Attorney General of Quebec v. Grondin, [1983] 2 SCR 364

Supreme Court of Canada

Attorney General of Quebec v. Grondin, [1983] 2 S.C.R. 364

Date: 1983-11-03

The Attorney General of the Province of Quebec and the Régie du logement Appellants;

and

Marcel Grondin and the Quincaillerie Laberge Respondents;

and

Corporation des propriétaires immobiliers du Québec (C.O.R.P.I.Q.) Mis en cause;

and

The Attorney General of Canada Intervener.

and between

L’Atelier 7 Inc. et al. Appellants;

and

Marie-Ange Babin, the Régie du logement and Commissioners, jointly and severally, Gilles Joly, Commissioner, et al. Respondents;

and

The Attorney General of the Province of Quebec and the Corporation des propriétaires immobiliers du Québec (C.O.R.P.I.Q.) Mis en cause;

and

The Attorney General of Canada Intervener.

File Nos.: 17470 and 17487.

1983: June 16; 1983: November 3.

Present: Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Constitutional law—Courts—Appointment of judges—Lessors and lessees—Whether certain powers conferred on the Régie du logement contravene s. 96 of the Constitution—Applicable test—Effect of privative clause—Constitution Act, 1867, s. 96—Act to establish the Régie du logement and to amend the Civil Code and other legislation, 1979 (Que.), c. 48, ss 5, 6, 18, 28, 111—Civil Code, arts. 1653.1, 1656 1656.1, 1658.5, 1658.6, 1658.21, 1659, 1659.3.

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The Régie du logement, created by the Act to establish the Régie du logement and to amend the Civil Code and other legislation, is an administrative tribunal empowered to hear any actions that may arise from the lessor-lessee relationship in respect of a housing lease, when the subject-matter of the action does not exceed the amount of the Provincial Court’s jurisdiction. Soon after the Board was created nine motions in evocation were made in the Superior Court, challenging certain of the powers conferred on that body by s. 28 of its enabling statute. These motions challenged the jurisdiction of the Board to decide on (1) the resiliation of a lease in the event the lessor fails to perform an obligation (art. 1656 C.C); (2) recovery of rental deposited in accordance with art. 1656.1 C.C; (3) fixing the rent, pursuant to art. 1658.6 C.C.; (4) reduction of rent in the event of failure by the lessor to perform an obligation (art. 1656 C.C.); (5) retaking possession of a dwelling for a member of his family (art. 1659.3 CC); (6) imposing of conditions so that major repairs may be undertaken (art. 1653.1 C.C.); and (7) fixing the rent, the exception stated in para. 3 of art. 1658.21 C.C. and eviction of the lessee as provided in art. 1658.5 C.C. Applicants alleged that, from a constitutional point of view, these powers could be likened or were analogous to those exercised by a superior court in 1867, and that therefore, the Board was assuming functions reserved for tribunals the members of which are appointed pursuant to s. 96  of the Constitution Act, 1867 . The Superior Court authorized a writ of evocation to be issued in the first two cases only. The other motions were dismissed. The Court of Appeal upheld the Superior Court on all. This led to the appeal of the Attorney General of Quebec and the Régie du logement from the Court of Appeal judgments, which held the Board’s jurisdiction to be unconstitutional, and the appeal of L’Atelier 7 Inc. et al. in respect of the other matters.

Held: The appeal of the Attorney General of Quebec and the Régie du logement should be allowed. The appeal of L’Atelier 7 Inc. et al. should be dismissed.

Constitutionally, the Régie du logement had jurisdiction to hear actions regarding the matters at issue in the appeals at bar. By conferring jurisdiction over these matters on the Board, the Quebec legislature did not contravene s. 96  of the Constitution Act, 1867 . In Lower Canada at the time of Confederation jurisdiction over relations between lessors and lessees was not exercised exclusively by superior courts. This jurisdiction was divided between inferior and superior courts. The privative clause contained in s. 18 of the Act to establish the Régie did not have the effect of invalidating the jurisdic-

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tion conferred on that body. Farrah and Crevier did not apply to the case at bar.

Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, followed; Attorney General of Quebec v. Farrah, [1978] 2 S.C.R. 638; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220, distinguished; Re Fort Massey Realties Ltd. and Rent Review Commission (1982), 132 D.L.R. (3d) 516; Schneider v. The Queen, [1982] 2 S.C.R. 112; Adoption Reference, [1938] S.C.R. 398; Re: B.C. Family Relations Act, [1982] 1 S.C.R. 62; Labour Relations Board of Saskatchewan v. John East Iron Works Ltd., [1949] A.C. 134; Toronto Corporation v. York Corporation, [1938] A.C. 415; City of Mississauga v. Regional Municipality of Peel, [1979] 2 S.C.R. 244; Dupont v. Inglis, [1958] S.C.R. 535; Tomko v. Labour Relations Board (Nova Scotia), [1977] 1 S.C.R. 112; Massey-Ferguson Industries Ltd. v. Government of Saskatchewan, [1981] 2 S.C.R. 413; Séminaire de Chicoutimi v. City of Chicoutimi, [1973] S.C.R. 681; Vachon v. Attorney General of Quebec, [1979] 1 S.C.R. 555, referred to.

