Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186

IN THE MATTER OF a Reference by the Lieutenant Governor of Nova Scotia in Council to the Nova Scotia Court of Appeal pursuant to the Constitutional Questions Act, R.S.N.S. 1989, c. 89, of certain questions relating to the constitutional validity of provisions of An Act to Amend Chapter 401 of the Revised Statutes, 1989, the Residential Tenancies Act, S.N.S. 1992, c. 31

The Attorney General of Nova Scotia Appellant

v.

D. A. Rollie Thompson Respondent

and

The Attorney General for Ontario, the Attorney General of Quebec, the Attorney General of Manitoba and the Attorney General of British Columbia Interveners

Indexed as: Reference re Amendments to the Residential Tenancies Act (N.S.)

File No.: 24276.

1995: October 5; 1996: February 22.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for nova scotia

Constitutional law ‑‑ Courts ‑‑ Jurisdiction ‑‑ Provincial residential tenancies legislation amended to create new dispute resolution mechanism ‑‑ Whether provisions violate s. 96 of Constitution Act, 1867 ‑‑ Whether jurisdiction conferred on residential tenancies director and residential tenancies board is "novel" ‑‑ Act to Amend Chapter 401 of the Revised Statutes, 1989, the Residential Tenancies Act, S.N.S. 1992, c. 31.

The Nova Scotia Residential Tenancies Act was amended in 1992, but the amendments creating a new dispute resolution mechanism were left unproclaimed pending a ruling on their constitutionality. The legislation gives the provincially appointed Director of Residential Tenancies and his delegates the power to investigate, mediate and adjudicate disputes between landlords and their residential tenants. It empowers the Director to make orders for compliance, termination, repair and possession. An appeal lies from the Director's decision to a Residential Tenancies Board as a trial de novo. The Board can order the same remedies that the Director may prescribe. The decision of the Board can be appealed to the Nova Scotia Court of Appeal, with leave, on questions of law or jurisdiction. The jurisdiction of the Director and Board is exclusive. All residential tenancy disputes must be determined by the procedure specified in the Act, and except for formally entering orders and its limited appellate jurisdiction, the superior court has no power to determine them. On a reference by the Lieutenant Governor in Council, the Court of Appeal decided that the legislative provisions were ultra vires as they pertained to the Residential Tenancies Board and intra vires as they pertained to the Director. The Attorney General of Nova Scotia appealed the decision as of right and the respondent cross‑appealed the decision concerning the Director's constitutional status.

Held: The appeal should be allowed and the cross‑appeal dismissed.

Per La Forest, L'Heureux‑Dubé, McLachlin, Iacobucci and Major JJ.: The first step of the test set out in Re Residential Tenancies Act, 1979 for determining whether a conferral of power on an inferior tribunal violates s. 96 of the Constitution Act, 1867 asks whether the power conferred "broadly conforms" to a power or jurisdiction exercised by a superior, district or county court at the time of Confederation. The function of this step is to determine whether the power is analogous to one exercised by the courts that became s. 96 courts. If the inferior courts before Confederation alone exercised the power, or shared it in a practical way with the future superior courts, s. 96 is not engaged and no further inquiry is required. For the purposes of characterizing the judicial power which is said to be removed by its conferral on a provincially appointed body, the focus of the historical inquiry is on the type of dispute involved. The inquiry must not focus on a technical analysis of remedies, nor should it evaluate the nature and goals of the legislative scheme, which fall to be considered only at the third stage should the inquiry progress that far. The concern is to ascertain whether the type of dispute at issue is broadly conformable to one which fell to be decided exclusively or predominantly by the superior courts at or about the time of Confederation.

The evidence adduced in this case demonstrates that the superior courts of Canada did not enjoy exclusive jurisdiction over tenancy disputes at the time of Confederation. In every former colony inferior courts exercised a significant concurrent jurisdiction at or about the time of Confederation. It follows that the Nova Scotia legislature's conferral of jurisdiction over residential tenancies on a provincially appointed tribunal does not violate s. 96.

The legislation at issue here does not meet the test for novel jurisdiction. The powers conferred are clearly analogous to those exercised by the courts in 1867. The legislation codifies the existing law and establishes an impartial dispute resolution mechanism for landlords and tenants. Both the Director and the Board decide disputes between the parties. The parties present evidence and make submissions. Appeals are allowed and orders can be enforced by the parties as orders of the court. This is exactly the sort of work courts have traditionally done in relation to residential tenancy disputes. While there is little doubt that the process of urbanization has increased the number of residential tenants living in cities, the number of people renting premises as a percentage of the total population appears to have remained relatively constant over the years. More importantly, the increased urbanization of residential tenancy is not sufficient to transform the subject matter of the jurisdiction. Codifying law cannot create a new jurisdiction, since codification necessarily presumes the jurisdiction previously existed. Moreover, the Act does not fundamentally change the leasehold and contractual nature of residential tenancies. Finally, the fact that the legislation apparently seeks to address a perceived social priority is not sufficient to create a new jurisdiction.

Per Lamer C.J. and Sopinka and Cory JJ.: The proper characterization of the statutory provisions at issue here is "jurisdiction over residential tenancies; disputes between residential landlords and tenants". This jurisdiction is a novel one which did not exist in 1867, and is thus not a jurisdiction that must be exercised by a s. 96 superior court judge. In determining whether a jurisdiction is novel the court should consider whether the legislation is an attempt to respond to a new societal interest and approach regarding the subject matter of the legislation, whether the legislation is based on principles of law that make it distinct from similar legislation, and whether there is an identifiable social policy that is different from the policy goals of analogous legislation. Although the law of landlord and tenant is clearly not novel, the concept of a residential tenancy is largely a phenomenon of modern and urban society. In 1867, while there were no doubt some residential tenancy disputes, there was no jurisdiction over them in the manner contemplated by the contemporary Nova Scotia legislature. The Residential Tenancies Act has carved out a distinct branch of landlord‑tenant law and developed a complete code to govern the residential tenancy relationship. Finally, there is an identifiable social policy that is different from analogous legislation. This is legislation of a clearly social nature which reflects a distinct evolution since 1867 and a completely different notion of residential landlord and tenant relations from that which existed at that time. Further, had this jurisdiction been in existence prior to Confederation, the legislatures in the four confederating provinces would have granted it to their inferior courts. Residential tenancy disputes involve a high volume of repetitive and narrowly defined matters of limited complexity. They are amply suited to resolution by lay persons applying the rules with fairness and common sense. As the challenged jurisdiction in this case does not run afoul of the first branch of the test set out in Re Residential Tenancies Act, 1979 because it is a novel jurisdiction which does not broadly conform to a power or jurisdiction exercised by superior, district or county courts at the time of Confederation, there is no need to consider the second or third branches of that test.

Per Gonthier J.: While the framework set forth by Lamer C.J. for the analysis of whether a jurisdiction conferred on courts is novel for the purpose of applying s. 96 of the Constitution Act, 1867 was agreed with, the legislative scheme does not embody a sufficiently novel social philosophy or approach as to exclude analogy with jurisdiction assigned to the courts at the time of Confederation. For the reasons given by McLachlin J., the superior courts of Canada did not enjoy exclusive jurisdiction over tenancy disputes at the time of Confederation and consequently the impugned provisions of the Residential Tenancies Act do not violate s. 96 of the Constitution Act, 1867.

Cases Cited

By McLachlin J.

Referred to: Sobeys Stores Ltd. v. Yeomans, [1989] 1 S.C.R. 238 (https://www.minicounsel.ca/scc/1989/116); Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714 (https://www.minicounsel.ca/scc/1981/24); Attorney General of Quebec v. Grondin, [1983] 2 S.C.R. 364 (https://www.minicounsel.ca/scc/1983/165); Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252 (https://www.canlii.org/en/ca/scc/doc/1990/1990canlii19/1990canlii19.html); Dupont v. Inglis, [1958] S.C.R. 535 (https://www.canlii.org/en/ca/scc/doc/1958/1958canlii83/1958canlii83.html); Re Burke and Arab (1981), 130 D.L.R. (3d) 38 (https://www.canlii.org/en/ns/nsca/doc/1981/1981canlii2696/1981canlii2696.html), leave to appeal refused, [1983] 1 S.C.R. 55 (https://www.minicounsel.ca/scc/1983/140); Re Attorney‑General of Nova Scotia and Gillis (1980), 111 D.L.R. (3d) 349 (https://www.canlii.org/en/ns/nsca/doc/1980/1980canlii2450/1980canlii2450.html); Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd., [1949] A.C. 134 (https://www.canlii.org/en/ca/ukjcpc/doc/1948/1948canlii266/1948canlii266.html).

By Lamer C.J.

Applied: Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252 (https://www.canlii.org/en/ca/scc/doc/1990/1990canlii19/1990canlii19.html); referred to: Re Burke and Arab (1981), 130 D.L.R. (3d) 38 (https://www.canlii.org/en/ns/nsca/doc/1981/1981canlii2696/1981canlii2696.html), leave to appeal refused, [1983] 1 S.C.R. 55 (https://www.minicounsel.ca/scc/1983/140); Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714 (https://www.minicounsel.ca/scc/1981/24); Attorney General of Quebec v. Grondin, [1983] 2 S.C.R. 364 (https://www.minicounsel.ca/scc/1983/165); Sobeys Stores Ltd. v. Yeomans, [1989] 1 S.C.R. 238 (https://www.minicounsel.ca/scc/1989/116); MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725 (https://www.minicounsel.ca/scc/1995/57); Reference re Adoption Act, [1938] S.C.R. 398 (https://www.canlii.org/en/ca/scc/doc/1938/1938canlii2/1938canlii2.html); Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd., [1949] A.C. 134 (https://www.canlii.org/en/ca/ukjcpc/doc/1948/1948canlii266/1948canlii266.html); Procureur Général de Québec v. Barreau de la Province de Québec, [1965] S.C.R. 772 (/fr/ca/csc/doc/1965/1965canlii46/1965canlii46.html); Re: B.C. Family Relations Act, [1982] 1 S.C.R. 62 (https://www.minicounsel.ca/scc/1982/155); Scowby v. Glendinning, [1986] 2 S.C.R. 226 (https://www.minicounsel.ca/scc/1986/30); Massey‑Ferguson Industries Ltd. v. Saskatchewan, [1981] 2 S.C.R. 413 (https://www.minicounsel.ca/scc/1981/209); Brooks v. Pavlick, [1964] S.C.R. 108 (https://www.canlii.org/en/ca/scc/doc/1963/1963canlii19/1963canlii19.html); Asselin v. Industries Abex Ltée (1985), 22 D.L.R. (4th) 212 (https://www.canlii.org/en/qc/qcca/doc/1985/1985canlii3136/1985canlii3136.html); Walker's Case (1587), 3 Co. Rep. 22a., 76 E.R. 676; Re Pepita and Doukas (1979), 101 D.L.R. (3d) 577 (https://www.canlii.org/en/bc/bcca/doc/1979/1979canlii757/1979canlii757.html); Pajelle Investments Ltd. v. Herbold, [1976] 2 S.C.R. 520 (https://www.canlii.org/en/ca/scc/doc/1975/1975canlii32/1975canlii32.html).

Statutes and Regulations Cited

Act concerning the City of Halifax, S.N.S. 1864, 27 Vict., c. 81, s. 123.

Act further to enlarge the jurisdiction of the City Court of the City of Saint John, and in amendment of the Law relating to said Court, S.N.B. 1864, 27 Vict., c. 46.

Act relating to the City Court of the City of Saint John, S.N.B. 1860, 23 Vict., c. 57.

Act respecting the Division Courts, C.S.U.C. 1859, c. 19, s. 55(2).

Act to amend an Act intituled An Act to amend the Law relating to the collection of Taxes and small debts in the Parish of Portland, in the City and County of Saint John, and for other purposes in the said Parish, S.N.B. 1867, 30 Vict., c. 36, s. 4.

Act to Amend Chapter 401 of the Revised Statutes, 1989, the Residential Tenancies Act, S.N.S. 1992, c. 31, ss. 7, 8(2) [not yet in force].

Act to enlarge the jurisdiction of the City Court of the City of Saint John, S.N.B. 1859, 22 Vict., c. 38, s. 1.

Act to improve the Administration of the Law, and to reduce the number of Courts of Justice within this Province, and to diminish the expense of the Judiciary therein, S.N.S. 1841, 4 Vict., c. 3.

Act to Incorporate the Town of Halifax, S.N.S. 1841, 4 Vict., c. 55, s. 54.

Act to regulate proceedings before Justices of the Peace in Civil Suits, S.N.B. 1834, 4 Gul. 4, c. 45.

Act to regulate the Summary Trial of Actions before His Majesty's Justices of the Peace, in the Town and Peninsula of Halifax, S.N.S. 1792, 32 Geo. 3, c. 14.

Charter of City of Saint John, S.N.B. 1855, 18 Vict., vol. 3, Appendix.

Constitution Act, 1867, ss. 92(14), 96, 97 to 101.

Of Tenancies and of Forcible Entry and Detainer, R.S.N.S. 1864, c. 140.

Of the Jurisdiction of Justices in Civil Suits, R.S.N.B. 1854, c. 137, s. 53.

Of the Jurisdiction of Justices of the Peace in Civil Cases, R.S.N.S. 1864, c. 128, s. 1.

