Supreme Court of Canada

Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714

Date: 1981-05-28

In the Matter of a Reference to the Court of Appeal pursuant to The Constitutional Questions Act, R.S.O. 1970, Chapter 79, by Order in Council No. 2089/79, respecting The Residential Tenancies Act, 1979

1980: November 25, 26; 1981: May 28.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Estey, Mclntyre and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Constitutional law—Courts—Landlords and tenants—Provincial commission empowered to evict tenants and to enforce obligations of landlords and tenants—Whether or not grant of powers to Commission ultra vires—The Residential Tenancies Act, 1979, 1979 (Ont.), c. 78—British North America Act, R.S.C 1970, s. 96.

The Ontario Legislature enacted The Residential Tenancies Act, 1979, to come into effect on proclamation. The Act contained a legislative code to govern landlords and tenants and established the Residential Tenancy Commission to oversee and enforce the newly enunciated rights and obligations. The Executive Council, responding to questions concerning the authority of the Legislature to make orders evicting tenants from residential premises and to require landlords and tenants to comply with obligations imposed under the Act, referred two questions dealing with those issues to the Ontario Court of Appeal. That Court concluded that it was not within the legislative authority of Ontario to make eviction orders and compliance orders as provided in The Residential Tenancies Act, 1979. This Court was only concerned with the constitutional validity of two powers, the subject matter of the reference, and not with the soundness of the overall legislative scheme.

Held: The appeal should be dismissed.

Royal Commission Reports and Reports of Parliamentary Committees made prior to the passing of a statute were admissible to show the factual context and purpose of the legislation. The practice adopted in the Anti-Inflation Reference of giving timely directions establishing the extraneous materials to be admitted should be followed. Material relevant to the issues before the Court and not inherently unreliable or offending against public policy should be admissible, subject to

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the provisio that such extrinsic materials are not available for the purpose of aiding in statutory construction.

Section 96 of the British North America Act limited provincial competence to make appointments to a tribunal exercising s. 96 judicial powers and implicitly limited provincial competence to endow a provincial tribunal with such powers. That section, however, could no longer be construed as a bar to a province seeking to vest an administrative tribunal with ancillary “judicial” powers formerly exercised by s. 96 courts, subject to the qualification that the judicial function not be isolated from the rest of the administrative structure of the legislation.

The test was to be formulated in three steps. The first involved consideration, in light of the historical conditions existing in 1867, of the particular power or jurisdiction conferred upon the tribunal. The matter ended there if the power was not broadly conformable to the jurisdiction formerly exercised by s. 96 courts. If, however, the power were identical or analogous to a power exercised by a s. 96 court at Confederation it became necessary to proceed to step two. The second step involved consideration of the function within its institutional setting to determine whether the function was still “judicial”. The subject matter rather than the apparatus of adjudication was determinative and only if the power could still be characterized as judicial was it necessary to proceed to the third step—a review of the tribunal’s function as a whole in order to appraise the impugned function in its entire institutional context. A provincial scheme was only invalid where the adjudicative function was a sole or central function of the tribunal so that it could be said to be operating like a s. 96 court.

Applying step one the Court found that the powers conferred on the Commission were in broad conformity with those historically exercised by the s. 96 courts before and after Confederation. The argument that the power to order eviction had been conferred before Confederation on County Court judges as persona designata, and that that power and by analogy the power to make orders of compliance were therefore outside the superior or county court structure, went too far. The jurisdiction over overholding tenants in pre‑Confederation legislation was merely a modification of the traditional jurisdiction on ejectment exercised by the superior courts. The County Court judges acting under the over‑holding tenants provisions were acting qua judge rather than as persona designata. The submission that the Commission’s jurisdiction was analogous to that exercis-

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able by courts of summary jurisdiction rather than by s. 96 courts was misconceived. Provinces could not avoid the limitations of s. 96 by taking a function of a s. 96 court, simplifying procedural matters, and then transferring the jurisdiction to a non s. 96 tribunal.

Proceeding to step two the Court found that the impugned power to order eviction or compliance, viewed in its institutional setting, remained essentially a “judicial power” exercised in all cases in the context of a lis between parties. The Commission in deciding contractual and property rights as between individual landlords and tenants also determined rights other than those relating to land and property. Each case involved analysis of law, an application of law to the facts, and a judicial decision and subsequent order.

The third step examined the inter-relationship between the impugned “judicial” powers and other powers under the Act. The central function of the Commission was the resolution of disputes, in the final form by a judicial form of hearing between landlords and tenants. The Commission’s other functions were either ancillary to this central function, or were separate and distinct from it and bore no relation to it. There was no broad legislative scheme to subsume the Commission’s judicial functions. The whole of s. 96 court’s jurisdiction in a certain area, however limited, was transferred to provincially appointed officials.

Walker’s Case (1587), 76 E.R. 676; Attorney-General for Manitoba v. Manitoba Egg and Poultry Association, [1971] S.C.R. 689; Attorney General of Canada v. Reader’s Digest Association (Canada) Ltd., [1961] S.C.R. 775; Home Oil Distributors, Limited v. Attorney General of British Columbia, [1940] S.C.R. 444; Attorney-General for British Columbia v. Attorney General for Canada, [1937] A.C. 368; Ladore and Others v. Bennett and Others, [1939] A.C. 468; Reference re Eskimos, [1939] S.C.R. 104; Swait v. Board of Trustees of Maritime Transportation Unions (1966), 61 D.L.R. (2d) 317; Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373; Attorney-General for Alberta v. Attorney-General for Canada and Others, [1939] A.C. 117; Letang v. Cooper, [1965] 1 Q.B. 232; Pillai v. Mudanayake and Others, [1953] A.C. 514; Edwards and Others v. Attorney-General for Canada and Others, [1930] A.C. 124; Laidlaw v. The Municipality of Metropolitan Toronto, [1978] 2 S.C.R. 736; Re Apogee Investments Ltd. and Saber (1978), 21 O.R. (2d) 663; Re Blok-Glowczynski et al and Stanga et al. (1978), 22 O.R. (2d) 376; Toronto Corporation v. York Corporation, [1938] A.C. 415; Reference re Adoption Act and Other Acts, [1938] S.C.R. 398; Labour Relations Board of Saskatchewan v. John East Iron Works, Limited, [1949] A.C. 134; Tomko v. Labour Relations Board (Nova Scotia) et al., [1977] 1 S.C.R. 112; The Corporation of the City of Mississauga v. The Regional Municipality of Peel et al, [1979] 2 S.C.R. 244; Attorney General of Quebec et al v. Farrah, [1978] 2 S.C.R. 638; Re Pepita and Doukas (1979), 101 D.L.R. (3d) 577; Dupont et al v. Inglis et al, [1958] S.C.R. 535; Pong v. Quong and Chong, [1927] S.C.R. 271; Pajelle Investments Ltd. v. Herbold and Herbold, [1976] 2 S.C.R. 520; Herman et al v. Deputy Attorney General of Canada, [1979] 1 S.C.R. 729; Ross v. The York, Newcastle & Berwick Railway Company (1849), 18 L.J.Q.B. 199; R. v. Mcintosh (1869), 12 N.B.R. 372; Reference Re Proposed Legislation Concerning Leased Premises and Tenancy Agreements (1978), 89 D.L.R. (3d) 460, referred to; Reference Re Validity of Wartime Leasehold Regulations, [1950] S.C.R. 124, not followed.

APPEAL from a decision of the Court of Appeal for Ontario¹, finding the grant of certain powers ultra vires the Ontario Legislature. Appeal dismissed.

Supporting the legislation:

D.W. Mundell, Q.C., John Cavarzan, Q.C., and Lorraine E. Weinrib, for the Attorney General of Ontario.

William J. Atkinson, Henri Brun and Jean-François Jobin, for the intervener the Attorney General of Quebec.

Reinhold M. Endres and Linda Garber, for the intervener the Attorney General of Nova Scotia.