APPEALS from judgments of the Quebec Court of Appeal, [1982] C.A. 325, which affirmed the judgments of the Superior Court regarding the constitutional validity of certain powers exercised by the Régie du logement. Appeal of the Attorney General of Quebec and the Régie du logement allowed. Appeal of L’Atelier 7 Inc. et al. dismissed.

Jean-K. Samson and Jean Bouchard, for the appellant and mis en cause the Attorney General of Quebec.

Freddy Henderson and France Desjardins, for the appellant and respondent the Régie du logement.

Raynold Langlois and Claude Vergé, for the appellants L’Atelier 7 Inc. et al, the respondents Grondin and Quincaillerie Laberge and the mis en cause the Corporation des propriétaires immobiliers du Québec (C.O.R.P.I.Q.).

James Mabbutto, for the intervener the Attorney General of Canada.

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English version of the judgment of the Court delivered by

CHOUINARD J.—These two appeals, joined for purposes of hearing, raise two constitutional questions presented as follows:

Does the Régie du logement of Quebec, as established by s. 6 of the Act to establish the Régie du logement and to amend the Civil Code and other legislation, S.Q. 1979, c. 48, have constitutional authority to hear applications pertaining to matters contemplated by arts. 1656 and 1656.1 of the Civil Code, as provided in ss. 6 and 28 of that Act?

Is the Régie du logement of Quebec, as established by s. 6 of the Act to establish the Régie du logement and to amend the Civil Code and other legislation, S.Q. 1979, c. 48, legally vested from the constitutional point of view with the jurisdiction conferred on it by s. 28 of its enabling Act, and in particular, does the Régie du logement have authority to hear applications pertaining to the matters contemplated by arts. 1653.1, 1658.6, 1658.5(2), 1658.21(3) and 1659 of the Civil Code?

The Régie du logement was created by the Act to establish the Régie du logement and to amend the Civil Code and other legislation, 1979 (Que.), c. 48, which I will call the Dwelling Act. This Act replaced the Act to promote conciliation between lessees and property-owners, R.S.Q. 1977, c. C-50, which was first adopted in 1951 and subsequently extended from year to year. The Régie succeeded the Commission des loyers, which was created by the latter Act, as amended.

Section 5 of the Dwelling Act reads as follows:

5. The board shall exercise the jurisdiction conferred on it by this act and decide the applications that are submitted to it.

The board is also responsible for

(1) informing lessors and lessees on their rights and obligations resulting from the lease of a dwelling and on any matter contemplated in this act;

(2) promoting conciliation between lessors and lessees;

(3) conducting studies and compiling statistics on the housing situation;

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(4) publishing, from time to time, a compendium of the decisions rendered by the commissioners.

The jurisdiction of the Board is defined in s. 28:

28. The board hears in first instance, to the exclusion of any tribunal, any application

(1) respecting the lease of a dwelling where the sum claimed or the value of the thing claimed or of the interest of the applicant in the object of the application does not exceed the amount of the jurisdiction of the Provincial Court;

(2) pertaining to any of the matters contemplated in articles 1658 to 1659.7, 1660 to 1660.3, 1660.5 and 1662 to 1662.10 of the Civil Code;

(3) contemplated in Division II.

This section confers on the Board, in addition to the jurisdiction of the Commission des loyers which it succeeded, all the jurisdiction regarding the lease of a dwelling formerly exercised by the Provincial Court, together with a large number of new powers. It should be noted that in 1979 the amount of the Provincial Court’s jurisdiction was $6,000. Although it is not significant in the case at bar, this amount was subsequently raised to $10,000 by an amendment made by s. 19 of c. 58 of the Statutes of Québec, 1982. It should further be noted that the jurisdiction of the Board applies to leases of dwellings, and does not extend to commercial or other leases. Finally, I should mention that as a consequence of the many amendments which it makes to the Civil Code and other statutes, the Dwelling Act constitutes a true rental dwelling code.

The matters covered by the articles of the Civil Code mentioned in the constitutional questions raised in the case at bar are as follows:

1.—Resiliation of a lease in the event the lessor fails to perform an obligation. Article 1656 C.C., as enacted by the Dwelling Act, provides:

1656. In the case of inexecution of an obligation by the lessor, the lessee may demand the authorization to withhold the rent to perform the obligation himself or cause it to be performed in addition to the fact that he may demand specific performance of the obligation in the cases where it is possible, damages, the resiliation of

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the lease if the inexecution causes him serious prejudice, or a reduction of the rent. Articles 1613 to 1615 apply to the demand to withhold the rent.

The lessee may also deposit his rent at the tribunal if he gives the lessor a prior notice of ten days indicating the grounds for the deposit.

2.—Deposit of the rental in accordance with art. 1656, cited above, and remittance of the rent so deposited to the lessor pursuant to art. 1656.1 C.C.:

1656.1. The lessor may apply to the tribunal to recover the rent so deposited.

The tribunal may then, as it sees fit,

1. authorize the deposit to be remitted to the lessor if he has carried out his obligation or if the deposit was made without a valid reason;

2. permit the lessee to continue to deposit his rent until the lessor performs his obligation; or

3. authorize the deposit to be remitted to the lessee to enable him to perform the obligation himself.

3.—Fixing the rent, pursuant to art. 1658.6 C.C.:

1658.6. If the lessee notifies the lessor that he objects to the requested increase or change, the lessor may, within one month after receipt of the notice, apply to the tribunal to have the rent fixed or, as the case may be, to rule on the term or the change of the lease; if he fails to notify the lessor, the lease is extended of right.