Residential Tenancies Act, R.S.N.S. 1989, c. 401, ss. 3(1), 7(1), 13 to 17 [rep. & sub. 1992, c. 31, s. 7], 18(3), (4) [rep. & sub. idem, s. 8(2)], 21.

Residential Tenancies Act, S.N.S. 1970, c. 13.

Supreme Court Act, R.S.C., 1985, c. S‑26, s. 36.

Authors Cited

Acheson, T. W. "The National Policy and the Industrialization of the Maritimes, 1880‑1910", Acadiensis, I, 2 (Spring 1972), pp. 3-28.

Alberta. Institute of Law Research and Reform. Residential Tenancies. Report No. 22. Edmonton: The Institute, 1977.

Beck, J. Murray. The Government of Nova Scotia. Toronto: University of Toronto Press, 1957.

Bell, D. G. "A Perspective on Legal Pluralism in 19th‑Century New Brunswick" (1988), 37 U.N.B.L.J. 86.

British Columbia. Law Reform Commission. Landlord and Tenant Relationships: Residential Tenancies. Project No. 12. Vancouver: The Commission, 1973.

Burpee, Lawrence J. "The Golden Age of Nova Scotia" (1929), 36 Queen's Q. 380.

Elliot, Robin. Comment (1982), 16 U.B.C. L. Rev. 313.

Girard, Philip. "The Rise and Fall of Urban Justice in Halifax, 1815‑1886" (1988), 8:2 Nova Scotia Historical Review 57.

Haliburton, Thomas C. An Historical and Statistical Account of Nova Scotia. Halifax: Joseph Howe, 1829.

Halsbury's Laws of England, vol. 1, 3rd ed. London: Butterworth & Co., 1952.

Historical Atlas of Canada, vol. II, The Land Transformed 1800-1891. Toronto: University of Toronto Press, 1993.

Inwood, Kris E. "Maritime Industrialization from 1870 to 1910: A Review of the Evidence and Its Interpretation", Acadiensis, XXI, 1 (Autumn 1991), pp. 132‑55.

Lamont, Donald H. L. The Landlord and Tenant Act Part IV: A Section by Section Analysis of the First Amendments to the Landlord and Tenant Act in Over 50 Years. Toronto: Carswell, 1970.

Lederman, W. R. "The Independence of the Judiciary" (1956), 34 Can. Bar Rev. 769, 1139.

MacNeil, Michael. "Property in the Welfare State" (1983), 7 Dalhousie L.J. 343.

Murdoch, Beamish. Epitome of the Laws of Nova Scotia, vol. III. Halifax: Joseph Howe, 1833.

Nova Scotia. Report of the Nova Scotia Court Structure Task Force, Appendix 1, "History of Nova Scotia Courts". March 1991.

Ontario. Law Reform Commission. Interim Report on Landlord and Tenant Law Applicable to Residential Tenancies. Toronto: Department of the Attorney General, 1968.

Oxner, Sandra E. "The Evolution of the Lower Court of Nova Scotia". In Law in a Colonial Society: The Nova Scotia Experience. Edited by Peter Waite, Sandra Oxner and Thomas Barnes. Toronto: Carswell, 1984.

Patterson, George. "The Establishment of the County Court in Nova Scotia" (1943), 21 Can. Bar Rev. 394.

Townsend, Charles J. "Historical Account of the Courts of Judicature in Nova Scotia" (1899), 19 Can. L.T. 25.

Williams' The Canadian Law of Landlord and Tenant, 4th ed. By F. W. Rhodes. Toronto: Carswell, 1973.

Woodfall's Law of Landlord and Tenant, 28th ed. By V. G. Wellings. London: Sweet & Maxwell, 1978.

APPEAL and CROSS‑APPEAL from a judgment of the Nova Scotia Court of Appeal (1994), 1994 NSCA 124, 115 D.L.R. (4th) 129, 130 N.S.R. (2d) 346, 27 Admin. L.R. (2d) 196, on a reference concerning the constitutional validity of certain statutory provisions. Appeal allowed and cross‑appeal dismissed.

Alexander M. Cameron, for the appellant.

D. A. Rollie Thompson, solicitor appointed to act as respondent.

Janet E. Minor and Dale E. Ives, for the intervener the Attorney General for Ontario.

Jean Bouchard and Isabelle Harnois, for the intervener the Attorney General of Quebec.

Donna J. Miller, Q.C., and Deborah L. Carlson, for the intervener the Attorney General of Manitoba.

Deborah K. Lovett, for the intervener the Attorney General of British Columbia.

The reasons of Lamer C.J. and Sopinka and Cory JJ. were delivered by

Lamer C.J. -- This is an appeal from a judgment of the Nova Scotia Court of Appeal on a reference concerning the constitutionality of certain provisions of An Act to Amend Chapter 401 of the Revised Statutes, 1989, the Residential Tenancies Act, S.N.S. 1992, c. 31.

I. Introduction

As our society has become more urbanized, complex and regulated, the need for efficient and speedy dispute resolution has become an important goal of provincial administration. This case requires us once again to consider the limits placed by s. 96 of the Constitution Act, 1867 and its jurisprudence on the ability of provinces to reorganize their court structure and allocate judicial functions to administrative agencies. We must determine whether provincial appointees may adjudicate residential tenancies disputes.

II. Factual Background

In 1970, Nova Scotia responded to the perceived needs of its growing and increasingly urban population by enacting residential tenancy legislation. Clear-cut statutory rights and duties were substituted for common law contract and property law principles, which had been evolving since feudal times. This simplified the issues that could arise between landlords and tenants, and residential tenancy boards composed of lay persons were given jurisdiction to settle their disputes. The intention of the legislature to make the Residential Tenancies Act, S.N.S. 1970, c. 13, a complete code was frustrated when the dispute settlement mechanism was struck down by the Nova Scotia Court of Appeal in Re Burke and Arab (1981), 1981 CanLII 2696 (NS CA), 130 D.L.R. (3d) 38 (leave to appeal refused as there was no longer a dispute between the parties, 1983 CanLII 140 (SCC), [1983] 1 S.C.R. 55) because it failed to pass constitutional muster under the s. 96 test established by this Court in Re Residential Tenancies Act, 1979, 1981 CanLII 24 (SCC), [1981] 1 S.C.R. 714.

Under the present dispute resolution regime, a landlord or tenant can bring a complaint under the Residential Tenancies Act, R.S.N.S. 1989, c. 401, to the Supreme Court of Nova Scotia. The court then refers the complaint to the Residential Tenancies Board, where the hearing takes place before a one-member board. A decision is reached in the form of a report. The Board's report is submitted back to the court for approval, which is rarely withheld unless either party files a notice of objection. On considering the objection the court can dismiss it, return the matter to the Board, call for further information, and vary the report. There is a further appeal to the Nova Scotia Court of Appeal on questions of law and jurisdiction.

The Residential Tenancies Act was amended in 1992 pursuant to An Act to Amend Chapter 401 of the Revised Statutes, 1989, the Residential Tenancies Act. The amendments creating a new dispute resolution mechanism were left unproclaimed pending our answer to its constitutionality. The amendments provide for a Director of Residential Tenancies who has three duties -- investigation, mediation and decision making. The Director is also empowered to order a landlord or tenant to comply with the provisions of a lease, not to breach a lease again, pay compensation, terminate a tenancy and order a tenant to vacate, determine the disposition of security deposits, and direct that the tenant pay rent in trust to the Director pending performance of a duty by the landlord. An appeal lies from the Director's decision to a Residential Tenancies Board as a trial de novo. The Board can order the same remedies that the Director may prescribe. The decision of the Board can be appealed to the Nova Scotia Court of Appeal, with leave, on questions of law or jurisdiction.

The question of the constitutionality of the unproclaimed amendments was referred by the Lieutenant Governor-in-Council of Nova Scotia to the Nova Scotia Court of Appeal by Order in Council dated November 2, 1993. The Nova Scotia Court of Appeal decided (4:1) that the legislative provisions were ultra vires as they pertained to the Residential Tenancies Board and (5:0) that the legislative provisions were intra vires as they pertained to the Director: (1994), 1994 NSCA 124, 115 D.L.R. (4th) 129, 130 N.S.R. (2d) 346, 27 Admin. L.R. (2d) 196. The Attorney General of Nova Scotia appeals as of right the decision of the Nova Scotia Court of Appeal pursuant to s. 36 of the Supreme Court Act, R.S.C., 1985, c. S-26. The respondent cross-appeals the decision of the Nova Scotia Court of Appeal concerning the constitutional status of the Director.

III. Relevant Constitutional and Statutory Provisions

Section 96 of the Constitution Act, 1867, provides:

96. 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.

Section 7 of An Act to Amend Chapter 401 of the Revised Statutes, 1989, the Residential Tenancies Act (the "Act") repeals ss. 13 to 17 of the Residential Tenancies Act and replaces them with the following sections:

APPLICATION TO DIRECTOR

13 (1) Where a person applies to the Director

(a) to determine a question arising under this Act; or

(b) alleging a breach of a tenancy agreement or a contravention of a provision of this Act,

and, not more than ninety days after the termination of the tenancy, files with the Director the form prescribed by the regulations, together with the fee, if any, prescribed by the regulations, the Director is the exclusive authority, at first instance, to investigate and endeavour to mediate a settlement.

(2) Upon making an application pursuant to subsection (1), the applicant shall, in accordance with the regulations, serve the other parties to the matter with a copy of the application.

(3) The Director may, on the Director's own initiative, investigate and determine a matter arising pursuant to a tenancy agreement or this Act.

(4) In exercising authority pursuant to this Section, the Director may determine and adopt the most expeditious method of investigating, mediating and determining a matter.

(5) On receiving an application pursuant to subsection (1), the Director shall investigate and, subject to subsections (7) and (8), endeavour to mediate a settlement of the matter.

(6) If a matter is settled by mediation, the Director shall make a written record of the settlement which shall be signed by both parties and which is binding on the parties and is not subject to appeal.

(7) If, after investigating the matter, the Director is of the opinion that the parties are unlikely to settle it by mediation within fourteen days, or if the matter is urgent and it involves the safety or security of the landlord, the tenant or other tenants, the Director may make a decision or order in accordance with Section 14.

(8) The Director may refuse to accept an application or continue a proceeding where, in the Director's opinion, the matter is trivial, frivolous, vexatious or has not been initiated in good faith, and may, subject to the approval of the Minister, issue an order to that effect.

(9) An applicant may withdraw an application at any time before an order or decision is made.

(10) For greater certainty, the landlord and the tenant have the right to be represented by legal counsel at any stage of the proceedings.

14 (1) A decision or order made by the Director pursuant to Section 13 may

(a) require a landlord or tenant to comply with a lease or an obligation pursuant to this Act;

(b) require a landlord or tenant not to again breach a lease or an obligation pursuant to this Act;

(c) require any repair or action to be taken by the landlord or tenant to remedy a breach, and require the landlord or tenant to pay any reasonable expenses associated with the repair or action;

(d) order compensation to be paid for any loss that has been suffered or will be suffered as a direct result of the breach;

(e) terminate the tenancy on a date specified in the order and order the tenant to vacate the residential premises on that date;

(f) determine the disposition of a security deposit;

(g) direct that the tenant pay the rent in trust to the Director pending the performance by a landlord of any act the landlord is required by law to perform.

(2) A decision or order made by the Director pursuant to Section 13 is, and is deemed to be, when no appeal is made pursuant to Section 15 within the time provided by that Section, a decision or order of a board.

APPEALS

15 (1) Except as otherwise provided in this Act, any person, directly affected by a decision or order of the Director, may appeal the decision or order to the residential tenancies board for the area in which the residential premises to which the decision or order relates are situate.

(2) An appeal may be commenced by filing with the Director, within ten days of the making of the decision or order, a notice of appeal in the form prescribed by the regulations and paying to the Director, within the said period of ten days, a fee in the amount prescribed by the regulations.

(3) The appellant shall, in the manner prescribed by the regulations, give a copy of the notice of appeal to all persons directly affected by the decision or order.

(4) The board shall give reasonable notice of the hearing to the parties by public notice given in the manner prescribed by the regulations, by personal service or by registered mail.

(5) The board shall conduct a hearing in respect of a matter for which a notice of appeal is filed.

(6) The board shall determine its own practice and procedure but shall give full opportunity for the parties to present evidence and make submissions.

(7) The board may conduct a hearing orally, including by telephone, or in writing or partly in writing and partly orally.

(8) Evidence may be given before the board in any manner that the board considers appropriate, and the board is not bound by rules of law respecting evidence applicable to judicial proceedings.

16 (1) Within seven days of holding a hearing pursuant to Section 15, the board shall

(a) confirm, vary or rescind the decision or order of the Director;

(b) make any decision or order that the Director could have made.

(2) The board shall compile a record of a hearing which shall consist of

(a) the decision or order of the Director that was appealed from;

(b) the notice of appeal to the board;

(c) the notice of hearing by the board;

(d) any written submissions received by the board; and

(e) the decision or order of the board and any reasons for the decision or order.

17A (1) Subject to subsections (2) and (3), any person who is a party to an appeal to a board pursuant to this Act may, if that person took part in the hearing, appeal the decision or order of the board to the Appeal Division of the Supreme Court.

(2) An appeal pursuant to this Section may only be taken on a question of law or jurisdiction and only with leave obtained from a judge of the Appeal Division of the Supreme Court.

(3) An application for leave to appeal shall be made within fourteen days of the decision or order of the board or within such further time as the judge allows.

