Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.),  1 S.C.R. 238
The Attorney General of Nova Scotia
representing Her Majesty The Queen
in right of the Province of Nova Scotia Appellant (Intervener)
Clifford George Yeomans and A. Ross Mitchell,
Director of Labour Standards for the Province
of Nova Scotia, and Stephen K. Mont, Henry Martell
and Ann Hebb in their capacity as Chairman and
members respectively of the Labour Standards
Tribunal (Nova Scotia) and the Labour Standards
Tribunal (Nova Scotia) Appellants (Respondents)
Sobeys Stores Limited, a body corporate Respondent (Appellant)
The Attorney General of Canada,
the Attorney General of Quebec,
the Attorney General of Manitoba and
the Attorney General of British Columbia Interveners
indexed as: sobeys stores ltd. v. yeomans and labour standards tribunal (n.s.)
File No.: 19682.
1988: February 5; 1989: March 2.
Present: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux-Dubé JJ.
on appeal from the appeal division of the nova scotia supreme court
Constitutional law -- Courts -- Jurisdiction -- Employment law ‑‑ Provincial tribunal affirming decision requiring employee's reinstatement and the retroactive payment of wages -- Whether or not power of provincial official and tribunal to hear and determine disputes and to make orders contravening s. 96 and hence ultra vires -- Constitution Act, 1867, s. 96 -- Labour Standards Code, S.N.S. 1972, c. 10, s. 67A(2), (3).
The appellant Yeomans had been continuously employed by respondent Sobeys for ten years prior to his dismissal. He had been warned orally on at least three occasions about his shortcomings but had been given no written notice of them. Yeomans complained to the Director of Labour Standards for Nova Scotia that he had been dismissed "without just cause" within the meaning of s. 67A of the Labour Standards Code. The Director ordered Yeomans to be reinstated and to be paid lost wages stemming from the unjust dismissal. This decision was upheld by the Labour Standards Tribunal. The Appeal Division of the Nova Scotia Supreme Court allowed Sobeys' appeal holding s. 67A(2) and (3) unconstitutional because they conferred a s. 96 power on a provincially‑appointed tribunal.
The constitutional questions raised on this appeal were (1) whether the province had 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 in light of s. 96 of the Constitution Act, 1867; and (2) whether s. 67A(2) and (3) of the Labour Standards Code were ultra vires the province as contravening s. 96 of the Constitution Act, 1867.
Held: The appeal should be allowed; the first constitutional question should be answered in the affirmative and the second in the negative.
Per Dickson C.J. and McIntyre, Lamer and Wilson JJ.: Although the Labour Standards Tribunal exercises a jurisdiction broadly conformable to that of s. 96 courts at the time of Confederation, and although in doing so it performs a judicial function, it does so as a necessarily incidental aspect of the broader policy goal of providing minimum standards of protection for non-unionized employees.
The jurisdiction in this case should be characterized as in relation to unjust dismissal. Characterizations of s. 67A as being in relation to employer/employee relations, labour standards or the mandatory performance of an employment contract should be rejected.
Characterization should be determined with reference to the different purposes served by the three stages of the test developed in Re Residential Tenancies Act, 1979. The first stage of that test involves a search for "broad conformity" with the powers of s. 96 courts at the time of Confederation. A relatively strict approach to characterization is necessary at this stage in order to prevent the possibility of large accretions of jurisdiction in the inferior courts which would in turn defeat the purpose of s. 96. Jurisdiction over the remedy, however, is too narrow. The nature of the dispute should be the guide for the application of the historical test.
If the jurisdiction was exclusive to the superior courts at Confederation, the inquiry must pass to the second and third stages of the test. If the jurisdiction is shared, the legislation under challenge may, in some circumstances, be held valid by the historical test. Jurisdiction need not be entirely or even generally concurrent, for the nature of the inferior-superior court distinction necessarily means that the former's jurisdiction will be subject to a geographical or pecuniary limit. Only if the jurisdiction of the inferior courts is broadly co-extensive with the superior courts will the history of shared jurisdiction validate the contemporary scheme under the historical test.
Pre-Confederation jurisdiction refers to pre-1867 jurisdiction and not to jurisdiction in a particular province immediately prior to that province's joining confederation. The test of 1867 jurisdiction must include an examination of the jurisdiction in all four original confederating provinces, and if this results in a tie, the jurisdiction in the United Kingdom. A tie existed here. Jurisdiction over unjust dismissal in the United Kingdom in 1867 was therefore examined and found to be the preserve of courts equivalent to Canada's superior, district and county courts. This jurisdiction, accordingly, cannot be conferred on provincially-appointed tribunals today.