4.—Reduction of rent, authorized by art. 1656 C.C. cited above, in the event of failure by the lessor to perform an obligation.

5.—Retaking possession of a dwelling by the lessor in the event of a refusal by the lessee, pursuant to art. 1659.3 C.C., which must be read with art. 1659:

1659. The lessor of a dwelling may retake possession of it to live in or to lodge his ascendants or descendants, his son-in-law, daughter-in-law, father-in-law, mother‑in‑law, stepson or stepdaughter or any other relative of whom he is the main support.

1659.3. If the lessee refuses to vacate the dwelling, the lessor may, with the authorization of the tribunal, retake possession of it provided that he applies therefor within one month of the refusal, proves his good faith, and shows that he really intends to retake possession of it for

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the purpose mentioned in the notice and not as a pretext for other purposes.

6.—Imposing of conditions by the board in the event that the lessee has to vacate so that major repairs may be undertaken, pursuant to art. 1653.1 C.C., which must be read with art. 1653:

1653. Major improvements or major repairs other than urgent repairs shall not be undertaken in a dwelling before the lessor has given the lessee a notice of ten days indicating the nature of the work, the date on which it is to begin and its duration. That notice indicates, where required, the necessary period of vacation and the other conditions under which the work will be carried out if it is of such a nature as to substantially reduce the enjoyment of the premises.

If the necessary period of vacation is more than one week, the notice must be of one month.

1653.1. Where a condition is immoderate, the lessee may, within ten days after the receipt of the notice, apply to the tribunal to have it modified or suppressed. However, he cannot contest the nature or the expediency of the work.

The application of the lessee is heard and decided by preference. It suspends the carrying out of the work unless the tribunal orders otherwise.

The tribunal may impose conditions it considers fair and reasonable.

7.—Pursuant to art. 1658.5 C.C., fixing the rent, a finding regarding application of the exception stated in para. 3 of art. 1658.21, and eviction of the lessee:

1658.5. The lessee must, within one month after receipt of the notice provided for in article 1658.1, notify the lessor that he is vacating the dwelling or that he objects to the requested increase or change; if he fails to notify the lessor, he is deemed to have agreed to the new rent or the new conditions.

However, in the case of a lease contemplated in article 1658.21, if the lessee refuses the increase of rent or the change requested, he must vacate the dwelling at the end of the lease.

1658.21. Articles 1658.6, 1658.7 and 1658.9 to 1658.20 do not apply

…

3. to the lease of a dwelling situated in an immoveable on which work began after 31 December 1973, for five years from the date on which the immoveable is ready for the use for which it is intended.

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The Board considered these matters in connection with applications made to it in nine separate cases. There were accordingly nine motions in evocation, some of which sought review of decisions made by the Board and others evocation before judgment of cases pending before that body.

In two cases the judge of the Superior Court authorized writs of evocation to be issued, on the ground that the jurisdiction conferred on the board may be likened or is analogous to that exercised or capable of being exercised by a superior court in 1867, that a judicial function is concerned in both cases and that the judicial powers exercised by the Board are not incidental to its administrative powers, but constitute the greater part of its duties. The matters which the Court thus held could not be included within the Board’s jurisdiction are the first two listed above, namely (1) resiliation of a lease in the event the lessor fails to perform an obligation, and (2) the deposit of rent pursuant to art. 1656 and remittance of the rent so deposited to the lessor pursuant to art. 1656.1.

As regards the five other matters considered, the judge held that they could not be likened or were not analogous to the jurisdiction or powers exercised or capable of being exercised by a superior court at the time of Confederation. He therefore dismissed the motions for a writ of evocation.

The nine Superior Court judgments were the subject of twelve appeals to the Court of Appeal, which upheld the Superior Court on all.

This led to the appeal by the Attorney General of Quebec and the Régie du logement from the Court of Appeal judgments, which held to be unconstitutional the Board’s jurisdiction over the first two matters described above, and the appeal of L’Atelier 7 Inc. et al. in respect of the other matters.

The Attorney General of Canada intervened in support of the Attorney General of Quebec and the Régie du logement, and in this regard I note the following passage from the reasons of

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Dickson J. in Schneider v. The Queen, [1982] 2 S.C.R. 112, at p. 138:

A factor which plays no part in the determination of the constitutional validity of the Act, but which, as a practical matter, is not negligible, is the support of both the provincial and federal authorities for the validity of the legislation. Although it does not resolve the constitutional issue it is interesting to observe that in these proceedings a provincial statute is being attacked on the ground that it falls within federal competence yet the Attorney General of Canada is not contesting the constitutionality of the provincial statute. He would like to see the provincial legislation remain in place.

The Attorney General of Ontario, who had intervened at the outset, withdrew his intervention before the hearing.

Applicable test

This once again is a case concerning the constitutionality of provisions in respect of a tribunal the members of which are appointed by the provincial government, and involving s. 96  of the Constitution Act, 1867 :

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.

There is no need to review the background to this constitutional question, which has been done, inter alia, in the Adoption Reference, [1938] S.C.R. 398, and more recently in the reference Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714.

