The Irish Supreme Court Decision in Zalewski: Comparative Critique

Back in the mists of time (i.e. last October) I posted a series of comments on the important decision of the Irish Supreme Court in the Zalewski case (here, here, here and here). The basic issue is that the court read both Articles 34.1 and 37.1 of the Irish Constitution broadly. I will argue, in this and a subsequent post, that it is possible to read both Articles narrowly, a possibility not countenanced by the judges. In this post I address comparative materials; in the next, I will address historical materials.

Interestingly, the Supreme Court in Zalewski engaged in comparative analysis in order to bolster its position. But it referred primarily to Australian case law. It did not consider jurisprudence from another Commonwealth jurisdiction, Canada. In this section, I critique Zalewski by reference to Canadian jurisprudence specifically. If nothing else, I hope to demonstrate that the selective use of comparative law weakens the force of the Supreme Court’s decision.

In this section, I will introduce the Canadian jurisprudence, which has two aspects: a three-part test to stave off encroachment by the administrative state on the judicial function; and a residual protective test preventing the removal of ‘core’ powers from the courts. The first aspect maps onto Article 34.1: it reveals a way of reading ‘administration of justice’ narrowly. The second aspect maps onto Article 37.1: it reveals how the ‘saver’ clause can function as a means of permitting transfers of core judicial functions to administrative decision-makers, as long as those functions are limited in nature.

(i)                           The Residential Tenancies Test: Reading Article 34.1 Narrowly

Section 96 of Canada’s Constitution Act, 1867 seems innocuous – an “uninstructed reading of the section itself” reveals little[1] – providing simply that judges of the superior courts (and the now defunct district and county courts) are to be appointed by the federal executive:

The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick. By constitutional convention, the Governor General acts on the advice of the federal executive.

Doctrinally, the importance of section 96 has been as a brake on provincial legislation creating new decision-making bodies or conferring new powers on existing bodies. While the provinces have broad authority under s. 92(14) with respect to the “administration of justice” and the “organization of provincial courts”, a moment’s reflection on the seemingly innocuous section 96 reveals an important potential problem: what if a legislature purports to create or increase the powers of a body that is similar in nature to a superior court but whose members are not appointed in conformity with section 96? If superior court functions are handed off to an administrative tribunal – say, to eject tenants who fail to pay or to require slumlords to repair decrepit properties – one can say that the administrative tribunal is exercising the powers of a superior court, without its members having been appointed by the federal cabinet under section 96. Similarly, if a provincial court or administrative tribunal gradually aggrandizes its powers it may become so big as to swallow the superior court, again without its members having been appointed in conformity with section 96.

Without tracing the tortuous history of judicial treatment of this question,[2] Canadian courts have consistently held that the “broader import” of section 96 “is to guarantee the core jurisdiction of provincial superior courts”[3] against legislative incursion. McLachlin J (as she then was) summarized the basic idea as follows: “Shadow courts and tribunals usurping the functions of the superior courts guaranteed by s. 96 are prohibited”.[4]

There is a three-stage test for determining where there has ben an impermissible interference with the general jurisdiction of the superior courts.[5] This test has historical, conceptual and contextual components designed to determine whether a judicial power is being exercised in an improper forum.[6] The three-stage test is weighted against a challenger, who must prevail at each stage.[7]

First, the historical inquiry. The court must ask “whether the power or jurisdiction” conferred on the administrative decision maker “conforms to the power or jurisdiction” of the section 96 courts “at the time of Confederation”,[8] by reference to “the general historical conditions in all four original confederating provinces”.[9] A challenger must demonstrate that the power or jurisdiction at issue was exclusively exercised by a superior court in 1867.[10] What matters is whether “the practical involvement of inferior courts” was “broadly co-extensive with the work of superior courts”.[11] If so, section 96 has not “been violated at all”.[12]