In the second stage of the Residential Tenancies test, where the issue of whether or not a function is judicial is considered, the nature of the question which the tribunal is called upon to decide is determinative. A distinction must be drawn between the roles of the Director and the Tribunal. The former does not perform a judicial function even though he deals with private disputes between parties; the latter does.
The third stage of the test examines the `context' in which this power is exercised. It is exercised in the context of a comprehensive scheme for the protection of non-unionised workers. The policy of promoting such protection is a response to changed social conditions since Confederation and is implemented in an administrative as opposed to a court context. Although the Tribunal does carry out a judicial function with regard to s. 67A and many other aspects of the Code, that function is necessarily incidental to the implementation of broader policy goals the Code is designed to achieve.
Per Beetz, La Forest and L'Heureux-Dubé JJ.: The Labour Standards Code's judicial component bears no relationship to the contractual issues assigned to the s. 96 courts in 1867. Its labour relations standards transcend the relationship between the parties and apply independently of any contractual arrangement that may exist. The enforcement mechanisms are essentially conciliatory procedures. The Director and tribunal members are knowledgeable in, and are governed by the dynamics of, labour relations rather than legal norms. There is no requirement that they be legally trained. An appeal from the Director to the Tribunal does not involve a lis between the complainant and the alleged contravenor notwithstanding its judicial component. Labour standards legislation is an integral part of the modern concept of labour relations and the power to enforce these standards, by use of techniques appropriate to the subject-matter, should be vested in specialized bodies by the province. It is inappropriate that the regular enforcement of these standards be by action in s. 96 courts, let alone part of the protected jurisdiction of these courts.
Since the administration and enforcement of modern legislation respecting labour standards form no part of the protected jurisdiction of a s. 96 court, considerations as to the precise nature of the historical inquiry into some aspect of a s. 96 court's jurisdiction were not of immediate relevance. However, it should be noted that the question to consider is whether a tribunal's jurisdiction "broadly" conforms to that of a s. 96 court at Confederation. This is not precisely definable. The experience, not only of the original provinces, but that of other provinces and England, at the time of Confederation, is relevant. Mechanistic assessments should be avoided as well as consideration of a situation peculiar to a province.
By Wilson J.
Applied: Re Residential Tenancies Act, 1979,  1 S.C.R. 714; considered: Labour Relations Board of Saskatchewan v. John East Iron Works, Ld.,  A.C. 134; Re B.C. Family Relations Act,  1 S.C.R. 62; Attorney General of Quebec v. Grondin,  2 S.C.R. 364; disapproved: Asselin v. Industries Abex Ltée,  C.A. 72, 22 D.L.R. (4th) 212; distinguished: Attorney General of Quebec v. Farrah,  2 S.C.R. 638; Crevier v. Attorney General of Quebec,  2 S.C.R. 220; referred to: The Adoption Reference,  S.C.R. 398; Tomko v. Labour Relations Board (Nova Scotia),  1 S.C.R. 112; Massey-Ferguson Industries Ltd. v. Saskatchewan,  2 S.C.R. 413; Séminaire de Chicoutimi v. Cité de Chicoutimi,  S.C.R. 681; Re Cour de Magistrat de Québec,  S.C.R. 772; Canadian Broadcasting Corporation v. Quebec Police Commission,  2 S.C.R. 618; Dupont v. Inglis,  S.C.R. 535; Evans v. Employment Standards Bd. (1983), 46 B.C.L.R. 198; Re Telegram Publishing Co. and Zwelling (1973), 41 D.L.R. (3d) 176, reversed in part on other grounds (1975), 67 D.L.R. (3d) 404; Attorney General of British Columbia v. McKenzie,  S.C.R. 490; Jones v. Edmonton Catholic School District No. 7,  2 S.C.R. 872; Reference Re Proposed Legislation Concerning Leased Premises and Tenancy Agreements (1978), 89 D.L.R. (3d) 460; Re Pepita and Doukas (1979), 101 D.L.R. (3d) 577; Re Fort Massey Realties and Rent Review Commission (1982), 132 D.L.R. (3d) 516; Robinson v. Hindman (1800), 3 Esp. 235, 170 E.R. 599; Emmens v. Elderton (1853), 13 C.B. 495, 138 E.R. 1292; Beckham v. Drake (1849), 2 H.L.C. 579, 9 E.R. 1213; Wilkinson v. Gaston (1846), 9 Q.B. 137, 115 E.R. 1227; Hartley v. Harman (1840), 11 Ad. & E. 798, 113 E.R. 617; Smith v. Thompson (1849), 8 C.B. 44, 137 E.R. 424; Re Mitchell and Employment Standards Division, Department of Labour (1977), 82 D.L.R. (3d) 339; Central Canadian Structures Ltd. v. Director of Employment Standards Division,  4 W.W.R. 182.