In addition to the foregoing cases, and the other decisions of this Court to which I will refer below, reference will also be made in citations to the following decisions of the Privy Council and of this Court: Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. (the John East case), [1949] A.C. 134; Toronto Corporation v. York Corporation (the Toronto v. York case), [1938] A.C. 415; City of Mississauga v. Regional Municipality of Peel (the Mississauga case), [1979] 2 S.C.R. 244; Dupont v. Inglis, [1958] S.C.R. 535; Tomko v. Labour Relations Board (Nova Scotia) (the Tomko case), [1977] 1 S.C.R. 112; Attorney General of Quebec v. Farrah (the Farrah case), [1978] 2 S.C.R. 638.

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In the reference Re: B.C. Family Relations Act, [1982] 1 S.C.R. 62, Estey J. wrote for the majority at pp. 112-13:

The history of constitutional development in our courts has been a gradually increasing recognition of the constitutional capacity of the provinces to institute programs within their constitutional spheres which entail the establishment of administrative tribunals or which utilize the facilities of the provincially organized and appointed courts. This development could not be considered surprising bearing in mind the vast transformation of the Canadian community in every respect since 1867. The role of government at large has increased in the community, and the financial resources available to the government at both levels have made possible the implementation of social programs never contemplated by the draftsmen of the British North America Act. To meet the growing responsibilities of the federal and provincial governments the flexibility of the Constitution has been manifest in many areas. Section 96 is perhaps one of the most important illustrations. Its purpose and role in the Constitution is in no way jeopardized by the increasing recognition of the implementation of valid provincial programs through provincial administrative and judicial agencies. This will continue to be the case so long as that which is assigned to the provincial body does not have the effect in substance of conferring on that body a judicial function which “broadly conform [s] to the type of jurisdiction exercised by the superior, district or county courts” (John East, supra,…).

The case at bar is an illustration of the development referred to by Estey J. In Quebec this development has resulted in the adoption of what has been described as a rental dwelling code, including the establishment of an administrative tribunal the members of which are appointed by the province. According to the representations made to the Court, some one hundred thousand cases a year come before the Régie du logement.

In the reference Re Residential Tenancies Act, 1979, supra, the Court, per Dickson J., set forth a three-step test in respect of s. 96  of the Constitution Act, 1867 . At pages 734 to 736, Dickson J. wrote:

The jurisprudence since John East leads one to conclude that the test must now be formulated in three

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steps. The first involves consideration, in the light of the historical conditions existing in 1867, of the particular power or jurisdiction conferred upon the tribunal. The question here is whether the power or jurisdiction conforms to the power or jurisdiction exercised by superior, district or county courts at the time of Confederation. This temporary segregation, or isolation, of the impugned power is not for the purpose of turning back the clock and restoring Toronto v. York as the governing authority, an approach deplored in Mississauga. It is rather the first step in a three step process.

If the historical inquiry leads to the conclusion that the power or jurisdiction is not broadly conformable to jurisdiction formerly exercised by s. 96 courts, that is the end of the matter. As Rand J. noted in Dupont et al. v. Inglis et al., [1958] S.C.R. 535, “Judicial power not of that type, (i.e. that exercised by s. 96 courts at Confederation) such as that exercised by inferior courts, can be conferred on a provincial tribunal whatever its primary character” (p. 542). If, however, the historical evidence indicates that the impugned power is identical or analogous to a power exercised by s. 96 courts at Confederation, then one must proceed to the second step of the inquiry.

Step two involves consideration of the function within its institutional setting to determine whether the function itself is different when viewed in that setting. In particular, can the function still be considered to be a ‘judicial’ function? In addressing the issue, it is important to keep in mind the further statement by Rand J. in Dupont v. Inglis that “… it is the subject-matter rather than the apparatus of adjudication that is determinative”. Thus the question of whether any particular function is ‘judicial’ is not to be determined simply on the basis of procedural trappings. The primary issue is the nature of the question which the tribunal is called upon to decide. 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, normally, it is acting in a ‘judicial capacity’. To borrow the terminology of Professor Ronald Dworkin, the judicial task involves questions of ‘principle’, that is, consideration of the competing rights of individuals or groups. This can be contrasted with questions of ‘policy’ involving competing views of the collective good of the community as a whole. (See Dworkin, Taking Rights Seriously (Duckworth, 1977) pp. 82-90.)

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If, after examining the institutional context, it becomes apparent that the power is not being exercised as a “judicial power” then the inquiry need go no further for the power, within its institutional context, no longer conforms to a power or jurisdiction exercisable by a s. 96 court and the provincial scheme is valid. On the other hand, if the power or jurisdiction is exercised in a judicial manner, then it becomes necessary to proceed to the third and final step in the analysis and review the tribunal’s function as a whole in order to appraise the impugned function in its entire institutional context. The phrase—‘it is not the detached jurisdiction or power alone that is to be considered but rather its setting in the institutional arrangements in which it appears’—is the central core of the judgment in Tomko. It is no longer sufficient simply to examine the particular power or function of a tribunal and ask whether this power or function was once exercised by s. 96 courts. This would be examining the power or function in a ‘detached’ manner, contrary to the reasoning in Tomko. What must be considered is the ‘context’ in which this power is exercised. Tomko leads to the following result: it is possible for administrative tribunals to exercise powers and jurisdiction which once were exercised by the s. 96 courts. It will all depend on the context of the exercise of the power. It may be that the impugned ‘judicial powers’ are merely subsidiary or ancillary to general administrative functions assigned to the tribunal (John East; Tomko) or the powers may be necessarily incidental to the achievement of a broader policy goal of the legislature (Mississauga). In such a situation, the grant of judicial power to provincial appointees is valid. The scheme is only invalid when the adjudicative function is a sole or central function of the tribunal (Farrah) so that the tribunal can be said to be operating ‘like a s. 96 court’.