Second, the conceptual inquiry. The court must determine whether the “nature of the question” to be decided is “judicial” in the particular “institutional setting”, whether, in other words, it is required to apply “a recognized body of rules in a manner consistent with fairness and impartiality…” or rather to make a policy determination “involving competing views of the collective good of the community as a whole”.[13] The basic idea is that a power that was once judicial might, having been transplanted into a different institutional setting, have become something else entirely:[14] “if the challenged authority or function is so integrated with the valid regulatory regime as to take on an altered character, it will be upheld…”[15] Thus in Tomko v. Labour Relations Board (N.S.) et al. the Supreme Court upheld the Board’s power to make cease and desist orders in part because the Board “does not approach the issue…in the same way” as a court would approach an application for injunctive relief.[16]

Third, there is a contextual inquiry. The court must assess the “tribunal’s function as a whole in order to appraise the impugned function in its entire institutional context”.[17] This assessment is weighted towards a conclusion of validity, for a finding of unconstitutionality will only issue where the “adjudicative function is a sole or central function of the tribunal”.[18] Moreover, there are two ways that an administrative decision-maker can survive (or a challenge can founder) at stage three: “It may be that the impugned ‘judicial powers’ are merely subsidiary or ancillary to general administrative functions assigned to the tribunal (John East; Tomko) or the powers may be necessarily incidental to the achievement of a broader policy goal of the legislature (Mississauga)”.[19]

In terms of powers that are subsidiary or incidental, in Tomko the power of a labour relations tribunal to make a cease and desist order was an “added power thought necessary” to the tribunal’s functions[20] and in MacMillan Bloedel Ltd. v. Simpson,[21] vesting in a youth court the power to punish young offenders for contempt of a superior court furthered the “clear and laudable objectives” of a youth court system.[22] In terms of legislative reform, in Mississauga, an attack on the granting of powers to the Ontario Municipal Board failed in part because the powers formed part of a general legislative reform package in relation to municipalities[23] and in Sobeys Stores, the Nova Scotia Labour Relations Tribunal survived at the third stage because it was part of a broader social scheme, as evidenced by legislative consolidation and reform demonstrative of “a desire to consolidate, rationalize and unify policy in the area”.[24] For a Canadian court, the reforms leading to the creation of the Workplace Relations Commission would certainly have fallen within the scope of the third part of the Residential Tenancies Test.[25]

So much for the first aspect of the Canadian jurisprudence. Suffice it to say that the judicial function is given a relatively narrow ambit here. The ‘administration of justice’ for a Canadian would not involve situations where (1) the function of an administrative decision-maker has not traditionally been vested in a court; (2) the approach an administrative decision-maker to what was previously a judicial function is influenced heavily by policy considerations; or (3) a judicial function is given to an administrative decision-maker to complement an administrative regime or as part of a broader package of legislative reform. These are not considered to be instances of judicial power at all.

(ii)                         ‘Core’ Functions in Canada: Understanding How to Read Article 37.1 Narrowly

Running afoul of the Residential Tenancies Act test is not the only way a Canadian legislature can violate s. 96 of the Constitution Act. There is a separate and distinct step that must be taken once the Residential Tenancies Act test has been passed: to assess whether the legislation nonetheless involves an intrusion upon the core jurisdiction of the superior courts. The relevance of this aspect of the Canadian jurisprudence might not be immediately apparent, so I will explain it at the outset: my point is that Article 37.1 can be read narrowly, so as to counter the argument made in Canada that it is constitutionally impermissible to transfer ‘core’ judicial powers to a non-court. Put another way, if Canada had an equivalent of Article 37.1, the cases I am about to mention would have come out differently.

The ‘core’ powers proposition was stated in MacMillan Bloedel Ltd. v. Simpson,[26] but there are precursors to it, most notably a long line of cases protecting the fundamentality of the superior courts’ authority to oversee the administration state by means of judicial review of administrative action. The notion of a protected ‘core’ of superior court powers has been criticized as vague and uncertain[27] but its legal pedigree is unquestionable. The protected core powers of the superior courts are contempt of court; judicial review of administrative action; judicial review of the constitutionality of legislation; and the resolution of disputes on issues of private law (though the contours of this last one are quite hazy).[28] The basic idea is that these core powers cannot be exclusively transferred to a non-court.