E. Robert A. Edwards, for the intervener the Attorney General of British Columbia.

Brian F. Squair, for the intervener the Attorney General of Manitoba.

D.A. McKillop, for the intervener the Attorney General of Saskatchewan.

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William Henkel, Q.C., for the intervener the Attorney General of Alberta.

Opposing the legislation:

John J. Robinette, Q.C., and Peter Atkinson.

T.B. Smith, Q.C., and J.M. Mabbutt, for the intervener the Attorney General of Canada.

Ian Scott, Q.C., and Mary Hogan, for the intervener Federation of Metro Tenants Association et al.

J.H. Melnitzer, for the intervener London Property Management Association et al.

Lawrence Greenspon, on his own behalf.

The judgment of the Court was delivered by

DICKSON J.—The resolution of disputes between landlords and tenants has long been a central preoccupation of the common law courts. As early as 1587, Lord Coke observed that the law of landlord and tenant was vital since, “for the most part, every man is a lessor or a lessee”. (Walker’s Case² at p. 680.)

Within the past few years the Province of Ontario, in common with a number of other provinces, has enacted legislation to redress what was perceived to be an imbalance, in favour of landlords, in the landlord and tenant relationship. On June 21, 1979, the Legislative Assembly of Ontario enacted The Residential Tenancies Act, 1979, 1979 (Ont.), c. 78, to come into effect on proclamation. The Act contains a detailed legislative code to govern landlords and tenants and establishes a tribunal, bearing the name the Residential Tenancy Commission, to oversee and enforce the newly enunciated rights and obligations. Questions having been raised as to the authority of the Legislative Assembly of Ontario to empower the Commission to make orders evicting tenants from residential premises and to require landlords and tenants to comply with obligations imposed under the Act, the Executive Council of the Province, pursuant to s. 1 of The Constitution-

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al Questions Act, R.S.O. 1970, c. 79, referred the following questions to the Court of Appeal of Ontario for hearing and consideration:

1. Is it within the legislative authority of the Legislative Assembly of Ontario to empower the Residential Tenancy Commission to make an order evicting a tenant as provided in The Residential Tenancies Act, 1979?

2. Is it within the legislative authority of the Legislative Assembly of Ontario as provided in The Residential Tenancies Act, 1979 to empower the Residential Tenancy Commission to make orders requiring landlords and tenants to comply with obligations imposed under that Act?

The Court of Appeal delivered a careful and scholarly unanimous judgment in which each of these questions was answered in the negative. The court concluded it was not within the legislative authority of Ontario to empower the Residential Tenancy Commission to make eviction orders and compliance orders as provided in The Residential Tenancies Act, 1979. The importance of the issue is reflected in the fact that five judges of the court, including the Chief Justice and Associate Chief Justice, sat on the appeal.

The Attorney General of Ontario appealed to this Court as of right, under s. 37 of the Supreme Court Act, R.S.C. 1970, c. S-19, as amended. The Attorneys General of Quebec, Nova Scotia, British Columbia, Manitoba, Saskatchewan and Alberta intervened to support the validity of the legislation. Mr. John J. Robinette, Q.C., was invited by the Court of Appeal of Ontario, when the matter came before that court, to argue against the validity of the provisions that were the subject of the reference. Mr. Robinette assisted this Court in like manner during argument of the present appeal.

The Attorney General of Canada intervened to oppose the legislation as did a number of property management associations. The legislation also came under attack from independent community-based legal service clinics and from the Federation of Metro Tenants Association. The Federation is an “umbrella” organization for Metropolitan Toronto, composed of nearly one hundred affiliat-

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ed tenant associations and some individual tenant members who support and participate in the work of organizing tenants and lobbying in their interests. Owners and tenants alike made common cause in assailing the impugned provisions.

It should be noted that the Court is concerned in this appeal only with the constitutional validity of two powers, the subject matter of the reference, and not with the soundness of the overall legislative scheme or the wisdom of the Legislative Assembly in enacting it. The general subject matter of landlord and tenant rights and obligations is unquestionably within provincial legislative competence and no part of The Residential Tenancies Act, 1979, other than those sections empowering the Commission to issue compliance orders and eviction orders, is in issue.

I

In advance of the hearing before the Ontario Court of Appeal, the Attorney General of Ontario filed with the court the 1968 report of the Ontario Law Reform Commission entitled “Interim Report on Landlord and Tenant Law Applicable to Residential Tenancies”; the 1972 report of the Commission on Part IV of The Landlord and Tenant Act; the 1976 report of the Commission entitled “Report on Landlord and Tenant Law”; and a Green Paper published in 1978 by the Ministry of Consumer and Commercial Relations entitled “Policy Options for Continuing Tenant Protection”. In the Court of Appeal, a question was raised as to whether, and the extent to which, this material was properly before the court. Although there was some argument, it was not pressed to the point where the Court of Appeal felt called upon to rule on it. The court was content to receive the material for whatever assistance it might afford as “background”, and to leave its relevance and weight until the conclusion of the submissions advanced during the hearing. In the outcome the Court of Appeal was persuaded that little, if anything, turned on the reception of this material.

The same four documents were before us, and it seems appropriate at this time to rule whether

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properly so. There is little authority to guide decision.

Professors Whyte and Lederman correctly point out in chapter 4 of their work on Canadian Constitutional Law that a classification process is at the heart of judicial determination of the distribution or limitation of primary legislative powers. That process joins logic with social fact, value decisions and the authority of precedents. A court faces particular difficulty in a constitutional reference when only the bare bones of the statute arrive for consideration. The Chief Justice of this Court made this point in the “chicken and egg” reference, Attorney‑General for Manitoba v. Manitoba Egg and Poultry Association³. There is normally a dearth of relevant facts from which to draw logical inferences, determine social impact, make value decisions and select governing precedents. As Whyte and Lederman note, p. 229, “…the challenge of ultra vires raises a need for evidence of facts of social context and legislative effect…”

In my view a court may, in a proper case, require to be informed as to what the effect of the legislation will be. The object or purpose of the Act in question may also call for consideration though, generally speaking, speeches made in the Legislature at the time of enactment of the measure are inadmissible as having little evidential weight.

It now seems reasonably clear that Royal Commission Reports and the Reports of Parliamentary committees made prior to the passing of a statute are admissible to show the factual context and purpose of the legislation although Cartwright J., as he then was, said in Attorney General of Canada. v. Reader’s Digest Association (Canada) Ltd.⁴, that the general rule is that if objected to they should be excluded. If the reports are relevant it is not entirely clear why they should be excluded upon objection of one of the parties.

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In Home Oil Distributors, Limited v. Attorney-General of British Columbia⁵, Kerwin J., with the concurrence of Rinfret J., took into consideration a report of a Commission under the circumstances there existing, for showing what was in the mind of Parliament. The same course was adopted by the Privy Council in Attorney-General for British Columbia v. Attorney‑General for Canada⁶ and in Ladore and Others v. Bennett and Others⁷. In Reference re Eskimos⁸, in preliminary proceedings, this Court appointed the Registrar to hold hearings and take evidence as to whether Eskimos were “Indians” within the meaning of the B.N.A. Act. In Swait v. Board of Trustees of Maritime Transportation Unions⁹, the Quebec Court of Queen’s Bench, Appeal Side, admitted the Norris Report on Disruption of Shipping in the Great Lakes for the purpose of establishing the facts upon which Parliament based the purpose and object of an Act passed essentially to put an end to a danger threatening the national interest.

Although admittedly a far different case from the present, in Reference re Anti-Inflation Act¹⁰, this Court admitted extrinsic evidence relating to the then prevailing level of inflation, including the White Paper tabled in the House by the Minister of Finance. I think it can be taken from the conduct of the the Anti-Inflation Reference and the use of extrinsic materials by the members of the Court in that case that the exclusionary rule expressed in obiter by Rinfret C.J. in Reference Re Validity of Wartime Leasehold Regulations¹¹, can no longer be taken as a correct statement of the law. We should be loathe, it seems to me, to enunciate any inflexible rule governing the admissibility of extrinsic materials in constitutional references. The effect of such a rule might well be to exclude logically relevant and highly probative evidence. It is preferable, I think, to follow the practice adopted in the Anti-Inflation Reference and give timely directions establishing the evidence

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or extraneous materials to be admitted to serve the ends of the Court in the particular reference.