In this reference, the two constitutional questions presented by the Executive Council of the province of Ontario were as follows:

1. Is it within the legislative authority of the Legislative Assembly of Ontario to empower the Residential Tenancy Commission to make an order evicting a tenant as provided in The Residential Tenancies Act, 1979?

2. Is it within the legislative authority of the Legislative Assembly of Ontario as provided in The Residential Tenancies Act, 1979 to empower the Residential Tenancy Commission to make orders requiring land-

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lords and tenants to comply with obligations imposed under that Act?

After considering the questions in light of the three steps in the test stated by Dickson J., the Court gave a negative answer to the two questions submitted.

This three-step test was summarized as follows by Laskin C.J., speaking for the Court, in Massey-Ferguson Industries Ltd. v. Government of Saskatchewan, [1981] 2 S.C.R. 413, at p. 429:

1. Does the challenged power or jurisdiction broadly conform to the power or jurisdiction exercised by Superior, District or County Courts at the time of Confederation?

2. Is the function of the provincial tribunal within its institutional setting a judicial function, considered from the point of view of the nature of the question which the tribunal is called upon to decide or, to put it in other words, is the tribunal concerned with a private dispute which it is called upon to adjudicate through the application of a recognized body of rules and in a manner consistent with fairness and impartiality?

3. If the power or jurisdiction of the provincial tribunal is exercised in a judicial manner, does its function as a whole in its entire institutional context violate s. 96?

Until some other solution is found, which would probably require an amendment to the Constitution, this in my view is the test which must be applied and the case was argued in this Court on this basis.

There is no doubt that all the matters covered in the constitutional questions submitted are within provincial jurisdiction, and the only question is whether including them in the jurisdiction of the Régie du logement contravenes s. 96.

Fixing of rent

Before proceeding to consider the first step of the test, namely the historical background, it is possible, as the Attorney General of Quebec and the Régie du logement suggested, to deal separately with the matter mentioned third in the above list, namely the fixing of rent pursuant to art. 1658.6 C.C., on the ground that in any case a

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judical power is not at issue. As these appellants wrote in their submission:

[TRANSLATION] In this area, the Board does not proceed in the manner of a court. What it really does is to implement an administrative policy of supervising the housing market, based primarily on the good of the community as a whole. Thus, the rights of parties are closely associated with the implementation of a common policy regarding the supervision of rental levels.

In the reference Re Residential Tenancies Act, 1979, Dickson J. wrote at p. 725:

In 1975 the Legislature of Ontario introduced The Residential Premises Rent Review Act, 1975, 1975 (Ont.), c. 12, to establish rent control. The ability of the province to administer a rent review system, of course, in no way encroached on the traditional jurisdiction of the s. 96 courts to order termination, eviction and compliance.

Relying on this decision by this Court, the Nova Scotia Court of Appeal has since come to a similar conclusion in Re Fort Massey Realties Ltd. and Rent Review Commission (1982), 132 D.L.R. (3d) 516.

The decisions of the Court of Appeal and the Superior Court on this point must therefore be affirmed.

Historical step

Turning to the other matters and the historical step in the applicable test, it is essential above all to examine the legislation in effect in Quebec in 1867. The Code of Civil Procedure of 1867, 29-30 Vict., c. 25, came into effect only a few days before the Constitution Act, 1867 , namely on June 28, 1867.

Article 887 of that Code read as follows:

887. Actions to annul or to rescind a lease, or to recover damages resulting from the contravention of any of the stipulations of the lease, or the non-fulfilment of any of the obligations which the law attaches to it, or arising from the relation of lessor and lessee, are instituted either in the Superior Court or in the Circuit Court, according to the value or the amount of the rent, or the amount of damages alleged.

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As regards the Circuit Court, art. 1105 went on to say:

1105. The Circuit Court has jurisdiction in cases between lessors and lessees, whenever the rent, or the annual value, or the amount of damages claimed, does not exceed two hundred dollars.

There is now no doubt that the Circuit Court was a s. 96 court, like the Superior Court (Séminaire de Chicoutimi v. City of Chicoutimi, [1973] S.C.R. 681, at p. 689 to 692). These two courts were created in 1849 by the Act to amend the Laws relative to the Courts of Original Civil Jurisdiction in Lower-Canada, 12 Vict., c. 38. The Circuit Court was abolished in 1953 by the Act to amend the Code of Civil Procedure, 1952-53 (Que.), c. 18.

In 1867, therefore, the Superior Court and the Circuit Court had jurisdiction over the entire area of relations between lessors and lessees.

