Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27

SUPREME COURT OF CANADA

Appeal Heard: September 24, 2020 Judgment Rendered: June 30, 2021 Docket: 38837

IN THE MATTER OF a Reference to the Court of Appeal of Quebec pertaining to the constitutional validity of the provisions of article 35 of the Code of Civil Procedure , CQLR, c. C‑25.01, which set at less than $85,000 the exclusive monetary jurisdiction of the Court of Québec and to the appellate jurisdiction assigned to the Court of Québec

Conférence des juges de la Cour du Québec Appellant

v.

Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec Respondents

and

Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Conseil de la magistrature du Québec, Canadian Association of Provincial Court Judges, Organisme d'autoréglementation du courtage immobilier du Québec, Canadian Council of Chief Judges, Trial Lawyers Association of British Columbia and Canadian Superior Courts Judges Association Interveners

‑ and ‑

Attorney General of Quebec Appellant

v.

Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec Respondents

and

Attorney General of Canada, Attorney General of Ontario, Attorney General of British Columbia, Attorney General of Alberta, Conseil de la magistrature du Québec, Canadian Association of Provincial Court Judges, Organisme d'autoréglementation du courtage immobilier du Québec, Conférence des juges de la Cour du Québec, Canadian Council of Chief Judges, Trial Lawyers Association of British Columbia and Canadian Superior Courts Judges Association Interveners

‑ and ‑

Conseil de la magistrature du Québec Appellant

v.

Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec Respondents

and

Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Canadian Association of Provincial Court Judges, Organisme d'autoréglementation du courtage immobilier du Québec, Conférence des juges de la Cour du Québec, Canadian Council of Chief Judges, Trial Lawyers Association of British Columbia and Canadian Superior Courts Judges Association Interveners

‑ and ‑

Canadian Association of Provincial Court Judges Appellant

v.

Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec Respondents

and

Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Conseil de la magistrature du Québec, Organisme d'autoréglementation du courtage immobilier du Québec, Conférence des juges de la Cour du Québec, Canadian Council of Chief Judges, Trial Lawyers Association of British Columbia and Canadian Superior Courts Judges Association Interveners

‑ and ‑

Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec Appellants

v.

Attorney General of Quebec Respondent

and

Attorney General of Canada, Attorney General of Ontario, Attorney General of British Columbia, Attorney General of Alberta, Conseil de la magistrature du Québec, Canadian Association of Provincial Court Judges, Organisme d'autoréglementation du courtage immobilier du Québec and Conférence des juges de la Cour du Québec Interveners

Indexed as: Reference re Code of Civil Procedure (Que.), art. 35

2021 SCC 27

File No.: 38837.

2020: September 24; 2021: June 30.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Rowe and Martin JJ.

on appeal from the court of appeal for quebec

Constitutional law — Courts — Provincial jurisdiction over administration of justice — Role of superior courts — Exclusive monetary jurisdiction over civil claims for less than $85,000 granted to Court of Québec by provincial legislature — Whether grant of that exclusive jurisdiction is constitutional — Constitution Act, 1867, ss. 92(14) , 96 — Code of Civil Procedure, CQLR, c. C‑25.01, art. 35 para. 1.

On January 1, 2016, art. 35 para. 1 of Quebec's new Code of Civil Procedure came into force. This provision grants the Court of Québec exclusive jurisdiction over all civil disputes in which the value of the subject matter or the amount being claimed is less than $85,000. The Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec filed an originating application seeking a declaratory judgment of unconstitutionality of art. 35 para. 1 C.C.P. in the Superior Court. In their submission, the provision is incompatible with s. 96 of the Constitution Act, 1867 , because its effect is to deny Quebec litigants the right to file any civil claim in the Superior Court in which the value of the subject matter of the dispute is less than $85,000, thereby preventing the Superior Court from stating and advancing the law with respect to such claims. They also contested the appellate jurisdiction granted to the Court of Québec with respect to certain administrative decisions on the basis that the requirement of deference recognized in the case law is incompatible with the superior courts' power of judicial review.

In response to those legal proceedings, the Quebec government filed with the Court of Appeal, by order in council, a notice of reference submitting two questions to it: (1) Is art. 35 para. 1 C.C.P. valid with regard to s. 96 of the Constitution Act, 1867 ? (2) Is it compatible with s. 96 to apply the obligation of judicial deference, which characterizes the application for judicial review, to certain appeals to the Court of Québec?

On the first question, the Court of Appeal concluded that art. 35 C.C.P. is unconstitutional because it infringes on the core jurisdiction of the Superior Court to adjudicate certain substantial civil disputes by granting the Court of Québec jurisdiction over civil claims of less than $85,000. On the second question, the Court of Appeal held that applying the obligation of judicial deference to administrative appeals to the Court of Québec is compatible with s. 96 .

Held (Wagner C.J. and Rowe J. dissenting in part and Abella J. dissenting): The appeals should be dismissed.

Per Moldaver, Karakatsanis, Côté and Martin JJ.: Article 35 para. 1 C.C.P. is unconstitutional. The monetary limit of the jurisdiction granted to the Court of Québec is too high when considered in its historical and institutional contexts. It is noteworthy that the transfer of jurisdiction to the Court of Québec not only grants a broad civil jurisdiction, but also establishes an entirely parallel court system with none of the mechanisms that would usually prevent the creation of such a system.

The purpose of s. 96 of the Constitution Act, 1867 is to give effect to the compromise reached at Confederation by protecting the special status of the superior courts of general jurisdiction as the cornerstone of Canada's unitary justice system. The principles of national unity and the rule of law are key to understanding that role.

Protecting the superior courts' status reinforces the national character of the Canadian judicial system. The superior courts form a network of related courts whose role is to unify and ensure the coherent development of the law across the country.

The rule of law is maintained through the separation of judicial, legislative and executive functions. This separation allows the courts to implement the three fundamental facets of the rule of law: equality of all before the law, the creation and maintenance of an actual order of positive laws, and oversight of the exercise of public powers.

To ensure s. 96 of the Constitution Act, 1867 can play its role to the fullest extent and achieve its purpose, the Court has developed a number of tests over the years in accordance with the living tree approach. These tests all give effect to the prohibition against creating parallel courts that undermine the role of superior courts.

In Re Residential Tenancies Act, 1979 , [1981] 1 S.C.R. 714, the Court articulated the three‑step test that limits the granting of power or jurisdiction over a type of dispute where, at the time of Confederation, the power or jurisdiction came exclusively or primarily within the remit of the superior courts.

Before a court proceeds with the first step of the test, it must characterize the jurisdiction at issue. In this case, the jurisdiction granted to the Court of Québec by art. 35 para. 1 C.C.P. must be characterized as jurisdiction over civil disputes concerning contractual and extracontractual obligations.

The result of applying the first step of the test to this case is that there was a general shared involvement or a meaningful concurrency of power in the area of jurisdiction at issue: three of the four founding provinces had inferior courts with such jurisdiction at the time of Confederation.

A characterization like the one required by the provision at issue inappropriately favours a finding of general shared involvement, which leads to a rather strange result: the broader a grant of jurisdiction is, the more likely it is to pass the Residential Tenancies test.

It is therefore necessary to apply a second test, the core jurisdiction test adopted in MacMillan Bloedel Ltd. v. Simpson , [1995] 4 S.C.R. 725, which must be adapted to better reflect the values underlying s. 96 , given the weaknesses revealed by its application to this case. Specifically, the concept of "general private law jurisdiction" must be defined, and a multi‑factored analysis must be used to determine whether the grant of jurisdiction causes an impermissible infringement on the superior courts' core jurisdiction.

The core jurisdiction of the superior courts includes their ability to act as courts of original general jurisdiction, that is, to hear and determine matters not exclusively assigned by law to other courts, as well as their inherent jurisdiction and powers. In the area of private law, the core jurisdiction includes the superior courts' ability to provide jurisprudential guidance on private law, which is the necessary corollary to their jurisdiction.

In this case, the weighing of the six relevant factors leads to the conclusion that the grant to the Court of Québec of exclusive jurisdiction over civil claims for less than $85,000 prevents the Quebec Superior Court from playing its role as a court of original general jurisdiction and creates a prohibited parallel court. The result of this balancing of factors is that the extent of the infringement of the core jurisdiction is not permissible.

Per Wagner C.J. and Rowe J. (dissenting in part): The appeals relating to the first question should be allowed, but the appeal relating to the second question should be dismissed. Article 35 C.C.P. does not infringe the core jurisdiction of the Quebec Superior Court.

Per Abella J. (dissenting): The appeal should be allowed. Article 35 C.C.P. is valid with regard to s. 96 of the Constitution Act, 1867 . Both the superior and provincial courts shared jurisdiction over civil matters at Confederation, and the $15,000 increase in the exclusive jurisdiction of the Court of Québec has not prevented the Superior Court from playing its usual role in deciding civil cases.

Cases Cited

By Côté and Martin JJ.

Applied: Re Residential Tenancies Act , 1979 , [1981] 1 S.C.R. 714; MacMillan Bloedel Ltd. v. Simpson , [1995] 4 S.C.R. 725; considered : Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) , 2014 SCC 59 , [2014] 3 S.C.R. 31; Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653; referred to: Sobeys West Inc. v. College of Pharmacists of British Columbia , [1992] 1 S.C.R. 245; McEvoy v. Attorney General for New Brunswick , [1983] 1 S.C.R. 704; Reference re Young Offenders Act (P.E.I.) , [1991] 1 S.C.R. 252; Reference re Residential Tenancies Act (N.S.) , [1996] 1 S.C.R. 186; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island , [1997] 3 S.C.R. 3; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island , [1998] 1 S.C.R. 3; Ontario (Attorney General) v. G , 2020 SCC 38 , [2020] 3 S.C.R. 629; Canada (Attorney General) v. Bedford , 2013 SCC 72 , [2013] 3 S.C.R. 1101; Reference re Secession of Quebec , [1998] 2 S.C.R. 217; Reference re Manitoba Language Rights , [1985] 1 S.C.R. 721; R. v. Big M Drug Mart Ltd. , [1985] 1 S.C.R. 295; Windsor (City) v. Canadian Transit Co. , 2016 SCC 54 , [2016] 2 S.C.R. 617; Attorney General of Quebec v. Farrah , [1978] 2 S.C.R. 638; Hunt v. T&N plc , [1993] 4 S.C.R. 289; Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235; Attorney General of Quebec v. Grondin , [1983] 2 S.C.R. 364; Law Society of British Columbia v. Attorney General of British Columbia , [1982] 2 S.C.R. 307; Tomko v. Labour Relations Board (N.S.) , [1977] 1 S.C.R. 112; Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd. , [1949] A.C. 134 (P.C.); Re Cour de Magistrat de Québec , [1965] S.C.R. 772; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7) , [1993] 1 S.C.R. 839; Attorney‑General for Ontario v. Attorney‑General for Canada , [1912] A.C. 571 (P.C.).