By La Forest J.
Referred to: Scowby v. Glendinning,  2 S.C.R. 226; Labour Relations Board of Saskatchewan v. John East Iron Works, Ld.,  A.C. 134; Asselin v. Industries Abex Ltée,  C.A. 72, 22 D.L.R. (4th) 212; Re Residential Tenancies Act, 1979,  1 S.C.R. 714.
Statutes and Regulations Cited
Act respecting Master and Servant, C.S.U.C. 1859, c. 75, ss. 3, 4, 7, 12.
Act respecting Masters and Servants in the Country Parts, C.S.L.C. 1861, c. 27, s. 5.
Act respecting the Division Courts, C.S.U.C. 1859, c. 19, s. 55.
County Courts Act (Eng.), 9 & 10 Vict., c. 95, s. 58.
Employers and Workmen Act, 1875 (Eng.), 38 & 39 Vict., c. 90, s. 4.
Employment of Children Act, R.S.N.S. 1967, c. 88.
Equal Pay Act, S.N.S. 1969, c. 8.
Halifax City Charter, S.N.S. 1864, c. 81, s. 115.
Industrial Standards Act, R.S.N.S. 1967, c. 142.
Labour Standards Code, S.N.S. 1972, c. 10, ss. 1(b), 4, 15(1), (9), 18(2), 19(1), (2), (3), (8), 20, 24, 67A(1), (2), (3), 90.
Limitation of Hours of Labour Act, R.S.N.S. 1954, c. 154.
Master and Servant Act (Eng.), 30 & 31 Vict., c. 141.
Master and Servant Act (Eng.), 4 Geo. 4, c. 34.
Master and Servant Act (Eng.), 20 Geo. 2, c. 19, s. 2.
Minimum Wage Act, R.S.N.S. 1967, c. 186.
Of Masters, Apprentices and Servants, R.S.N.S. 1864, c. 122, ss. 11-15.
Of Municipalities, R.S.N.S. 1864, c. 133, ss. 64, 96-109, 123.
Of Regulations for Seamen, R.S.N.B. 1854, c. 86, s. 10.
Of Regulations for Shipping Seamen at the Port of Saint John, R.S.N.B. 1854, c. 87, s. 9.
Of Shipping and Seamen, R.S.N.S. 1864, c. 75, ss. 12, 18.
Of Stipendiary or Police Magistrates, R.S.N.S. 1864, c. 129, s. 18.
Of the Jurisdiction of Justices in Civil Suits, R.S.N.B. 1854, c. 137, s. 1.
Of the Jurisdiction of Justices of the Peace in Civil Cases, R.S.N.S. 1864, c. 128, s. 1.
Of the Supreme Court and its Officers, R.S.N.S. 1864, c. 123, s. 1.
Vacation Pay Act, R.S.N.S. 1967, c. 322.
Christie, Innis. Employment Law in Canada. Toronto: Butterworths, 1980.
England, G. "Unjust Dismissal in the Federal Jurisdiction: The First Three Years" (1982), 12 Man. L.J. 9.
Freedland, Mark Robert. The Contract of Employment. Oxford: Clarendon Press, 1976.
Gagnon, Robert P., Louis LeBel et Pierre Verge. Droit du travail. Québec: Presses de l'Université Laval, 1987.
Hébert, Gérard et Gilles Trudeau. Les normes minimales du travail au Canada et au Québec. Cowansville, Qué.: Yvon Blais, 1987.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
Holdsworth, W. A. The Law of Master and Servant. London: George Routledge and Sons, 1876.
Labour Law: Cases, Materials and Commentary, 4th ed. Compiled by the Labour Law Casebook Group. Kingston, Ont.: Industrial Relations Centre, Queens University, 1986.
Summers, Clyde W. "Individual Protection Against Unjust Dismissal: Time for a Statute" (1976), 62 Va. L. Rev. 481.