Generally speaking, for the purpose of constitutional characterization of an act we should not deny ourselves such assistance as Royal Commission reports or Law Reform Commission reports underlying and forming the basis of the legislation under study, may afford. The weight to be given such reports is, of course, an entirely different matter. They may carry great, little, or no weight, but at least they should, in my view, generally be admitted as an aid in determining the social and economic conditions under which the Act was enacted. See Attorney-General for Alberta v. Attorney-General for Canada and Others¹² (Alberta Bank Taxation case). The mischief at which the act was directed, the background against which the legislation was enacted and institutional framework in which the act is to operate are all logically relevant. See Letang v. Cooper¹³, at p. 240 and Pillai v. Mudanayake and Others¹⁴, at p. 528.

A constitutional reference is not a barren exercise in statutory interpretation. What is involved is an attempt to determine and give effect to the broad objectives and purpose of the Constitution, viewed as a “living tree”, in the expressive words of Lord Sankey in Edwards and Others v. Attorney-General for Canada and Others¹⁵. Material relevant to the issues before the court, and not inherently unreliable or offending against public policy should be admissible, subject to the proviso that such extrinsic materials are not available for the purpose of aiding in statutory construction. See Laidlaw v. The Municipality of Metropolitan Toronto¹⁶ at p. 743 and generally, Strayer, Judicial Review of Legislation in Canada (1968), c. 6; Hogg, “Proof of Facts in Constitutional Cases” (1976), 26 U. of T.L.J. 386; Buglass, “The Use of

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Extrinsic Evidence and the Anti-Inflation Act Reference” (1977), 9 Ottawa L. Rev. 183.

II

In 1964, the Legislature of Ontario enacted The Ontario Law Reform Commission Act, 1964 (Ont.), c. 78, R.S.O. 1970, c. 321, establishing the Ontario Law Reform Commission. The Commission was to inquire into and consider any matter relating to reform of the law having regard to the statute law, the common law and judicial decisions. On December 10, 1968, the Law Reform Commission submitted to the Attorney General of Ontario an Interim Report on Landlord and Tenant Law applicable to Residential Tenancies in which the Commission recommended substantial changes in matters of substantive law governing the relations of landlord and tenant relating to residential tenancies. Following thereon The Landlord and Tenant Act, 1968-69 (Ont.), c. 58, was enacted. This Act added a new Part IV entitled “Residential Tenancies” to The Landlord and Tenant Act. Part IV contained provisions on most of the matters recommended by the Law Reform Commission and some additional matters. Section 106(1) provided:

106. (1) Unless a tenant has vacated or abandoned rented premises, the landlord shall not regain possession of the premises on the grounds he is entitled to possession except under the authority of a writ of possession obtained under section 105 or under Part III.

Thus the landlord’s right of self-help, through direct repossession, was abolished. It became necessary for a landlord to bring proceedings by way of writ to recover possession except in cases where the tenant had given it up. The Act also provided for the establishment of Landlord and Tenant Advisory Bureaux by the councils of municipalities to receive complaints and mediate disputes between landlords and tenants.

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The reform in the law of landlord and tenant in 1968-69 preserved the constitutional authority of s. 96 courts to terminate tenancies, issue writs of possession, and enforce compliance.

In 1972 the Law Reform Commission reported upon a review which the Commission had made, at the request of the Attorney General, on certain provisions of the new Part IV of The Landlord and Tenant Act applying to residential tenancies. The Commission made a number of recommendations directed at shortening the time for taking steps in the proceedings for eviction and providing for the entry by the clerk of the court of default judgments where a landlord’s application for a writ of possession was not contested. The Landlord and Tenant Amendment Act, 1972, 1972 (Ont.), c. 123, was enacted amending the procedure for applying for writs of possession and providing for default proceedings in the manner recommended by the Law Reform Commission.

In 1975 the Legislature of Ontario introduced The Residential Premises Rent Review Act, 1975, 1975 (Ont.), c. 12, to establish rent control. The ability of the province to administer a rent review system, of course, in no way encroached on the traditional jurisdiction of the s. 96 courts to order termination, eviction and compliance. A companion Act, 1975, (Ont.), c. 13, amended The Landlord and Tenant Act to make substantial changes in the substantive law of landlord and tenant. This latter Act established security of tenure for tenants by providing for automatic renewal of tenancy agreements upon expiration of the term, unless the agreement had been lawfully terminated in accordance with the Act. A tenant might terminate it by agreement or by giving notice in the form and at the time prescribed by the statute. A landlord might terminate only for specified causes and at specified times. The rules for proceedings by the county or district judge were relaxed and simplified. The powers of these judges were expanded to cover most of the issues that might arise between a landlord and a tenant, including power to declare a tenancy agreement terminated.

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After the 1975 statutes were passed the courts continued to exercise the functions traditionally performed by s. 96 courts since Confederation, and to the present time, to order termination of leases, make eviction orders and compel compliance with the provisions of a lease of residential premises. See, as examples, Re Apogee Investments Ltd. and Saber¹⁷ and Re Blok-Glowczynski et al. and Stanga et al.¹⁸

On February 10, 1978 a Government Green Paper was released relating to policy options for continuing tenant protection. The Green Paper made reference to the very large number of Ontario citizens whose lives are governed in part by the law of landlord and tenant. From 1961 to 1971 the number of tenants grew by 70 per cent from 483,500 to 825,000. It was estimated that there were more than one million rental households in Ontario constituting about 36 per cent of all households.

A reading of the Green Paper would suggest that at least three factors led to the establishment of the Residential Tenancy Commission. First, the legislature had removed the landlord’s traditional right to employ ‘self-help’ remedies (i.e. repossession) and now required a landlord to apply for an order of eviction. It was felt that the demands of this “new business” would clog an already overburdened court system. A specialized Commission was seen as a convenient method for ensuring prompt and efficient resolution of landlord-tenant disputes. A second major factor was the belief that the regular court system was too formal in structure for the resolution of landlord and tenant disputes; that such disputes could best be adjudicated in an informal, summary proceeding before a tribunal where individual complainants would feel less inhibited in presenting their own cases. Third, the Green Paper saw the creation of a Tenancy Commission as a convenient method of consolidating functions which had previously been performed by different organizations. The new tribunal would be a centralized body which could provide authoritative advice to landlords and ten-

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ants. By combining administrative functions with judicial functions, the tribunal would be able to offer a wider range of remedies to individuals than the regular court system. The Paper noted that while many had hailed the development of tenancy boards and tribunals as an effective means of realizing the rights embodied in the residential tenancy legislation, others had pointed out that such “rough justice” might run counter to well-established principles of procedure. The Green Paper recommended a “mediation-adjudication” approach under which authority to mediate would be combined with jurisdiction to adjudicate a dispute. In this approach, an official would listen to both sides of the case and attempt to guide the parties toward a mutually agreeable solution. If agreement could not be reached, the official would convene a hearing with the parties present, hear evidence and arrive at a determination according to the law. The decision would be legally enforceable.

The Residential Tenancies Act was enacted to implement the recommendations of the Green Paper. As I have said, the Act set up a new tribunal, the Residential Tenancy Commission, to oversee and enforce the obligations of landlords and tenants in Ontario. The tribunal is given wide-ranging powers and functions. Some of these are purely administrative in nature, for example, the Commission is charged with the obligation of informing members of the public as to their rights under the legislation. But by far the most significant role to be played is in the resolution of disputes between landlords and tenants. The mechanism for dispute resolution is triggered ‘upon application’ by either the landlord or the tenant. In one or two circumstances the process is put in motion by application by a third party—e.g. a neighbouring tenant.