APPEALS from a judgment of the Quebec Court of Appeal (Duval Hesler C.J. and Bich, Kasirer, Levesque, Vauclair, Mainville and Hogue JJ.A.), 2019 QCCA 1492 , [2019] AZ-51627804, [2019] Q.J. No. 7806 (QL), 2019 CarswellQue 10358 (WL Can.), in the matter of the reference pertaining to the constitutional validity of the provisions of article 35 of the Code of Civil Procedure. Appeals dismissed without costs, Wagner C.J. and Rowe J. dissenting in part and Abella J. dissenting.

François Grondin and Guy J. Pratte , for Conférence des juges de la Cour du Québec.

Dominique Rousseau and Francis Demers , for the Attorney General of Quebec.

Marc‑André Fabien and Vincent Cérat Lagana , for Conseil de la magistrature du Québec.

Audrey Mayrand and Jennifer Klinck , for the Canadian Association of Provincial Court Judges.

Sean Griffin and William J. Atkinson , for the Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec.

Bernard Letarte , for the intervener the Attorney General of Canada.

Daniel Huffaker , for the intervener the Attorney General of Ontario.

Gareth Morley , for the intervener the Attorney General of British Columbia.

Written submissions only by Randy Steele , for the intervener the Attorney General of Alberta.

No one appeared for the intervener Organisme d'autoréglementation du courtage immobilier du Québec.

P. Jonathan Faulds , Q.C. , for the intervener the Canadian Council of Chief Judges.

Ryan D. W. Dalziel , for the intervener the Trial Lawyers Association of British Columbia.

Pierre Bienvenu , for the intervener the Canadian Superior Courts Judges Association.

English version of the judgment of Moldaver, Karakatsanis, Côté and Martin JJ. delivered by

Côté and Martin JJ. —

I. Overview

[ 1 ] The unified national judicial system is a defining feature of Canada's judiciary. This system ensures the joint participation of the federal government and the provinces. [1] On the one hand, the Constitution grants exclusive jurisdiction over the appointment of superior court judges to the federal government (s. 96 of the Constitution Act, 1867 ). On the other hand, it grants the provinces exclusive jurisdiction over the administration of justice within their territories (s. 92(14) of the Constitution Act, 1867 ).

[ 2 ] Over the years, the courts have endeavoured to give meaning to this characteristic of Canada's judicial system, which stems from ss. 92(14) and 96 to 100 of the Constitution Act, 1867 . The case law sought to strike a proper balance between protecting the superior courts and giving the provinces latitude to organize their justice systems. A new challenge arises in this appeal: is there a point at which granting to a court with provincially appointed judges jurisdiction over a vast field of the general law goes so far as to create a parallel court and undermine the constitutional role of the superior courts?

[ 3 ] The first question raised in these appeals is whether art. 35 para. 1 of the Code of Civil Procedure , CQLR, c. C‑25.01 (" C.C.P. "), is consistent with s. 96 of the Constitution Act, 1867 . Put differently, does granting exclusive jurisdiction over civil disputes for less than $85,000 to the Court of Québec — a court with provincially appointed judges — create a parallel court that contravenes s. 96 of the Constitution Act, 1867 ?

[ 4 ] The purpose of s. 96 is to give effect to the compromise reached at Confederation by protecting the special status of the superior courts of general jurisdiction as the cornerstone of our unitary justice system. The principles of national unity and the rule of law are key to understanding that role.

[ 5 ] The three‑step Residential Tenancies test limits the granting of power or jurisdiction over a type of dispute where, at the time of Confederation, the power or jurisdiction came exclusively or primarily within the remit of the superior courts. The broad characterization of the jurisdiction conferred by art. 35 para. 1 C.C.P. has led to a result that is contrary to its purpose: the breadth of the jurisdiction conferred by this provision paradoxically makes it easier for it to pass the Residential Tenancies test.

[ 6 ] The second test aims to determine whether a grant of jurisdiction infringes on the superior courts' core jurisdiction either through an alteration of their essential nature or because they are prevented from playing their central role conferred by the Constitution. As we will explain, this test requires adaptation in order to be applicable in a case like this one involving a broad grant of general law jurisdiction.

[ 7 ] In this distinct context, we have looked to a wide range of factors to answer that question: the scope of the jurisdiction granted by art. 35 para. 1 C.C.P. , the exclusivity of the grant, the high monetary limit, the available appeal mechanisms, the impact on the superior court's caseload and the absence of a valid public policy justification for such a major departure from the historical monetary limits.

[ 8 ] We agree with the Court of Appeal that the monetary limit is too high when considered in its historical and institutional contexts. It is noteworthy that the transfer of jurisdiction to the Court of Québec not only grants a broad civil jurisdiction, but also establishes an entirely parallel court system with none of the mechanisms that would usually prevent the creation of such a system.

[ 9 ] Other characteristics of the Court of Québec likewise support the conclusion that the impugned article oversteps the bounds of constitutionality. Both courts hear civil cases involving contractual and extracontractual matters and apply the same procedural rules to those cases. The lack of an accessible mechanism for the Superior Court to appeal decisions of the Court of Québec highlights the parallel nature of the two courts.

[ 10 ] In our view, the second reference question, which relates to the Court of Québec's application of the obligation of judicial deference when it hears an appeal from an administrative decision under certain provincial statutes, is now moot as a result of the combined effect of this Court's decision in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653, and the enactment of new s. 83.1 of the Courts of Justice Act , CQLR, c. T‑16.

[ 11 ] For the reasons that follow, we would dismiss the appeals on the basis that art. 35 para. 1 C.C.P. is unconstitutional and the second question is moot.

II. Background to the Reference to the Quebec Court of Appeal

[ 12 ] On January 1, 2016, the new Code of Civil Procedure , including art. 35 , came into force. Article 35 grants the Court of Québec exclusive jurisdiction over all civil disputes in which the value of the subject matter or the amount being claimed is less than $85,000. This provision reads as follows:

The Court of Québec has exclusive jurisdiction to hear and determine applications in which the value of the subject matter of the dispute or the amount claimed, including in lease resiliation matters, is less than $85,000, exclusive of interest; it also has exclusive jurisdiction to hear and determine applications for the recovery of costs ruled on by the Administrative Tribunal of Québec. All other courts are without jurisdiction.

(art. 35 para. 1 C.C.P.)

[ 13 ] The structure of Quebec's judicial organization, of which art. 35 forms part, can be understood by briefly reviewing the scope of the Superior Court's and the Court of Québec's current jurisdictions in order to get a full picture of the issues in these appeals.

[ 14 ] The Court of Québec, as a statutory court, may exercise only the jurisdiction conferred on it by the legislature. Under Quebec legislation, the Court of Québec has jurisdiction throughout Quebec over civil, criminal and penal matters, as well as matters concerning youth. Its civil jurisdiction is the one at issue in these appeals.

[ 15 ] By contrast, the Quebec Superior Court, as the court of original general jurisdiction, has province‑wide jurisdiction to hear and determine any matter that is not formally and exclusively assigned to another court (art. 33 para. 1 C.C.P. ). As a superior court within the meaning of s. 96 of the Constitution Act, 1867 , it is a court of original general jurisdiction.

[ 16 ] The Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec ("Chief Justice of the Superior Court et al.") argue that the effect of art. 35 C.C.P. is to deny Quebec litigants the right to file any civil claim in the Superior Court in which the value of the subject matter of the dispute is less than $85,000, thereby preventing the Superior Court from stating and advancing the law with respect to such claims.

[ 17 ] For this very reason, at the time of the Code of Civil Procedure reform, the Chief Justice of the Superior Court et al. urged the Quebec legislature not to raise the ceiling of the Court of Québec's civil jurisdiction from $70,000 to $85,000.

[ 18 ] In August 2017, in response to those legal proceedings, the Quebec government issued Order in Council 880‑2017, Concernant un renvoi à la Cour d'appel portant sur la validité constitutionnelle des dispositions de l'article 35 du Code de procédure civile (RLRQ, c. C-25.01) (Décret 880‑2017, (2017) 149 G.O. II, 4495), submitting the following two reference questions to the Quebec Court of Appeal:

[translation]

1. Are the provisions of the first paragraph of article 35 of the Code of Civil Procedure (chapter C‑25.01), setting at less than $85,000 the limit to the exclusive monetary jurisdiction of the Court of Québec, valid with regard to section 96 of the Constitution Act, 1867 , given the jurisdiction of Quebec over the administration of justice under paragraph 14 of section 92 of the Constitution Act, 1867 ?

2. Is it compatible with section 96 of the Constitution Act, 1867 to apply the obligation of judicial deference, which characterizes the application for judicial review, to the appeals to the Court of Québec provided for in sections 147 of the Act respecting access to documents held by public bodies and the protection of personal information (chapter A‑2.1), 115.16 of the Act respecting the Autorité des marchés financiers (chapter A‑33.2), 100 of the Real Estate Brokerage Act (chapter C‑73.2), 379 of the Act respecting the distribution of financial products and services (chapter D‑9.2), 159 of the Act respecting administrative justice (chapter J‑3), 240 and 241 of the Police Act (chapter P‑13.1), 91 of the Act respecting the Régie du logement (chapter R‑8.1) and 61 of the Act respecting the protection of personal information in the private sector (chapter P‑39.1)?

(Order in Council, at p. 4496)

III. Quebec Court of Appeal, 2019 QCCA 1492

[ 19 ] The Court of Appeal first outlined the origin and purpose of the provisions of the Constitution Act, 1867 relating to the courts and the organization of justice, namely ss. 96 to 100 , 129 and 133 . Noting that these provisions are intended to establish a national judicial system, it held that the purpose of s. 96 is to maintain the superior courts as a guarantor of the rule of law by protecting them from being unduly deprived of their historic jurisdiction.

[ 20 ] The Court of Appeal considered whether art. 35 C.C.P. infringes on the core jurisdiction of the Quebec Superior Court (para. 102). Relying on Trial Lawyers Association of British Columbia v. British Columbia (Attorney General) , 2014 SCC 59 , [2014] 3 S.C.R. 31, the Court of Appeal held that the superior courts must be able to "exercise their essential and defining characteristics" (para. 102, citing Trial Lawyers , at para. 39).

