The Potential Impact of a Quebec Superior Court Challenge on Access to Justice in Alberta

By: Jonnette Watson Hamilton

PDF Version: The Potential Impact of a Quebec Superior Court Challenge on Access to Justice in Alberta

Blog Post Commented On: Clash of Courts”, Double Aspect Blog by Leonid Sirota, 23 July 2017

In his brief post entitled “Clash of Courts: Senior Superior Court judges are suing Québec over its provincial court’s jurisdiction; other provinces will be affected if they succeed,” Leonid Sirota focused his readers’ attention on a law suit brought by the Chief Justice, Senior Associate Chief Justice, and Associate Chief Justice of Quebec’s Superior Court (on behalf of all of the judges of that court), against the provincial government, noting that it has received little attention outside of Quebec, and certainly much less than it should. The judges of Quebec’s Superior Court are seeking a declaration that much of the jurisdiction of that province’s small claims court, the Court of Quebec, is unconstitutional because it violates section 96 of the Constitution Act, 1867 by granting the Court of Quebec exclusive jurisdiction to hear cases where the amount claimed is more than $10,000 and granting it powers of judicial review over provincial administrative tribunals. I agree that the case — a startling claim by a group of litigants that need to be taken seriously (even if their method for getting the issue before the courts, i.e., before themselves in the first instance, is unorthodox) — deserves to be noticed and that other provinces, including Alberta, will be affected if their claim is successful.

The Court of Quebec currently hears cases where the claims are for less than $85,000. The Superior Court judges’ law suit argues that the small claims court cannot hear anything involving a claim of more than $10,000. The $10,000 figure is based on the argument that at the time of Confederation, section 96 courts could hear civil matters starting at $100, and that this figure adjusted for inflation is less than $10,000. Any ability of provincial courts to hear claims of over $10,000 would usurp the jurisdiction of section 96 courts. In other words, cases with claims between $10,000 and $85,000 have to be heard by the Superior Court because of the division of powers between the federal and provincial governments embodied in section 96 of the Constitution Act, 1867. That section looks deceptively simple:

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.

The judges of the Superior Court of Quebec are appointed by the federal government (as are the judges of the superior courts in all provinces, including those of the Court of Queen’s Bench of Alberta) while those of the Court of Quebec are appointed by the provincial government (as are the judges of the inferior or provincial courts in all provinces pursuant to section 92(14) of the Constitution Act, 1867, including the Provincial Court of Alberta – Civil (commonly known as the small claims court)). For a brief explanation of the seemingly innocuous section 96, see “The Remarkable Evolution of Section 96 of the Constitution Act, 1867” by Paul Daly.

As Daly notes, section 96 is important doctrinally because it acts as a brake on provinces creating new decision-making bodies or conferring new powers on existing bodies. The law suit by the Quebec Superior Court judges appears to be an example of this. And Sirota’s initial impression is that the Superior Court judges have a strong case.

The consequences of a win by the Quebec Superior Court would be troubling in Alberta and elsewhere. As Sirota notes in his post, the principles the judges of the Superior Court of Quebec are relying on apply across Canada. If the judges win, the jurisdiction of the small claims courts in Alberta, and elsewhere, would shrink. For example, the Alberta upper limit of $50,000 would have to be decreased.

And it is not just Alberta. British Columbia has just increased its upper limit to $35,000, as of June 1, 2017 (and diverted cases claiming less than $5,000 to their new online Civil Resolution Tribunal): see Important Changes to Small Claims Court. Ontario increased its small claims court upper limit from $10,000 to $25,000 in 2010, after Nova Scotia and the Yukon both increased their maximum to $25,000 in 2006.

When the upper limit on Alberta’s small claims courts’ jurisdiction was raised from $25,000 to $50,000 on August 1, 2014, the increase was promoted by the government of Alberta as an increase in access to justice. See the then Minister of Justice’s press release, “Higher small claims court limit increases access to justice.”  Raising the monetary limit in the Provincial Court’s civil division was seen as a way to “allow more people to competently represent themselves without the expense of a lawyer” (Jason Van Rassell, “Alberta may double limit to $50,000 for small claims court,Calgary Herald, 22 August, 2013).