(4) The board is entitled to be heard, by counsel or otherwise, on the argument of an application for leave to appeal and on an appeal pursuant to this Section.

(5) The Appeal Division of the Supreme Court, on hearing an appeal pursuant to this Section, may

(a) make any decision or order that in its opinion ought to have been made;

(b) quash, vary or confirm the decision of the board;

(c) refer the matter back to the board with the direction of the Court.

Section 8(2) repeals ss. 18(3) and (4) of the Residential Tenancies Act and replaces them with the following subsections:

(4B) It is the function of a board and the board has the power to hear appeals from decisions or orders of the Director.

IV. The Constitutional Issues

I stated the following constitutional questions on December 6, 1994:

1.Are the unproclaimed provisions of An Act to Amend Chapter 401 of the Revised Statutes, 1989, the Residential Tenancies Act, S.N.S. 1992, c. 31 (the "Act"), within the legislative jurisdiction of the House of Assembly of Nova Scotia to the extent that those provisions confer authority respecting residential tenancies upon persons other than judges appointed pursuant to s. 96 of the Constitution Act, 1867, and, most particularly, are the following provisions of the Act within the legislative jurisdiction of the House of Assembly of Nova Scotia?

2.If the aforesaid provisions of the Act are not within the legislative jurisdiction of the House of Assembly of Nova Scotia, in what particular respects are those provisions ultra vires?

V.The Decision of the Nova Scotia Court of Appeal (1994), 1994 NSCA 124, 115 D.L.R. (4th) 129

The Majority (Clarke C.J.N.S., and Matthews, Chipman and Roscoe JJ.A.)

Clarke C.J.N.S., writing for the majority, applied the s. 96 test that was set out in Re Residential Tenancies Act, 1979, supra. Characterization of the impugned provisions was the first issue. The majority appeared to adopt the characterization advanced by the respondent as jurisdiction "to determine residential tenancies disputes, including the power to make orders for compliance, repair, compensation, termination and possession, and related matters" (p. 140). Applying the historical analysis, the majority concluded that jurisdiction over landlord and tenancy matters was vested in s. 96 courts in 1867 in three of the confederating provinces (Ontario, Nova Scotia and New Brunswick) and concurrent or shared in one (Quebec).

The majority was satisfied that the historical picture for Ontario was settled in the Supreme Court of Canada's decision in Re Residential Tenancies Act, 1979. So too for Nova Scotia, the majority was satisfied that its earlier decision in Burke, supra, settled the historical issue in Nova Scotia. In Burke, the court had concluded that jurisdiction over disputes between landlord and tenants, including eviction orders, were within the exclusive domain of the superior courts. Although in the instant case, the court had before it certain historical information regarding the Inferior Court of Common Pleas that may not have been before the court in Burke, they were satisfied that the conclusion in Burke was correct.

Clarke C.J.N.S. then reviewed the New Brunswick situation. On June 17, 1867 legislation was passed to confer jurisdiction over tenancy matters on the County Court, and the Inferior Court of Common Pleas (which had, until this time, shared jurisdiction over tenancy matters with the Supreme Court) was abolished. The majority thus concluded that it was an undisputed historical fact that on July 1, 1867 there was no longer an Inferior Court of Common Pleas and that jurisdiction to deal with landlord and tenant law was vested in the County Court (a s. 96 court). Clarke C.J.N.S. concluded his historical inquiry by finding that the result of the historical analysis in Quebec was determined by the Supreme Court of Canada in Attorney General of Quebec v. Grondin, 1983 CanLII 165 (SCC), [1983] 2 S.C.R. 364. In that case, the Supreme Court found that while the Superior Court and Circuit Court had jurisdiction over relations between lessors and lessees, jurisdiction was shared with an inferior court system province-wide, so that the Quebec legislation was upheld.

With regard to the second step in the Re Residential Tenancies Act, 1979 test, Clarke C.J.N.S. examined the Director separately from the Board. He found the thrust of the Director's role to be one of mediation and investigation and that the legislation was designed as a means for landlords and tenants to settle disputes in a speedy and uncomplicated fashion. Mediation and investigation were desirable goals and were the essence of alternative dispute resolution that avoided the "trappings" of the courts. Noting that under the present system substantially more than one-half of the complaints are settled during the informal mediation processes that are presently in place, Clarke C.J.N.S. found that investigation and mediation by the Director and through the Director by residential tenancies officers of provincial appointment was a desirable social and economic goal designed to meet a societal need. In considering the decision-making process vested in the Director, Clarke C.J.N.S. found that a person dissatisfied by a decision or order of the Director could appeal to the Residential Tenancies Board, which would conduct a hearing de novo at which the parties would be given a full opportunity to be heard. Consequently, Clarke C.J.N.S. found it difficult to conclude that the judicial function predominated at the first level of the dispute. He concluded that the nature of the function of the Director was administrative. No further examination was required and he held the provincial appointment process of the Director and the Director's delegation to residential tenancies officers was intra vires.

Clarke C.J.N.S. next considered the procedure by which the Residential Tenancies Board would operate and found that adjudication was the principal and dominant function of the board. He found that the Board is required to decide private disputes between parties. It is neither a mediator nor an investigator and it is not empowered to devise or implement a regime of broad social policy but rather it must find facts and apply the law to those facts.

The majority's finding that the Residential Tenancies Board is exercising a judicial function required the court to apply the third branch of the Re Residential Tenancies Act, 1979 test. Clarke C.J.N.S. noted that in adjudicating on the matters described in the unproclaimed legislation, the Board was not exercising powers that were subsidiary or ancillary to general administrative functions. It did not have administrative functions. Clarke C.J.N.S. found that adjudication that was judicial in nature was the core and central function of the Board. The Board determined rights and obligations of competing parties; it heard the lis de novo; and made its own determination on the facts and issues. The central function of the Board was to deal with a subject that by historical analysis was within the jurisdiction of s. 96 courts at the time of Confederation. He found that the powers given could not be sustained as a necessary incident "to the achievement of a broader policy goal of the Legislature" (p. 158). The Board was designed to decide issues, almost all of which were legal, between competing parties in an impartial and evenhanded manner.

Clarke C.J.N.S. found that the powers and functions of the Board could not survive the three Re Residential Tenancies Act, 1979 tests. The proposed Board fell within the constitutional rules that prohibited delegation of the powers the provinces proposed to endow the Board with. However, Clarke C.J.N.S. was of the opinion that a Board presided over by persons of provincial appointment, other than s. 96 judges, would be competent to exercise these functions if there was a supervisory jurisdiction exercised by a s. 96 court of first instance and if the powers of appeal to the Court of Appeal were not limited to questions of law or jurisdiction. The majority therefore concluded that the powers purported to be conferred on the Director were intra vires while the powers purported to be conferred on the Residential Tenancies Board were ultra vires.

The Dissent (Freeman J.A)

Freeman J.A. stated that the jurisdiction which the unproclaimed provisions would remove from the Supreme Court has two aspects: a largely nominal supervisory jurisdiction, and a jurisdiction analogous in part to appellate jurisdiction in those cases when a party files a notice of objection. He characterized the jurisdiction as a whole as jurisdiction over the settlement of disputes between residential landlords and tenants. He determined that the unproclaimed amendments should be upheld on an historical analysis.

Applying that historical analysis, Freeman J.A. found that if the test in Grondin, supra, could be applied to Nova Scotia, the answer was apparent. In 1864 the Legislative Assembly of Nova Scotia enacted the Halifax City Charter that created a city court and gave it powers constitutionally indistinguishable from the powers of the Montreal Recorder's Court in Grondin. He also found that this enactment demonstrated that the pre-Confederation legislature "recognized that jurisdiction over lessor-lessee relations could be conferred on lower courts" (p. 173). He noted that these powers were concurrent with and analogous to the landlord-tenant jurisdiction of the Supreme Court. Therefore, it was more probable than not that the inferior courts of Nova Scotia enjoyed a jurisdiction that was broadly co-extensive with that of the Supreme Court in landlord-tenant matters.

As for Quebec, his Lordship stated that Grondin had established that the inferior courts of Quebec exercised a similar jurisdiction. For the present purposes, he accepted that the inferior courts in Ontario did not share such a jurisdiction, although he did not find the narrow characterization of the issue in Re Residential Tenancies Act, 1979, supra, conclusive of the question.

Freeman J.A. turned the historical lens to New Brunswick. He reviewed legislative provisions and concluded that the Inferior Courts of Common Pleas appeared to have been inferior courts in a s. 96 sense, although much of their jurisdiction was to be found in the District and County courts after Confederation. The jurisdiction of the inferior courts was greater in New Brunswick than in Nova Scotia because of the historical reluctance of Supreme Court judges to go on circuit. The Inferior Courts of Common Pleas were largely lay courts and answerable to the Supreme Court on writs of error. Since the Inferior Courts of Common Pleas were abolished and the jurisdiction transferred to the County Courts as of June 17, 1867, technically inferior court jurisdiction in landlord and tenant matters was never exercised in New Brunswick after Confederation. Freeman J.A. found it significant that jurisdiction over landlord-tenant matters was identified not as a matter exclusively for superior courts in New Brunswick, but one which could be concurrently exercised by inferior courts.

Freeman J.A. moved to the question of the meaning of "analogous" legislation in the s. 96 context. His Lordship contrasted the functions of superior courts with those of inferior courts. Section 96 courts at the time of Confederation had broad judicial power, were presided over by professional judges who had been formally trained in the law and caseloads were geared to unique, difficult and complex matters. On the other hand, inferior courts in Nova Scotia and generally in the other confederating provinces as well as in England exercised limited statutory jurisdiction, were subject to supervision of the superior courts, were presided over by lay persons without formal legal training who were to resolve disputes by finding the facts and applying simple legal principles, and dealt with a high volume of repetitive matters of limited complexity.

According to Freeman J.A., the residential tenancies boards described in the unproclaimed amendments are limited to a narrowly defined statutory jurisdiction subject to the right of appeal to the Court of Appeal. They are presided over by lay persons; they resolve disputes between landlords and tenants by adjudicating the facts and applying residential tenancy rules; and they are required to deal with a high volume of repetitive matters of limited complexity. Thus, Freeman J.A. found the jurisdiction of the residential tenancy boards was broadly analogous to the jurisdiction of inferior courts at the time of Confederation, not to that of s. 96 courts. Freeman J.A. noted that while these considerations might be relevant to the institutional setting at the third stage of the test, he found that they also formed part of the historical analysis in determining whether the board exercised jurisdiction analogous to that of the s. 96 courts at Confederation. He held that the unproclaimed amendments could be found constitutional on this basis without proceeding to the second and third tests.

Freeman J.A. also found the Grondin, supra, case to be an insuperable barrier to a finding that the unproclaimed amendments were ultra vires. He found that it was the clearest possible statement of the Supreme Court of Canada that residential tenancies jurisdiction was not the exclusive preserve of s. 96 courts in Canada at the time of Confederation. It was no longer open, he argued, for courts to apply the historical yardstick and find that residential tenancies jurisdiction was exclusively reserved to the s. 96 courts in all four provinces at the time of Confederation. Although the national historical yardstick test of the four confederating provinces was not used in Grondin, it was correctly decided on the principles then prevailing. The Supreme Court was aware of Grondin in formulating the four-province yardstick in Sobeys Stores Ltd. v. Yeomans, 1989 CanLII 116 (SCC), [1989] 1 S.C.R. 238, and there was no suggestion that Grondin should not remain the law in residential tenancy matters. He held that the "necessary implication is that the Supreme Court of Canada excluded, and intended to exclude, residential tenancies jurisdiction from future four-province tests" (p. 185) because Grondin had already decided the question. Freeman J.A. found that even if he had not already determined that the provincial legislation must be upheld on other grounds, applying Grondin meant that he would have been unable to escape that conclusion.

In the alternative, Freeman J.A. concluded that the legislation passed the third step of the Re Residential Tenancies Act, 1979 test. He concurred with the conclusions of Clarke C.J.N.S., to the effect that the director was acting in an administrative and not a judicial capacity. He also agreed that the Board was acting judicially, in conducting a trial de novo. With regard to the third test the Nova Scotia legislature had reacted to the needs of persons in rented living accommodation and chose to codify the law of residential tenancies and to provide a simple, accessible and inexpensive procedure for settling disputes far removed from the manner in which s. 96 courts exercised their landlord-tenant jurisdiction at the time of Confederation. The boards were to dispense summary justice which was fact-oriented, streamlined and repetitive, in the manner of inferior courts at the time of Confederation. Consequently, Freeman J.A. concluded that the unproclaimed amendments are within the legislative competence of the province of Nova Scotia and do not offend the guaranteed jurisdiction of the s. 96 courts.

V. Analysis

(a) The Purpose of Section 96

Section 96 of the Constitution Act, 1867 is part of the judicature provisions (ss. 96 to 101) designed by the framers to ensure the independence of the judiciary. The federal power of appointment of superior court judges, constitutionally protected in s. 96, establishes "the primary and specially-entrenched place of the superior courts of the country in the function of interpreting and applying law" (W. R. Lederman, "The Independence of the Judiciary" (1956), 34 Can. Bar Rev. 769, 1139, at p. 1178). I described another fundamental purpose of s. 96 in Reference re Young Offenders Act (P.E.I.), 1991 CanLII 11713 (SCC), [1991] 1 S.C.R. 252, at p. 264, in these words:

Section 96 of the Constitution Act, 1867 is regarded as a means of protecting the "core" jurisdiction of the superior courts so as to provide for some uniformity throughout the country in the judicial system. The case law has developed principles to ensure that s. 96 would not be rendered meaningless through the use of the provincial competence to constitute, maintain and organize provincial courts staffed with provincially appointed judges having the same jurisdiction and powers as superior courts. [Emphasis added.]