The Residential Tenancies Act is not directed solely to low rental housing. It applies to every residential tenancy, including the most expensive housing, and leases of great value, and any length of term, in city or country.

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III

As Professor Hogg has noted in his work on Constitutional Law of Canada (1977), p. 129, there is no general “separation of powers” in the British North America Act, 1867. Our Constitution does not separate the legislative, executive, and judicial functions and insist that each branch of government exercise only its own function. Thus it is clear that the Legislature of Ontario may confer non-judicial functions on the courts of Ontario and, subject to s. 96 of the B.N.A. Act, which lies at the heart of the present appeal, confer judicial functions on a body which is not a court.

Under s. 92(14) of the B.N.A. Act the provincial legislatures have the legislative power in relation to the administration of justice in the province. This is a wide power but subject to subtraction of ss. 96 to 100 in favour of the federal authority. Under s. 96 the Governor General has the sole power to appoint the judges of the Superior, District and County Courts in each province. Under s. 97 the judges who are to be appointed to the Superior, District and County Courts are to be selected from the respective bars of each province. Under s. 100 the Parliament of Canada is obliged to fix and provide for their salaries. Section 92(14) and ss. 96 to 100 represent one of the important compromises of the Fathers of Confederation. It is plain that what was sought to be achieved through this compromise, and the intended effect of s. 96, would be destroyed if a province could pass legislation creating a tribunal, appoint members thereto, and then confer on the tribunal the jurisdiction of the superior courts. What was conceived as a strong constitutional base for national unity, through a unitary judicial system, would be gravely undermined. Section 96 has thus come to be regarded as limiting provincial competence to make appointments to a tribunal exercising s. 96 judicial powers and therefore as implicitly limiting provincial competence to endow a provincial tribunal with such powers.

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IV

The belief that any function which in 1867 had been vested in a s. 96 court must forever remain in that court reached its apogee in the judgment of Lork Atkin in Toronto Corporation v. York Corporation¹⁹. Describing s. 96 as one of the “three principal pillars in the temple of justice… not to be undermined”, Lord Atkin held that the Ontario Municipal Board could not validly receive “judicial authority”. At the same time, he held that the Municipal Board was in ‘pith and substance’ an administrative body, and the impugned ‘judicial functions’ were severable from the administrative powers given to the Board under its enabling legislation. There was no analysis of the inter-relationship between the judicial and administrative features of the legislative scheme; the assumption was that any attempt to confer a s. 96 function on a provincially-appointed tribunal was ultra vires the legislature.

This sweeping interpretation of s. 96, with its accompanying restrictive view of provincial legislative authority under s. 92, was limited almost immediately by the judgment of this Court in the Reference re Adoption Act and Other Acts²⁰. Chief Justice Duff held that the jurisdiction of inferior courts was not “fixed forever as it stood at the date of Confederation”. On his view, it was quite possible to remove jurisdiction from a Superior Court and vest it in a court of summary jurisdiction. The question which must be asked was whether “the jurisdiction conferred upon magistrates under these statutes broadly conform[s] to a type of jurisdiction generally exercisable by courts of summary jurisdiction rather than the jurisdiction exercised by courts within the purview of s. 96”. In the Adoption Reference, Duff C.J. looked to the historical practice in England and concluded that the jurisdiction conferred on magistrates under the legislation before the Court in the Reference was analogous to the jurisdiction under the English Poor Laws, a. jurisdiction which had belonged to courts of summary nature rather

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than to Superior Courts. On this basis, the legislation was upheld. The Adoption Reference represented a liberalization of the view of s. 96 adopted by the Privy Council in Toronto v. York, at least in the context of a transfer of jurisdiction from a Superior Court to an inferior Court.

The same process of liberalization, this time in the context of a transfer of jurisdiction from a Superior Court to an administrative tribunal, was initiated by the Privy Council in Labour Relations Board of Saskatchewan v. John East Iron Works, Limited²¹. Lord Simonds proposed a two-fold test. The first limb of the test is to ask whether the board or tribunal exercises “judicial power”. Lord Simonds did not propose a ‘final’ answer to the definition of “judicial power”, but he suggested that,

…the conception of the judicial function is inseparably bound up with the idea of a suit between parties, whether between Crown and subject or between subject and subject, and that it is the duty of the court to decide the issue between those parties, with whom alone it rests to initiate or defend or compromise the proceedings. [p. 149]

If the answer to the initial question as to “judicial power” is in the negative, then that concludes the matter in favour of the provincial board. If, however, the power is in fact a judicial power, then it becomes necessary to ask a second question: in the exercise of that power, is the tribunal analogous to a superior, district or county court?

This formulation represented a subtle modification of the test proposed by Duff C.J. in the Adoption Reference. Duff C.J. had suggested it was necessary to determine whether the impugned jurisdiction was more analogous to a summary type of jurisdiction exercised at the time of Confederation rather than to a jurisdiction traditionally exercised by s. 96 courts. The formulation of Duff C.J. froze the provincial jurisdiction to that of summary courts. Lord Simonds in John East

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suggested that it was not absolutely necessary to consider whether there was a true analogy between the impugned jurisdiction and the jurisdiction of summary courts; it would be sufficient, for constitutional purposes, to establish that the power or jurisdiction was not one traditionally falling within s. 96. Lord Simonds makes this clear in the following passage:

At this stage their Lordships reach the conclusion that the jurisdiction exercisable by the board is not such as to constitute it a court within s. 96 of the British North America Act. They do not think it necessary to consider whether it is a jurisdiction more nearly analogous to that exercised at the time of confederation by justices of the peace—a matter to which much argument was directed—nor would they pursue the comparison with the jurisdiction of the Workmen’s Compensation Board, which was also pressed on them by counsel. It is sufficient to say that it is not, in their opinion, analogous to that of a superior, district or county court, [p. 152]

In John East, the Privy Council did not find it necessary to give any final answer to the initial question, namely, whether the power in issue was ‘judicial’. The case was resolved solely on the ground that, in exercising the power, the tribunal was not analogous to a superior, county or district court.

It is apparent that John East represented a break with the line of jurisprudence developed in Toronto v. York. The approach of Toronto v. York, in which the sole issue was whether the tribunal was being clothed with a s. 96 ‘judicial power’, had been effectively, though not expressly, repudiated.

In Tomko v. Labour Relations Board (Nova Scotia) et al.²², the issue was the validity of the Nova Scotia Labour Relations Board’s authority to issue a “cease and desist” order. It was argued that this jurisdiction was analogous to the jurisdiction of s. 96 courts to issue mandatory injunctions to halt illegal activity. The Chief Justice, speaking for eight members of the Court, held that this

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consideration was not conclusive, since “…it is not the detached jurisdiction or power alone that is to be considered but rather its setting in the institutional arrangements in which it appears and is exercisable under the provincial legislation”. A consideration of the ‘institutional setting’ indicated that the power to make cease and desist orders was merely one aspect of a broad legislative scheme for the peaceful regulation of collective bargaining, an area which the courts had not entered. Thus, the Labour Board had been validly clothed with the power impugned.

The recent decision of this Court, The Corporation of the City of Mississauga v. The Regional Municipality of Peel et al.²³, is, in the words of the Chief Justice in that case, “…a prime illustration of the proposition laid down in Tomko”. In Mississauga, the Ontario Municipal Board had been given certain powers to resolve disputes over assets between amalgamating municipalities. Noting that Toronto v. York must be viewed with ‘considerable qualification’, it was stated that the power to adjudicate was merely one “…incident …in the over-all picture of the general restructuring of the municipalities in which the Municipal Board is given an important part to play…” Viewed in their “institutional setting, the ‘judicial powers’ to determine rights and liabilities under provincial legislation had been validly granted to the Municipal Board”.