[ 21 ] To identify the monetary limit beyond which an infringement on the core jurisdiction could not be justified, the Court of Appeal reviewed the structure of the courts in the other provinces. It then concluded that, [translation] "[i]n light of the historical framework of the founding provinces", the Superior Court's core jurisdiction includes the right to adjudicate "substantial" civil matters, that is, those involving an amount of $70,000 or more, the monetary limit updated from the $100 applicable at the time of Confederation.

[ 22 ] The Court of Appeal took the amount of $100 as the starting point for its analysis, because that was the amount of [translation] "the maximum monetary jurisdiction exercised in 1867 by some of the inferior courts charged with hearing certain civil matters in some of the founding provinces" (para. 165). The Court of Appeal then identified the current equivalent of that amount and concluded, on the basis of the evidence, that the present value of the historical ceiling of $100 is between $55,000 and $70,000.

[ 23 ] The Court of Appeal concluded that art. 35 C.C.P. is unconstitutional because it infringes on the core jurisdiction of the Superior Court to adjudicate certain substantial civil disputes by granting the Court of Québec jurisdiction over civil claims of less than $85,000.

[ 24 ] After reviewing increases in the threshold for appeals as of right and in the monetary ceiling of the civil jurisdiction of the Court of Québec, the Court of Appeal observed [translation] "that there has long been parity between the threshold for appeals as of right and the monetary ceiling of the civil jurisdiction of the Court of Québec". It noted, however, that following the 2002 reform, the ceiling of the Court of Québec's jurisdiction exceeded the threshold for appeals as of right, since the monetary limit was set at $70,000 while the threshold for appeals as of right remained at $60,000.

[ 25 ] On the second reference question, the Court of Appeal held that applying the obligation of judicial deference to administrative appeals to the Court of Québec is compatible with s. 96 . This is because the Superior Court retains [translation] "its core jurisdiction", since it retains "the power of judicial review with the possibility of certiorari proceedings before it" (para. 191).

IV. Analysis on the First Question

A. Scope of the First Reference Question

[ 26 ] The first question before this Court differs from the one it considered in Renvoi touchant la constitutionnalité de la Loi concernant la juridiction de la Cour de Magistrat , [1965] S.C.R. 772. That decision dealt with the constitutionality of the then most recent legislative amendment increasing the monetary ceiling of the inferior courts' civil jurisdiction from less than $200 to less than $500.

[ 27 ] The reference question in this case has been stated in much broader terms, and we are not limited to looking only at the legislation that increased the amount of the Court of Québec's monetary jurisdiction from $70,000 to $85,000. With respect to those who disagree with this interpretation, we are required to consider the provision as it currently stands — namely, art. 35 para. 1 C.C.P. — and not only the most recent increase in the monetary ceiling it provides for.

[ 28 ] Although the monetary limit and the exclusivity of the grant of jurisdiction are both important to the analysis, the language of the reference question requires a more wide‑ranging analysis that takes into account how courts with provincially appointed judges are organized.

B. Constitutional Framework

[ 29 ] Superior courts are the centrepiece of the unitary judicial system created by ss. 92(14), 96 to 100 and 129 of the Constitution Act, 1867 . These provisions lay one of the key foundations of Canada's Constitution, as they represent the balance of powers between the federal government and the provinces with respect to the administration of justice.

[ 30 ] Constitutional provisions must be "placed in [their] proper linguistic, philosophic and historical contexts" and interpreted in a broad and purposive manner ( R. v. Big M Drug Mart Ltd. , [1985] 1 S.C.R. 295 , at p. 344).

[ 31 ] This Court's jurisprudence on s. 96 of the Constitution Act, 1867 upholds the two fundamental principles underlying this provision, namely national unity and the rule of law. The case law has sought to safeguard the compromise reached at Confederation by giving the provinces the flexibility they need to manage their courts, while preventing those provinces from eroding the superior courts' constitutional status.

(1) Compromise Reached at Confederation

[ 32 ] Historically, the English judicial system was based on a dichotomy between so‑called inferior courts and the superior courts whose judges were appointed by the monarch (W. Blackstone, Commentaries on the Laws of England (1765), Book I, at pp. 267‑69). The superior courts, which had general jurisdiction, were the cornerstone of the English judicial system.

[ 33 ] This fundamental dichotomy was imported into the colonies of British North America. Although the colonies established a three‑tiered system consisting of a superior court, intermediate courts and inferior courts, the classification of the courts in two categories (superior and inferior) adopted in England was maintained.

[ 34 ] At the time of Confederation, the founding fathers chose to establish a constitution similar in principle to that of the United Kingdom, as recognized in the preamble to the Constitution Act, 1867 . The judicial system and the constitutional architecture surrounding it were obviously influenced by the British model. For example, it was decided that judges of the superior courts would be appointed by the federal government.

[ 35 ] However, because the founding provinces opted for a federal union rather than a unitary system like the one that existed in the United Kingdom, the British judicial system required adaptation. It was modified to take into account the fact that the various provinces already had their own systems and that a federal state needed a form of judicial unity.

[ 36 ] To guarantee both national unity and provincial autonomy, the Fathers of Confederation reached a compromise, creating a unitary justice system characterized by federal‑provincial cooperation. [2] To begin, all courts of civil and criminal jurisdiction that existed in the provinces continued to operate after Confederation (s. 129 of the Constitution Act, 1867 ). Furthermore, s. 96 of the Constitution Act, 1867 granted to the Governor General (that is, the federal executive) the power to appoint the judges of the superior courts, which preserved the unity of the legal system.

[ 37 ] In addition, s. 92(14) of the Constitution Act, 1867 ensured that the provinces' exclusive power over the administration of justice would remain intact, thereby preserving their autonomy in that regard. A province could therefore reorganize its judicial system and create new courts as it saw fit, subject to the condition that the role of the superior courts guaranteed by the Constitution was not thereby undermined.

[ 38 ] The Fathers of Confederation thus rejected the creation of a dualistic system like the ones established in other federations, including the United States. They preferred instead to establish a unitary system whose objective was national unity while simultaneously respecting the autonomy of the provinces.

[ 39 ] The superior courts of the various provinces were called upon to form the cornerstone of this system and to act as a "unifying force", thereby enabling the development of the law nationwide ( MacMillan Bloedel , at paras. 11, 29 and 37; see also Windsor (City) v. Canadian Transit Co. , 2016 SCC 54 , [2016] 2 S.C.R. 617, at para. 32).

[ 40 ] In short, the aim of the compromise reached at Confederation was not simply to maintain the pre‑existing justice system. It created a system in which responsibilities were shared between the provinces and the federal government, enabling each to play a specific role in the administration of justice.

(2) Role and Purpose of Section 96

[ 41 ] The superior courts recognized by s. 96 "have always occupied a position of prime importance in the constitutional pattern of this country" ( Law Society of British Columbia , at p. 327; see also Windsor , at para. 32). Although s. 96 may on its face appear merely to be a grant of an executive power to appoint judges, the courts have interpreted it as protecting a more fundamental principle — namely, the protection of the superior courts' role in the constitutional order.

[ 42 ] The superior courts' role as the cornerstone of Canada's judicial system is based on two key principles: national unity and the rule of law.

(a) National Unity

[ 43 ] One of the main objectives of the historic compromise reflected in s. 96 is to reinforce the national character of the Canadian judicial system (P. W. Hogg, Constitutional Law of Canada (5th ed. Supp. (loose‑leaf)), vol. 1, at p. 7‑3). The superior courts, which form a network of interrelated courts across the country, play a key role in the national unity of Canada's judicial system.

[ 44 ] Moreover, s. 96 has the effect of counterbalancing the provinces' exclusive power over the administration of justice by entrusting to the federal government the task of appointing the judges who will sit on the superior courts. In accordance with the compromise reached at Confederation, the superior courts thus bring a degree of national uniformity to the judicial system.

[ 45 ] In light of the objective of national unity, the limits imposed by s. 96 must be consistent across the country ( Sobeys , at pp. 265‑66). To make "[a] rule which would permit a transfer of power in one province and deny it in another would undermine the very national unity and uniformity of the judicial system" ( Sobeys , at p. 266).

(b) Rule of Law

[ 46 ] The rule of law is maintained through the separation of judicial, legislative and executive functions ((A.) J. Johnson, "The Judges Reference and the Secession Reference at Twenty: Reassessing the Supreme Court of Canada's Unfinished Unwritten Constitutional Principles Project" (2019), 56 Alta. L. Rev. 1077, at pp. 1089‑91). The superior courts play a crucial role in the maintenance of the rule of law by virtue of the jurisdiction they exercise and by virtue of their inherent powers.

[ 47 ] This separation allows the courts to implement the three fundamental facets of the rule of law: equality of all before the law, the creation and maintenance of an actual order of positive laws, and oversight of the exercise of public powers ( Reference re Secession of Quebec , [1998] 2 S.C.R. 217, at para. 71).

[ 48 ] Thus, in order to preserve the superior courts' role as the cornerstone of the judicial system, they must be able to continue acting as primary guardians of the rule of law as they always have ( MacMillan Bloedel , at para. 29; Reference re Remuneration of Judges (1997) , at paras. 109‑14; Windsor , at para. 32).

[ 49 ] In light of Canada's constitutional architecture, the superior courts are in the best position to preserve the various facets of the rule of law. Because of their independence and national character, they are best suited to resolving disputes between individuals and between individuals and the state.

[ 50 ] While it is true that this Court, in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island , [1997] 3 S.C.R. 3 (" Reference re Remuneration of Judges (1997) "), recognized the independence of the judges of courts with provincially appointed judges, the provincial courts are not the same as courts protected by ss. 96 to 100 of the Constitution Act, 1867 .

[ 51 ] Only the superior courts have inherent powers that flow from their very nature, and the particular purpose of those powers is to enable the superior courts to ensure the maintenance of the rule of law in our legal system ( Reference re Residential Tenancies Act (N.S.) , at para. 48, per Lamer C.J., concurring; MacMillan Bloedel , at para. 29).

[ 52 ] Although the provincial courts also play an important part in safeguarding the rule of law, none of their powers receive the same protection. Their role as guardians of the rule of law therefore rests on a less stable foundation. This led Lamer C.J. to distinguish between a "constitutionalized" role and a "legislative" role ( MacMillan Bloedel , at para. 29; Reference re Residential Tenancies Act (N.S.) , at para. 48, per Lamer C.J., concurring).

(3) Concept Common to the Section 96 Tests: Prohibition Against Creating Parallel Courts That Undermine the Role of the Superior Courts

[ 53 ] To ensure s. 96 can play its role to the fullest extent and achieve its purpose, this Court has developed various tests over the years. The most recent are the three‑step Residential Tenancies test and the core jurisdiction test. The Court has stated a principle common to both tests: the prohibition against creating parallel courts that undermine the role of the superior courts.

