Yeomans was an employee at a Dartmouth Sobeys store. He was fired for alleged unsatisfactory performance, although he had been given no written warnings. He complained to the Director of the Nova Scotia Labour Standards Tribunal, who ordered his reinstatement and the repayment of $21,000 in lost wages. This was upheld in the Labour Standards Tribunal, but was overturned at the Court of Appeal as they held that the powers granted to the Director and Tribunal in the Labour Standards Code conferred s. 96 powers on a provincially appointed tribunal in violation of the Constitution Act, 1867.
- Does Nova Scotia have legislative jurisdiction to empower the Director of Labour Standards and the Labour Standards Tribunal to hear and determine disputes with respect to, and make orders enforcing, s. 67A of the Labour Standards Code (now s. 71) in light of s. 96 of the Constitution Act, 1867?
- Are s. 67A(2) and (3) of the Labour Standards Code ultra vires the province as contravening s. 96 of the Constitution Act, 1867?
Wilson, writing for the majority, reviews the existing three-part test from Re Residential Tenancies Act, 1979 to determine if a piece of legislation violates s. 96:
- Does the power or jurisdiction conform to the power or jurisdiction exercised by superior courts at the time of Confederation? If it does, proceed to step 2, else the legislation does not violate s. 96.
- Is the power being transferred to the body a judicial one? If it is, proceed to step 3, else the legislation does not violate s. 96.
- Are the judicial powers merely ancillary to general administrative functions, or necessarily incidental to the achievement of a broader policy goal of the legislature? If they are, then the legislation does not violate s. 96; if not the the legislation is unconstitutional.
Wilson goes on to expand upon a few points relating to the test. First, she says that the power or jurisdiction in the first step must be defined narrowly, but the courts should be cautioned not to define the power as one based solely in the remedy, but rather the dispute in issue. Second, the superior court jurisdiction at the time of confederation did not need to be exclusive. Instead, you should ask if the inferior courts had concurrent jurisdiction with the superior courts around the time of Confederation, and in doing this you should consider if the inferior court’s jurisdiction was limited geographically, to a few specific types of situations, or if the punishments that they could hand down were limited. Third, she states that the jurisdiction that must be examined at the time of Confederation is not only that of the province in question – it includes all four original provinces (Nova Scotia, New Brunswick, Ontario and Quebec), and then the United Kingdom if there was a 2-2 split in jurisdiction. This is to ensure that s. 96 applies in the same way across the country.
Applying these new tests to the case at bar, Wilson decides that jurisdiction over "unjust dismissal" was a power vested in the superior courts. Continuing to step two of the test, she draws a distinction between the Director and the Tribunal; the Director acts as a lawyer, and not a member of the judiciary - he tries to induce settlements, represents clients in hearings, etc. However, the Tribunal clearly plays a judicial role as it hears arguments from both sides in a dispute and makes a ruling. Although Yeomans tried to argue that the Tribunal is not judicial because it is not bound by fixed legal principles, Wilson rejected this as superior courts definitely have discretional powers. Proceeding to the final step of the analysis, Wilson disagrees with the Court of Appeal and finds that this provision was necessary for the policy goal – they wanted to provide a comprehensive scheme for the protection of non-unionized workers, and the best way to do this was to set up an independent body for the review of labour matters.
La Forest, writing for the minority, reaches the same conclusion, but for different reasons. He holds that this case does not pass the first step of the test as there were no such things as labour standards at the time of confederation; looking at individual contracts satisfied all labour questions. The fact that no such jurisdiction or power even existed at the time of confederation means that it necessarily was not enjoyed by the superior courts. The fact that this case fails the first step means that it does not infringe s. 96, and the next two steps do not need to be completed – however he briefly states that he agrees with the majority about the necessity of the institutional setting of the Tribunal falling outside the requirements of s. 96 in the final stage of the analysis.
When determining if legislation violates s. 96 there is a three-part test:
- Does the power or jurisdiction broadly conform to the power or jurisdiction exercised by superior courts at the time of Confederation?
- The power and jurisdiction should be determined broadly
- The power just needs to be co-jurisdiction of the inferior courts
- Need to consider the four initial Canadian provinces' standards around the time of Confederation and in cases of a tie, look to the United Kingdom
- Is the function of the body a judicial one?
- Are the judicial powers merely ancillary to general administrative functions, or necessarily incidental to the achievement of a broader policy goal of the legislature?
If the answer to the first two questions is yes and the answer to the third question is no, then the provision violates s. 96 and is unconstitutional.