Consider Macmillan Bloedel. The issue here was whether it was constitutional for Parliament to transfer the power to hold young offenders in contempt of a superior court to a statutory youth court. As we have seen above, the transfer of power did not fail the Residential Tenancies Act test. Nonetheless, writing for a majority of the Supreme Court, Lamer CJ found that the transfer of power was unconstitutional. There were two premises to Lamer CJ’s analysis. First, the power to punish for contempt of court is an inherent attribute of the superior courts: “there is no doubt that the power to control its process and enforce its orders, through, in part, punishing for contempt, is within that jurisdiction”.[29] Second, some attributes of the superior courts are so fundamental to “the centrality of the superior courts to our constitutional and judicial system” that they “are part of their essence as superior courts”.[30] There is, accordingly, a “core jurisdiction of the provincial superior courts” which “comprises those powers which are essential to the administration of justice and the maintenance of the rule of law”.[31] From these premises, Lamer CJ deduced the conclusion that the transfer of the contempt power to a statutory court was unconstitutional: “To remove the power to punish contempt ex facie by youths would maim the institution which is at the heart of our judicial system”.[32]

Another example to highlight is the Chicoutimi case, where it was held to be unconstitutional for a statutory municipal court (a body overseeing local authorities) to make determinations about the lawfulness of municipal regulations.

At this point, it should be possible to perceive how the notion of ‘core’ powers might influence the interpretation of Article 37.1 of the Irish Constitution. It is arguable – and was successfully argued in Canada in cases such as MacMillan Bloedel – that there are certain ‘core’ powers of the judiciary that cannot be removed under any circumstances, certainly not on an exclusive basis. One way to read Article 37.1, therefore, is that it is a ‘saver’ clause against just this sort of argument. For if a similar case were to arise in Ireland, there would be an obvious response based in Article 37.1: the vesting of a ‘core’ power in an administrative decision-maker is permissible because it is “limited” in its scope as applicable only to a small area of regulation. MacMillan Bloedel is not the best example, because a contempt power is criminal in nature and Article 37.1 does not permit the vesting of criminal functions in a non-court: however, if we leave the criminal aspect of contempt to one side, it is surely clear that Article 37.1 could ‘save’ a statute transferring a ‘core’ power in a narrowly defined area to a non-court; similarly, Article 37.1 could ‘save’ the Chicoutimi arrangement whereby a body with expertise in local government is charged with overseeing the lawfulness of municipal regulations, a ‘limited’ sliver of delegated legislation made in Ireland.

In short, this comparative critique demonstrates that it is possible to read Article 34.1 narrowly and to read Article 37.1 narrowly, a possibility that was not entertained in Zalewski.

[1] John Willis, “Section 96 of the British North America Act” (1940), 18 Can Bar Rev 517 at 518.

[2] The leading text remains Pépin, supra note 5, while Willis, “Section 96” supra note 1 at 517, is also clear and comprehensive.

[3] Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59 at para 29, [2014] 3 SCR 31, McLachlin CJC [Trial Lawyers Association]. See also Alliance des professeurs catholiques de Montréal v. Quebec Labour Relations Board, [1953] 2 SCR 140 at 155, Rinfret CJ.

[4] Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 SCR 186, at para. 73.

[5] Re Residential, supra note 9. Private dispute resolution procedures agreed to by the parties are not subject to this test.

[6] See also Labour Relations Board of Saskatchewan v. John East Iron Works [1949] AC 134 (PC).

[7] Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2022 BCCA 163, at para. 42.

[8] Ibid at 734.

[9] Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.), [1989] 1 SCR 238, at p. 265..