A report of the union des consommateurs on “Consumers and Access to Justice: One-Stop Shopping for Consumers,” June 2011, at 21-24, looked at small claims courts in Quebec and their linkages with access to justice:

By lightening court procedures and formalities and thus reducing legal expenses and waiting times, small claims divisions aim to make legal proceedings more accessible to citizens who make more modest monetary claims.

The characteristics obviously vary according to the jurisdictions, but generally, the various small claims court systems feature oral procedures, simplified rules of evidence, no obligation to be represented by a lawyer, and a certain geographic proximity.

As La Presse noted in “Les juges de la Cour supérieure lancent une poursuite”, the judges of the Superior Court of Quebec launched their law suit to reduce the jurisdiction of the small claims court in the midst of a crisis in the justice system. Since Alberta increased its small claims court limits in 2013, concerns about access to justice and about self-represented litigants have only increased. See the Canadian Forum on Civil Justice and their Access to Justice Blog and Cost of Justice project, for example, as well as the work of the National Self-Represented Litigants Project (NSRLP).

This is definitely a case to keep an eye on. The judges are relying on a principle of law, a constitutional provision called one of the “principal pillars in the temple of justice” that legislatures may not undermine: Toronto Corporation v York Corporation, [1938] AC 415 at 426 (PC), per Lord Atkin (as cited by Daly). But their argument is aimed at reforms of the civil justice system intended by the provinces to increase access to justice.

Daly pointed out that the Supreme Court of Canada’s decision in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), [2014] 3 SCR 31, 2014 SCC 59 (CanLII), was “ample proof of the dramatic increase in the scope of s. 96 and its effect on the administration of justice in Canada.” Perhaps the outcome of this law suit by Quebec’s Superior Court judges will be just as dramatic, but in the nature of a tragedy for access to justice.


This post may be cited as: Jonnette Watson Hamilton “The Potential Impact of a Quebec Superior Court Challenge on Access to Justice in Alberta” (3 August, 2017), online: ABlawg, https://ablawg.ca/wp-content/uploads/2017/08/Blog_JWH_Section96.pdf

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About Jonnette Watson Hamilton

B.A. (Alta.), LL.B. (Dal.), LL.M. (Col.).
Professor. Member of the Alberta Bar.
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7 Responses to The Potential Impact of a Quebec Superior Court Challenge on Access to Justice in Alberta

  1. David Schulze says:

    Another aspect of this case is the the Superior Court judges’ complaint concerns Quebec’s unique use of its provincial court as an appellate body for its administrative tribunals, generally without a right of further appeal. This can lead to the strange result of four or more hearings: e.g., Administrative Tribunal, appeal to Court of Quebec, Superior Court on judicial review and then Court of Appeal. As I understand it, the complaint is that the Court of Quebec thereby exercises the superintending power over tribunals reserved to the Superior Court by s. 96. On the other hand, all of the statutes clearly refer to an appeal so that it could be argued that the problem was created by the Supreme Court in Dr. Q. when it held that appeals from administrative tribunals should be considered on the same standard as judicial review.

  2. J Adam says:

    The Québec Small Claims Court has jurisdiction up to $15,000 and is not really the issue in this case. The Cour du Québec has a general civil jurisdiction governed by the Code of Civil Procedure (as are all Superior Court civil matters) up to $85,000. The real issue is the jurisdiction between the Small Claims jurisdiction and the $85,000 jurisdiction. That aspect of the Québec system of courts has no equivalent in other provinces where all provincial court civil jurisdictions are under Small Claims Court proceedings.

    As to Dr Q, it applies to superior courts except in Québec, where the provincial Cour du Québec hears appeal from administrative tribunals and acts as a judicial review court.