[ 54 ] In accordance with this evolutive approach, s. 96 has gone through a "process of liberalization" to adapt to modern realities ( Residential Tenancies , at p. 730). Despite this liberalization, this Court has consistently reiterated the prohibition against the creation of parallel courts, which gives full effect to the compromise reached at Confederation.

(a) Historical Jurisdiction

[ 55 ] First, the decisions on s. 96 gave effect to the prohibition against creating parallel courts by protecting the historical jurisdiction of superior courts. Section 96 was originally given a "sweeping" interpretation ( Residential Tenancies , at p. 728) by the Privy Council, which held that s. 96 was intended to freeze the jurisdiction of the superior courts as it stood in 1867. That interpretation precluded any grant of jurisdiction that duplicated the jurisdiction of the superior courts at the time of Confederation.

[ 56 ] This Court rejected the Privy Council's "sweeping" approach that same year in Reference re Adoption Act , [1938] S.C.R. 398, on the basis that it was too rigid and fixed the jurisdiction of the courts as it stood in 1867.

[ 57 ] The Privy Council then relaxed the applicable test in Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd. , [1949] A.C. 134 (P.C.), to better account for the emergence of administrative tribunals. Lord Simonds stated that the purpose of s. 96 was not to freeze the jurisdiction of the superior courts, but rather to protect their "essential character" (p. 149).

[ 58 ] In Tomko , the Court developed the principle that the validity of a grant of jurisdiction must be considered having regard to the "institutional framework" (p. 131) in which the jurisdiction is exercised, a principle that was subsequently incorporated into the Residential Tenancies test.

[ 59 ] Finally, in Residential Tenancies , our Court articulated the three‑step test that remains in use today, subject to a few modifications introduced in subsequent cases :

• Characterization of the grant of jurisdiction : To determine whether a grant of jurisdiction is constitutionally infirm, a court must first properly characterize the jurisdiction being transferred.
• Three steps :
  1. Does the transferred jurisdiction conform to a jurisdiction that was dominated by superior, district or county courts at the time of Confederation?
  2. If so, was the jurisdiction in question exercised in the context of a judicial function?
  3. If the first two questions are answered in the affirmative, is the jurisdiction either subsidiary or ancillary to an administrative function or necessarily incidental to the achievement of a broader policy goal of the legislature?

(pp. 734‑36; Attorney General of Quebec v. Grondin , [1983] 2 S.C.R. 364; Sobeys , at p. 266; Reference re Residential Tenancies Act (N.S.) , at paras. 32, per Lamer C.J., concurring, and 74, per McLachlin J. (as she then was))

[ 60 ] In Residential Tenancies , Dickson J. (as he then was) firmly reiterated the relationship between the prohibition against creating parallel courts and the role and purpose of s. 96:

Section 92(14) and ss. 96 to 100 represent one of the important compromises of the Fathers of Confederation. It is plain that what was sought to be achieved through this compromise, and the intended effect of s. 96, would be destroyed if a province could pass legislation creating a tribunal, appoint members thereto, and then by statute give that tribunal the jurisdiction of the superior courts.

(p. 728)

[ 61 ] In its jurisprudence subsequent to Residential Tenancies , this Court has consistently refused to allow the creation of parallel courts. In McEvoy , the Court held that the contemplated court could not be established, because it would "effectively be a s. 96 court" (pp. 718‑19). The same fundamental concept was applied in Sobeys , in which Wilson J., writing for the majority, stated that "s. 96 operates . . . to prevent the creation of provincial tribunals charged with exercising the jurisdiction of superior courts" (p. 245). Similarly, in Reference re Young Offenders Act (P.E.I.) , Lamer C.J. observed that s. 96 would be rendered meaningless if it were permissible to "constitute, maintain and organize provincial courts staffed with provincially appointed judges having the same jurisdiction and powers as superior courts" (p. 264).

[ 62 ] More recently, in MacMillan Bloedel , McLachlin J., dissenting, but not on this point, noted that, "[c]learly, Parliament and the legislatures cannot be allowed to set up shadow courts exercising all or some of the powers of s. 96 courts" (para. 57).

(b) Core Jurisdiction

[ 63 ] The core jurisdiction test aims to do more than simply protect historical jurisdiction. It also ensures that superior courts are not impaired in such a way that they are unable to play their role under s. 96. The superior courts' core jurisdiction is an expression of their "essential character" and encompasses the attributes that are necessary to their institutional existence.

[ 64 ] Until MacMillan Bloedel , this Court's decisions protected the superior courts' role by limiting grants of their historical jurisdiction. In MacMillan Bloedel , the Court applied the three‑step Residential Tenancies test to an exclusive grant of jurisdiction to the Provincial Court of British Columbia and found that the grant was constitutional. However, Lamer C.J., writing for the majority, went further and applied a new test: the core jurisdiction test.

[ 65 ] To preserve the essence of the superior courts, this Court therefore added a second test to the analysis of constitutionality under s. 96. It held that when the core jurisdiction of superior courts is affected, courts must ask whether the legislation has "deprive[d] superior courts of their powers in a way that strikes at the core of their jurisdiction and thus at the foundational principle of judicature recognized in s. 96" ( MacMillan Bloedel , at para. 37).

[ 66 ] In addition to calling a removal of jurisdiction into question, this new doctrine operates to prevent the creation of parallel courts, like the Residential Tenancies test also does. The core jurisdiction test prevents the legislature from transferring so much of the superior courts' jurisdiction to a court with provincially appointed judges that the superior courts can no longer play their constitutional role.

[ 67 ] The emergence of a test protecting core jurisdiction thus marks a change in direction. Unlike the Residential Tenancies test, the core jurisdiction analysis is not primarily historical in nature. It is the very essence of the superior courts that is protected. This analysis recognizes that the protection of that essence is what best gives effect to the compromise reached at Confederation.

[ 68 ] The content of the core jurisdiction includes the inherent jurisdiction and inherent powers of a superior court recognized in MacMillan Bloedel : namely, review of the legality and constitutional validity of laws, enforcement of its orders, control of the conduct of proceedings before it, and some jurisdiction in respect of young persons.

[ 69 ] The constitutional protection of the residual jurisdiction of the superior courts as courts of original general jurisdiction was reiterated in Trial Lawyers , in which the Court held that the imposition of hearing fees that had the effect of denying access to the superior court deprived it of its core jurisdiction (para. 38).

(c) Conclusion

[ 70 ] In short, a review of this Court's jurisprudence highlights the prohibition against creating parallel courts or striking at the very essence of superior courts, which gives full effect to the compromise reached at Confederation. Although the applicable tests have evolved over time, they share a common thread: ensuring that the superior courts retain the jurisdiction necessary to fulfil their constitutional role and act as the cornerstone of the Canadian judicial system.

C. Application

[ 71 ] We will begin by applying the Residential Tenancies test to determine whether art. 35 para. 1 C.C.P. affects a jurisdiction that has historically been exercised by the superior courts and cannot be granted to a court with provincially appointed judges. We will then apply the core jurisdiction test.

(1) Three‑Step Residential Tenancies Test

(a) Characterizing the Jurisdiction

[ 72 ] Before proceeding with the first step of the test, we must characterize the jurisdiction at issue ( Sobeys , at pp. 252‑55; Reference re Young Offenders Act (P.E.I.) , at p. 265 ; Reference re Residential Tenancies Act (N.S.) , at para. 76). The characterization of the jurisdiction granted to the Court of Québec by art. 35 para. 1 C.C.P. must focus on the type of dispute, the area of jurisdiction, and the subject matter of the decision.

[ 73 ] We agree with those who argued that this provision grants jurisdiction over civil disputes concerning contractual and extracontractual obligations (A.F., AGQ, at para. 56; A.F., Conférence des juges de la Cour du Québec ("CJCQ"), at para. 93; A.F., CAPJ, at para. 48; A.F., CMQ, at para. 9).

[ 74 ] We reject the respondents' claim that this provision refers to a [translation] "general civil jurisdiction, exclusive throughout the territory of Quebec, up to $85,000 in 2016 dollars" (R.F., Chief Justice of the Superior Court et al., at para. 84). We also reject the intervener Canadian Superior Courts Judges Association's characterization, which is no different from the one we just rejected (I.F., CSJA, at paras. 13 and 22‑23).

(b) Historical Analysis

[ 75 ] Guidance on the methodology to be used in addressing this issue can be found in Sobeys and in Reference re Residential Tenancies Act (N.S.) . At this first step, the Court must ask whether inferior courts of the four founding provinces had a "general shared involvement" or a "meaningful concurrency of power" in the area of civil jurisdiction at issue at the time of Confederation ( Sobeys , at p. 263; Reference re Residential Tenancies Act (N.S.) , at paras. 36 and 80).

[ 76 ] There was, at the time of Confederation, a general shared involvement or a meaningful concurrency of power in the area of civil jurisdiction over contractual and extracontractual obligations in three of the four founding provinces, with the exception of Lower Canada (now Quebec).

[ 77 ] Lower Canada's experience was different. The Commissioners' Court was competent to adjudicate cases involving amounts of less than $25 at the time of Confederation (see An Act respecting District Magistrates in this Province , S.Q. 1869, c. 23, ss. 13, 16 and 17). However, this court's jurisdiction was concurrent with that of the Superior Court.

[ 78 ] In Upper Canada (now Ontario), New Brunswick and Nova Scotia, the inferior courts had civil jurisdiction in the relevant area. In particular, in New Brunswick, the inferior courts exercised civil jurisdiction to the extent of $100, while in Nova Scotia, the inferior courts exercised jurisdiction over cases involving less than $80.

[ 79 ] In conclusion, there was, at the time of Confederation, a general shared involvement by inferior courts in the area of civil jurisdiction over contractual and extracontractual obligations in three of the four founding provinces. Thus, the first step of the Residential Tenancies test is not satisfied, and the Residential Tenancies test does not prohibit the grant of that jurisdiction to the Court of Québec.

(2) Core Jurisdiction Test

[ 80 ] As we explained above, even if a grant of jurisdiction passes the Residential Tenancies test, it does not necessarily follow that the grant is constitutional. Its impact on the core jurisdiction of superior courts still has to be assessed, even in the case of a court with provincially appointed judges.

[ 81 ] In this case, art. 35 para. 1 C.C.P. involves the superior courts' general private law jurisdiction. To decide whether the transfer of jurisdiction effected by art. 35 impermissibly infringes on this aspect of the superior courts' core jurisdiction, we must first identify what the general private law jurisdiction consists of.