Under the heading “Inferior Jurisdictions”, the 1867 Code first mentioned the Commissioners’ Court. Article 1188 C.C.P. read as follows:

1188. The Commissioners’ Court exercises an ultimate jurisdiction in all suits purely personal or relating to moveable property, which arise from contracts or quasi-contracts, and wherein the sum or value demanded does not exceed twenty-five dollars, and the defendant resides:

1. In the locality of the court;

2. In another locality, but in the same district and within a distance of five leagues, if the debt has been contracted in the locality for which the court is established;

3. In a neighbouring locality in which there are no commissioners, or in which the commissioners cannot sit by reason of illness, absence, or other inability to act, provided such locality is in the same district within a distance not exceeding ten leagues.

With article 1188 must be read the first part of art. 1191:

1191. It may, in matters within its jurisdiction, grant:

Attachments for rent;

…

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The Commissioners’ Court accordingly had a certain jurisdiction over relations between lessors and lessees, since attachments for rent are the procedure by which a lessor may, in order to guarantee his rights, obtain a seizure before judgment of movables found on the premises and belonging to the lessee (art. 734 C.C.P. and art. 1637 C.C.).

The Commissioners’ Courts were created in 1821 by 1 Geo. IV, c. 2, titled the Act for the summary Trial of certain small causes in the Country Parishes of this Province. Section I provided, inter alia, that:

…from and after the firft day of May next, it fhall and may be lawful for the Governor, Lieutenant-Governor or Perfon adminiftering the Government of this Province, for the time being […] to appoint fuch and so many perfons as to him fhall feem meet, in any Parifhes or Townfhips within this Province, to take cognizance of fuch caufes and fuits as are herein-after fpecified, arifing in the Parifh or Townfhip in which fuch Commiffioner or Commiffioners may refide, (the Counties of Quebec and Montreal, and the Town and Parifh of Three Rivers excepted) […] and to hear, try and determine, in a fummary manner, agreeable to law and the evidence before them, all caufes and complaints which fhall be brought before him or them, and arifing within the Parifh or Townfhip in which fuch commiffioner or commiffioners may refide, concerning the recovery of debts, not exceeding in amount, the fum of four pounds three fhillings and four pence, current money of this Province, of the following nature; that is to say, for goods, cattle, or other moveables, fold and delivered, ftipulated and agreed upon, either for houfes or other immoveable property; horfes, cattle, or other immoveable effects…

The jurisdiction of the Commissioners was undoubtedly very limited as to territory and amount, the latter being $25 in 1867. However, I would add that according to the submissions made by the Attorney General of Quebec and the Régie du logement, which were not contradicted, there were 222 localities in Quebec in 1867 which had a Commissioners’ Court, and such courts continued until 1960. These courts were abolished in 1965 by the Act to amend the Courts of Justice Act, 1965 (Que.). vol. 1, c. 17, s. 36.

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Further, arts. 1217 and 1219 of the Code of Civil Procedure of 1867 conferred jurisdiction on the Recorder’s Court in certain cities over disputes between lessors and lessees:

1217. In certain cities the Recorder’s Court has also jurisdiction for the recovery of certain municipal claims, and in matters of dispute between lessors and lessees and master and servant.

1219. The extent of the jurisdiction of these special courts and the manner of proceeding before them are regulated by the statutes which create them or relate to them, and in certain respects by the practice therein followed.

It should be noted that at that time the Montreal Recorder’s Court had the same jurisdiction and powers over lessor-lessee relations as the Superior Court and the Circuit Court under the same Act, titled the Act respecting Lessors and Lessees, C.S.L.C. 1861, c. 40. The jurisdiction and powers were however limited to “cases where the consideration or annual value of the property occupied shall not exceed the sum of one hundred dollars, and which shall apply to premises or real estate situate within the limits of the said city”. This jurisdiction was given to the Montreal Recorder’s Court in 1864 by s. 53 of the Act to amend the Acts relating to the Corporation of the City of Montreal, and for other purposes, 27-28 Vict., c.60:

53. The Recorder’s Court of the said City of Montreal shall have concurrent jurisdiction with the Circuit Court, or with any Judge of the Superior Court in the District of Montreal, as to matters between Lessors and Lessees, and may act in virtue of the Act of the Consolidated Statutes for Lower Canada, chapter forty, intituled: An Act concerning Lessors and Lessees, and of the Legislative provisions amending the same, in the same manner and with the same formalities, as the said Circuit Court, or any of the Judges of the said Superior Court is directed to proceed in and by the above last cited Act, as regards the ejection of the lessee for committing waste upon the premises or part of the premises leased, or for refusing or neglecting to pay his rent or any part of his rent, or for using the premises leased, contrary to the intent for which they were leased, or because the term of his lease, either written, verbal or presumed, is expired; and the said Recorder’s Court shall have and possess, to that end, all the necessary powers and authority including that of issuing writs of summons, execution and possession, and to fix and

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determine the costs to be paid by the losing party, which costs however shall not include any attorney’s fees; Provided always that the competence of the said Recorder’s Court shall be limited to cases where the consideration or annual value of the property occupied shall not exceed the sum of one hundred dollars, and which shall apply to premises or real estate situate within the limits of the said city.

This jurisdiction of the Recorder’s Court was reaffirmed when the Charter was revised in 1899: Act to revise and consolidate the charter of the city of Montreal, 1899 (Que.), c. 58, ss. 485 and 486.