APPEAL from a judgment of the Appeal Division of the Nova Scotia Supreme Court (1985), 70 N.S.R. (2d) 391, 166 A.P.R. 391, 24 D.L.R. (4th) 573, allowing an appeal from an order of the Labour Standards Tribunal affirming the decision of the Director of Labour Standards. Appeal allowed; the first constitutional question should be answered in the affirmative and the second in the negative.
Rheinhold M. Endres and Alison Scott, for the appellant the Attorney General of Nova Scotia.
Peter McLellan and Ian Holloway, for the appellants Clifford George Yeomans, et al.
David A. Miller and David P. S. Farrar, for the respondent.
James M. Mabbutt, for the intervener the Attorney General of Canada.
Jean Bouchard, for the intervener the Attorney General of Quebec.
Valerie J. Matthews Lemieux, for the intervener the Attorney General of Manitoba.
Robert Vick Farley, for the intervener the Attorney General of British Columbia.
The judgment of Dickson C.J. and McIntyre, Lamer and Wilson JJ. was delivered by
1. The Facts
The respondent Sobeys Stores Limited ("Sobeys") operates a chain of grocery supermarkets in the Atlantic provinces. The appellant Clifford Yeomans was continuously employed by Sobeys from April 16, 1973 until August 6, 1983 when he was dismissed for alleged unsatisfactory performance. At the time of his dismissal he was the manager of a Sobeys outlet in Dartmouth, Nova Scotia. He had been warned orally on at least three occasions about what management considered to be his shortcomings but had been given no written notice of them.
Yeomans complained to the Director of Labour Standards for Nova Scotia that he had been dismissed "without just cause" within the meaning of s. 67A of the Code. On May 22, 1984 the Director ordered that Yeomans be reinstated and that Sobeys pay him $21,242 in lost wages stemming from the unjust dismissal. This decision was upheld by the Labour Standards Tribunal. Sobeys' appeal to the Appeal Division of the Nova Scotia Supreme Court was allowed. The court held that subss. (2) and (3) of s. 67A of the Code were unconstitutional because they conferred a s. 96 power on a provincially appointed tribunal.
2. The legislative provisions
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.
It is well established that by necessary implication s. 96 operates both to prevent the creation of provincial tribunals charged with exercising the jurisdiction of superior courts and to prevent legislatures conferring superior court jurisdiction on existing provincial tribunals: see Labour Relations Board of Saskatchewan v. John East Iron Works, Ld.,  A.C. 134 (P.C.); Attorney General of Quebec v. Farrah,  2 S.C.R. 638; Hogg, Constitutional Law of Canada (2nd ed. 1985), at pp. 150-52; Pépin, "The Problem of Section 96 of the Constitution Act 1867", in Beckton and Mackay, eds., The Courts and the Charter (1985), at pp. 225-27.
Section 67A of the Code reads:
67A (1) Where an employee's period of employment with an employer is ten years or more, the employer shall not discharge or suspend that employee without just cause unless that employee is a person within the meaning of person as used in clause (d), (e), (f), (g), (h) or (i) of subsection (3) of Section 68.
(2) An employee who is discharged or suspended without just cause may make a complaint to the Director in accordance with Section 19.
(3) An employee who has made a complaint under subsection (2) and who is not satisfied with the result may make a complaint to the Tribunal in accordance with Section 21 and such complaint shall be and shall be deemed to be a complaint within the meaning of subsection (1) of Section 21.
The Director is an officer of the Department of Labour charged with administering the Code (s. 1(b)) and the Tribunal is a provincially-appointed body (s. 15(1)). Their respective roles are set out in ss. 19, 20 and 24:
19 (1) Where the Director receives a complaint in any form alleging that there has been a failure to comply with this Act he or a person designated by him shall inquire into the complaint and endeavour to effect a settlement.
(2) Where the Director has reasonable grounds to believe that there has been a failure to comply with this Act he or a person designated by him may inquire into the matter and endeavour to effect a settlement.
(3) Where the Director concludes that an employer or an employee has contravened a provision of this Act within the preceding six months, and he has been unable to effect a settlement, or an employer or employee has contravened the terms of a settlement under this Section the Director may, in writing, order the contravening employer or employee to
(a) do any act or thing that in the opinion of the Director constitutes full compliance with this Act; and
(b) rectify an injury caused to the person injured or make compensation therefor;
. . .
(5) Any employer or employee against whom the Director has made an order under subsection (3) may, within ten days after the order is served upon him, file an appeal to the Tribunal in accordance with the regulations, and where no such appeal is filed for the purpose of Section 84 the Director's order is deemed to be an order of the Tribunal.
. . .