The "core" jurisdiction theory as it relates to the inherent jurisdiction of superior courts was further discussed and elaborated in MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725.

Notwithstanding the importance of s. 96 in its institutional context (i.e. the protection of the independence and the "core" jurisdiction of superior courts), we have recognized that a constitution is a "living tree" which must be capable of accommodating new areas and new interests. Consequently, a flexible approach has been adopted in determining when judicial power may be transferred to inferior courts and tribunals. (See Reference re Adoption Act, 1938 CanLII 2 (SCC), [1938] S.C.R. 398; Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd., 1948 CanLII 266 (UK JCPC), [1949] A.C. 134 (P.C.); Procureur Général de Québec c. Barreau de la Province de Québec, 1965 CanLII 46 (CSC), [1965] S.C.R. 772; Re Residential Tenancies Act, 1979, supra, at p. 732; Re: B.C. Family Relations Act, 1982 CanLII 155 (SCC), [1982] 1 S.C.R. 62, at pp. 112-13.)

Consistent with this flexible approach, this Court, on occasion, has expressed sympathy for the proposition that s. 96 should not be interpreted so as to thwart or unduly restrict the future growth of provincial administrative tribunals (Re Residential Tenancies Act, 1979, supra, at pp. 749-50). We have acknowledged that "[a]daptations must be permitted to allow the legislatures scope to deal effectively with emerging social problems and concerns, and to develop new techniques of dispute resolution and the expeditious disposition of relatively minor disputes" for the benefit of its citizenry (Scowby v. Glendinning, 1986 CanLII 30 (SCC), [1986] 2 S.C.R. 226, at pp. 250-51 (per La Forest J.)). See too Sobeys Stores, supra, at pp. 253-54 (per Wilson J., for the majority). After all, the Constitution is a document for the people and one of the most important goals of any system of dispute resolution is to serve well those who make use of it. (See Professor R. Elliot, Comment (1982), 16 U.B.C. L. Rev. 313, at p. 327.) For most civil matters, individual litigants are largely concerned with obtaining access to inexpensive and expedient adjudication.

The challenge for this Court is to balance these institutional and individual concerns while ensuring that s. 96 continues to play an important and meaningful role in Canadian society.

(b) The Section 96 Jurisprudence

In the seminal s. 96 case -- Re Residential Tenancies Act, 1979, supra, at pp. 734-36 -- Dickson J., as he then was, set out the factors which should be considered in assessing the constitutionality of a provincial grant of jurisdiction. Laskin C.J. conveniently summarized these factors in Massey-Ferguson Industries Ltd. v. Saskatchewan, 1981 CanLII 209 (SCC), [1981] 2 S.C.R. 413, at p. 429:

1.Does the challenged power or jurisdiction broadly conform to the power or jurisdiction exercised by Superior, District or County Courts at the time of Confederation?

2.Is the function of the provincial tribunal within its institutional setting a judicial function, considered from the point of view of the nature of the question which the tribunal is called upon to decide or, to put it in other words, is the tribunal concerned with a private dispute which it is called upon to adjudicate through the application of a recognized body of rules and in a manner consistent with fairness and impartiality?

3.If the power or jurisdiction of the provincial tribunal is exercised in a judicial manner, does its function as a whole in its entire institutional context violate s. 96?

These three steps of the Re Residential Tenancies Act, 1979 case were applied in Grondin, supra, and were refined by this Court in Sobeys Stores and Reference re Young Offenders Act, supra. The s. 96 jurisprudence was most recently discussed in MacMillan Bloedel.

(c) Is the Grant of Jurisdiction Permissible?

The appellant and the Attorneys General of Manitoba, Ontario and Quebec argued that the grant of jurisdiction by the Nova Scotia legislature to the Residential Tenancies Board (and Director) is permissible because the jurisdiction over "disputes involving residential tenancies" is a novel jurisdiction and therefore not part of the jurisdiction reserved to s. 96 superior court judges. I am of the view that the appellant and interveners are correct. This appeal can therefore be disposed of by applying this Court's decision in Reference re Young Offenders Act. I begin my analysis by characterizing the jurisdiction in question and finish with an assessment of whether that jurisdiction is a novel one.

(1) Characterization

The first step in analysing whether a grant of jurisdiction is constitutionally infirm is to properly characterize the jurisdiction in question. The importance of characterization was highlighted by Wilson J. in Sobeys Stores, at pp. 252-54, and in my judgment in Reference re Young Offenders Act, where I stated, at p. 266:

It was then stated in Sobeys that the characterization of the issue must be sufficiently narrow to avoid large accretions of jurisdiction by inferior courts at the expense of superior courts, but not so narrow as to freeze the jurisdiction of inferior courts as what it was in 1867. This Court also stated that the focus of the characterization exercise should be on the type of dispute and not on the particular remedy sought. [Emphasis added.]

I am of the view that the impugned jurisdiction here is not adequately described by the characterization set out in the Ontario case, Re Residential Tenancies Act, 1979, supra. In that case, the impugned jurisdiction was not defined in terms of the subject matter of the dispute but instead narrowly characterized as jurisdiction over the remedies of compliance and eviction. This characterization resulted from the narrow terms of the reference, set by the Executive Council of Ontario, which were binding on the parties and this Court. The terms of the reference in the Ontario case were:

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? [Emphasis added.]

Indeed, Dickson J. began the judgment in the aforementioned case, at p. 720, reasons in which I concurred, with the caution that:

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 and eviction orders, is in issue.

Therefore, this Court did not have the benefit of argument on the characterization issue. Moreover, of importance in that case, was the concession, in this Court, by the Attorney General of Ontario, who sought to uphold the legislation, that the powers of compliance and eviction given to the Ontario Residential Tenancy Commission were powers exercised by s. 96 courts in 1867. I am of the further view that the impugned jurisdiction is also not adequately described by the characterization in the Quebec case of Grondin. In that case, the jurisdiction was broadly defined as jurisdiction over lessor-lessee relations.

This case then marks the first time this Court has been asked to characterize jurisdiction under residential tenancy legislation in its entirety. Two characterizations of the jurisdiction of the Director and Residential Tenancies Board have been advanced by the parties. The appellant along with the Attorneys General of British Columbia, Manitoba, Ontario and Quebec argue that the jurisdiction should be characterized as "jurisdiction over residential tenancies; disputes between residential landlords and tenants". On the other hand, the respondent argues that the jurisdiction should be characterized as determining "residential tenancies disputes, including the power to make orders for compliance, repair, compensation, termination and possession, and related matters".

The problem with the characterization advanced by the respondent and the majority of the court below is that it runs afoul of the principles set out in Sobeys Stores. It limits the historical inquiry to remedies over which the superior court exercised jurisdiction at Confederation and ignores the purpose and subject matter of the legislation. Consequently, I agree with the appellant that the proper characterization of the unproclaimed provisions is "jurisdiction over residential tenancies; disputes between residential landlords and tenants". This characterization captures the "raison d'être" of the legislation. The Residential Tenancies Act of Nova Scotia is not meant to be a replica of landlord and tenant law. It sets up a complete and comprehensive code independent of landlord and tenant law which is specially designed for governing the residential tenancy relationship.

(2) Is the Jurisdiction a Novel One?

The concept of novelty is a common sense and logical principle that if a jurisdiction concerning a subject matter did not exist in 1867 then it is not a jurisdiction that our case law requires be exercised by a s. 96 superior court judge. Novelty was first applied by a majority of this Court in Reference re Young Offenders Act in the context of jurisdiction over young people charged with a criminal offence. However, the principle is a long standing one that was recognized by the Privy Council in John East, supra, at pp. 145-46, 150-51; by some judges of this Court (see Brooks v. Pavlick, 1963 CanLII 19 (SCC), [1964] S.C.R. 108, at p. 115, per Spence J.; Re: B.C. Family Relations Act, supra, at p. 96, per Estey J., and Sobeys Stores, supra, at pp. 282-89, per La Forest J.) and by lower courts (see Asselin v. Industries Abex Ltée (1985), 1985 CanLII 3136 (QC CA), 22 D.L.R. (4th) 212 (Que. C.A.), at p. 238, per L'Heureux-Dubé J.A. (as she then was)).

An assessment of novelty must begin with the oft-quoted question posed by Lord Simonds over 45 years ago in John East, supra, at pp. 150-51, in the context of labour relations:

It is legitimate, therefore, to ask whether, if trade unions had in 1867 been recognized by the law, if collective bargaining had then been the accepted postulate of industrial peace, if, in a word, the economic and social outlook had been the same in 1867 as it became in 1944, it would not have been expedient to establish just such a specialized tribunal as is provided by s. 4 of the Act.

To answer Lord Simonds' question, it is necessary to consider this Court's decision in the Reference re Young Offenders Act. In that case, I held that what made prosecutions under the Young Offenders Act a novel jurisdiction were the following characteristics: (i) the Act was a response to a new interest and approach of society to the criminality and illegal conduct of its younger members; (ii) it is legislation distinct from the Criminal Code because it is based on the diminished responsibility associated with young offenders; and (iii) as a matter of social policy, young offenders should be separately treated with rehabilitation as the paramount goal of sentencing. From my analysis in that case along with Lord Simonds' analysis in John East, I am of the view that one can establish the following test to assist in determining whether a jurisdiction is novel:

(i) is the legislation an attempt to respond to a new societal interest and approach regarding the subject matter of the legislation?

(ii) is the legislation based on principles of law that make it distinct from similar legislation?

(iii) is there an identifiable social policy that is different from the policy goals of analogous legislation?

Applying this Court's decision in Reference re Young Offenders Act, I find that "residential tenancies disputes" is a novel jurisdiction for the following reasons.

(i) New Interest

As Dickson J. recognized in Re Residential Tenancies Act, 1979, supra, at p. 718, there is no question that the law of landlord and tenant is not novel. 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 Case (1587), 3 Co. Rep. 22a., 76 E.R. 676, at p. 680). This is precisely why in Grondin, where the impugned jurisdiction concerned disputes between lessors and lessees, the novelty argument did not arise.

However, the concept of a residential tenancy is largely a phenomenon of modern and urban society. The appellant highlights that:

The middle of the 19th Century has been nostalgically described as Nova Scotia's prosperous "golden era" of "wood, wind and water". The colony's economy was resource-based, and its population predominantly rural. Not until after 1867 would dramatic industrial growth in the closing decades of the 19th Century transform towns like Sydney, New Glasgow and Amherst into important urban-industrial centres.

(See L. J. Burpee, "The Golden Age of Nova Scotia" (1929), 36 Queen's Q. 380; K. E. Inwood "Maritime Industrialization from 1870 to 1910: A Review of the Evidence and Its Interpretation", Acadiensis, XXI, 1 (Autumn 1991), p. 132; T. W. Acheson, "The National Policy and the Industrialization of the Maritimes, 1880-1910", Acadiensis, I, 2 (Spring 1972), p. 3.)

So too the Alberta Institute of Law Research and Reform recognized the link between the growth of residential tenancies and the development of urban society. It found that "[a]ny attempt to define residential tenancy' is difficult. If one could define tenancy', one would still be faced with the problem of defining residential', which really involves an attempt to exclude commercial' and `agricultural'" (Residential Tenancies (Report No. 22, 1977), at p. 10).

The statistics relied on by the appellant further demonstrate that residential tenancies was largely an unknown subject matter at the time of Confederation in Nova Scotia:

(1)In 1851 only 10% of Maritimers lived in urban communities whereas in 1891 only 17% of Nova Scotia's inhabitants lived in urban communities. The modern day statistics show a clear trend towards urbanization so that in 1966, 58% of Nova Scotia residents lived in cities with 53.5% in 1991;

(2)In 1871, the only Census information concerning tenancies related to "Occupiers of Lands" (farmers). In Nova Scotia, a total of 43,830 individuals were recorded as owning their lands with only 2,314 (5%) recorded as tenants;

(3)In 1921 there were 39,741 rented dwellings in the province. In percentage terms, in 1921, 34% of Nova Scotians rented their premises (19% in rural areas and 54% in urban areas). In 1991, the number of rented premises tripled to 94,165.

(See Canada, Census (1871), vol. 1, Table I, p. 82 and vol. 3, Table XXI, p. 100; "Population in the Canadas and the Maritimes to 1851", Historical Atlas of Canada, vol. II, The Land Transformed 1800-1891, 1993; Canada, Census (1911), vol. I, Areas and Population, Table V, p. 522; Canada, Census (1921), vol. I, Population, Table 18, p. 345; Canada, Census (1991), "Urban Areas", Table 3, p. 62; Canada, Census (1991) "Profile of Urban and Rural Areas", Part A, Table 1, pp. 6, 42; Canada, Census (1991) "Dwellings and Households", Table 5, pp. 41, 44.)

