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FactsEdit

Nova Scotia amended its Residential Tenancies Act to create a Director position that has various powers relating to investigating, mediating and making decisions in cases dealing with residential tenancy. Under the amendments, the Director is also empowered to order landlords or tenants to comply with various orders. However, fearing an unconstitutionality claim, the legislature submitted this provision to the Court of Appeal. The Court decided that these provisions were ultra vires the Residential Tenancies Board and they violated s. 96.

IssueEdit

  1. Do the amendments to the Residential Tenancies Act violate s. 96 of the Constitution Act, 1867?

DecisionEdit

Appeal allowed.

ReasonsEdit

MinorityEdit

Lamer, Sopinka, and Cory reaffirm the test used in Sobeys, however they stress that the Constitution must be interpreted broadly in cases like this that deal with dispute resolution of the people, because this is one of the things that the Constitution wants to promote. They reiterate that the jurisdiction must be interpreted broadly to simply be "residential tenancies: disputes between landlords and tenants" as it related to the type of dispute, and not the type of remedy sought. They proceed to ask whether this jurisdiction is a novel one, in that it did not exist at the time of confederation. They use a three-part test to determine this, from Reference re Young Offenders Act:

  1. Is the legislation an attempt to respond to a new societal interest?
  2. Is it based on principles of law that make it distinct from similar legislation?
  3. Is there an identifiable social policy that is different than the policy goals of analogous legislation?

Applying this test, they find that “residential tenancies disputes” is indeed a novel jurisdiction. They find that although the idea of landlord-tenant relations is not novel, the idea of a residential tenancies act is quite new, and did not occur until the 1970s. They also find that this new legislation is clearly different from any similar legislation as it is no longer based on contract or tort law, but specifically developed for landlord-tenant law. Finally, the social policy is to fix imbalance between residential landlords and tenants, which is different than any similar legislation. They also state that this development does not erode the s. 96 courts' inherent jurisdiction as it concerns such minor disputes that are generally handled by inferior courts, even in pre-confederation times.

MajorityEdit

The majority reaches the same conclusion, however they do not think that this is a novel jurisdiction. McLachlin, writing for the majority, makes a few comments about the first step of the test from Sobeys. First, she states that the main function of s. 96 courts is dispute resolution and thus the main question must be whether an aspect of the dispute resolution process dominated by the superior courts has been transferred to the tribunal. Second, in determining whether the inferior courts had co-jurisdiction around the time of Confederation you look at geographic reach, pecuniary limitations and the range of disputes it could determine (this list is, however, not exhaustive). Many other factors in the evidence can be relevant and must be considered. Third, she states that you should consider the jurisdictional situations in all areas of Canada around the time of confederation – not just the four original provinces. Fourth, the “time of confederation” is not specific – it just means around 1867 – you should ask whether the type of dispute at issue is broadly conformable to one which fell to be decided exclusively or predominantly by the superior courts at or about the time of confederation. Finally, the issue is whether the superior court had the actual powers in question around the time of confederation, not whether the colony had the ability to confer those powers on the courts.

In her analysis, McLachlin finds that the reason why this legislation does not violate s. 96 is because historically the jurisdiction dealing with residential tenancies was shared between the superior and inferior courts. She disagrees vehemently that residential tenancies is a novel jurisdiction. She agrees that if a jurisdiction is indeed novel, it cannot violate s. 96; however the jurisdictional powers in this case are analogous to those exercised by the courts in 1867. Relying on arguments of legislative policy in support of novel jurisdiction, as the minority did, conflates the first and third steps in the Sobeys test. To determine that the administrative scheme or legislative goal makes the jurisdiction novel in the first step of the test is to decide the entire issue of constitutionality at this point, without ever asking whether the power is merely ancillary to the administrative scheme or necessarily incidental to an otherwise valid legislative goal, or if the body is performing a fundamental judicial function.

RatioEdit

Novel jurisdiction test from Reference re Young Offenders Act:

  1. Is the legislation an attempt to respond to a new societal interest?
  2. Is it based on principles of law that make it distinct from similar legislation?
  3. Is there an identifiable social policy that is different than the policy goals of analogous legislation?

When considering step one of the Sobeys test, the following should be considered:

  • whether the legislation transfers any of the dispute resolution power from the superior courts to the tribunal
  • look at all relevant factors when determining if the inferior courts had co-jurisdiction at the time of confederation
  • consider the jurisdiction in all the Canadian provinces around the time of confederation – not just the four original provinces
  • "time of confederation” is not specific; it just means around 1867
  • consider whether the superior courts had the actual jurisdiction around 1867, not if the government had the ability to give them the power

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