  3. Jonnette Watson Hamilton says:

    J Adam is correct. I should have been more careful to delineate the distinction the Small Claims Division of the Court of Quebec, which is commonly known as the “small claims court,” and the Court of Quebec. The Small Claims Division of the Court of Quebec hears debt claims of $15,000 or less. In civil matters, the Court of Quebec has jurisdiction to hear claims with a monetary value of less than $85,000. See the Court of Quebec’s explanation of its jurisdiction and of the differences between proceedings in the Small Claims Division and in the Court of Quebec at http://www.tribunaux.qc.ca/mjq_en/c-quebec/a_propos_cour_ang/fs_jurisdiction.html. The challenge is to the Court of Quebec’s jurisdiction to hear claims over $10,000, but that amount is only an approximation of the present value of what was $100 in 1867.

    However, dividing small claims between courts or divisions of courts is no longer unique to Quebec. As I note in the post, as of June 1 of this year, British Columbia has begun to divert small claims cases of less than $5,000 to their new online Civil Resolution Tribunal, while at the same time increasing the upper limit of what has commonly been called their small claims court to $35,000.

  4. Paul Warchuk says:

    I don’t think it would affect Ontario because the small claims court in Ontario is a branch of the Superior Court of Justice. Any superior court judge may sit in small claims court, though it is generally presided over by provincially appointed deputy judges

  5. Jonnette Watson Hamilton says:

    Thanks for this information, Paul. Do you know why the Small Claims Court in Ontario is a branch of the Superior Court of Justice, which hears all civil claims in Ontario, and the Ontario Court of Justice, the lower or provincial division, has no jurisdiction over any civil claims? Didn’t Ontario have a Provincial Court (Civil Division) before 1990? Was a change in jurisdiction made because of section 96 of the Constitution Act, 1897?

    You mention that the Small Claims Court is typically presided over by deputy judges, who I understand are senior lawyers appointed for a term by the Regional Senior Judge with the approval of the provincial Attorney General. I also understand that judges assigned to the Provincial Court (Civil Division) before September 1, 1990 were able to hear Small Claims Court proceedings, although they have all retired by now. Am I right that in your opinion the fact that every judge of the Superior Court of Justice is also a judge of the Small Claims Court effectively counters arguments about the Small Claims Court being a court presided over by judges appointed by the provincial government, and thus potentially affected by this lawsuit?

  6. Paul Warchuk says:

    Hi Jonnette, my position is that because every judge of the Superior Court of Justice is also a judge of the Small Claims Court, the Small Claims Court is administratively a “branch” of the Superior Court and because deputy judges are appointed by Superior Court judges (something I did not realize before), the core jurisdiction of the Superior Court has not truly been removed. Though, I admit this is a difficult and uncertain issue.

    From what I understand, Ontario’s Provincial Court heard civil small claims from 1980-1990. I don’t know why small claims jurisdiction was removed from the Provincial Court. In a book on the history of the Provincial Court, Judge Pamela Thomson told the authors that the attorney general told her “that the Small Claims Court was really important and that he would elevate the Court. He thought that the General Division justices [a superior court] would sit in Small Claims Court as part of their rotation, but that never happened” (Ontario Court of Justice: A History, available at http://www.ontariocourts.ca/ocjhistory/wp-content/uploads/history-project-book.pdf, at 137-138, see also the statutory history from 139-140).

    As I mentioned, I didn’t realize that the deputy judges were appointed by the Regional Senior Judge and not the provincial government. Still, there are some provincially appointed officials adjudicating disputes in the Small Claims Court because according to the Ontario Courts webpage there are currently two provincially appointed judges sitting (http://www.ontariocourts.ca/scj/judges/current/provincial-deputy/).
    (I also may have confused deputy judges with masters/case management masters in the Superior Court itself, who are provincially appointed for fixed terms.)

  7. Jonnette Watson Hamilton says:

    As of October 5, 2017, the Quebec government has referred the constitutionality of the Court of Quebec’s jurisdiction to the Quebec Court of Appeal. See the Court of Appeals’ press release and the two constitutional questions here:

    See also the blog post by Paul Daly “Is Deference Constitutional (in Canada)?” commenting on the two constitutional questions and their importance here:.

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