As a policy matter, provinces did not begin studying residential tenancy matters until after 1960 (see the Ontario Law Reform Commission, Interim Report on Landlord and Tenant Law Applicable to Residential Tenancies (1968); the Law Reform Commission of British Columbia, Landlord and Tenant Relationships: Residential Tenancies (Project No. 12, 1973); and the Alberta Institute of Law Research and Reform, supra, and consequently provincial legislation concerning residential tenancies as a distinct aspect of the landlord and tenant relationship did not emerge until after 1970.

As a subject matter, one is hard pressed to find in landlord and tenant treatises any substantive treatment of residential tenancies until 1970. (For example, see Williams' Canadian Law of Landlord and Tenant (4th ed. 1973) and Woodfall's Law of Landlord and Tenant (28th ed. 1978).) It also appears that few residential tenancy matters found their way into our courts prior to 1970. According to Donald Lamont, writing in 1970 about that part of the Ontario Landlord and Tenant Act concerning residential tenancies, "[a]s for judicial interpretation in this province there have been in the last ten years less than ten reported decisions concerning residential accommodation" (see The Landlord and Tenant Act Part IV (1970), Preface).

As the appellant points out in his factum "[i]n this social context, it is not surprising that in 1867, neither the common law nor the legislature singled out residential tenancies as a particular legal jurisdiction. But by the late 1960's, times had changed. Many more people were renting their accommodations, and the governing laws were considered unfair". Moreover, while "[p]ossession of the land for the growing of crops or the raising of cattle was the main interest of the tenant" in earlier times, "[t]he main interest of the residential tenant today is comfortable living quarters" (see Alberta Institute of Law Research and Reform, supra, at p. 4). Consequently, as noted earlier, the provincial legislatures responded by enacting comprehensive legislation to govern residential landlord/tenant relations. As in the case of the Young Offenders Act, the Nova Scotia government responded by creating a "detailed legislative code" containing "newly enunciated rights and obligations" to address new social concerns. In the words of Freeman J.A., in the court below (at pp. 186-87):

. . . the province, reacting to the growing needs of people in rented living accommodation, has chosen to codify the law of residential tenancies and to provide a simple, accessible and inexpensive procedure for settling disputes between landlords and tenants far removed from the manner in which s. 96 courts exercised their landlord-tenant jurisdiction at the time of Confederation.

In 1867, while there were no doubt some residential tenancy disputes, there was no jurisdiction over them in the manner contemplated by the contemporary Nova Scotia legislature. Instead, they were treated as part of landlord/tenant disputes. Similarly, there is no doubt that in 1867, young people charged with offences came before the criminal courts. That, however, was not the issue in the Young Offenders case but rather whether at 1867 there had existed a jurisdiction over young people charged with criminal offences in the manner contemplated by Parliament in enacting the Young Offenders Act. Similarly, the purpose of the Nova Scotia statute -- to provide a complete and comprehensive code to govern residential tenancies -- "would have sounded strange to the ears of the legislature of 1867" (John East, supra, at p. 146).

(ii) Distinct Legislation

As the Attorney General of Manitoba persuasively argues in her factum, the law in this country relating to residential tenancies has passed through three basic stages. In the first stage, "no distinction was drawn between the law relating to residential tenancies and that applicable to industrial and commercial tenancies or even lands leased for agricultural purposes. The single most important feature of the law in this stage was the existence of the leasehold "estate" of the tenant. Under this system, the rights of the parties were determined according to rigid land law principles rather than in accordance with common law developments in contracts and tort". The Ontario Law Reform Commission, supra, described this first stage in the following passage (at p. 10):

The common law of landlord and tenant, over the centuries, has not developed any legal philosophy based on a theory of vital interests. The single most important feature of landlord and tenant law is the existence of the leasehold "estate" of the tenant. The vesting of the estate in the tenant underlies the rather fixed nature of the law and has caused courts to determine the rights of tenants according to rigid land law principles rather than in accordance with the more realistic development of contract and tort law which would likely apply in the absence of the estate theory.

(See too the Alberta Institute of Law Research and Reform, supra, at pp. 4-6.)

The second stage, beginning in the 1970s, "represented a clear policy choice on the part of the Legislature to place the relationship between landlord and tenant on a purely contractual basis, and move away from the notion that, with respect to residential tenancies, the tenant has a leasehold estate conferring an interest in land" (Law Reform Commission of British Columbia, supra, at p. 95). The purpose behind the change was to promote "security of tenure and quiet enjoyment by tenants" (Re Pepita and Doukas (1979), 1979 CanLII 757 (BC CA), 101 D.L.R. (3d) 577 (B.C.C.A.), at p. 590). As Professor MacNeil in "Property in the Welfare State" (1983), 7 Dalhousie L.J. 343, at p. 355, notes, "[t]he legal rules regulating the landlord-tenant relationship in Canada were founded upon English common law conceptions of rights in land", and this approach was "no longer suitable to either the commercial realities or the social and economic aspects of urban living".

This second stage was recognized by this Court in Pajelle Investments Ltd. v. Herbold, 1975 CanLII 32 (SCC), [1976] 2 S.C.R. 520, at p. 527, where Spence J. quoted with approval the following passage from the Ontario Court of Appeal:

The recent amendments to The Landlord and Tenant Act have brought about substantial changes in the relations between landlord and tenant . . . . The legislation reflects the effort on the part of legislators to govern and control the standard of social behaviour of inhabitants of large modern multiple housing units not only towards their lessors but also towards each other with a view to promoting peace and tranquility from a social as well as from an environmental standpoint.

The third stage "represented a shift towards the policy view that the law respecting residential tenancies should be neither leasehold nor contractual but rather should involve a distinct, comprehensive statutory code governing the residential tenancies relationship" (Factum of the Attorney General of Manitoba, at p. 12). This concept of a comprehensive code which is imposed independently of any contractual arrangement is reflected in s. 3 of the Nova Scotia statute, the Residential Tenancies Act:

Application of Act

3 (1) Notwithstanding any agreement, declaration, waiver or statement to the contrary, this Act applies when the relation of landlord and tenant exists between a person and an individual in respect of residential premises.

The Nova Scotia legislation requires every landlord to furnish his tenants with a copy of the Act (s. 7(1)). Furthermore, there are four pages of statutory conditions to govern every residential tenancy relationship, along with a standard form lease. These statutory conditions cover a wide variety of subjects including powers of entry, services, a good behaviour clause, obligations of the tenant, subletting, abandonment and so forth.

Like the Young Offenders Act, the Nova Scotia Residential Tenancies Act has carved out a distinct branch of landlord-tenant law and developed a complete code to govern the residential tenancy relationship. The relationship is no longer based on either land law or the law of contract and tort. As La Forest J. stated in Sobeys Stores, supra, concurring in the result, at p. 283 arguing that unjust dismissal in the context of labour law was a novel jurisdiction, "[t]he underlying social and economic philosophy of this legislation could not be in sharper contrast to that which existed at Confederation". To paraphrase Lord Simonds in John East, supra, at p. 150, it is in light of this new conception of residential tenancies that the question to be determined must be viewed and it finds no analogy in those issues which were familiar to the courts of 1867.

(iii) Social Policy

As the appellant and interveners pointed out, in this case, the broad and distinct social policy goals of the legislature can be said to be the creation of a comprehensive regulatory scheme to deal with residential tenancies inexpensively and expeditiously. It is aimed, at least in part, at addressing a perceived imbalance in the residential landlord and tenant relationship: Re Residential Tenancies Act, 1979, supra, at p. 718. The residential tenancy scheme under consideration here establishes the statutory rules which are to govern every aspect of the residential landlord and tenant relationship and contemplates resolution of disputes through mechanisms of investigation, mediation, and ultimately adjudication where that becomes necessary. The observations of La Forest J. in Sobeys Stores, at p. 283, are particularly apposite:

The underlying social and economic philosophy of this legislation could not be in sharper contrast to that which existed at Confederation. At that time, the philosophy of laissez-faire was at its zenith. This was reflected in a legal environment that promoted strict individual equality and freedom of contract. Legislative control of economic activity was minimal.

I am of the view that many factors in this case point to an identifiable social policy that is different from analogous legislation (i.e. Landlord and Tenant Acts). The legislation as a whole provides both substantive and procedural protection to both residential landlords and tenants. The substantive protections are those which deal with minimum lease requirements, security deposits, tenancy terminations and the like. Procedurally, it offers an inexpensive and speedy mechanism for the investigation and resolution of disputes. (See Sobeys Stores, at p. 280.) The legislation also imposes new obligations on both residential landlords and tenants: Sobeys Stores, at pp. 284-85. Finally, the legislative response is one to changed social conditions since Confederation, in a context significantly different from the practice that then existed in the courts. For example, neither the Director nor the members of the tribunal must be lawyers. To paraphrase L'Heureux-Dubé J.A., in Asselin, supra, at p. 238 (cited with approval in Sobeys Stores, at p. 281), it is an Act of a clearly social nature which reflects a distinct evolution since 1867 and a completely different notion of residential landlord and tenant relations from that which existed at that time.

(3) Protecting Against the Erosion of Section 96 Jurisdiction

The respondent objects to a "too easy" resort to the novel jurisdiction approach which he asserts will erode the jurisdiction which the s. 96 jurisprudence protects. I disagree with this assertion, at least as applied to the legislation at issue in this case.

I begin by noting that jurisdiction over residential tenancy disputes is not part of the "core" jurisdiction which our s. 96 jurisprudence protects. Section 96's "core" jurisdiction is a very narrow one which includes only critically important jurisdictions which are essential to the existence of a superior court of inherent jurisdiction and to the preservation of its foundational role within our legal system. In MacMillan Bloedel, supra, this Court was satisfied, for example, that a superior court's inherent jurisdiction to punish for contempt fell within the "core" jurisdiction of s. 96.

57 Nor does the application of the novel jurisdiction approach in the context of this case threaten the "non-core" jurisdiction of s. 96 courts. Indeed, this Court's decision in the Young Offenders Act reference offers a check on erosion of s. 96's "non-core" jurisdiction by asking a second question: had such a jurisdiction been in existence prior to Confederation, what courts would have been vested by the legislature with the jurisdiction? In that case, I was satisfied that offences that were less stigmatized and which carried light sentences were within the jurisdiction of inferior courts in 1867 and that therefore if a jurisdiction over young offenders had existed in 1867, the legislatures would have vested that jurisdiction in inferior courts.

58 In order to answer this question in this context, we must first attempt to ascertain the characteristics of residential tenancy disputes. On the basis of the evidence presented by the parties, I am of the view that the hallmarks of residential tenancy disputes include the following characteristics. First, the majority of disputes are over minor matters such as unpaid rent and security deposits. This conclusion finds support not only in the type of dispute that has dominated residential tenancies in Nova Scotia over the last ten years but also in Grondin, supra, at p. 383, wherein Chouinard J. suggested that jurisdiction over unpaid rent was the conclusive aspect of the broader lessor-lessee jurisdiction:

The Commissioners' Courts which existed between 1821 and 1965 always had some jurisdiction over matters between lessors and lessees, at least as regards the collection of rent . . . .

In my view, that suffices for the historical step of the test established by the reference Re Residential Tenancies Act, 1979, and applies to all proceedings covered by this appeal. [Emphasis added.]

Second, the dollar amount of the disputes is relatively minor, and, finally, residential tenancies are a largely urban phenomenon with most of the disputes located in the cities.

59 A brief survey of the historical situation in the four confederating provinces convinces me that if the legislatures had carved out a residential tenancy jurisdiction, they would have granted the jurisdiction to their inferior courts. In Ontario, inferior courts had jurisdiction over matters of unpaid rent and disputes involving nominal dollar amounts. As the Attorney General for Ontario points out:

Jurisdiction in relation to small debt, which would have included claims for rent arrears, resided in the inferior courts, subject to a monetary limit of $100 and to a general prohibition against jurisdiction over actions of ejectment or actions where the right or title to any corporeal hereditament was brought into question. Inferior courts also had jurisdiction over claims in replevin to $40 and over landlords' claims from goods seized from tenants.

(See An Act respecting the Division Courts, C.S.U.C. 1859, c. 19, ss. 54-55, 174-75; An Act to Amend the Law of Replevin in Upper Canada, S.C. 1860, c. 45, s. 6.)

And as the appellant highlights:

Ontario was thick with Division Courts. "Not less than three; nor more than twelve" Division Courts were to be established in each County or Union of Counties: An Act Respecting the Division Courts, 1859 22 Vict. c. 319, s. 3. Recorders Courts were established in "every city" in Upper Canada; and provision was made for the appointment of the Recorder "to preside over and hold the Division Court of that Division of the County which includes the City": An Act respecting the Municipal Institutions of Upper Canada, 1859 22 Vict. c. 54, ss. 370, 383.

60 In Quebec, the province-wide Commissioners Court had jurisdiction over "attachments for rent", up to $25. In addition, in certain cities Recorder's Courts had jurisdiction over "matters of dispute between lessors and lessees". The one such court which Chouinard J. referred to was the Montreal Recorder's Court which, at 1867, had the same jurisdiction over lessor-lessee relations as the superior courts, provided that "the consideration or annual value of the property occupied" did not exceed $100. See Grondin, supra, at p. 380.