I do not think it can be doubted that the courts have applied an increasingly broad test of constitutional validity in upholding the establishment of administrative tribunals within provincial jurisdiction. In general terms it may be said that it is now open to the provinces to invest administrative bodies with ‘judicial functions’ as part of a broader policy scheme. There will still be situations, however, as in Attorney General of Quebec et al. v. Farrah²⁴, where a s. 96 ‘judicial function’ is isolated from the rest of the administrative structure of

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the relevant legislation. In Farrah, a Transport Tribunal was given appellate jurisdiction over the Quebec Transport Commission. The Tribunal performed no function other than deciding questions of law. Since this function was normally performed by s. 96 courts and divorced from the broader institutional framework of the Act, the impugned sections were held to be unconstitutional. Subject to this type of situation, s. 96 can no longer be construed as a bar to a province seeking to vest an administrative tribunal with ancillary ‘judicial’ powers formerly exercised by s. 96 courts.

The teaching of John East, Tomko, and Mississauga is that one must look to the ‘institutional setting’ in order to determine whether a particular power or jurisdiction can validly be conferred on a provincial body. But these cases are merely the starting point, rather than the conclusion, of the inquiry in the present case. As the British Columbia Court of Appeal noted in its consideration of s. 96 in Re Pepita and Doukas²⁵, at p. 582.

…it is notable that no general tests are offered or established in the Tomko judgment for the characterization of the function, the characterization of the institutional arrangements, and the examination of their interrelationship. Instead the judgment continues with a consideration of the particular function in its context…

The Privy Council in John East suggested that the application of s. 96 required a determination as to whether or not the powers being exercised were judicial or administrative and if judicial, whether or not the administrative body was “broadly analogous” to a Superior, District or County Court. Tomko added a further dimension. An administrative tribunal may be clothed with power formerly exercised by s. 96 courts, so long as that power is merely an adjunct of, or ancillary to, a broader administrative or regulatory structure. If, however, the impugned power forms a dominant aspect of the function of the tribunal, such that the tribunal

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itself must be considered to be acting ‘like a court’, then the conferral of the power is ultra virés.

The jurisprudence since John East leads one to conclude that the test must now be formulated in three steps. The first involves consideration, in the light of the historical conditions existing in 1867, of the particular power or jurisdiction conferred upon the tribunal. The question here is whether the power or jurisdiction conforms to the power or jurisdiction exercised by superior, district or county courts at the time of Confederation. This temporary segregation, or isolation, of the impugned power is not for the purpose of turning back the clock and restoring Toronto v. York as the governing authority, an approach deplored in Mississauga. It is rather the first step in a three step process.

If the historical inquiry leads to the conclusion that the power or jurisdiction is not broadly conformable to jurisdiction formerly exercised by s. 96 courts, that is the end of the matter. As Rand J. noted in Dupont et al v. Inglis et al.²⁶, “Judicial power not of that type, [i.e. that exercised by s. 96 courts at Confederation] such as that exercised by inferior courts, can be conferred on a provincial tribunal whatever its primary character” (p. 542). If, however, the historical evidence indicates that the impugned power is identical or analogous to a power exercised by s. 96 courts at Confederation, then one must proceed to the second step of the inquiry.

Step two involves consideration of the function within its institutional setting to determine whether the function itself is different when viewed in that setting. In particular, can the function still be considered to be a ‘judicial’ function? In addressing the issue, it is important to keep in mind the further statement by Rand J. in Dupont v. Inglis that “…it is the subject‑matter rather than the

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apparatus of adjudication that is determinative”. Thus the question of whether any particular function is ‘judicial’ is not to be determined simply on the basis of procedural trappings. The primary issue is the nature of the question which the tribunal is called upon to decide. Where the tribunal is faced with a private dispute between parties, and is called upon to adjudicate through the application of a recognized body of rules in a manner consistent with fairness and impartiality, then, normally, it is acting in a ‘judicial capacity’. To borrow the terminology of Professor Ronald Dworkin, the judicial task involves questions of ‘principle’, that is, consideration of the competing rights of individuals or groups. This can be contrasted with questions of ‘policy’ involving competing views of the collective good of the community as a whole. (See Dworkin, Taking Rights Seriously (Duckworth, 1977) pp. 82-90.)

If, after examining the institutional context, it becomes apparent that the power is not being exercised as a “judicial power” then the inquiry need go no further for the power, within its institutional context, no longer conforms to a power or jurisdiction exercisable by a s. 96 court and the provincial scheme is valid. On the other hand, if the power or jurisdiction is exercised in a judicial manner, then it becomes necessary to proceed to the third and final step in the analysis and review the tribunal’s function as a whole in order to appraise the impugned function in its entire institutional context. The phrase—‘it is not the detached jurisdiction or power alone that is to be considered but rather its setting in the institutional arrangements in which it appears’—is the central core of the judgment in Tomko. It is no longer sufficient simply to examine the particular power or function of a tribunal and ask whether this power or function was once exercised by s. 96 courts. This would be examining the power or function in a ‘detached’ manner, contrary to the reasoning in Tomko. What must be considered is the ‘context’ in which this power is exercised. Tomko leads to the following result: it is possible for administrative tribunals to exercise powers and jurisdiction which once were exercised by the s. 96

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courts. It will all depend on the context of the exercise of the power. 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). In such a situation, the grant of judicial power to provincial appointees is valid. The scheme is only invalid when the adjudicative function is a sole or central function of the tribunal (Farrah) so that the tribunal can be said to be operating ‘like a s. 96 court’.

The matter was well expressed in the Ontario Court of Appeal:

Where judicial powers are conferred by a provincial Legislature on a provincially constituted and appointed tribunal, the fact that the tribunal may not be curial in its essential functions but rather an administrative tribunal entrusted with the making of decisions that are primarily of an administrative nature will not, of itself, insulate the judicial powers from a finding that the legislation conferring them is, to that extent, invalid. Whether such a finding may be escaped will tend to depend on whether the judicial powers are seen to be merely incidents of, or adjuncts to, a scheme for the administration of a matter that is otherwise within provincial legislative competence, albeit that as incidents of or adjuncts to the scheme they may be necessary for its effective functioning…

V

Step one, the historical inquiry. The Residential Tenancy Commission is given a broad range of powers under the Act: in this reference, as I have noted, we are concerned with only two, power to make an eviction order and power to make a ‘compliance’ order. These powers recur constantly throughout the Act; there are nineteen separate provisions which empower the Commission to make an eviction order and seventeen separate provisions empowering the Commission to make a compliance order. Illustrations of the former are found in s. 36(2)(c) (eviction for non-payment of rent); s. 38(3)(d) (eviction for interference with

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safety or enjoyment of landlord or other tenants); s. 41(2)(c) (eviction for carrying on of illegal activity); and s. 51(1) (eviction where landlord requires premises for own use or for sale). Illustrations of the latter power are found in s. 28(4)(a) (landlord may be ordered to comply with obligation to repair); s. 29(2)(a) (obligation to supply vital services); s. 37(2)(a) (tenant to repair damage wilfully or negligently caused by him). In contrast, the impugned power in Tomko to issue “cease and desist” orders was found in one subs., 49(2), forming part of a legislative scheme of some 103 sections.

Section 84(1) of The Residential Tenancies Act, subject to certain exceptions, gives the Commission “exclusive jurisdiction to examine into, hear and determine all matters and questions arising under this Act and as to any matter or thing in respect of which any power, authority or discretion is conferred upon the Commission”. Section 116(1) permits the filing of a Commission order evicting a tenant in the County or District Court and states that such order once filed: “has the same force and effect and all proceedings may be taken on it, as if it were an order of that court, and the clerk of the court shall issue a writ of possession”.

The Ontario Court of Appeal held that the power to order eviction was analogous to the traditional power of the courts to order the ejectment of a tenant, while the power to order compliance was analogous to the power of the courts to award damages or specific performance or to grant injunctive relief. This finding was not challenged on the hearing of this appeal. The Attorney General for Ontario conceded that the powers given to the Residential Tenancy Commission “…are not merely analogous to those [pre-1867] powers but are the same powers”.