20 In any proceeding before the Tribunal with respect to any matter arising under Section 19, including any matter arising under Section 77, the parties shall be,
(a) the Director, who shall have the carriage of the matter;
(b) the person alleged by the Director to have failed to comply with this Act;
(c) the complainant, if any;
(d) any other person specified by the Tribunal upon such notice as the Tribunal may determine, provided that at the hearing he is given an opportunity to be heard against his joinder as a party.
24 (1) The Tribunal in determining any matter under this Act
(a) shall decide whether or not a party has contravened this Act; and
(b) shall make an Order in writing.
(2) Where the Tribunal decides that a party has contravened a provision of this Act the Tribunal may order the contravening party to
(a) do any act or thing that, in the opinion of the Tribunal, constitutes full compliance with the provision; and
(b) rectify an injury caused to the person injured or to make compensation therefor.
Appeals from Tribunal decisions are permitted by s. 18(2):
18 . . .
(2) Any party to an order or decision of the Tribunal may, within thirty days of the mailing of the order or decision, appeal to the Appeal Division of the Supreme Court on a question of law or jurisdiction.
3. The Decision of the Labour Standards Tribunal
The principal issue before the Tribunal was whether the phrase "just cause" in s. 67A(1) meant that Yeomans was entitled to progressive discipline such as written warnings and notice prior to being dismissed. Employees normally obtain such rights only under collective agreements. Sobeys argued that "just cause" should have its common law meaning and that once cause for dismissal at common law is established the employer is free to terminate forthwith without written notice or reasons.
The Tribunal decided that it "does not view the actions of the Complainant in this case as being actions of misconduct, if anything they would best be described as examples of incompetence". It then held that under the Code an employee of ten years' standing, even if incompetent, was entitled to greater protection than that traditionally afforded at common law:
The Tribunal is of the view that in the particular circumstances of this case Sobeys did not fulfil their duty to provide sufficient notice to Mr. Yeomans, that they viewed his performance as being incompetent such that it would warrant dismissal.
The Tribunal accepts the argument of counsel for the Complainant that in considering the issue of just cause one must examine the doctrine of progressive discipline. The Tribunal is of the view that an employee may be guilty of some conduct which justifies discipline of some nature but yet not on its own justify the ultimate penalty of dismissal.
In the present case there is no evidence that Sobeys attempted any other disciplinary measures short of dismissal. Other disciplinary measures would have demonstrated to Mr. Yeomans the seriousness of the situation and may have caused him to attempt to rectify the problem.
It is the view of this Tribunal that in dismissing an employee for just cause after ten years of service, in light of Section 67A, an employee is entitled to know the reasons for his dismissal. An employee should not have to come before the Labour Standards Tribunal or a court of law to find out why he was dismissed.
It is the finding of this Tribunal that the Respondent company Sobeys Stores Limited has failed to comply with the provisions of Section 67A of the Labour Standards Code.
4. The Judgment of the Appeal Division
Sobeys appealed on a variety of grounds including the issue of whether common law or arbitral standards should be used to interpret "just cause". Its principal contention, however, and the only issue decided by the Appeal Division, was that the legislation violated s. 96 of the Constitution Act, 1867 by conferring a superior court power on an inferior tribunal. Following a review of the jurisprudence Hart J.A., for a unanimous five-person bench -- see (1985), 70 N.S.R. (2d) 391 -- applied the three-stage test laid down by this Court in Re Residential Tenancies Act, 1979,  1 S.C.R. 714 [hereinafter Residential Tenancies].
The first stage of the test required an assessment "in the light of the historical conditions existing in 1867" of "whether the power or jurisdiction conforms to the power or jurisdiction exercised by superior, district or county courts at the time of Confederation": see Residential Tenancies, per Dickson J., as he then was, at p. 734. Hart J. A. held that the jurisdiction conferred by s. 67A was jurisdiction in relation to "wrongful dismissal" and that claims in wrongful dismissal had historically "always been commenced and conducted in the superior courts". Section 67A therefore failed to meet the historical test. He rejected an argument that s. 96 courts had not exercised the particular jurisdiction contemplated by s. 67A of the Code because the courts refused to issue decrees of specific performance for contracts of employment. He held instead, at p. 399, that "the failure to grant a remedy available to the court because of its deemed inappropriateness at a particular time is not an abdication of that jurisdiction but simply a suspension of it for the time being. The power to grant reinstatement under a contract of employment has always rested with the Supreme Court and did so at the time of Confederation".