61 In Nova Scotia, an Inferior Court of Common Pleas exercised concurrent jurisdiction with the Supreme Court between 1752 and 1841. Upon its abolition in 1841, Nova Scotia lacked an intermediate court. In response, the civil jurisdiction of Justices of the Peace was increased. By 1864, one justice could hear claims in debt for rent up to $20; two justices had jurisdiction up to $80. As the appellant points out this was not a trivial jurisdiction. "[I]n the 1860's, $80 was a significant sum. It would pay two years' wages for a farmhand or domestic servant". In Halifax, where, as Freeman J.A. pointed out, most of the province's rented premises would have been found in the 1860s, the City Court had jurisdiction over claims for rent and breach of contract up to $80, over trespass and replevin up to $40, and over forcible entry, detainer and overholding by tenants, without restriction. This jurisdiction would have left few landlord/tenant matters out of the reach of the City Court. (See C. J. Townsend, "Historical Account of the Courts of Judicature in Nova Scotia" (1899), 19 Can. L.T. 25, at p. 144; G. Patterson, "The Establishment of the County Court in Nova Scotia" (1943), 21 Can. Bar Rev. 394, at p. 397; S. E. Oxner, "The Evolution of the Lower Court of Nova Scotia" in Law in a Colonial Society: The Nova Scotia Experience (1984), at pp. 59, 76; Report of the Nova Scotia Court Structure Task Force (March 1991), Appendix 1, "History of Nova Scotia Courts"; An Act to improve the Administration of the Law, and to reduce the number of Courts of Justice within this Province, and to diminish the expense of the Judiciary therein, S.N.S. 1841, 4 Vict., c. 3; T. C. Haliburton, An Historical and Statistical Account of Nova Scotia (1829); B. Murdoch, Epitome of the Laws of Nova Scotia (1833), vol. III, at pp. 57-58 and 60-61; and J. M. Beck, The Government of Nova Scotia (1957), at p. 129; Of the Jurisdiction of Justices of the Peace in Civil Cases, R.S.N.S. 1864, c. 128, s. 1; Halsbury's Laws of England, vol. 1 (3rd ed. 1952), at p. 26; Of Tenancies and of Forcible Entry and Detainer, R.S.N.S. 1864, c. 140; P. Girard, "The Rise and Fall of Urban Justice in Halifax, 1815-1886" (1988), 8:2 Nova Scotia Historical Review 57, at p. 59; An Act to regulate the Summary Trial of Actions before His Majesty's Justices of the Peace, in the Town and Peninsula of Halifax, S.N.S. 1792, 32 Geo. 3, c. 14; An Act to Incorporate the Town of Halifax, S.N.S. 1841, 4 Vict., c. 55, s. 54; An Act concerning the City of Halifax, S.N.S. 1864, 27 Vict., c. 81.)

62 Finally, in New Brunswick, the Justices of the Peace had jurisdiction over small debt (up to $20). The jurisdiction extended to every corner of the province. In addition, City Courts had jurisdiction over small debt (up to $80) and over tort to real and personal property (up to $20). This jurisdiction was somewhat less than in Nova Scotia because New Brunswick retained its Inferior Court of Common Pleas, which exercised unlimited jurisdiction over many landlord and tenant matters for a century. This court was abolished in 1867. (See D. G. Bell, "A Perspective on Legal Pluralism in 19th-Century New Brunswick" (1988), 37 U.N.B.L.J. 86, at pp. 92-93; An Act to regulate proceedings before Justices of the Peace in Civil Suits, S.N.B. 1834, 4 Gul. 4, c. 45; Of the Jurisdiction of Justices in Civil Suits, R.S.N.B. 1854, c. 137, s. 53; Charter of City of Saint John, S.N.B. 1855, 18 Vict., vol. 3, Appendix; An Act to enlarge the jurisdiction of the City Court of the City of Saint John, S.N.B. 1859, 22 Vict., c. 38, s. 1; An Act further to enlarge the jurisdiction of the City Court of the City of Saint John, and in amendment of the Law relating to said Court, S.N.B. 1864, 27 Vict., c. 46; An Act relating to the City Court of the City of Saint John, S.N.B. 1860, 23 Vict., c. 57; An Act to amend an Act intituled An Act to amend the Law relating to the collection of Taxes and small debts in the Parish of Portland, in the City and County of Saint John, and for other purposes in the said Parish, S.N.B. 1867, 30 Vict., c. 36, s. 4.)

63 In light of the nature of residential tenancy disputes and the types of disputes entertained by many pre-Confederation inferior courts, it is reasonable to conclude that pre-Confederation legislatures would have vested residential tenancy jurisdiction in those courts. As Freeman J.A. describes, residential tenancy disputes involve a high volume of repetitive and narrowly defined matters of limited complexity. They are amply suited to resolution by lay persons applying the rules with fairness and common sense. These were the hallmarks of the cases entertained by many pre-Confederation inferior courts.

64 To return to the question posed by Lord Simonds in John East, I am satisfied in the light of the foregoing that if residential tenants' rights had in 1867 been recognized by the law, if statutory conditions and terms of residential leases had been the accepted postulate of promoting peace and tranquillity in modern multiple housing units, if, in a word, the economic and social outlook had been the same in 1867 as it has become in 1995, it would have been expedient for the legislatures to establish these specialized tribunals as is provided pursuant to the unproclaimed legislation.

65 As the challenged jurisdiction in this case does not run afoul of the first branch of the test set out in Re Residential Tenancies Act, 1979, supra, because it is a novel jurisdiction which does not broadly conform to a power or jurisdiction exercised by Superior, District or County Courts at the time of Confederation, there is no need to consider the second or third branches of that test.

66 Finally, I wish to add that in this case our review of the impugned legislation has been undertaken from a broad perspective in light of the overall policy aims of the Nova Scotia Residential Tenancies Act. In particular, the focus of the inquiry has been on the creation of a provincial "residential tenancies" director or tribunal to adjudicate residential tenancies disputes. Our approval of the Nova Scotia Residential Tenancies Act should in no way be taken as precluding a separate analysis in a future case of whether a particular provision of that Act or similar act is constitutionally infirm. See MacMillan Bloedel, supra.

VI. Conclusion

67 I am therefore of the view that the appeal should be allowed and the cross-appeal dismissed. The constitutional questions should be answered as follows:

1.Are the unproclaimed provisions of An Act to Amend Chapter 401 of the Revised Statutes, 1989, the Residential Tenancies Act, S.N.S. 1992, c. 31 (the "Act"), within the legislative jurisdiction of the House of Assembly of Nova Scotia to the extent that those provisions confer authority respecting residential tenancies upon persons other than judges appointed pursuant to s. 96 of the Constitution Act, 1867, and, most particularly, are the following provisions of the Act within the legislative jurisdiction of the House of Assembly of Nova Scotia?

Answer: Yes.

2.If the aforesaid provisions of the Act are not within the legislative jurisdiction of the House of Assembly of Nova Scotia, in what particular respects are those provisions ultra vires?

Answer:Given the answer to the first question, this question does not arise.

The judgment of La Forest, L'Heureux-Dubé, McLachlin, Iacobucci and Major JJ. was delivered by

68 McLachlin J. -- The issue in this case is whether the legislature of Nova Scotia violated s. 96 of the Constitution Act, 1867 by granting power to resolve residential tenancy disputes to the Director of Residential Tenancies and the Residential Tenancies Board.

69 Like the Chief Justice, I am of the view that the grant of power does not violate s. 96. However, I arrive at this conclusion by different reasoning. I cannot accept that the power to resolve residential landlord and tenant disputes constitutes a “novel jurisdiction”, given that courts have been performing this function since before Confederation. I am of the view, however, that at the time of Confederation the inferior courts throughout Canada were involved in the exercise of this jurisdiction in a way that was broadly co-extensive with that of the superior courts. Accepting that the jurisdiction of inferior court and tribunals "need not be frozen at its pre-Confederation level" (Sobeys Stores Ltd. v. Yeomans, 1989 CanLII 116 (SCC), [1989] 1 S.C.R. 238, at p. 258), it follows that the present grant of power to an inferior tribunal does not derogate from the authority of the superior courts and is therefore valid.

The Legislation at Issue

70 The impugned provisions of the Residential Tenancies Act, R.S.N.S. 1989, c. 401, contained in An Act to Amend Chapter 401 of the Revised Statutes, 1989, the Residential Tenancies Act, S.N.S. 1992, c. 31 (collectively, the "Act") provide a mechanism for the resolution of first- and second-level residential tenancy disputes. The legislation gives the provincially appointed Director of Residential Tenancies and his delegates the power to investigate, mediate and adjudicate disputes between landlords and their residential tenants. It empowers the Director to make orders for compliance, termination, repair and possession. The Director’s order may be appealed to the Board, and an order of the Board may be appealed, with leave, to the Appeal Division of the Supreme Court of Nova Scotia on questions of law or jurisdiction. An unappealed order is deemed to be an order of the Board, which in turn may be entered as an order of the court under s. 21 of the Act.

71 The jurisdiction of the Director and Board is exclusive. All residential tenancy disputes must be determined by the procedure specified in the Act, and except for formally entering orders and its limited appellate jurisdiction, the superior court has no power to determine them.

Analysis

The Test for Conferring Judicial Powers on Inferior Tribunals

72 Section 96 of the Constitution Act, 1867 gives constitutional recognition to a system of courts across Canada consisting of federally appointed and remunerated judges. The Provinces were empowered under s. 92(14) to create courts, but the federal government was made responsible for appointing and remunerating the judges of the superior, district and county courts of each province. The presence of a federally staffed and remunerated bench across the country has served as a unifying force in Canada in the ensuing years. Indeed, the constitutionally guaranteed existence of such a bench may be seen as one of the ultimate safeguards of the rule of law in this country.

73 It follows from the constitutional status of the s. 96 courts that neither Parliament nor the legislatures may impair their status. Their status could be impaired by transfers of their work to inferior tribunals. So the wholesale transfer of superior court powers cannot be allowed. Only the transfer of powers found to be subsidiary to a valid administrative scheme or necessarily incidental to an otherwise intra vires legislative goal are allowed. Shadow courts and tribunals usurping the functions of the superior courts guaranteed by s. 96 are prohibited.

74 The test for determining whether a conferral of power on an inferior tribunal violates s. 96 of the Constitution Act, 1867 was set out by this Court, per Dickson J., in Re Residential Tenancies Act, 1979, 1981 CanLII 24 (SCC), [1981] 1 S.C.R. 714, as modified by Attorney General of Quebec v. Grondin, 1983 CanLII 165 (SCC), [1983] 2 S.C.R. 364, Sobeys, supra, and Reference re Young Offenders Act (P.E.I.), 1991 CanLII 11713 (SCC), [1991] 1 S.C.R. 252. It consists of three steps, represented by the following questions: (1) does the power conferred “broadly conform” to a power or jurisdiction exercised by a superior, district or county court at the time of Confederation? (2) if so, is it a judicial power? (3) if so, is the power either subsidiary or ancillary to a predominantly administrative function or necessarily incidental to such a function? The first two steps may be seen as identifying potential violations of s. 96; the last step as setting out the circumstances in which the transfer of a s. 96 power to an inferior tribunal is “transformed” and hence constitutionalized by the administrative context in which it is exercised. The debate on this appeal focuses on the first step.

The First Step -- Broad Conformity with a s. 96 Court Power

75 The function of this step is to determine whether the power conferred on the inferior tribunal is analogous to one exercised by the courts that became s. 96 courts at the time of Confederation. If the power is one formerly exercised exclusively by those courts, it is necessary to go further and consider whether the power is judicial, and if so, whether it falls within the permitted category of judicial powers conferred on an administrative body as part of a broader policy scheme. If the inferior courts before Confederation alone exercised the power, or shared it in a practical way with the future superior courts, s. 96 is not engaged and no further enquiry is required.

Methodological Observations

76 A few observations about how the test is applied may be appropriate at the outset. The first concerns the characterization of the judicial power which is said to be removed by its conferral on a provincially appointed body. For the purposes of this characterization, the focus of the historical inquiry is on the type of dispute involved. The function of the s. 96 courts was and is dispute resolution. The question must therefore be whether an aspect of the dispute resolution function dominated by the superior courts has been transferred to an administrative tribunal. It follows that the inquiry must not focus on “a technical analysis of remedies” (Sobeys, supra, at p. 255). Nor should it evaluate the nature and goals of the legislative scheme, which fall to be considered only at the third stage should it progress that far. There is no logical nexus between the policy concerns of modern legislation and the search for the historical antecedents of a given jurisdiction. Rather, the focus must be on the “type of dispute” involved: the reviewing court must look to the "subject-matter rather than the apparatus of adjudication": Dupont v. Inglis, 1958 CanLII 8 (SCC), [1958] S.C.R. 535, at p. 543 per Rand J.; Sobeys, supra. In this case, the focus must be on residential tenancy disputes.

77 A second preliminary observation is that the first step of the test focuses on matters which were exclusively reserved to the courts which became s. 96 courts. Where inferior tribunals enjoyed a meaningful concurrency of power -- a “shared involvement” in the field (Sobeys, supra) -- the jurisdiction at issue was not one dominated by the superior courts and s. 96 is not engaged. The focus must not be overly technical. Minor concurrency in subsidiary aspects of the jurisdiction may be insufficient to negate the fact that, for practical purposes, the dispute was one that fell principally within the purview of the pre-s. 96 courts: Sobeys, supra. This Court in Sobeys cited three factors as relevant in determining whether the involvement of an inferior court in a given jurisdiction was sufficiently shared: its geographic reach, pecuniary limitations, and the range of disputes it could determine. However, Sobeys did not suggest the list was exhaustive, and other factors may emerge as relevant when supported by the evidence. For example, the percentage of the population which would have used the inferior courts, and the frequency with which disputes amenable to their process arose, would both seem pertinent in deciding the extent of their "practical involvement" in the jurisdiction at issue.