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We start therefore with the proposition that the power to order eviction in the 1979 Act is broadly conformable to pre-1867 jurisdiction in ejectment, and the power to order compliance is broadly conformable to the pre-1867 jurisdiction to award damages or specific performance. It is true that the Tenancy Commission ordering an eviction in 1981 would look to different considerations than a court ordering an ejectment in 1867, the rules surrounding the granting of these remedies having altered somewhat since 1867, but mere alteration in rules cannot change the substance of things or prevent the drawing of analogies. In an ejectment in 1867 a landlord was asserting a right of re-entry to his property and was seeking the removal of a tenant from his land. These remain the essentials of an eviction application by a landlord in 1981. Similarly, a landlord seeking an injunction against a tenant in pre‑Confederation times is in substantially the same position as a modern landlord seeking compliance under the Act.

The question whether the powers or jurisdiction conferred by the statute are analogous to, in broad conformity with, the kind of powers or jurisdiction historically exercised by the superior, county or district courts admits of only one answer—yes.

It is clear, as appears from the judgment of the Court of Appeal, that prior to 1867 in Upper Canada the only tribunals which could make ejectment orders were the Court of Queen’s Bench, the Court of Common Pleas, and the County Court in limited situations, and that only the Court of Chancery could make orders of specific performance or issue mandatory or prohibitory injunction orders. The settlement of disputes between landlords and tenants, including the termination of tenancies and eviction of tenants, has thus always been within the exclusive jurisdiction of the Superior, District and County Court judges both before and after Confederation.

The Attorney General advances two submissions for the purpose of refuting this conclusion:

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1. The power to order eviction of overholding tenants was conferred on County Court judges as persona designata, outside the structure of the Superior or County Courts. Thus this power was recognized as not exclusively a power of the Superior, District or County Courts within the intendment of section 96. By analogy, the power to make orders of compliance is not a power exclusively within the jurisdiction of such Superior, District or County Courts.

2. Even if jurisdiction over landlord and tenant matters was exercised by s. 96 courts in 1867, the jurisdiction conferred on the Residential Tenancy Commission is analogous to “a type of jurisdiction generally exerciseable by courts of summary jurisdiction rather than the jurisdiction exercised by courts within the purview of section 96”.

The Attorney General offers a number of authorities in support of his first submission, including two decisions of this Court, which establish, it is argued, that the jurisdiction of county judges with respect to overholding tenants was exercised as persona designata. The first case cited, Pong v. Quong and Chong²⁷, does not really assist appellant. In Pong a County Court judge acting under the Overholding Tenants legislation had dealt with a number of collateral matters as to the relationship between two tenants. On appeal, the Court noted that, “It is perfectly manifest that he [the County Judge] had no jurisdiction to do so—no jurisdiction subject to appeal; that he could entertain such collateral matter only either as persona designata or as arbitrator”. From the context it is clear that this comment was directed to the judge’s possible status as a persona designata by the consent of the parties and not under The Landlord and Tenant Act.

In the more recent case of Pajelle Investments Limited v. Herbold and Herbold²⁸, this Court was concerned with the interpretation of The Landlord and Tenant Act, R.S.O. 1970, c. 236, and the powers of a judge under that Act. Mr. Justice Spence, opening his judgment, and without elabo-

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ration, said “The matter came on for hearing before His Honour Judge MacRae acting as a persona designata under the provisions of The Landlord and Tenant Act”. A passing reference of this nature cannot be considered to be conclusive, particularly in light of the recent extensive consideration of the concept of persona designata by this Court, in a case in which persona designata was directly in issue, Herman et al. v. Deputy Attorney General of Canada²⁹. In Herman, the issue was whether a Superior Court judge acting under s. 232 of the Income Tax Act 1970-71-72 (Can.), c. 63, did so qua judge or as ‘persona designata’. Noting that the concept of persona designata is “little better than a trap for the unwary” and that there is a need for a “greater element of certainty in the application of the notion of persona designata” the Court laid down the following general proposition:

Prima facie, Parliament should be taken to intend a judge to act qua judge whenever by statute it grants powers to a judge. He who alleges that a judge is acting in the special capacity of persona designata must find in the specific legislation provisions which clearly evidence a contrary intention on the part of Parliament. The test to be applied in considering whether such a contrary intention appears in the relevant statute can be cast in the form of a question: is the judge exercising a peculiar, and distinct, and exceptional jurisdiction, separate from and unrelated to the tasks which he performs from day-to-day as a judge, and having nothing in common with the court of which he is a member?

Applying this test, the Court in Herman held that a Superior Court judge deciding a question of solicitor-client privilege under the Income Tax Act did so qua judge and not as persona designata.

The Court of Appeal in the instant case applied the test in Herman, concluding that the County Court judges were acting qua judge under the overholding tenants provisions. The Court was fortified by the fact that the concept of persona designata as applied to judicial powers was not coined until 1849, in Ross v. The York, Newcastle

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& Berwick Railway Company³⁰ and it was not until 1869 that the principle was applied in Canada: R. v. Mcintosh³¹. With respect, I agree with the Court of Appeal. The jurisdiction over overholding tenants contained in the 1864 Act was merely a modification of the traditional jurisdiction in ejectment exercised by the Superior Courts.

In any event, as was pointed out in argument, the persona designata argument could not be applicable to the jurisdiction of the Supreme Court of Ontario to make orders requiring landlords and tenants to comply with obligations under leases. The point was also made that whether or not the County Court judge was acting as persona designata in eviction proceedings, the power he exercised was broadly analogous to that of the Superior Court and accordingly, even if the powers of the Commission are seen in terms of powers of pre-1867 County Court judges acting as persona designata, they nonetheless remain broadly analogous to those of pre-1867 Superior Courts. Accordingly the first submission of the Attorney General for Ontario on this point must be rejected.

The second submission, as I understand it, relies on the reasoning elaborated by Chief Justice Duff in the Reference re Adoption Act (supra). This Court held that the jurisdiction of the inferior courts could be enlarged, both as to subject matter and as to pecuniary limits, as long as the new jurisdiction “broadly conform[ed] to a type of jurisdiction generally exercisable by courts of summary jurisdiction rather than the jurisdiction exercised by courts within the purview of s. 96”. It is urged that the powers conferred on the Residential Tenancy Commission conform to a type of jurisdiction generally exercisable by courts of summary jurisdiction. As to the question of subject matter, the appellant relies on the form and language in which the statute is enacted. The statute contains non-technical language and its application involves questions of fact or involves the exercise of discre-

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tionary factual judgments expressed in ordinary language. It is submitted that no significant jurisprudential questions are involved. As to pecuniary limits, the Residential Tenancy Commission is empowered to make an order for the payment of money only where the amount claimed does not exceed $3,000. The suggestion seems to be that, since the Residential Tenancy Commission proceeds in a summary manner under a statute drafted in ‘layman’s’ language, its jurisdiction is, for constitutional purposes, analogous to the jurisdiction of a summary court. This submission misconceives the import of the reasoning in the Adoption Reference. Provinces cannot avoid the limitations of s. 96 simply by taking a traditional s. 96 function, simplifying procedural matters, and then transferring the jurisdiction to a non-section-96 tribunal. If this could be done, s. 96 would be stripped of all force and effect.

Even putting aside these assumptions, the argument of the appellant on this point cannot be accepted. As to the question of subject matter, I have noted that the Act applies to leases of any value and any term. Moreover, the $3,000 limitation on jurisdiction only applies when a sum of money is being claimed; in all other cases, there will be no pecuniary limit. Thus a landlord may incur costs far in excess of $3,000 in order to ‘comply’ with the Act or with an order of the Commission. As to the submission that the Commission will simply be deciding questions of fact, I would adopt the following comments made by the Court of Appeal:

Clearly, more will be involved than the finding of facts, and the ascertainment of their “real substance”, on the basis of which the next step to be taken will usually be apparent. The law will need to be interpreted in accordance with the accepted rules of law for that purpose, and the proper law will need to be applied, including, where relevant, the proper principles of contract, tort, and real and personal property law, notwithstanding the statutory “codification” earlier mentioned. In at least some cases the issue of the legality or illegality of activities carried on by tenants will arise, and in many cases assessments will have to be made of compensation for loss or injury of various kinds. In the making of orders for the evictions of tenants and requiring compliance with obligations imposed under the legislation, the task

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of the Commission will be of basically the same complexity and degree of difficulty as the task which has hitherto engaged the attention of the Courts in this Province.

