Section 96 in the 21st Century

There are lots of things on my to-blog list, which I hope to start striking items off soon, but until then here is the last installment of my draft paper on section 96 of the Constitution Act. Comments very welcome!

Alternative methods of dispute resolution – alternative, that is, to the ideal-type of adversarial trials in wood-panelled courtrooms – “emerge, survive and subside as they serve the needs of the group or fail to respond to changes within it”.[1] Yet it is necessary also to “seek to give effect to the Constitution as we understand it”, “however worthy the policy objectives”.[2] The question, then, is how to preserve the section 96 courts as central pillars of the Canadian legal order, their “prime importance in the constitutional pattern”,[3] while also preserving space for institutional and interpretive pluralism by maintaining a favourable constitutional climate for legislative and administrative experimentation.

The contrast between Trial Lawyers Association and Hyrniak suggests an answer: that the section 96 courts – and lawyers more generally – should stand up for the values “fundamental to the legal order as a whole”[4] whilst also appreciating the limitations of traditional lawyerly analysis; establishing the “parameters of legal tolerance”[5] in a way that is respectful of the desirability of legislative and administrative flexibility in meeting new challenges.

As I have argued in the context of judicial review of administrative interpretations of law, section 96 courts should adopt an oversight role, checking decisions for “flaws or fallacies that undermine the integrity of the legal system”,[6] but should not insist that administrative decision-makers adopt the methodology of judges and lawyers: “The technical principles of statutory interpretation should play no role in this analysis”.[7] Appropriately restrained judicial oversight of or involvement in alternative forms of dispute resolution procedure preserves the “core” of the jurisdiction of the superior courts without imposing a straitjacket on legislators and administrators who wish to take innovative approaches to novel challenges.[8] In this regard it is also interesting to note the Federal Court’s insistence that where the parties to “public law applications” settle matters on consent they must furnish “a cogent reason, other than their consent, for setting aside a decision of a tribunal”;[9] a requirement that ensures judicial oversight of public administration while respecting the ability of the parties to come to a mutually satisfactory arrangement without invoking the full gamut of judicial review jurisdiction.

While the section 96 cases, including Trial Lawyers Association, insist upon maintenance of some purely judicial “core”, they also envisage à la Hyrniak a penumbral area of judicial oversight or involvement in which institutional and interpretive pluralism are respected. What must be guarded against is dogmatic insistence on lawyerly modes of analysis. For instance, it has been suggested that where the application by a section 96 court of the principles of statutory interpretation indicates that there is one “right” answer to a legal question, a judge should insist upon it, indeed that “[t]he rule of law requires nothing less”.[10] But as has been pointed out, “In debates over the relationship of the courts to the administration, the Rule of Law remains the rallying-cry for those who favour judicial intervention”.[11] In addition, the notion of a “core” of superior court jurisdiction should not be expanded so far as to imperil Canadian courts’ well-established respect for institutional pluralism. Developing “a category of core of inherent powers which can never be transferred” adds “uncertainty to the law” and compromises the flexibility of legislators and administrators.[12] A restrained judicial approach is required instead.

So far, the section 96 jurisprudence has memorialized a delicate compromise between “legal centralism” and “legal pluralism”,[13] but preserving it in decades to come will require continued attention to the need to strike a balance between the jurisdiction of the section 96 courts and the legislative and administrative flexibility necessary to resolve pressing social issues. The establishment of innovative administrative tribunals – even online dispute resolution forums – are significant achievements that ought to be celebrated, as also should be the recognition that non-lawyers have an important role to play in the interpretation and application of regulatory schemes.[14] Maintaining the current constitutional climate into the future will permit further progress to be made in resolving pressing issues without eliminating superior court jurisdiction, one of the fundamental pillars of the Canadian constitutional order.

[1] Harry Arthurs, Without the Law: Administrative Justice and Legal Pluralism in Nineteenth Century England (University of Toronto Press, Toronto, 1985), at p. 202.

[2] Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, at p. 750, per Dickson J.

[3] A.G. Can. v. Law Society of B.C., [1982] 2 S.C.R. 307, at p. 327, per Estey J.

[4] Peter W. Hogg, “Judicial Review: How Much Do We Need?” (1974), 20 McGill Law Journal 157, at p. 175.

[5] J.N. Lyon, “Comment” (1971), 49 Canadian Bar Review 365, at p. 379.

[6] Paul Daly, “Unreasonable Interpretations of Law” (2014), 66 S.C.L.R. (2d) 233, at p. 261.

[7] Paul Daly, “Unreasonable Interpretations of Law” (2014), 66 S.C.L.R. (2d) 233, at p. 266.

[8] See also MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, at para. 83, per McLachlin J.: “Administrative tribunals deal with the factual minutiae of multitudinous disputes; the superior courts ensure that the law is followed and fair process maintained”.

[9] Johnson v. Canada (Minister of Citizenship and Immigration), 2005 FC 1262, at para. 14, per Dawson J. See, however, Quebec’s Code de procédure civile, which excludes from any duty to employ alternative dispute resolution methods « des matières touchant l’état » R.L.R.Q. c. C-25, art. 4.3.

[10] Qin v. Canada (Citizenship and Immigration), 2013 FCA 263, at para. 33, per Evans J.A.

[11] Harry Arthurs, “Rethinking Administrative Law: A Slightly Dicey Business” (1979), 17 Osgoode Hall Law Journal 1, at p. 4.

[12] MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725, at para. 92, per McLachlin J., dissenting.

[13] See generally Harry Arthurs, Without the Law: Administrative Justice and Legal Pluralism in Nineteenth Century England (University of Toronto Press, Toronto, 1985).

[14] See generally Roderick A. Macdonald, On the Administration of Statutes” (1987) 12 Queen’s Law Journal 488.

This content has been updated on December 2, 2015 at 16:45.