78 A third observation concerns the pre-Confederation courts to be considered in determining whether the power was exercised at the time of Confederation. Logic and the authorities suggest that all pre-s. 96 courts in what was to become Canada must be considered, not merely those of the province (then a colony) in question. If the concern is to ensure the integrity of a unified system of federal courts, then the ambit of the inquiry must not be restricted to determining the extent of inferior court involvement within artificially circumscribed boundaries. A rule which would permit a transfer of power in one province and deny it in another would undercut the unifying force of the s. 96 courts. Additionally, the law of the United Kingdom, which informed the allocation of jurisdiction in the former colonies, may be considered if necessary. As Wilson J. stated for this Court in Sobeys, at p. 266, “consistency at the level of the historical analysis would seem to be desirable and ... it is best achieved by measuring each s. 96 challenge against the same historical yardstick".

79 A fourth observation concerns the date at which the powers of the pre-s. 96 courts are to be determined. Are we to fix obdurately on the exact date of Confederation? If an inferior tribunal enjoyed concurrency for many years only to have it removed days before Confederation, should that removal necessarily preclude finding concurrency? Or should a more flexible approach be taken, one which examines the "general historical conditions" prevailing in the confederating provinces? (Sobeys, at p. 265.) The purpose of the test for a transfer of s. 96 powers suggests that the latter approach is preferable. If the inferior courts did in fact exercise the jurisdiction in question reasonably contemporaneously with Confederation, there is no basis for concern that the present day derogation of those powers from the superior courts fails to accord with the unifying intent of the judicature compromises. The historical inquiry mandated by the first step of the test should be realistic and not arbitrarily swayed by the caprice of history. Results should not turn on technicalities such as the date a particular bill came into force. The concern is to ascertain whether the type of dispute at issue is broadly conformable to one which fell to be decided exclusively or predominantly by the superior courts at or about the time of Confederation. In Sobeys this Court indicated that the relevant date of assessment was the time when the “bargain was made”. Wilson J. referred to “jurisdiction in 1867" or “1867 jurisdiction”, but nowhere stipulated for one particular moment in time. La Forest J., also writing in Sobeys, cautioned against an overly mechanical application of the historical test in dealing with jurisdiction that is not amenable to precise definition (at pp. 288-89):

If one must pick a specific date to govern the inquiry, 1867 would seem to be appropriate, but even here I am not sure one should be so much concerned with precise dates as with avoiding incorporating into s. 96 court jurisdiction matters that may be specific to a province by reason of a situation peculiar to the province at the time. For what we are seeking after all is a generalized and workable meaning for the jurisdiction exercisable by s. 96 courts. [Emphasis added.]

80 A fifth methodological concern relates to whether the issue is the actual powers exercised by the superior courts at the time of Confederation, or the ability of the colony to confer those powers on inferior courts at the time. In the Court of Appeal ((1994), 1994 NSCA 124, 115 D.L.R. (4th) 129), Freeman J.A. maintained that the ability to confer jurisdiction was at least as important as the fact of conferral: the issue was whether the power was one “which could be concurrently exercised by inferior courts" (p. 176 (emphasis added)). With respect, such an approach is at odds with the purpose of the historical inquiry under s. 96 -- to identify those powers reserved to the superior courts before the judicature compromises in 1867 in order to ascertain whether analogous powers are now being conferred on provincial appointees. It was the actual allocation of jurisdiction before 1867 which the confederating provinces must be taken to have approved. With the exception of the powers in equity exercised by the Queen in right of Chancery, it was always competent to Parliament to create new inferior courts of common law and, if it so decided, remove wholesale the entire panoply of jurisdiction previously reserved to the superior courts. There was no constitutional impediment to a similar realignment in the future provinces of Canada, effected either directly from Westminster and Whitehall or through the respective colonial assemblies. Since no common law power was immune from removal, there would be nothing left of s. 96 if a legislative recognition of “capacity” before Confederation was sufficient to sanction the present day removal of jurisdiction to an inferior court or administrative tribunal.

Application of the First Step of the Test

81 A review of the situation which prevailed generally in the pre-Confederation colonies reveals that jurisdiction over residential tenancy disputes was not vested exclusively in what became the s. 96 courts. The inferior courts in the founding provinces exercised jurisdiction over residential tenancy disputes to varying degrees, but all played a meaningful role in their adjudication. This jurisdiction was more than a “gloss” upon a dominant superior court power. Rather, it represented a shared involvement in deciding residential tenancy disputes.

82 The majority of the Court of Appeal concluded that in New Brunswick at the time of Confederation, the County Court, a future s. 96 court, possessed exclusive jurisdiction over residential tenancy disputes. This was because on June 17, 1867, 14 days before Confederation on July 1, a bill had been passed conferring jurisdiction over tenancy matters on the County Court. The parties to this appeal accept that prior to this date, the Court of Common Pleas, an inferior court, exercised a jurisdiction over residential tenancy disputes sufficient to withstand s. 96 scrutiny.

83 The appellant contends that picking an arbitrary point in time in order to decide the outcome of the analysis in the first stage of the Residential Tenancies test places too much emphasis on historical happenstance, and that pre-confederation jurisdiction should be more generally evaluated. It follows from what I have said earlier that I accept that position. The lesson of Sobeys is that the goal is to find a “generalized and workable meaning for the jurisdiction exercisable by s. 96 courts” (pp. 288-89). Until 14 days before Confederation, a wide range of residential tenancy disputes were decided by the Court of Common Pleas. This was the situation at the time when the judicature provisions were being codified by the Fathers of Confederation, and it follows from the foregoing that in my view the test has been met in relation to New Brunswick.

84 In Nova Scotia, the power to resolve residential tenancy disputes was shared by the superior courts, the Halifax City Court and Justices of the Peace. In Sobeys, it was held that while the Halifax City Court exercised jurisdiction over all contract actions originating within the city for sums not exceeding $80, its geographical reach was too confined. Wilson J. rejected the argument that the jurisdiction of the Justices of the Peace over small claims for debt, when combined with the powers of the Halifax City Court, demonstrated a sufficient collective involvement by the inferior courts to meet the threshold test. However, in Sobeys, only contractual actions for unjust dismissal were at issue, and small claims in debt brought before a Justice of the Peace could not "be equated to jurisdiction over unjust dismissal", an action for unliquidated damages (at p. 267).

85 In the case at bar, where jurisdiction over residential tenancy disputes is in question, the evidence clearly shows that small claims for rent could be heard by the Justices of the Peace throughout Nova Scotia in exercising their jurisdiction in debt. The Charter of the Halifax City Court gave it the power to determine most common law claims arising from the relationship of landlord and tenant. While a dispute over unpaid rent is only one of many which can arise between a landlord and residential tenant, it is not merely speculative to suggest that these claims are advanced with some frequency. There is no evidence before this Court relating to the prevalence of these claims before 1867, or the proportion they represented of the total number of adjudicated disputes, but approximately 40 percent of the complaints which result in legal action under the current system in Nova Scotia are of this variety. Given the enduring nature of the landlord-tenant relationship, it is not fanciful to conclude that a similar percentage would have obtained before 1867.

86 I would also observe that this Court in Grondin, supra, found that the Montreal Recorder's Court, which exercised a jurisdiction virtually identical to that of the Halifax City Court, and the Commissioner's Courts together evinced a sufficient practical involvement by the inferior courts in Lower Canada to sustain legislation similar to that at issue here. It must be remembered that the test for concurrency does not demand perfect jurisdictional reciprocity, only that the practical role of the inferior court have been "broadly co-extensive" with that of the superior courts.

87 The majority of the Court of Appeal concluded that the decision of the Appeal Division of the Nova Scotia Supreme Court in Re Burke and Arab (1981), 1981 CanLII 2696 (NS CA), 130 D.L.R. (3d) 38, leave to appeal refused, 1983 CanLII 140 (SCC), [1983] 1 S.C.R. 55, which struck down the adjudication provisions of an earlier incarnation of residential tenancies legislation in Nova Scotia, determined the outcome of the historical inquiry for Nova Scotia. In Re Burke and Arab, the court followed its previous finding in Re Attorney-General of Nova Scotia and Gillis (1980), 1980 CanLII 2450 (NS CA), 111 D.L.R. (3d) 349, to the effect that the superior courts had always exercised "power to determine title as between subject and subject" (p. 355). As Freeman J.A. correctly observed in the Court of Appeal in this case, the question before the court in both cases was one which focused on determining whether the jurisdiction of the Nova Scotia Supreme Court before Confederation included powers analogous to those exercised by the tribunal. Grondin now instructs that if the jurisdiction was sufficiently concurrent with the inferior courts, the transfer of power will be upheld. There is no indication that the court in Re Burke and Arab considered the evidence placed before this Court of the meaningful involvement of Nova Scotia's inferior courts in residential tenancies matters. Accordingly, I find that that case does not stand in the way of the conclusion that the inferior courts exercised important powers over landlord-tenant disputes in Nova Scotia at the time of Confederation.

88 Turning to the situation in Quebec, as previously noted, this Court ruled in Grondin, supra, that similar dispute resolution powers to those at issue in this case were shared by the superior and inferior courts in Lower Canada before Confederation. Both the majority and dissenting justices in the Court of Appeal in this case accepted that inferior court jurisdiction over residential tenancy disputes in Quebec before 1867 was sufficiently co-extensive with superior court jurisdiction to avoid trenching on s. 96. That finding was not seriously challenged on appeal, and I conclude that the historical threshold of validity has been met for Quebec.

89 In Upper Canada, now Ontario, the situation was substantially similar to that in Lower Canada, except that actions for possession of premises (ejectment) could be brought before the Montreal Recorder's Court but not the inferior Division Courts in Ontario. However, this remedy was potentially available only to the nine percent of Quebec's population that happened to reside within Montreal's city limits. Without minimizing the importance of ejectment as a remedy, in my opinion it should not be used to make a principled distinction between the provinces when it could only affect nine percent of the population. As noted, the search must be for a “general shared involvement” in the power, and the presence or absence of a single remedy should not be determinative.

90 The Division Court in Ontario exercised considerable jurisdiction over residential tenancies in Ontario prior to Confederation. In addition to its power to adjudicate disputes over debt, it could decide actions for breach of covenant in a lease, replevin, distress, and personal actions for wrongful distress. The Court’s monetary limit was not a practical limit since, as this Court noted in Sobeys, at p. 270, $100 in 1867 “must be considered the equivalent of quite a substantial monetary jurisdiction today". The presiding judge in the Division Court was empowered to determine all questions of law and fact and could “make such orders, judgments or decrees thereupon as appear to him just and agreeable to equity and good conscience”: An Act respecting the Division Courts, C.S.U.C. 1859, c. 19, s. 55(2). The jurisdictional ambit of the Division Courts would thus appear to have included most matters of dispute that could arise between landlords and tenants.

91 Against this evidence of substantial concurrency in Ontario, the respondent raises this Court’s decision in Re Residential Tenancies Act, 1979, supra, where Dickson J. concluded that “[t]he settlement of disputes between landlords and tenants, including the termination of tenancies and eviction of tenants, has . . . always been within the exclusive jurisdiction of the Superior, District and County Court judges both before and after Confederation” (p. 738). The Court of Appeal accepted this as binding. In my view, it erred in doing so. The powers at issue in that case were narrowly defined, being limited to two remedies, and "no part of The Residential Tenancies Act, 1979, other than those sections empowering the Commission to issue compliance orders and eviction orders" was considered (Re Residential Tenancies Act, 1979, at p. 720). Dickson J. was not concerned with the broad range of disputes considered in Grondin and which are at issue on this appeal. His reference to the superior courts’ exclusive jurisdiction must be understood in this light. As Freeman J.A. held, “[t]he actual result in Residential Tenancies is no more binding in the present reference than it was in Grondin” (p. 185).

92 In summary, the evidence adduced in this case demonstrates that the superior courts of Canada did not enjoy exclusive jurisdiction over tenancy disputes at the time of Confederation. In every former colony inferior courts exercised a significant concurrent jurisdiction at or about the time of Confederation. It follows that the Nova Scotia House of Assembly's conferral of jurisdiction over residential tenancies on a provincially appointed tribunal does not violate s. 96 of the Constitution Act, 1867.

93 While this is sufficient to dispose of the appeal, I propose to consider the alternative argument that the legislation at issue confers a "novel jurisdiction" neither exercised nor contemplated by any court at the time of Confederation. In my view, the power conferred on provincially appointed officials by the legislation here at issue does not represent a new jurisdiction, but rather simply a reorganization for administrative reasons of a jurisdiction which has been exercised by superior and inferior tribunals in Canada since before Confederation.

