19 Osgoode Hall L.J. 552 at p. 598.
This content has been updated on November 11, 2015 at 15:46.