The second submission of the Attorney General for Ontario also fails.

VI

We pass now to the second step of the inquiry, to consideration of the impugned powers within their institutional setting. Is the power to order eviction or compliance when so viewed still a ‘judicial power’? I have already indicated that the hallmark of a judicial power is a lis between parties in which a tribunal is called upon to apply a recognized body of rules in a manner consistent with fairness and impartiality. The adjudication deals primarily with the rights of the parties to the dispute, rather than considerations of the collective good of the community as a whole.

With very few exceptions, the Residential Tenancy Commission is not free to intervene of its own motion in disputes between landlords and tenants. Virtually all of the provisions of the Act require that either a landlord or a tenant apply to the Commission before any action be taken. Moreover, the power to order eviction or compliance will, in all case, be exercised in the context of a lis between parties. This is so even where a. third party may invoke the Commission’s intervention. Under s. 29, for example, a Public Utility may notify the Commission that its service has been or is likely to be stopped, and the Commission may intervene. But s. 29 goes on to provide that the Commission shall determine whether a particular landlord is breaching his obligation to supply vital services to his tenants. Thus there will clearly be a lis between parties and an issue to be resolved.

When confronted with a lis, the task of the Commission will be to determine the respective rights and obligations of the parties according to the terms of the legislation. The Commission does not have an untrammelled discretion to ‘set matters right’. The powers which it may invoke and the remedies which it may award are circum-

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scribed by the terms of the Act. At no point is the individual’s right at law surrendered for the benefit of a common group or policy. The Commission deals exclusively with matters of contract and land law as they arise between landlords and tenants.

It is true that the Commission is given a certain degree of discretion when performing its adjudicative function. Under s. 93(1) for example, the Commission is instructed to decide “upon the real merits and justice of the case”; s. 93(2) provides that the Commission “shall ascertain the real substance of all transactions and activities…”; s. 110(3) states that the Commission “may include in any order terms and conditions it considers proper in all the circumstances”. Yet such terminology is certainly not foreign to courts within the purview of s. 96. The County Court under The Landlord and Tenant Act has the power to “make such further or other order as the judge considers appropriate” (s. 96); to make an order “granting relief against forfeiture on such terms and conditions as the judge may decide” (s. 106(1)), and to “refuse to grant the application [for possession] unless he is satisfied, having regard to all the circumstances, that it would be unfair to do so”. (s. 107(2)).

The Commission has authority to hear and determine disputes in accordance with rules of law, and by the authority of the law. It authorizes actions for which application is made. It has the power to impose penalties and sanctions and to award remedies for the infringement of rights. Disobedience of an order of the Commission is a penal offence. The Commission decides contractual and property rights between individual landlords and tenants and in so doing determines not only the right to land and property, but also other rights. In each case, there is an analysis of the law, an application of the applicable law to the particular facts, and then a judicial decision and a consequent order. It is difficult to conceive that when so acting the Commission acts otherwise than as a curial tribunal. In substance the tribunal is exer-

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cising judicial powers roughly in the same way as they are exercised by the courts.

Section 105 is also important. It provides that The Statutory Powers Procedure Act, 1971, applies to proceedings by the Commission in the exercise of a statutory power of decision. That Act assures the right to counsel, the right to call and examine witnesses and present argument and the right to conduct cross-examination of witnesses. The Statutory Powers Procedure Act, 1971, also requires that the tribunal give its final decision and order in writing and shall give reasons in writing if requested by a party. The Commission, at the hearing, is required to question the parties who are in attendance at the hearing and any witnesses with a view to determining the truth concerning the matters in dispute. Apart from this inquisitional feature, there is little to distinguish the hearing from a hearing conducted by a Superior Court. An appeal lies to the Commission from the decision or order of a Commissioner and a further appeal from the Commission on a question of law, to the Supreme Court of Ontario.

I conclude that the impugned powers, when viewed in their institutional setting, remain essentially ‘judical powers’.

VII

We now face the most difficult aspect of this appeal—an examination of the inter-relationship between the Commission’s impugned ‘judicial powers’ and the other powers and jurisdiction conferred under the Act.

Prior to 1979, three broad functions were exercised by three separate bodies. The function of giving advice, mediating and educating was handled by the Landlord and Tenant Advisory Bureaux. The function of administering rent review was handled by the Residential Premises Rent Review Board. The function of adjudicating disputes between landlords and tenants was handled by s. 96 courts. The 1979 Act effected relatively minor changes in the substantive law of

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landlord and tenant. The primary change introduced in 1979 was to transfer the separate and distinct functions of the Advisory Bureaux, the Rent Review Board and the courts to the Residential Tenancy Commission.

The Attorney General for Ontario argues that the Commission is essentially an administrative body charged with “supervising and regulating” the relationship of landlord and tenant in the Province of Ontario. The function of adjudicating disputes, it is contended, is merely a subsidiary or ancillary aspect of the Commission’s role.

The Attorney General must look to s. 81, defining the powers of the Commission to sustain his argument of an overall supervisory and regulatory role in the field of landlord and tenant relations. Section 81 lends little support to the argument. It reads:

81. The Commission shall,

(a) perform the duties assigned to it by or under this Act and shall administer this Act and the regulations;

(b) periodically review this Act and the regulations and recommend from time to time amendments or revisions thereof:

(c) advise and assist the public on all residential tenancy matters including referral where appropriate to social services and public housing agencies;

(d) take an active role in ensuring that landlords and tenants are aware of the benefits and obligations established by this Act;

(e) periodically prepare and publish a summary of significant decisions of the Commission and the reasons therefor.

It appears upon reading the Act as a whole that the central function of the Commission is that of resolving disputes, in the final resort by a judicial form of hearing between landlords and tenants. The bulk of the Act is taken up with defining the rights and obligations of landlords and tenants and with prescribing a method for resolving disputes over those obligations. Dispute resolution is achieved through application to the Commission. It is true that the Commission is granted the power to mediate the dispute before it is obliged to hold a

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hearing, but the Commission will ordinarily have no right or duty to act as mediator unless invited to do so by one of the parties. If one party does not wish to settle, then a judicial hearing must be held and a judgment rendered. The other functions of the Commission are either ancillary to this function (i.e. the power to recommend policy or to advise the parties) or are separate and distinct from this core power, and bear no relation to it (i.e. the power over rent review).

There is no broad legislative scheme as there was in Mississauga, supra, to subsume the judicial functions of the Commission. It was argued that the powers vested in the Residential Tenancy Commission were merely incidental or ancillary to the policy of “security of tenure” for tenants. This submission is unconvincing. The primary purpose and effect of the 1979 Act was to transfer jurisdiction over a large and important body of law, affecting landlords and tenants of one million rental units, from the s. 96 courts where it has been administered since Confederation to a provin-cially appointed tribunal.

Here the chief role of the Commission is not to administer a policy or to carry out an administrative function. Its primary role is to adjudicate. The administrative features of the legislation can be characterized as ancillary to the main adjudicative function. The power of the Commission to mediate disputes is aimed at the speedy resolution of differences between the parties. So too is the informal nature of the proceedings. The goal of these provisions is to enable the Commission to ‘process’ controversies in an expeditious manner. As such, they are merely incidental to the main purpose of the legislation.