(a) General Private Law Jurisdiction

[ 82 ] The core jurisdiction of the superior courts includes their ability to act as courts of general jurisdiction, that is, to hear and determine matters not exclusively assigned by law to other courts ( MacMillan Bloedel , at paras. 29, 32 and 37; Trial Lawyers , at para. 39; Windsor , at para. 32). The superior courts' core jurisdiction presupposes a jurisdiction over at least some of the fundamental aspects of private law.

[ 83 ] In our view, the superior courts' core jurisdiction presupposes a broad subject‑matter jurisdiction whose scope corresponds, at the very least, to the central divisions of private law to which more specific fields of law are often attached. The general private law jurisdiction thus forms part of the core jurisdiction of the superior courts in that it enables them to develop the law and act as a unifying force.

[ 84 ] Historically, the English royal courts had general civil jurisdiction and were responsible for the major developments in private law (Lederman, at p. 773). The Canadian superior courts, which are descended from those courts, inherited their role as developers of private law. Developing private law is part of the core of the superior courts' jurisdiction, both historically and structurally.

[ 85 ] The paramount role given to the superior courts derives in part from the fact that they are courts of original general jurisdiction. A court of original general jurisdiction is the antithesis of a specialized tribunal. A specialized tribunal deals only with a limited and specific subject matter. A court of original general jurisdiction, by contrast, is the default court for matters not assigned elsewhere, which gives it broad expertise in a variety of areas.

[ 86 ] This is why a general jurisdiction over private law matters must be accompanied by a subject‑matter jurisdiction that is broad enough to preserve the superior courts' role in providing jurisprudential guidance on private law (N. Lyon, "Is Amendment of Section 96 Really Necessary?" (1987), 36 U.N.B.L.J. 79, at pp. 89‑90). A province cannot eliminate the general private law jurisdiction of the superior courts to such an extent that they are no longer able to develop private law.

(b) Purpose of the Analysis and Factors to Consider

[ 87 ] Article 35 para. 1 C.C.P. assigns one of the fundamental branches of Quebec civil law to the Court of Québec where the value of the subject matter of a dispute is less than $85,000. It unavoidably affects an aspect of the superior courts' core jurisdiction.

[ 88 ] There are various factors that can be helpful when it comes to determining whether, by granting a court with provincially appointed judges a jurisdiction as broad as the one at issue in this case, a legislature has created a prohibited parallel court. These factors include: the scope of the jurisdiction being granted, whether the grant is exclusive or concurrent, the monetary limit, the appeal mechanisms, the impact on the caseload of the superior court and the pursuit of an important societal objective.

[ 89 ] In our opinion, these factors give effect to the compromise reached at Confederation concerning the special status of the superior courts of general jurisdiction in a unitary justice system. They make it possible to draw a sufficiently clear line between transfers of jurisdiction that are constitutionally permissible under s. 92(14) and those that are not.

[ 90 ] Before we turn to the heart of the analysis, two preliminary remarks are in order.

[ 91 ] First, these appeals do not concern the Small Claims Division of the Court of Québec's Civil Division. Even though the Small Claims Division's jurisdiction is covered by art. 35 C.C.P. , the parties' submissions did not relate to that division. For our purposes, the relevant field is civil disputes adjudicated under the general regime provided for in art. 35 para. 1 C.C.P. in accordance with the general rules of the Code of Civil Procedure .

[ 92 ] Second, the institutional characteristics of courts with provincially appointed judges have changed considerably since 1867. Today, although the existence of courts with provincially appointed judges is not itself protected by the Constitution, those courts have become, in the words of McLachlin J. in MacMillan Bloedel , "a vital part of our court system" (para. 22).

[ 93 ] Even though ss. 96 to 100 do not apply to the judges of those courts, their independence is protected as a result of the preamble to the Constitution of Canada. In Reference re Remuneration of Judges (1997) , this Court held that the constitutional preamble and the principle of judicial independence protect the institutional independence of provincial court judges (para. 109). These institutional characteristics increase the resemblance between those courts and the superior courts.

[ 94 ] In addition, whereas at the time of Confederation, provincial court judges generally had no legal training (J. Deslauriers, "La Cour provinciale et l'art. 96 de l'A.A.N.B." (1977), 18 C. de D. 881, at p. 910; Lyon, at p. 82 ), the present situation is entirely different. Today, judges of the Court of Québec must have at least 10 years of experience as advocates before their appointment (Courts of Justice Act , CQLR, c. T‑16, s. 79). These institutional and professional characteristics of courts with provincially appointed judges are relevant for purposes of the analysis of the core jurisdiction.

[ 95 ] With this in mind, let us now consider the relevant factors.

(i) Scope of the Jurisdiction Being Granted

[ 96 ] The first factor is the scope of the jurisdiction that is granted to the court with provincially appointed judges. Is it a vast or limited area of jurisdiction? As McLachlin J. wrote in MacMillan Bloedel , the concern is that "vast areas of common law or civil law" should not be transferred (para. 57, dissenting, but not on this point).

[ 97 ] The scope of the jurisdiction being granted is not a strictly quantitative factor linked to the number of disputes concerned. On the contrary, this factor requires that the jurisdiction in question be situated in relation to the main branches of private law. A grant of jurisdiction that covers one of those branches will carry more weight than a grant that covers only a specific aspect of a legal field.

[ 98 ] Whether a grant of jurisdiction is vast or limited is a question of degree. For example, jurisdiction over civil disputes is more vast than jurisdiction over contract law, which is in turn more vast than jurisdiction over employment contracts, which is in turn more vast than jurisdiction over employment contracts in a specific industry.

[ 99 ] In the case at bar, art. 35 para. 1 C.C.P. grants to the Court of Québec almost the entirety of the law of obligations for claims of less than $85,000. This is not just any area of jurisdiction. The law of obligations, the real heart of private law in the civil law tradition, underlies all relationships in a modern society. The importance of this field of law is eloquently described in the following passage:

[translation] At the very heart of th[e] social order, the law of obligations is the legal foundation of the daily lives of the members of a civil society. Indeed, the law of obligations is everyday life put in a legal equation. The essential function of the law of obligations is to facilitate the satisfying of needs, the provision of services, the supplying of labour, the sharing of resources, and in particular, to make possible the transfer of rights, including the right of property.

(P.‑A. Crépeau, "La fonction du droit des obligations" (1998), 43 McGill L.J. 729, at p. 732.)

[ 100 ] Based on its scope and because of the fundamental nature of the field of law in question, the block of jurisdiction granted to the Court of Québec in art. 35 para. 1 C.C.P. is unquestionably similar to the general private law jurisdiction exercised by the superior courts of general jurisdiction.

(ii) Whether the Grant Is Exclusive or Concurrent

[ 101 ] As courts of original general jurisdiction, the superior courts have "inherent jurisdiction over all matters, both federal and provincial, unless a different forum is specified" ( Hunt v. T&N plc , [1993] 4 S.C.R. 289, at p. 295). A concurrent grant of jurisdiction therefore removes less of the superior courts' jurisdiction than an exclusive grant does.

[ 102 ] In the instant case, civil suits concerning contractual and extracontractual matters for less than $85,000 have been removed from the Superior Court's jurisdiction. According to the statistics that were adduced in evidence, this accounts for approximately 55 percent of the civil cases in Quebec.

[ 103 ] It may therefore be helpful in this analysis to consider the situation elsewhere in Canada. Even though s. 92(14) allows for and encourages flexibility in how the justice system is organized in each province, the superior courts of general jurisdiction must be able to play a role consistent with the national unity objective of s. 96 .

[ 104 ] The role left to the Quebec Superior Court in this field is minimal in comparison with the role of superior courts elsewhere in Canada. Although the Quebec Superior Court has retained its jurisdiction over major disputes relating to obligations — those involving amounts of $85,000 or more — a role so limited in this area affects the Superior Court's ability to provide jurisprudential guidance in the general area of private law.

(iii) Monetary Limit

[ 105 ] Monetary limits reflect a certain division of labour between the courts pursuant to which the superior courts play the central role. As this Court held in Sobeys , "the nature of the inferior‑superior court distinction will invariably mean that the former will deal with more routine matters while the latter will deal with matters of more complex or wide‑reaching import" (p. 265).

[ 106 ] That being said, a monetary limit is merely one of several factors to weigh; it cannot be determinative in itself. If considered in isolation, a decision to impose a particular monetary limit will always appear to be discretionary. This is why it must be analyzed in light of the other factors.

[ 107 ] The Court of Appeal properly took the $100 monetary limit that had, in 1867, circumscribed the involvement of the inferior courts of the four founding provinces in the area of jurisdiction at issue as the starting point for its analysis. Comparing this amount with the current ceiling of $85,000 will help to determine whether the evolution of the Court of Québec's civil jurisdiction has led to an impermissible infringement on the Superior Court's core jurisdiction.

[ 108 ] If the current and historical monetary limits are close, it might be thought that the impact on the superior courts' role in exercising the jurisdiction in question will be lower. The fact that the two amounts are equivalent would suggest that the transfer of jurisdiction to the court with provincially appointed judges does no more than reflect monetary inflation and that the constitutional division of labour between the two types of courts remains unchanged.

[ 109 ] However, the monetary factor must not transform the analysis into a mathematical operation; it is but one factor among several, and it is useful because it allows the analysis to be anchored in a quantitative range. The current monetary ceiling need not be precisely equal to the updated historical ceiling. Some latitude must be granted to allow the legislature to depart from the historical ceiling.

[ 110 ] There should nevertheless be a reasonable connection between the current monetary ceiling and the historical one that reflects the general division of labour at the time of Confederation between the inferior courts and what are now the s. 96 courts. A ceiling that is too far above or below the updated historical ceiling will signal either that the core jurisdiction of the superior courts has been infringed on or that the province has been overly cautious.

[ 111 ] It is to be expected that the monetary limit will increase over time because of inflation. The provinces should not have to frequently take action to adjust the limit. The courts should therefore be flexible when considering an amount that reflects only a modest departure from the updated historical limit.

[ 112 ] This flexibility also facilitates access to justice (Blackstone, Commentaries on the Laws of England (1768), Book III, at p. 30, "[t]he policy of our ancient constitution . . . was to bring justice home to every man's door"). Although the current model, which provides for a threshold in today's dollars, is not perfect, it does give effect to the purpose of s. 96 and to the compromise reached at Confederation.

[ 113 ] It is true that in this approach, significant weight is given to the monetary limit as a benchmark, whereas this Court has stated in discussing the Residential Tenancies test that geographical limitations must carry more weight than monetary limitations ( Sobeys , at p. 265). However, the test we are adapting is not the Residential Tenancies test, which aimed to deal with the situation in which an administrative tribunal or a court of inferior jurisdiction was given jurisdiction over a specific and limited subject matter.

