Superior court (Canada)

In Canada's court system, a superior court is a type of court subject to safeguards established in the Constitution Act, 1867. Importantly, a superior court must be appointed by the federal executive, called the Governor-in-Council.^[1]

Section 96 of the Constitution Act, 1867[]

Section 96 of the Constitution Act, 1867 states:

96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.

In the 1930s, in cases such as Re Adoption Act of Ontario (where the reasoning of Duff C.J. was subsequently adopted by the Judicial Committee of the Privy Council in Saskatchewan v. John East Iron Works), provincial legislatures were restricted from vesting in administrative tribunals powers ordinarily exercised by judges appointed under s. 96. This was relaxed in the Residential Tenancies Reference to allow for such tribunals to exercise ancillary “judicial” powers, subject to the qualification that the judicial function must not be isolated from the rest of the administrative structure of the legislation. Whether a tribunal could exercise such powers was made subject to a three-step test:^[2]

• did the "Superior, District, and County Courts" exercise an identical or analogous power at the time Canada was created in 1867?

• if not, power can be conferred on a provincial tribunal whatever its primary character

• after examining the institutional context, does it becomes apparent that the power is not being exercised as a “judicial power”?

• whether any particular function is "judicial" is not to be determined simply on the basis of procedural trappings
• where the tribunal is faced with a private dispute between parties, and is called upon to adjudicate through the application of a recognized body of rules in a manner consistent with fairness and impartiality, then it is normally acting in a "judicial capacity"
• the judicial task involves questions of "principle", as opposed to "policy"

• what is its setting in the institutional arrangements in which it appears? In that regard, allowable circumstances are those where:

• the powers are merely subsidiary or ancillary to general administrative functions assigned to the tribunal
• the powers may be necessarily incidental to the achievement of a broader policy goal of the legislature

A provincial scheme is only invalid where the adjudicative function is a sole or central function of the tribunal.

References[]

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