D.W. Mundell

The Attorney General of British Columbia appealed a decision of the British Columbia Court of Appeal which held that provisions of the Family Relations Act conferring jurisdiction on the Provincial Court over guardianship, custody, access, occupancy of the family residence, and non-entry orders were ultra vires the province under s. 96 of the British North America Act.

The Supreme Court of Canada allowed the appeal in part, holding that it is within the authority of the province to confer jurisdiction on the Provincial Court respecting guardianship of the person of the child and custody of or access to the child.

However, the Court held that conferring jurisdiction respecting orders concerning occupancy and use of the family residence and the making of non-entry orders was ultra vires.

The Ontario Legislature enacted The Residential Tenancies Act, 1979, establishing the Residential Tenancy Commission to oversee and enforce landlord and tenant rights, including the power to make eviction and compliance orders.

The Executive Council referred questions to the Ontario Court of Appeal regarding the province's authority to grant these powers.

The Court of Appeal found the provisions ultra vires.

On appeal, the Supreme Court of Canada established a three-step test for determining whether a provincial grant of power violates section 96 of the British North America Act.

The Court concluded that the powers to order eviction and compliance were historically exercised by section 96 courts, remained judicial in their institutional setting, and were the central adjudicative function of the Commission rather than being ancillary to an administrative scheme.

The appeal was dismissed, and the provisions were held ultra vires.