[10] Dupont v. Inglis, [1958] S.C.R. 535, at p. 542, per Rand J; Attorney General of Quebec v. Grondin, [1983] 2 S.C.R. 364, at p. 383; Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.), [1989] 1 SCR 238, at pp. 258-259; Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 SCR 186, at para. 77; Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 SCR 186, at para. 79.

[11] Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.), [1989] 1 SCR 238, at p. 260.

[12] Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.), [1989] 1 SCR 238, at p. 254.

[13] Ibid at 734-735.

[14] Cf Minister of National Revenue v. Coopers and Lybrand, [1979] 1 SCR 495, at p. 504, suggesting that four McDonald-type considerations are relevant to determining whether a power is quasi-judicial.

[15] Massey-Ferguson Industries Ltd. et al. v. Government of Saskatchewan et al., [1981] 2 SCR 413, at p. 426.

[16] Ibid., at p. 122. See also Toronto (City) v. York (Township) [1938] 1 DLR 593, at p. 595; O’Connor v. Waldron, [1935] 1 DLR 260, at p. 262; Mississauga (City) v. Peel (Municipality), [1979] 2 SCR 244, at pp. 250-251; Massey-Ferguson Industries Ltd. et al. v. Government of Saskatchewan et al. [1981] 2 SCR 413; Evans v. British Columbia (Employment Standards Board) (1983), 149 DLR (3d) 1. In both Residential Tenancies Reference and Sobey’s Stores the bodies at issue were held to be exercising judicial functions. See also Chrysler Canada Ltd. v. Canada (Competition Tribunal), [1992] 2 SCR 394, at p. 418.

[17] Ibid at 735.

[18] Ibid at 736. See also Tomko v. Labour Relations Board (Nova Scotia) et al., [1977] 1 SCR 112.

[19] Ibid., at p. 736.

[20] [1977] 1 SCR 112, at p. 124. See also Brooks v. Pavlick [1964] SCR 108, at p. 115; Tremblay et al. v. Commission des Relations de Travail du Québec et al [1967] SCR 697, at pp. 701-702.

[21] [1995] 4 SCR 725.

[22] Ibid., at para. 26.

[23] Mississauga (City) v. Peel (Municipality), [1979] 2 SCR 244, at p. 253.

[24] [1989] 1 SCR 238, at p. 278. See also Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) 2022 BCCA 163, at para. 167.

[25] See the Minister’s press release on the enactment of the legislation creating the Workplace Relations Commission, “Minister Bruton delivers on Workplace Relations Reform”, 8 June 2015:

Through the better use of technology and shared services, the cost of running these bodies will be reduced through staff reductions, eliminating duplication and centralising administration and case management services. This rationalisation will deliver a much better service to the end users, both employers and employees, and at a reduced cost to the state.  This move forms part of a broader programme of reform being put in place across the Minister’s Department, which will see the total number of agencies reduced by 40…

[26] [1995] 4 SCR 725.

[27] Hogg, MacDonald.

[28] In the matter: Reference to the Court of Appeal of Quebec pertaining to the constitutional validity of the provisions of article 35 of the Code of Civil Procedure which set at less than $85,000 the exclusive monetary jurisdiction of the Court of Québec and to the appellate jurisdiction assigned to the Court of Québec, 2019 QCCA 1492, at para. 45.

[29] MacMillan Bloedel, at para. 33.

[30] MacMillan Bloedel, at para. 36.

[31] MacMillan Bloedel, at para. 38.

[32] MacMillan Bloedel, at para. 37. See similarly, on judicial review of administrative action the leading case of Crevier v. A.G. (Québec) [1981] 2 SCR 220 and precursors such as Séminaire de Chicoutimi v. La Cité de Chicoutimi [1973] SCR 681 and Attorney General (Que.) et al. v. Farrah [1978] 2 SCR 638. On judicial review of legislation, see A.G. Can. v. Law Society of B.C. [1982] 2 SCR 307.

This content has been updated on May 23, 2024 at 15:47.