94 If a power is new, there can be no conflict with s. 96, since it cannot have been within the jurisdiction of the superior courts at the time of Confederation. Section 96 cannot be infringed by the conferral of a jurisdiction that the superior courts never exercised before 1867. The historical inquiry undertaken in the first step of the Residential Tenancies test searches for pre-Confederation analogs of the superior court jurisdiction at issue. If none are found, the grant of power is valid: Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd., 1948 CanLII 266 (UK JCPC), [1949] A.C. 134 (P.C.). In John East, the Privy Council held that the modern system of collective bargaining in industrial relations was sufficiently distinct from the traditional 19th century conceptualization of the master-servant relationship, as expressed through individual contracts of employment, to constitute a novel jurisdiction. Similarly, in Sobeys, La Forest J. held in a concurring minority judgment that a comprehensive regime of new rights and entitlements for unorganized workers amounted to a new jurisdiction. A jurisdiction historically exercised by the superior courts may also cease to be analogous if its current manifestation is animated by a distinctly different organizational or operational principle or philosophy. Hence, the majority of this Court in Reference Re Young Offenders Act also reasoned that a comprehensive legislative scheme for young offenders, treating a discrete class of individuals differently by emphasizing rehabilitation rather than punishment, constituted a new jurisdiction which could be conferred on youth courts without violating the strictures of s. 96.

95 In my respectful view, the legislation here at issue does not meet the test for novel jurisdiction set out in these authorities. The powers conferred are clearly analogous to those exercised by the courts in 1867. In Re Residential Tenancies Act, 1979 Dickson J. prefaced his judgment with the observation that “[t]he resolution of disputes between landlords and tenants has long been a central preoccupation of the common law courts" (p. 718). The purpose of the Act was not to create a new jurisdiction, but “to transfer jurisdiction over a large and important body of law" (p. 747). Dickson J. summarily dismissed the suggestion that a new jurisdiction was involved: “the jurisdiction sought to be transferred is precisely the same as that which was previously, and is presently, exercised by the courts" (p. 748).

96 The adjudicative aspects of the legislation in this case are fundamentally similar to those in Re Residential Tenancies Act, 1979 and Grondin, although considerably briefer than either the 1979 Ontario Act or other comparable contemporary provincial statutes. If anything, the Act provides a less comprehensive code than the Ontario scheme at issue in Re Residential Tenancies Act, 1979 which combined administrative provisions for rent review and an advisory bureau with those setting out the judicial functions of the Residential Tenancy Commission.

97 The legislation here at issue codifies the existing law and establishes an impartial dispute resolution mechanism for landlords and tenants. Both the Director and the Board decide disputes between the parties. The parties present evidence and make submissions. Appeals are allowed and orders can be enforced by the parties as orders of the court. This is exactly the sort of work courts have traditionally done in relation to residential tenancy disputes. One looks in vain for the additional powers that may serve to make new soup of this old broth. Unlike the Director of Labour in Sobeys, the Director here does not have “carriage of the action” before the Board. The Director does not enforce standards or advocate on behalf of a group that the legislation protects. The Act proclaims no new policy aims to guide the Director or Board in interpreting and enforcing the Act. Nor does it consolidate and unify a disparate assemblage of statutes in order to present a comprehensive and principled new scheme of protection. Indeed, the 1992 amendments removed the Board's previous authority under s. 18(4) of the Act to "provide and disseminate information concerning rental practices, rights and remedies" and to "give advice and direction to landlords and tenants in disputes": An Act to Amend Chapter 401 of the Revised Statutes, 1989, the Residential Tenancies Act, s. 8(2).

98 Lamer C.J. in Reference Re Young Offenders Act and La Forest J. in Sobeys identified organizing principles and philosophies in the respective legislative schemes under consideration in those cases which were distinctly different from the conceptual basis for the powers exercised by the courts at the time of Confederation. A rehabilitative regime designed specifically for young offenders can be seen as novel in comparison with the criminal law of the 19th century, which emphasized punishment scaled to the crime regardless of the miscreant’s age. Similarly, a labour relations code calculated to extend many of the benefits of collective bargaining to unorganized workers might be construed as innovative jurisdiction, a finding consistent with the conclusion of the Privy Council in John East. By contrast, the legislation here at issue evinces no new defining social purpose capable of transforming traditional s. 96 powers into something so new and different that they defy the search for pre-Confederation antecedents.

99 The Chief Justice bases his case for novel jurisdiction on the premise that the concept of residential tenancy is “largely a phenomenon of modern and urban society” (para. 41). However, while there is little doubt that the process of urbanization has increased the number of residential tenants living in cities, the number of people renting premises as a percentage of the total population appears to have remained relatively constant over the years. Indeed, the respondent cites census figures which show that the proportion of renters actually declined by four percent from 1921 to 1991.

100 More importantly, it is difficult, with respect, to see how the increased urbanization of residential tenancy suffices to transform the subject matter of the jurisdiction. One might make the same argument with respect to crime. There was much less crime at the time of Confederation. Moreover, crime today, unlike then, is largely an urban phenomenon. Does this mean that the powers courts exercise in modern criminal trials are not analogous to the powers courts exercised in criminal trials before 1867? Moreover, the significance of the distinction between urban and agricultural residential leases is difficult to grasp. The legislation applies to both, and bears no evidence at being directed at a peculiarly urban problem. Residential leases may be properly contrasted with commercial leases, but not with rural leases, which often were and are concerned with residential premises. As well, it is clear that residential tenancy disputes arose with enough frequency in urban areas before Confederation to warrant empowering strictly urban courts, like the Halifax City Court, to deal with such disputes. Section 123 of An Act concerning the City of Halifax, S.N.S. 1864, 27 Vict., c. 81, was not restricted to commercial leases:

123. The city court shall also try and determine in a summary way without a jury, all cases of forcible entry and detainer, and over-holding lands, houses, and tenements by the tenants, upon a summons at the suit of the landlord . . . . [Emphasis added.]

While neither the common law nor statute singled out residential tenancies in 1867, that does not mean they did not exist, or that disputes were not resolved by the ordinary application of the law.

101 The Chief Justice also suggests that the consolidation of residential tenancy remedies in legislation somehow changes the essential subject matter: “the purpose of the Nova Scotia statute -- to provide a complete and comprehensive code to govern residential tenancies -- ‘would have sounded strange to the ears of the legislature of 1867'" (para. 47). So, one might venture, would the notion of a criminal code have sounded strange to 1867 ears; criminal codes were first introduced at the turn of the century and still sound strange to some English ears. Codifying law cannot by definition create a new jurisdiction, since codification necessarily presumes the jurisdiction previously existed. Covering an existing body of law with a new statutory wrapper does not make it novel.

102 The Chief Justice suggests that the jurisdiction is novel because it moves away from the contractual and leasehold bases of landlord-tenant law, arguing that the legislation at issue “represented a shift towards the policy view that the law respecting residential tenancies should be neither leasehold nor contractual but rather should involve a distinct, comprehensive statutory code governing the residential tenancies relationship" (para. 51). But, as Dickson J. cautioned in Re Residential Tenancies Act, 1979, "mere alteration in rules cannot change the substance of things or prevent the drawing of analogies" (p. 738). The fact that "different considerations" might guide the Director and Board in the discharge of their adjudicative functions, and the rules governing those responsibilities may have been "altered somewhat since 1867", cannot detract from the inescapable conclusion that the powers at issue "are not merely analogous to those (pre-1867) powers but are the same powers" (p. 737).

103 Moreover, the Act does not fundamentally change the leasehold and contractual nature of residential tenancies. The Act does not substitute fundamentally new statutory duties for the principles of contract and property law. The lease still governs the rights and obligations of the parties. The lease is a contract. This contract defines and assigns the rights and obligations of the lessor and lessee, owner and fix-term occupant, two personae well known to property law. Disputes are still resolved by interpreting the lease and applying it to the evidence. The legislation simply ensures that certain terms which may or may not have been consensually reached by the parties to the lease are included as a matter of statute. Standardized statutory terms themselves have become well known to property and contract law.

104 It may also be noted that the vast majority of the terms imposed by the legislation here at issue would have been express or implied in leases of the 19th century: for example, the landlord is held responsible for keeping the premises in a “good state of repair”, and the tenant is obliged to maintain the ordinary cleanliness of the interior. Some terms reflect relatively recent innovations of the common law -- for example, the obligation to mitigate upon abandonment -- but do not represent a doctrinal transmogrification; their incorporation simply mirrors incremental adjustments to the common law of leases. While the fact that the parties cannot contract out of these statutory conditions may represent an attempt to redress the imbalance of power inhering in the landlord-tenant relationship, this does not change the fact that the medium by which this is done is the traditional law of contract and lease. The relationship of landlord to residential tenant continues to be based on property law and the law of contract and tort, whether it is expressed through the common law or in statutes.

105 Finally, the Chief Justice alludes to the policy goals of the legislation as a basis for inferring novel jurisdiction. Again, the imposition of a few new obligations cannot suffice to create a new jurisdiction; it is difficult to think of a legislative scheme or statute that does not do this. Nor is the fact that the legislation apparently seeks to address a perceived social priority sufficient to create a new jurisdiction; again, most legislative schemes do so. What is required to create a new jurisdiction is a unifying concept or goal, and a sufficiently novel philosophy to belie any analogy with the powers previously exercised by superior courts. The legislation at issue here does not, in my respectful view, meet this test.

106 I have treated the issue of novel jurisdiction at some length out of a concern that too liberal an application of this concept may trivialize the three-part test for conferring superior court powers on provincially or federally appointed bodies. The factors cited in this case in support of the novel jurisdiction argument have the potential to permit any transfer of s. 96 powers to inferior tribunals. Virtually all types of disputes regulated by the superior courts at the time of confederation can be argued to have become modernized or urbanized. There are few social problems which came before the courts at the time of Confederation which have not been subjected to legislation effecting changes in the property law or contract law by which alone they were once regulated. The subdivision and amalgamation of subjects through codification in more comprehensive legislation, and the proclamation of new goals and priorities, are the routine stuff of every legislative and parliamentary agenda, year after year. If these are the criteria for novel jurisdiction, there must be little that cannot be removed from the s. 96 courts with impunity.

107 On a theoretical level, reliance on arguments of legislative policy in support of novel jurisdiction may be seen as conflating the first and third steps of the three-part test for infringement of s. 96. As noted, the purpose of the first two steps is to identify whether the law is one which has the potential to deprive the superior courts of the powers the Fathers of Confederation intended them to have. In keeping with this limited purpose, the issue at step one is best confined to an objective comparison of the nature of the powers conferred on the inferior tribunal and the powers exercised by superior courts at the time of Confederation to see if these powers are analogous. If they are, and if they are also shown to be judicial in nature as required by step two, the reviewing court passes to the third stage of the analysis to determine whether the analogous judicial power is transformed by the new legislative and administrative context in such a way that it is no longer a s. 96 power, but rather a power that is ancillary or necessarily incidental to the new scheme or legislative goal: Re Residential Tenancies Act, 1979, supra. To conclude at the outset that the administrative scheme or legislative goal makes the jurisdiction novel is to decide the entire issue of constitutionality at the first stage, without ever asking whether the power is merely ancillary to the administrative scheme or necessarily incidental to an otherwise valid legislative goal. This is not to say that a jurisdiction which is truly novel, either in the sense that new powers are being exercised or that the legislation reflects an entirely new approach to traditional concerns, should not be validated as insufficiently analogous to the powers exercised by the superior courts before Confederation. It is to say that the three-part test that this Court has scrupulously followed for 15 years is perfectly capable of ensuring the fulfillment of that objective.

Conclusion

108 I conclude that the powers conferred on the Director of Residential Tenancies and the Residential Tenancies Board by the Act cannot violate s. 96 of the Constitution Act, 1867 because they were not within the exclusive purview of the superior courts at the time of Confederation. Accordingly, I would allow the appeal and dismiss the cross-appeal. I would answer the constitutional questions posed by the Chief Justice in the same manner.

The following are the reasons delivered by

109 Gonthier J. -- I have had the benefit of the reasons of the Chief Justice and of Justice McLachlin. While I agree with the framework set forth by the Chief Justice for the analysis of whether a jurisdiction conferred on courts is novel for the purpose of applying s. 96 of the Constitution Act, 1867 including in particular the additional question which he puts, namely as to what courts would have been vested by the Legislature with the jurisdiction prior to Confederation, I am of the view, upon weighing the several aspects of the legislative scheme discussed by my colleagues, that it does not embody a sufficiently novel social philosophy or approach as to exclude analogy with jurisdiction assigned to the courts at the time of Confederation. The issue in this case is therefore properly answered by determining whether the challenged jurisdiction broadly conforms to one that was exercised by superior, district or county courts at the time of Confederation and not substantially shared with inferior courts. For the reasons of McLachlin J., I share her conclusion "that the superior courts of Canada did not enjoy exclusive jurisdiction over tenancy disputes at the time of Confederation" and that "[i]n every former colony inferior courts exercised a significant concurrent jurisdiction at or about the time of Confederation" (para. 92). Consequently, I conclude that the impugned provisions of the Residential Tenancies Act, R.S.N.S. 1989, c. 401, do not violate s. 96 of the Constitution Act, 1867 and I concur with both the Chief Justice and McLachlin J. in allowing the appeal and dismissing the cross-appeal, and would answer the constitutional questions posed in the same manner as the Chief Justice.

Appeal allowed and cross‑appeal dismissed.

Solicitor for the appellant: Alexander M. Cameron, Halifax.

Solicitor appointed to act as respondent: D. A. Rollie Thompson, Halifax.

Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.

Solicitors for the intervener the Attorney General of Quebec: Isabelle Harnois and Jean Bouchard, Ste‑Foy.

Solicitor for the intervener the Attorney General of Manitoba: The Department of Justice, Winnipeg.

Solicitor for the intervener the Attorney General of British Columbia: The Ministry of the Attorney General, Victoria.