In the case at bar, as the Court of Appeal observed, powers until now exercised by the courts have simply been transferred to the Commission as the “chosen vehicle for their exercise”. In the instant case the impugned powers are the nuclear core around which other powers and functions are collected. In Tomko the tribunal was composed of persons familiar with labour relations matters and

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presumably better able than the courts to weigh the interests involved and to assess the implications of cease and desist orders upon the parties. In the present case the Act imposes no particular qualifications or experience as essential to appointment to the Commission. There is no requirement of legal training or occupational experience for any member of the Commission and the process of selection is not based on any bipartite or tripartite principle. The Commission is in no way a specialized agency. In the instant case the whole of a s. 96 court’s jurisdiction in a certain area, however limited, has been transferred to provincially appointed officials. The provincial legislature has sought to withdraw historically entrenched and important judicial functions from the superior court and vest them in one of its own tribunals. Although the legislature may undoubtedly contract, as well as enlarge, court jurisdiction it cannot lift wholesale from the superior courts and bestow on a tribunal of its own making the resolution of disputes theretofore handled by superior courts in respect of rights and obligations in the nature of eviction orders and orders for compliance with contractual mandates.

The Residential Tenancy Commission is charged with the function of interpreting contracts and enforcing contractual rights through the exercise of the impugned powers. The Commission is to be empowered to do what a superior court has always done. It is clearly a Superior Court quoad those powers. The statutory provisions conferring those powers are therefore invalid. In Farrah the jurisdiction which the statute sought to transfer was, in the words of Pigeon J. at pp. 656-7 “precisely the same as that which was previously exercised by the Quebec Court of Appeal”. In the present case the jurisdiction sought to be transferred is precisely the same as that which was previously, and is presently, exercised by the courts.

The Attorney General of Ontario in a supplementary factum submitted that the test implicit in the Tomko case may be expressed in this way: where the Legislature enacts legislation that in its

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“pith and substance” establishes a scheme of substantive law and a scheme for its administration to meet some real social problem within its legislative competence, the Legislature may, as an integral part of the scheme for administration of the statute, confer s. 96 court powers on a non-section-96 tribunal (whether a specialized tribunal or a non‑section‑96 court) if the conferring of such powers is rationally justifiable or functionally appropriate as part of the scheme. In such case, the statute is characterized as a whole as being in pith and substance in relation to the provincial legislative subject matter. The contention seems to be that if the legislature sets up a social agency to meet a social problem, as seen by the legislature, then that determines the validity of a conferral of s. 96 judicial power upon the agency. If the legislation is not aimed at evasion, it cannot be attacked. Such a contention goes too far and is not supported on the authorities.

Implicit throughout the argument advanced on behalf of the Attorney General of Ontario is the assumption that the court system is too formal, too cumbersome, too expensive and therefore unable to respond properly to the social needs which The Residential Tenancies Act is intended to meet. All statutes respond to social needs. The courts are not unfamiliar with equity and the concepts of fairness, justice, convenience, reasonableness. Since the enactment in 1976 of the legislation assuring “security of tenure” the County Court judges of Ontario have been dealing with matters arising out of that legislation, apparently with reasonable despatch, as both landlords and tenants in the present proceedings have spoken clearly against transfer of jurisdiction in respect of eviction and compliance orders from the courts to a special commission. It is perhaps also of interest that there is no suggestion in the material filed with us that the Law Reform Commission favoured removal from the courts of the historic functions performed for over one hundred years by the courts.

I am neither unaware of, nor unsympathetic to, the arguments advanced in support of a view that s. 96 should not be interpreted so as to thwart or unduly restrict the future growth of provincial

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administrative tribunals. Yet, however worthy the policy objectives, it must be recognized that we, as a Court, are not given the freedom to choose whether the problem is such that provincial, rather than federal, authority should deal with it. We must seek to give effect to the Constitution as we understand it and with due regard for the manner in which it has been judicially interpreted in the past. If the impugned power is violative of s. 96 it must be struck down.

I conclude by noting that two provincial Courts of Appeal, in addition to the Ontario Court of Appeal, have had occasion recently to consider provincial power to vest jurisdiction over landlord and tenant matters in a specialized tribunal. The Alberta Court of Appeal in Reference Re Proposed Legislation Concerning Leased Premises and Tenancy Agreements³² decided that a province could not authorize a provincially appointed tribunal to grant orders for possession to a landlord or to grant orders for specific performance of a tenancy agreement. The difficulty facing the Court, as Morrow J.A. noted in his reasons, was that the questions were referred to the court without any accompanying institutional setting. Accordingly, the reasons of the Court of Appeal must of necessity be of limited application for future cases. The British Columbia Court of Appeal, in Re Pepita and Doukas, supra, held that legislation empowering a ‘rentalsman’ to make an order for possession was intra vires the province. The Ontario Court of Appeal, in its judgment in the instant case, elaborated a number of distinctions between the Ontario and British Columbia legislation; these distinctions, it was said, justified the different conclusions reached by the two courts. While noting that such distinctions are indeed possible, this Court need not, on this occasion, express any opinion as to the validity of the British Columbia legislation.

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In the result, I would dismiss the appeal, and answer in the negative the constitutional questions which have been posed by the Executive Council of the Province of Ontario. No question of costs arises.

Appeal dismissed.

Solicitor for the appellant the Attorney General of Ontario: H. Allan Leal, Toronto.

Solicitor for the Attorney General of Quebec: René Dussault, Quebec.

Solicitor for the Attorney General of Nova Scotia: Gordon F. Coles, Halifax.

Solicitor for the Attorney General of British Columbia: Richard Vogel, Victoria.

Solicitor for the Attorney General of Manitoba: Gordon F. Pilkey, Winnipeg.

Solicitor for the Attorney General of Saskatchewan: Richard Gosse, Regina.

Solicitor for the Attorney General of Alberta: Ross Paisley, Edmonton.

Counsel appointed by the Court to present arguments opposed to the validity of the Legislation: John J. Robinette, (McCarthy & McCarthy), Toronto.

Solicitor for the Deputy Attorney General of Canada: Roger Tassé, Ottawa.

Solicitors for the Federation of Metro Tenants Association et al.: Cameron, Brewin & Scott, Toronto.

Solicitors for the Committee of Concern for Rental Housing in Ontario et al.: Cohen, Melnitz‑er, Toronto.

Solicitors for Lawrence A. Greenspon: Karam, Tannis, Ottawa.

Solicitor for the Attorney General of Newfoundland: G.B. MacAulay, St. Johns.

Solicitor for the Law Union of Ontario: Paul H. Reinhardt, Toronto.

Solicitor for R.S. Bentley: R.S. Bentley, Barrie, Ontario.

Solicitor for Peter Lamont: Peter Lamont, Ottawa.

Footnotes

1. 1(1980), 26 O.R. (2d) 609; (1980), 105 D.L.R. (3d) 193.
2. 2(1587), 76 E.R. 676.
3. 3[1971] S.C.R. 689.
4. 4[1961] S.C.R. 775.
5. 5[1940] S.C.R. 444.
6. 6[1937] A.C. 368.
7. 7[1939] A.C. 468.
8. 8[1939] S.C.R. 104.
9. 9(1966), 61 D.L.R. (2d) 317.
10. 10[1976] 2 S.C.R. 373.
11. 11[1950] S.C.R. 124.
12. 12[1939] A.C. 117.
13. 13[1965] 1 Q.B. 232.
14. 14[1953] A.C. 514.
15. 15[1930] A.C. 124.
16. 16[1978] 2 S.C.R. 736.
17. 17(1978), 21 O.R. (2d) 663.
18. 18(1978), 22 O.R. (2d) 376.
19. 19[1938] A.C. 415.
20. 20[1938] S.C.R. 398.
21. 21[1949] A.C. 134.
22. 22[1977] 1 S.C.R. 112.
23. 23[1979] 2 S.C.R. 244.
24. 24[1978] 2 S.C.R. 638.
25. 25(1979), 101 D.L.R. (3d) 577.
26. 26[1958] S.C.R. 535.
27. 27[1927] S.C.R. 271.
28. 28[1976] 2 S.C.R. 520.
29. 29[1979] 1 S.C.R. 729.
30. 30(1849), 18 L.J.Q.B. 199.
31. 31(1869), 12 N.B.R. 372.
32. 32(1978), 89 D.L.R. (3d) 460.