[ 114 ] The monetary factor we are proposing for this multi‑factored analysis should not be subject to the same reservations as arose from Sobeys . First, it already takes inflation into account. Second, the factors of this analysis relate to the impact on the core jurisdiction, not just to the nature of the jurisdiction. Third, a monetary limit is a good indicator of the breadth of the jurisdiction granted to the court with provincially appointed judges.

[ 115 ] In the case at bar, the Court of Appeal took $100 as the starting point. This amount, which served as a basis for the expert reports filed by various parties, "is the amount of the maximum monetary jurisdiction exercised in 1867 by some of the inferior courts charged with hearing certain civil matters in some of the founding provinces" (para. 165).

[ 116 ] We agree with the Court of Appeal's analysis as regards the consumer price index, interest rates and nominal wages (paras. 167‑71). The best approach is to select the least imperfect method — the nominal GDP method in this case — and to remain open to other appropriate approaches in future cases.

[ 117 ] Although we concede that the nominal GDP per capita method has its weaknesses, it is nonetheless the one that should be used. This method has the advantage of incorporating [translation] "all changes having occurred over time that have made it more expensive to settle a claim in court: changes in the complexity of cases, in labour costs, in technology, etc." (Court of Appeal, at para. 171).

[ 118 ] Thus, a ceiling of $100 in 1867 is equivalent today, Canada‑wide, to an amount somewhere between $63,698 and $66,008. The current ceiling of $85,000 is 29 percent more than the higher of these two amounts. This certainly suggests that the Court of Québec's jurisdiction has increased significantly in recent years, beyond what inflation alone would justify.

(iv) Appeal Mechanisms

[ 119 ] Appeal mechanisms can shed helpful light on the question whether a grant of jurisdiction establishes a prohibited parallel court that undermines the role of the superior courts of general jurisdiction.

[ 120 ] From a constitutional point of view, a superior court of general jurisdiction and a provincial court of appeal are both "superior court[s]" within the meaning of s. 96 ( Attorney General of Quebec v. Farrah , [1978] 2 S.C.R. 638, at pp. 649‑51). Thus, the fact that decisions of the Court of Québec can be appealed to the Quebec Court of Appeal means that they can be reviewed by a court protected by s. 96 .

[ 121 ] Nevertheless, how decisions rendered by the provincial court in exercising the jurisdiction at issue are to be appealed may help us answer the question whether the grant of that jurisdiction prevents the superior court of general jurisdiction from playing its role.

[ 122 ] In the instant case, decisions rendered in exercising the jurisdiction provided for in art. 35 para. 1 C.C.P. may be appealed to the Quebec Court of Appeal under art. 30 or 31 C.C.P. In most of the other provinces, decisions of a court with provincially appointed judges exercising civil jurisdiction are appealed first to the superior court of general jurisdiction and then to the court of appeal. This intermediate step creates a mechanism that enables the superior court of general jurisdiction to review and correct decisions rendered in the field of private law.

[ 123 ] Articles 30 and 31 C.C.P. confirm that the Court of Québec's decisions cannot be appealed to the Superior Court. To some extent, the Court of Québec's decisions are more shielded from appellate review than those of the Superior Court. Given that the Court of Québec's decisions can only be appealed directly to the Quebec Court of Appeal, the Superior Court is entirely bypassed, and it has no way to intervene in the law developed by the Court of Québec in the field covered by art. 35 C.C.P. This reinforces the conclusion that the grant of jurisdiction under art. 35 creates a prohibited parallel court.

(v) Impact on the Caseload of the Superior Court of General Jurisdiction

[ 124 ] A grant of jurisdiction to a court with provincially appointed judges does not necessarily deprive the superior court of all forms of involvement in that area of jurisdiction. If, for example, the grant in question is subject to a monetary ceiling, the superior court can continue to hear cases whose value exceeds the ceiling. The impact on the superior court's caseload in the relevant area of jurisdiction should be assessed.

[ 125 ] In this case, the evidence in the record supports no conclusion as to the impact of art. 35 C.C.P. on the superior court's role. The parties submitted statistics that compared the caseload falling under art. 35 C.C.P. with the Quebec Superior Court's caseload in civil matters. We are, however, unable to determine whether the cases falling under art. 35 C.C.P. include cases that would otherwise have been heard by the Superior Court.

(vi) Pursuit of an Important Societal Objective

[ 126 ] Granting jurisdiction to a court with provincially appointed judges may be the means a legislature adopts to try to address a societal concern. The pursuit of an important societal objective may lend credence to the idea of a legitimate exercise of the province's power under s. 92(14) of the Constitution Act, 1867 .

[ 127 ] Access to justice can also be promoted through features like a simplified procedure and simplified rules on the production of evidence. A summary procedure, for example, or rules of evidence that are relaxed in comparison with those that apply in the superior court may make it easier for litigants to assert their rights before courts with provincially appointed judges.

[ 128 ] The AGQ submitted that the increase in the monetary ceiling for the Court of Québec's civil jurisdiction was a response to a concern for access to justice in areas far from urban centres. However, we agree with the Court of Appeal that the AGQ has not produced concrete evidence establishing that the increase in the ceiling contributes directly to access to justice in Quebec (para. 175).

[ 129 ] The procedural framework in which the jurisdiction set out in art. 35 para. 1 C.C.P. is exercised is the same as in the Superior Court. Except in relation to questions of jurisdiction and the rules of practice, the Code of Civil Procedure makes no distinction between the Superior Court and the Court of Québec (see arts. 30, 33 to 35 and 536 to 570 C.C.P. ). The Court of Québec is therefore not subject to a simplified procedure when it exercises the jurisdiction provided for in art. 35 para. 1 C.C.P.

[ 130 ] Moreover, access to justice is an argument that cuts both ways in this case. Quebec is the only province that has conferred so broad a jurisdiction on its court with provincially appointed judges: elsewhere in Canada, the superior courts play a much more important role in civil matters. It is difficult to understand why the access to justice objective would be achieved differently in Quebec than in the other provinces.

(c) Weighing the Factors

[ 131 ] Although the multi‑factored analysis is not a mathematical operation, it must nonetheless be capable of being transposed to a monetary scale. In our view, the historical monetary ceilings serve as a good starting point for the analysis and allow the current monetary ceiling to be measured against the historical one.

[ 132 ] To determine how much latitude a legislature has should it wish to exceed these historical ceilings, we must consider the various factors of the multi‑factored analysis: the scope of the jurisdiction being granted, whether the grant is exclusive or concurrent, the monetary limit, the appeal mechanisms, the impact on the caseload of the superior court and the pursuit of an important societal objective.

[ 133 ] The more the analysis of the above factors suggests that the core jurisdiction of those courts has been infringed on, the less the province will be allowed to depart from the updated historical monetary ceilings. Conversely, the less the analysis of the factors suggests an infringement of the core jurisdiction, the more latitude the province will have.

[ 134 ] In this case, the historical monetary ceiling of $100 is not in dispute. In today's dollars, this represents an amount of between $63,698 and $66,008. The amount need not be within a dollar of that range. The imperfection of the conversion methods and the flexibility that characterizes this analysis mean that the Court of Québec's jurisdiction could have been set at an amount close to $66,008 without necessarily infringing the core jurisdiction of the Superior Court.

[ 135 ] The monetary ceiling of less than $85,000 fixed by art. 35 para. 1 C.C.P. represents an increase of approximately 29 percent over the historical ceiling. This increase is not clearly disproportionate; the adopted amount can reasonably be connected to the historical ceiling. But can this departure be justified by the other factors in the multi‑factored analysis?

[ 136 ] First, the scope of the jurisdiction granted to the Court of Québec is indicative of a significant encroachment on the general private law jurisdiction of the superior courts of general jurisdiction. This limits the Quebec legislature's latitude and reduces its ability to depart from the updated historical ceiling.

[ 137 ] Second, the exclusivity of the transfer accentuates the encroachment on the core jurisdiction of the superior courts and reduces the flexibility the Quebec legislature has accordingly. The impact of the exclusivity of the grant is considerable: approximately 55 percent of civil cases, all in the area of obligations, are exclusively assigned to the Court of Québec. Exclusivity does not necessarily make a grant of jurisdiction unconstitutional. It is, however, a factor that limits the latitude available to the province.

[ 138 ] Third, the fact that there is no accessible appeal mechanism that would enable the superior court of general jurisdiction to review decisions of the Court of Québec reinforces our conclusion that the two courts are parallel and that the interaction between them is very limited. This, again, limits the province's latitude.

[ 139 ] Fourth, as we explained above, the statistical evidence produced in this case does not permit us to determine with certainty that art. 35 para. 1 C.C.P. has only a minimal impact on the Superior Court's caseload in the area of obligations.

[ 140 ] Fifth, the AGQ has not shown that a concrete public policy justified greater flexibility in relation to the historical limit. It follows that the Quebec legislature could not depart from the updated historical ceilings other than minimally.

[ 141 ] In our opinion, art. 35 para. 1 C.C.P. in its current form infringes s. 96. Its constitutional infirmity does not arise from the high monetary limit alone, but from the combination with all the other factors. It would be possible to imagine a hypothetical provision that would make an increase of 29 percent permissible. However, the provision at issue in these appeals, considered in the context of the Court of Québec as it exists today, creates a prohibited parallel court.

[ 142 ] If the Quebec legislature were to decide merely to lower the monetary ceiling for the Court of Québec's jurisdiction without altering its institutional context or the nature of the grant of jurisdiction provided for in art. 35 para. 1 C.C.P. , it would, in our view, have to lower the ceiling to less than $85,000 for the provision to become constitutional. The province could also decide to create additional appeal mechanisms enabling the Superior Court to play a greater role in the development of Quebec's private law, which would give it more flexibility to depart from the updated historical ceiling.

[ 143 ] This multi‑factored approach gives full effect to the compromise reached at Confederation, reflected in the constitutional framework consisting of ss. 96 to 100. It is necessary in order to safeguard the unity and uniformity of the Canadian judicial system, which is the concern that motivated the framers of the Constitution. Even though the superior courts, with their guarantee of judicial independence, are no longer the sole guardians of the rule of law, the fact remains that their constitutional status must be protected. The transfer brought about by art. 35 para. 1 C.C.P. deprives the Quebec Superior Court of any capacity to resolve a broad range of disputes at the heart of private law, thereby creating a parallel court that infringes on the core jurisdiction of the superior courts.