In a later revision of the Charter in 1960, by the Act to revise and consolidate the Charter of the City of Montreal, 1959-60 (Que.), c. 102, these sections became ss. 1119 and 1120. These sections are still in the Charter, though they have undoubtedly become inoperative as a consequence of s. 28, cited above, of the Dwelling Act, which confers jurisdiction on the Board “to the exclusion of any tribunal”.

Not only did the Montreal Recorder’s Court have jurisdiction over this matter in 1867, but art. 1217 of the C.C.P., 1867, recognized that jurisdiction over lessor and lessee relations could be conferred on lower courts.

This is how such jurisdiction was in due course conferred on the Magistrate’s Court, created in 1869 by the Act respecting District Magistrates in this Province, 1869 (Que.), c. 23. The Magistrate’s Court has since become the Provincial Court, and it is the latter’s jurisdiction over a dwelling lease which was transferred to the Board by the Dwelling Act.

This also explains how in 1903 jurisdiction similar to that of the Montreal Recorder’s Court was conferred on all municipal courts by ss. 572 and 573 of the Cities and Towns Act, 1903 (Que.), c. 38. These sections have since been retained and are now, though undoubtedly inoperative, ss. 621 and 622 of the Cities and Towns Act, R.S.Q. 1977, c. C-19:

621. The Municipal Court shall have concurrent jurisdiction with the Provincial Court, in matters between

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lessors and lessees, and shall have, for that purpose, all necessary powers and authority, including that of issuing writs of summons, execution and possession, and of fixing and determining the costs to be paid by the losing party; provided, always, that the jurisdiction of the Municipal Court shall be limited to cases where the amount claimed is not more than twenty-five dollars, and where the annual rent or rental value of the immoveable occupied is not more than one hundred dollars, and where the said immoveable is situated in the municipality; and provided always that there be placed upon every proceeding before the said court the same law stamps which would be placed thereon if the proceeding was instituted before the Provincial Court.

622. After judgment ordering the eviction of a tenant under section 621, the plaintiff may, after the expiration of three days from the service of such judgment on the tenant, obtain from the Municipal Court a warrant or writ of possession which shall be executed by a bailiff or a bailiff of the Municipal Court, or by a constable or member of the police force, each of whom shall be vested with all necessary authority for that purpose.

In the reference Re Residential Tenancies Act, 1979, Dickson J. wrote at p. 738:

It is clear, as appears from the judgment of the Court of Appeal, that prior to 1867 in Upper Canada the only tribunals which could make ejectment orders were the Court of Queen’s Bench, the Court of Common Pleas, and the County Court in limited situations, and that only the Court of Chancery could make orders of specific performance or issue mandatory or prohibitory injunction orders. The settlement of disputes between landlords and tenants, including the termination of tenancies and eviction of tenants, has thus always been within the exclusive jurisdiction of the Superior, District and County Court judges both before and after Confederation.

In light of what precedes, this passage clearly cannot be applied to Lower Canada.

It is also not possible to say, as Fauteux C.J. wrote in Séminaire de Chicoutimi v. City of Chicoutimi, supra, referring to the Code of Civil Procedure of 1867, in connection with the quashing of municipal by-laws for excess of jurisdiction, at p. 688:

No provision of this Code indicates that any court other than the Superior Court had original jurisdiction to quash municipal by-laws on grounds of excess of jurisdiction.

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The Commissioners’ Courts which existed between 1821 and 1965 always had some jurisdiction over matters between lessors and lessees, at least as regards the collection of rent. The Code of Civil Procedure of 1867, laid down the principle of jurisdiction by Recorder’s Courts, and in 1867 the Montreal Recorder’s Court had jurisdiction within the territory of Montreal over leases with an annual value not exceeding $100 (as compared with $200 in the case of the Circuit Court): according to the statute conferring its jurisdiction, it could act under the Act respecting Lessors and Lessees in the same way as the Circuit Court and the Superior Court.

In my view, that suffices for the historical step of the test established by the reference Re Residential Tenancies Act, 1979, and applies to all proceedings covered by this appeal.

The Court of Appeal per Malouf J.A., with whom the other two judges concurred, upheld the Superior Court and wrote:

[TRANSLATION] The Board has neither the power nor jurisdiction to rule on the following actions:

1—an action to recover rent pursuant to a deposit by the lessee, alleging failure by the lessor to perform an obligation under art. 1656.1 of the Civil Code;

2—resiliation of a lease under art. 1656 of the Civil Code;

With respect, the distinction between these matters and the others does not seem justified to me when one takes into account that, subject to the limits fixed on territory and amount, in 1867 the Montreal Recorder’s Court had exactly the same jurisdiction as the Superior Court and the Circuit Court over all disputes between lessors and lessees.

Privative clause

Appellants L’Atelier 7 Inc. et al. further submitted that the privative clause contained in s. 18 of the Dwelling Act and the provisions relating to an appeal to the Provincial Court invalidate the jurisdiction conferred on the Board. They relied on Farrah, supra, and Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220.

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Section 18 provides:

18. No extraordinary recourse provided by articles 834 to 850 of the Code of Civil Procedure may be exercised nor any injunction granted against the board or the commissioners acting in their official capacity.

A judge of the Court of Appeal may, on a motion, summarily annul any writ, order or injunction issued or granted contrary to this section.

The powers of the Provincial Court on appeal are defined in ss. 101 and 102:

101. The Court may confirm, amend or quash the decision contemplated by the appeal and render the judgment that should have been rendered.

