Canadian Lawyer

8 S E P T E M B E R 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m \ AT L A N T I C \ C E N T R A L \ N O RT H \ W E S T REGIONAL WRAP-UP C E N T R A L I n what is believed to be a first in Canadian legal history, the 160 judges of the Superior Court of Quebec are putting up their own money to pay for a legal challenge against powers granted to their provin- cial counterparts in the Constitution Act, 1867. In their claim, which was filed in the Superior Court of Quebec on July 17 and served to both the Canadian and Quebec attorneys general offices, the federally appointed justices are seeking a declara- tory judgment they hope will end a juris- dictional feud with the Quebec Court that is as old as Canada itself. But some Quebec legal watchers also see the suit as a cry for help from a judi- cature that is struggling to preserve its raison d'être in la belle province. "It's a very particular case; I know of no precedent," said Madeleine Lemieux, a former Quebec Bar president and lawyer in Quebec's Eastern Townships region. She is acting as the designated spokeswoman for the Superior Court of Quebec justices and the three Montreal lawyers who are handling their case — Bill Atkinson, who recently left McCarthy Tétrault LLP after 30 years, and Sean Griffin and Véronique Roy from Langlois Lawyers LLP. According to Lemieux, the case revolves around two fundamental issues: pecuniary limits and powers of control and surveillance of judicial reviews over administrative decisions. Unlike in common law provinces, where provincial courts don't have civil jurisdiction beyond small claims courts, the Court of Quebec has exclusive juris- diction to hear litigation cases under $85,000. Set last year in Quebec's new Code of Civil Procedures, that amount is a $15,000 increase over the limit set in 2002 and the fourth increase since 1984, when the limit was only $15,000. In their statement of claim, the Supe- rior Court of Quebec judges argue that those amounts far exceed the monetary limits and judicial boundaries that the Constitution drafters had in mind 150 years ago when they wrote s. 96 of the British North America Act. On the surface, the section simply provides that Superior Court and now- defunct district and county courts are to be appointed exclusively by the federal government. Over time, however, various Supreme Court of Canada rulings and interpretations mostly by reference have transformed s. 96 into a key component of Canada's constitutional landscape, a so-called "cardinal provision" that among other things helps to ensure national unity. "Doctrinally, the importance of s. 96 has been as a brake on provincial legisla- tion creating new decision-making bodies or conferring new powers on existing bodies," Paul Daly, a Canadian lawyer and Cambridge law professor wrote about s. 96 in a blog in 2015. "[But] what if a legislature purports to create or increase the powers of a body that is similar in nature to a superior court but whose members are not appointed in conformity with s. 96? Without tracing the tortuous history of judicial treatment of this question, Canadian courts have consistently held that the 'broader import' of s. 96 'is to guarantee the core jurisdic- tion of provincial superior courts' against incursions by the provinces." The Superior Court of Quebec judges obviously hope and trust that trend will continue in their case, which Lemieux said is being funded by the justices to the tune of $1,500 a year apiece for three years. That decision was adopted in a vote last year, with eight judges voting against and four abstaining to ensure the avail- ability of impartial judges in the unlikely event the case is heard in Superior Court. In their 40-page statement of claim, which is in French, the justices argue that the Quebec government does not have the authority under s. 96 to increase the juris- dictional limits of the Court of Quebec in civil cases to more than $10,000. In addi- tion to that monetary cap, the justices also challenge the Quebec government's ability to grant control and surveillance powers Quebec judges in jurisdictional turf war Federally appointed judges in Quebec are arguing that the Quebec government does not have the authority to increase jurisdictional limits.

• Cover