[ 144 ] In closing, it would seem appropriate to clarify the scope of these reasons and their impact on the other tests developed with respect to s. 96. The multi‑factored analysis we are adopting here is not intended to replace the current law . The analysis under s. 96 continues to involve two tests. The first — the Residential Tenancies test — continues to apply to any transfer of historical jurisdiction of the superior courts to an administrative tribunal or to another statutory court. The second — the core jurisdiction test — continues to apply in order to determine whether a statutory provision has the effect of removing or impermissibly infringing on any of the attributes that form part of the core jurisdiction of the superior courts. Where a transfer to a court with provincially appointed judges has an impact on the general private law jurisdiction of the superior courts, the question whether the infringement on the core jurisdiction is permissible or impermissible should be answered having regard to the factors discussed above. Those factors give the provincial legislature sufficiently clear guidance to determine what latitude it has under s. 96 when it wishes to grant a court whose judges are appointed by the province jurisdiction over a significant portion of the common law without creating a parallel court.

[ 145 ] In Residential Tenancies , a rampart against the creation of prohibited parallel courts was erected on the basis of s. 96. That rampart has already proven its worth, as is attested by several decades of case law. As a general rule, that test will be sufficient for purposes of the analysis. But there may be cases in which it will prove to be inadequate for the role it must play where an attempt is made to assign a vast field of the general law to a court with provincially appointed judges. Such a transfer would tend to distort the historical analysis and to inappropriately favour a finding that there was a general shared involvement. Here, the grant under art. 35 para. 1 C.C.P. is one of those cases in which the gaps in the Residential Tenancies test are apparent. The core jurisdiction test, which we have adapted to better reflect the principles underlying s. 96, compensates for those gaps by providing an analytical framework on the basis of which it is possible to give an adequate response to problems of this nature for which no satisfactory solution can be found in the existing case law.

V. Analysis on the Second Question

[ 146 ] The second question concerns the application by the Court of Québec of the "obligation of judicial deference, which characterizes the application for judicial review," when hearing appeals of administrative decisions under one of the eight specified Acts. This question, understood correctly, is not about the constitutionality of the Court of Québec's appellate jurisdiction, but rather about the application by the Court of Québec of the standards of judicial review, that is, the standards of reasonableness and correctness that were established in Dunsmuir and reiterated in Vavilov . We are of the view, however, that the question has become moot because the Court of Québec is no longer required to apply these standards of review when hearing an administrative appeal. Moreover, there are no exceptional circumstances that would justify answering the question despite its mootness.

[ 147 ] In Vavilov , this Court reformed the analysis for determining the standard of review that applies to the judicial review of administrative actions. In essence, where a legislature has provided for a right of appeal to a court, the appellate standards of review developed in Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 — correctness for questions of law and palpable and overriding error for questions of fact and of mixed fact and law — will apply. Where the legislature has not provided for a right of appeal and has left the availability of judicial review intact, the administrative law standards of review will apply instead.

[ 148 ] Furthermore, the new s. 83.1 of the Courts of Justice Act , which came into force on June 5, 2020, provides that the Court of Québec must now apply the Housen standards in exercising its jurisdiction over appeals of administrative decisions.

[ 149 ] Thus, the combined effect of Vavilov and s. 83.1 is that the Court of Québec is no longer bound by the obligation of judicial deference and must now apply the appellate standards from Housen in any appeal it hears from an administrative decision. This is true of all the rights of appeal in question in this case.

[ 150 ] It is not unreasonable to argue that the intermediate step of appealing to a court with provincially appointed judges before applying for judicial review to the superior court might be unconstitutional because it is likely to deprive the superior courts of a considerable number of such applications. However, we wish to be clear that we are not ruling on whether the Court of Québec's appellate jurisdiction is constitutional, as that is not the question before us. That matter is therefore left for another day.

VI. Effect of the Decision

[ 151 ] In principle, a reference is merely an advisory procedure. The answer to a reference question may be viewed as a legal opinion for the executive that is analogous to an opinion provided by law officers of the Crown ( Reference re Secession of Quebec , at para. 15 ). In a reference, the Court therefore does not have the power to formally declare a law to be unconstitutional. The only power it has is to answer the question before it ( Attorney‑General for Ontario v. Attorney‑General for Canada , [1912] A.C. 571 (P.C.), at pp. 588‑89; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7) , [1993] 1 S.C.R. 839, at p. 863; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island , [1998] 1 S.C.R. 3 (" Reference re Remuneration of Judges (1998) "), at para. 9).

[ 152 ] Notwithstanding their advisory — and therefore, in principle, non‑binding — nature, opinions given in references are in practice treated as judicial decisions and are followed by other courts ( Canada (Attorney General) v. Bedford , 2013 SCC 72 , [2013] 3 S.C.R. 1101, at para. 40 ; see also Reference Re Certification in the Manitoba Health Sector , 2019 MBCA 18 , [2019] 5 W.W.R. 614, at para. 23 ; G. Rubin, "The Nature, Use and Effect of Reference Cases in Canadian Constitutional Law" (1960), 6 McGill L.J. 168, at pp. 175‑80). The day after this Court gives an opinion, any trial court considering the same question would in all likelihood apply that opinion because of its persuasive weight ( Reference re Remuneration of Judges (1998) , at para. 10). It may therefore be appropriate, where the circumstances so require, for this Court to exercise its remedial discretion to suspend the effects of its decision in the context of a reference, as it may do on an appeal.

[ 153 ] This Court recently stated in Ontario (Attorney General) v. G , 2020 SCC 38 , [2020] 3 S.C.R. 629, at para. 83 , that a declaration of invalidity can be suspended "when an identifiable public interest, grounded in the Constitution, is endangered by an immediate declaration to such an extent that it outweighs the harmful impacts of delaying the declaration's effect". The analysis in this regard is guided by certain principles (para. 94). In the instant case, since suspending the declaration of invalidity would not perpetuate interference with any right guaranteed by the Canadian Charter of Rights and Freedoms , the most determinative principle is that of respect for the distinct institutional roles of the courts and the legislatures (paras. 97 and 126‑31).

[ 154 ] The weighing of the various factors we have identified shows that the Quebec legislature has available to it a range of possible legislative measures that would be constitutional should it wish to depart from the updated historical monetary ceiling. It is not for this Court to choose which of those measures should be implemented to replace the current art. 35 para. 1 C.C.P. In accordance with the constitutional principles of parliamentary sovereignty and democracy, it would be preferable to leave it to the democratically elected Quebec legislature to choose which of those possibilities best reflects the interests and priorities of the people of Quebec (see G , at para. 97). This is all the more true where the harmful effects of a suspension would be minimal, as affected litigants would in the meantime continue to have access to the Court of Québec, an impartial and independent court that plays a part in maintaining the rule of law.

[ 155 ] An immediately effective declaration would significantly impair the Quebec legislature's ability to legislate in order to address the constitutional invalidity ( G , at paras. 129‑30). The day after the publication of this opinion, litigants with lawsuits for identical amounts could be subject to the jurisdiction of different courts (the Court of Québec or the Superior Court) depending on whether they decide to raise a preliminary exception concerning the jurisdiction of the Court of Québec. Such a situation would generate intolerable uncertainty in the administration of civil justice in Quebec. And it would then be difficult for the Quebec legislature, in enacting a new, constitutionally compliant art. 35 C.C.P. , to apply transitional measures that would restore the harmony of the system.

[ 156 ] For these reasons, like the Court of Appeal, we agree that our opinion that art. 35 para. 1 C.C.P. is unconstitutional should not be implemented for a period of 12 months from the date of its release. It is normally up to the government to demonstrate how long the suspension should be. Despite the absence of submissions on this point in this Court, we find the length of time determined by the Court of Appeal to be adequate ( G , at para. 135). Article 35 para. 1 C.C.P. should therefore be considered valid in the interim. The Quebec legislature will also turn its mind to transitional provisions once it has selected between the available constitutionally compliant options. Three comments must be made regarding the effects of this opinion, however.

[ 157 ] First, any originating proceedings filed in the Court of Québec before or during the suspension period can be pursued to the conclusion of the proceedings even if the proceedings conclude after the 12‑month period has expired. Any judgment that terminates a proceeding at that time will be final and will not be affected by this Court's opinion. The absence of such a transitional measure would deprive Quebec of a harmonious judicial system, result in great disorder and affect the implementation and enforcement of litigants' rights. If this Court did not address this situation, the rule of law would suffer ( Reference re Manitoba Language Rights , at pp. 750‑51).

[ 158 ] Second, res judicata precludes the reopening of cases that were within the jurisdiction of the Court of Québec pursuant to art. 35 para. 1 C.P.C. and that have already been decided by that court (see Reference re Manitoba Language Rights , at p. 756). Any decisions rendered by the Court of Québec in such cases before this decision will thus continue to be fully effective.

[ 159 ] Third, the de facto doctrine, which recognizes and gives effect "to the justified expectations of those who have relied upon the acts of those administering the invalid laws and to the existence and efficacy of public and private bodies corporate, though irregularly or illegally organized" ( ibid. , at p. 757), will also save rights, obligations and other effects which have arisen out of actions performed pursuant to art. 35 C.C.P. by courts, judges, persons exercising statutory powers and public officials. "Such rights, obligations and other effects are, and will always be, enforceable and unassailable" ( ibid. ).

VII. Disposition

[ 160 ] Our answers to the stated questions are as follows:

[translation]

1. Are the provisions of the first paragraph of article 35 of the Code of Civil Procedure (chapter C‑25.01), setting at less than $85,000 the limit to the exclusive monetary jurisdiction of the Court of Québec, valid with regard to section 96 of the Constitution Act, 1867 , given the jurisdiction of Quebec over the administration of justice under paragraph 14 of section 92 of the Constitution Act, 1867 ?

No, the provisions of the first paragraph of art. 35 of the Code of Civil Procedure (chapter C‑25.01) setting at less than $85,000 the limit to the exclusive monetary jurisdiction of the Court of Québec are not valid with regard to s. 96 of the Constitution Act, 1867 .

[ translation ]

2. Is it compatible with section 96 of the Constitution Act, 1867 to apply the obligation of judicial deference, which characterizes the application for judicial review, to the appeals to the Court of Québec provided for in sections 147 of the Act respecting access to documents held by public bodies and the protection of personal information (chapter A‑2.1), 115.16 of the Act respecting the Autorité des marchés financiers (chapter A‑33.2), 100 of the Real Estate Brokerage Act (chapter C‑73.2), 379 of the Act respecting the distribution of financial products and services (chapter D‑9.2), 159 of the Act respecting administrative justice (chapter J‑3), 240 and 241 of the Police Act (chapter P‑13.1), 91 of the Act respecting the Régie du logement (chapter R‑8.1) and 61 of the Act respecting the protection of personal information in the private sector (chapter P‑39.1)?

We do not answer this question, because it is now moot.