102. The judgment is without appeal; it must be written, substantiated and signed by the judge who rendered it and served on the parties in the manner provided in the rules of practice.

The Court of Appeal upheld appellants L’Atelier 7 Inc. et al. on this point. Malouf J.A. wrote:

[TRANSLATION] In Crevier v. A.G. of Quebec, [1981] 2 S.C.R. 220, the Supreme Court has already ruled on the effect of a privative clause on the superintending and reforming power of the Superior Court. The Chief Justice, speaking for the Court, said the following at p. 234:

In my opinion, where a provincial Legislature purports to insulate one of its statutory tribunals from any curial review of its adjudicative functions, the insulation encompassing jurisdiction, such provincial legislation must be struck down as unconstitutional by reason of having the effect of constituting the tribunal a s. 96 court.

and at p. 236:

It is true that this is the first time that this Court has declared unequivocally that a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. In my opinion, this limitation, arising by virtue of s. 96, stands on the same footing as the well-accepted limitation on the power of provincial statutory tribunals to make unreviewable determinations of constitutionality.

and, finally, at p. 238:

It cannot be left to a provincial statutory tribunal, in the face of s. 96, to determine the limits of its own jurisdiction without appeal or review.

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What the Supreme Court said with regard to the Professions Tribunal in the said judgment applies to the dwelling board in the case at bar.

Appellants L’Atelier 7 Inc. et al. relied in particular on the following passage from Laskin C.J. in Crevier, supra, at pp. 238-39:

In short, what the Farrah case decided was that to give a provincially-constituted statutory tribunal a jurisdiction in appeal on questions of law without limitation, and to reinforce this appellate authority by excluding any supervisory recourse to the Quebec Superior Court, was to create a s. 96 court. The present case is no different in principle, even though in ss. 162 and 175 of the Professional Code, dealing with the appellate authority of the Professions Tribunal, there is no mention of the word “law” or the word “jurisdiction”. When regard is had to the privative terms of ss. 194 and 195, added to the fact that by s. 175 the Professions Tribunal’s decisions are final, I see no significant distinction between the present case and the Farrah case in the fact that in the latter the authority granted to the appeal tribunal was “to the exclusion of any other court”. In both cases there was a purported exclusion of the reviewing authority of any other court, whether by appeal or by evocation.

These appellants wrote in their submission:

[TRANSLATION] The Act provides in section 91 for a right of appeal from decisions of the Board in all cases other than those where the application concerns one of the following:

—fixing or revision of rent;

—recovery of a debt contemplated in section 73;

—demolition of a dwelling (except as regards the indemnity payable in the event of eviction);

—alienation of an immovable situated in a dwelling complex;

—co-ownership.

In these five (5) cases, the decision made by the board is final and not subject to review, and section 18 cited above is a bar to judicial review by the Superior Court.

The result is the same as that rejected by this Court in “Crevier”, and the comments of Laskin C.J. reproduced above also apply to the case at bar.

In my view, several distinctions must be made.

[Page 386]

Unlike the Transport Tribunal in Farrah and the Professions Tribunal in Crevier, the Board is not an appellate but a first instance tribunal. It is not, therefore, as was stated in the above‑cited passage from Laskin C.J. in Crevier, a provincially-constituted statutory tribunal which has been given a jurisdiction in appeal on questions of law without limitation, and the appellate authority of which has been reinforced by excluding any supervisory recourse to the Superior Court.

In the Crevier case dealing with the Professions Tribunal, in addition to the privative clause of s. 194 of the Professional Code, which was to the same effect as s. 18 in the case at bar, there was s. 195 which excluded the superintending and reforming power of the Superior Court under art. 33 C.C.P. There is no similar clause in the case of the Board, and the Superior Court therefore continues to have its traditional superintending and reforming power for lack or excess of jurisdiction, which may be exercised by direct action or by a motion for a declaratory judgment (Vachon v. Attorney General of Quebec, [1979] 1 S.C.R. 555, at pp. 560 to 562).

In cases where there is an appeal to the Provincial Court from decisions of the Board, it is true that judgments of the Provincial Court are not appealable. However, this Court is not immune to extraordinary recourses. No privative clause exists in its case.

In my opinion Farrah and Crevier do not apply to the case at bar.

Conclusion

For these reasons, I would allow without costs the appeal of the Attorney General of Quebec and the Régie du logement, No. 17470, and dismiss without costs the appeal of L’Atelier 7 Inc. et al., No. 17487. No award will be made as to costs for or against the Attorney General of Canada, the intervener.

I would answer the two constitutional questions in the affirmative.

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Appeal of the Attorney General of Quebec and the Régie du logement allowed. Appeal of L’Atelier 7 Inc. et al. dismissed.

Solicitors for the appellant and mis en cause the Attorney General of Quebec: Jean-K. Samson and Jean Bouchard, Ste-Foy.

Solicitors for the appellant and respondent the Régie du logement: Henderson, Mathieu & Beaudoin, Montreal.

Solicitors for the appellants L’Atelier 7 Inc. et al., the respondents Grondin and Quincaillerie Laberge and the mis en cause the Corporation des propriétaires du Québec (C.O.R.P.I.Q.): Langlois, Drouin & Associés, Québec.

Solicitor for the intervener the Attorney General of Canada: R. Tassé, Ottawa.