[ 161 ] For the foregoing reasons, we would dismiss the appeals without costs. This opinion should not be implemented for a period of 12 months from the date of its release. Any originating proceedings filed in the Court of Québec before or during this suspension period can be pursued to the conclusion of the proceedings even if the proceedings conclude after the 12‑month period has expired.

English version of the reasons of Wagner C.J. and Rowe J. delivered by

The Chief Justice (dissenting in part) —

I. Introduction

[ 162 ] I have read the reasons of my colleagues Côté and Martin JJ., but with respect, I cannot agree with their conclusion. Like Abella J., although for different reasons, I am of the view that art. 35 para. 1 of the Code of Civil Procedure , CQLR, c. C‑25.01 (" C.C.P. "), does not remove from the Quebec Superior Court part of its core jurisdiction. I explain this below.

[ 163 ] The first question raised in the reference to the Quebec Court of Appeal requires an answer that strikes a balance between, on the one hand, the ability of the provinces and territories to experiment with new forms of access to civil justice through provincially or territorially constituted courts and, on the other, the need to preserve the core jurisdiction of the superior courts that allows them to state and develop the civil law or the common law.

[ 164 ] Specifically, what must be determined in this case is whether art. 35 para. 1 C.C.P. , which raises the monetary ceiling of the Court of Québec's civil jurisdiction from less than $70,000 to less than $85,000, is contrary to s. 96 of the Constitution Act, 1867 . The enactment of this provision of the C.C.P. was part of a series of increases in the ceiling that were all related to the genesis and history of the Court of Québec, a provincially constituted court that, over the course of the reforms made to it from the time of Confederation until today, has played a key beneficial role in Quebec's justice system by facilitating the judicial resolution of conflicts in all districts in the province.

[ 165 ] Although the Quebec legislature has always regarded such increases as a way of promoting access to justice, the respondents the Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec see in them instead a gradual erosion of the superior courts' core jurisdiction in civil matters that cannot be authorized by s. 96 .

[ 166 ] The Court of Appeal held that, in order to be consistent with s. 96 , the monetary ceiling of the Court of Québec's civil jurisdiction must fall between $55,000 and $70,000, subject to future updates, and that setting the ceiling for claims at less than $85,000 is therefore unconstitutional ( 2019 QCCA 1492 , at para. 188). The Court of Appeal stated that s. 96 gives the Quebec Superior Court core jurisdiction over "substantial" civil law disputes, which it defined as those involving an amount of $70,000 or more, an amount corresponding to the updated maximum value of the monetary ceiling of the inferior courts' jurisdiction at the time of Confederation. The Court of Appeal shared the concerns raised by the respondents about the gradual erosion of the Quebec Superior Court's civil jurisdiction and noted that the Quebec legislature has given the Court of Québec a more significant role in civil matters than any other Canadian province (paras. 147, 150 and 187).

[ 167 ] The appellants the Conférence des juges de la Cour du Québec, the Attorney General of Quebec, the Conseil de la magistrature du Québec and the Canadian Association of Provincial Court Judges are appealing the answer given by the Quebec Court of Appeal to the first reference question.

[ 168 ] It should be noted that both the Attorney General of Quebec and the Attorney General of Canada, who is intervening for the federal government, fully support the position that art. 35 para. 1 C.C.P. is constitutional. In particular, the Attorney General of Canada takes the view that the Court of Appeal's analytical approach overlooks the actual impact of this article [translation] "on the Superior Court's ability to hear civil disputes" (I.F. (AGC), at para. 5). He adds that, in the final analysis, given [ translation ] "its insignificant effect" on the core jurisdiction exercised by the Superior Court in this regard, art. 35 para. 1 C.C.P. in no way infringes s. 96 of the Constitution Act, 1867 (para. 8).

[ 169 ] In my view, the appeals relating to the first question should be allowed. In the opinion it provided on the questions referred to it ("Opinion"), the Court of Appeal interpreted the limits of the Superior Court's core jurisdiction too broadly and froze in time the civil jurisdiction of the Court of Québec, as a provincially constituted court, rather than adopting an analytical framework attuned to the actual constitutional objectives of s. 96 . These objectives include fostering a unified judicial system throughout Canada. In my opinion, the preservation of the superior courts' ability to state and develop private law allows this objective to be achieved in accordance with s. 96 .

[ 170 ] For this purpose, it is not necessary to maintain the monetary ceiling of the inferior courts' civil jurisdiction in effect at the time of Confederation. There is another approach — not only desirable but also truer to the spirit of s. 96 — that gives the provinces and territories real autonomy in the administration of civil justice and permits them to make the choices best suited to their own emerging and complex challenges. As I will explain, such an analytical framework makes it possible both to protect the essential space the provinces and territories have for experimentation in matters of access to justice, which may include expanding their courts' civil jurisdiction, and to ensure in the process that the superior courts can continue to state and develop the civil law and the common law.

[ 171 ] The analysis that follows is based on the two stages of the s. 96 analytical framework, which are concerned with the historical jurisdiction and the core jurisdiction of the superior courts.

[ 172 ] With regard to the first stage of the analytical framework, I am of the view that art. 35 C.C.P. satisfies the three tests developed in Re Residential Tenancies Act , 1979 , [1981] 1 S.C.R. 714. When properly characterized in terms of its subject matter, the jurisdiction conferred by this article on the Court of Québec is civil jurisdiction over contractual and extracontractual obligations. At the time of Confederation, the inferior courts of three of the four founding provinces, with the exception of Lower Canada (the province of Quebec), exercised a general shared jurisdiction in this regard.

[ 173 ] As for the second stage of the analysis, I am of the view that art. 35 C.C.P. does not remove from the Quebec Superior Court any power that is within its core jurisdiction. This jurisdiction must be defined narrowly and, with due respect for those who disagree, I see no need to confer on the superior courts any more power over private law disputes than is necessary.

[ 174 ] Of all the possible interpretations of the Confederation compromise embodied in s. 96 , the only one that seems reasonable to me is the one that ultimately allows the superior courts to state and develop private law. As long as this ability is not jeopardized, the superior courts' core jurisdiction in this area will remain intact and the unified nature of Canada's judicial system will be protected.

[ 175 ] The provinces and territories are therefore free to increase the civil jurisdiction of their respective courts insofar as they comply with this important restriction. The following factors, which are both quantitative and qualitative, provide some helpful guidance: (a) the impact on the number of cases that the superior court continues to deal with; (b) the impact on the proportion of cases within the superior court's jurisdiction compared with those within the jurisdiction of a provincially or territorially constituted court; (c) the impact on the nature and importance of the cases within the superior court's jurisdiction.

[ 176 ] Once these factors are applied in this case, as I will do below, the necessary conclusion is that art. 35 C.C.P. does not have the effect of removing the power to state and develop private law from the Quebec Superior Court. The evidence shows that the Superior Court continues to hear a sufficient number and substantial proportion of civil cases, in which it is called upon to adjudicate significant disputes that are highly varied in nature.

[ 177 ] Like Quebec, other provinces are continuing, by means of innovative initiatives, to promote access to justice everywhere within their boundaries. The interpretation I adopt of s. 96, informed by the compromise of the founders of Confederation, has the advantage of giving the provinces the degree of autonomy they need in the years ahead to address the complex challenge of access to justice, an undertaking whose success does not depend on a single solution.

[ 178 ] Before I embark on the analysis mentioned above, it is important to begin by providing a broad outline of the Court of Québec's genesis and history, viewed from the standpoint of the exercise by that court of its civil jurisdiction.

Abella J. (dissenting) —

[ 259 ] I would allow the appeals. In my view, art. 35 of the Code of Civil Procedure , CQLR, c. C‑25.01 (" C.C.P. "), is constitutionally valid.

[ 260 ] Section 92(14) of the Constitution Act, 1867 gives provincial legislatures the authority to create provincial courts and define their jurisdiction. Section 96 guarantees that federally appointed judges will retain jurisdiction over the matters that were within the exclusive or primary jurisdiction of superior, district or county courts at Confederation.

[ 261 ] The case law interpreting s. 96 has, over the decades, acknowledged the complex and sometimes competing interests that need to be balanced: the right of the provinces to organize their courts in ways that serve access to justice, and the need to protect the jurisdiction of s. 96 courts from legislative erosion.

[ 262 ] In my view, the proper characterization of the jurisdiction being granted by art. 35 C.C.P. is general civil jurisdiction over contractual and extracontractual obligations below $85,000. So characterized, the jurisdiction clearly does not exclusively or primarily belong to the superior courts: the inferior courts of three of the four founding provinces shared this jurisdiction at Confederation.

[ 263 ] Notwithstanding my agreement with the majority that the Residential Tenancies test is satisfied, I disagree that its conclusion leads to unconstitutionality. The Residential Tenancies test and the MacMillan Bloedel core jurisdiction test both protect s. 96 courts from the legislative elimination of their essential jurisdictional role. Neither test, properly applied, condemns the jurisdiction granted by art. 35 C.C.P.

[ 264 ] The $15,000 increase in exclusive provincial court jurisdiction has not prevented the Superior Court of Quebec in any material way from playing its usual role in deciding the kind of civil cases it has always decided. For that reason, I would allow the appeals and answer the first reference question in the affirmative — that art. 35 C.C.P. is constitutionally valid.

Appeals dismissed without costs, Wagner C.J. and Rowe J. dissenting in part and Abella J. dissenting.

Solicitors for Conférence des juges de la Cour du Québec : Borden Ladner Gervais, Montréal.

Solicitor for the Attorney General of Quebec : Attorney General of Quebec, Québec.

Solicitors for Conseil de la magistrature du Québec : Fasken Martineau DuMoulin, Montréal.

Solicitors for the Canadian Association of Provincial Court Judges : Power Law, Ottawa.

Solicitors for the Chief Justice, Senior Associate Chief Justice and Associate Chief Justice of the Superior Court of Quebec : Langlois avocats, Montréal; William J. Atkinson, avocat, Montréal.

Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Ottawa.

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

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

Solicitor for the intervener the Attorney General of Alberta: Justice and Solicitor General, Appeals, Education & Prosecution Policy Branch, Edmonton.

Solicitors for the intervener the Canadian Council of Chief Judges: Field, Edmonton.

Solicitors for the intervener the Trial Lawyers Association of British Columbia: Hunter Litigation Chambers, Vancouver.

Solicitors for the intervener the Canadian Superior Courts Judges Association: Norton Rose Fulbright Canada, Montréal.

[1] For the sake of readability of these reasons, references only to the provinces will be understood to include Canada's territories.

[2] The constitutional provisions reflecting this compromise reached at Confederation are reproduced in the Appendix.