The legislation having failed the historical test, Hart J.A. moved to the second stage of the Residential Tenancies test and inquired if the function of the Tribunal, within its institutional setting, was a judicial one. If not, the legislation would not violate s. 96. Hart J.A. had no doubt that the Tribunal's function under s. 67A was judicial. It resolved "the type of dispute between parties that traditionally falls for resolution to the superior courts".
Section 67A was also unable to survive the third stage of the test, a "review [of] the Tribunal's function as a whole in order to appraise the impugned function in its entire institutional context". The scheme may still be valid if the judicial powers are "merely subsidiary or ancillary to general administrative functions" or "necessarily incidental to the achievement of a broader policy goal of the legislature" (Residential Tenancies, at p. 736). Hart J.A. could find no such institutional justification for conferring judicial power on the Tribunal which simply adjudicated private disputes between parties. He stated at p. 400:
In my opinion it is completely unnecessary to pass the question of whether or not an employee has been unjustly dismissed to a provincial tribunal. The question is simply a matter of dispute between two parties to a contract of employment and is not a matter ancillary to the broad social purpose of obtaining industrial peace as held in the Labour Relations Board cases. Section 67A is simply one piece of social legislation which was coupled together with a group of others relating to labour standards as a convenient single statute. There is, in my opinion, no valid need to have the determination of such a dispute resolved by the Labour Standards Tribunal.
The Appeal Division did not invalidate s. 67A(1), the subsection which gives qualifying employees the right to apply for reinstatement. It invalidated subss. (2) and (3) which vest the administration of subs. (1) in the Director and the Tribunal.
5. The Constitutional Issues
The constitutional issues raised on this appeal are reflected in the following two constitutional questions:
1. Is it within the authority of the Legislature of Nova Scotia to empower the Director of Labour Standards and the Labour Standards Tribunal respectively, to hear and determine disputes with respect to, and make orders enforcing, s. 67A of the Labour Standards Code, S.N.S. 1972, c. 10, as amended, as provided in that Act, in light of s. 96 of the Constitution Act, 1867?
The Attorneys General of Canada, British Columbia, Manitoba and Quebec all intervened and presented arguments in support of the legislative scheme. No submissions were made on the issue of whether arbitral or common law standards should be used to determine the meaning of "just cause" in s. 67A. The respondent did, however, request that if the appeal were allowed the case be referred back to the Appeal Division to deal with this ground of appeal.
6. Section 96
A. The Historical Inquiry
The Appeal Division correctly held that the test to be applied in s. 96 cases is that laid down by this Court in the Residential Tenancies case. This three-step test represents a consolidation of the principles enunciated in a number of previous decisions, in particular The Adoption Reference,  S.C.R. 398; John East Iron Works, Ld., supra; and Tomko v. Labour Relations Board (Nova Scotia),  1 S.C.R. 112. The first stage requires us to consider whether "the challenged power or jurisdiction broadly conform[s] to the power or jurisdiction exercised by Superior, District or County Courts at the time of Confederation": per Laskin C.J. in Massey-Ferguson Industries Ltd. v. Saskatchewan,  2 S.C.R. 413, at p. 429. But before addressing this question it is necessary to examine three preliminary issues which were raised during the hearing of the appeal:
(1) how broadly should the power or jurisdiction be characterized for purposes of the historical analysis?
(2) do the words "broadly conform" to Superior Court jurisdiction mean that such jurisdiction must have been exclusive to those courts at Confederation?
(3) should the court look only at the jurisdiction of the courts of the province in which the case arose or should the inquiry embrace all or most of the provinces?
(i)Characterization of the Power or Jurisdiction at Issue
In argument before this Court both the Attorney General of Nova Scotia (appellant) and the respondent Sobeys initially characterized the jurisdiction under s. 67A as jurisdiction in relation to the equitable remedy of specific performance of employment contracts. Each argued that such a characterization would be determinative in his favour, the appellant because traditionally the courts did not grant such a remedy and the respondent because the remedy, whether actually granted or not, was equitable and therefore clearly part of the exclusive jurisdiction of superior courts at Confederation. This was not, however, the only characterization offered to the Court. When the argument progressed to the second and third stages of the Residential Tenancies test the same parties suggested broader characterizations such as "unjust dismissal", "employer-employee relations" and "labour standards". Counsel for the other appellant, Yeomans, argued consistently throughout that the jurisdiction was over "master-servant relations". In the Appeal Division, Hart J.A., while rejecting the argument that specific performance of an employment contract was not a superior court power just because the remedy was never granted, characterized s. 67A as a provision relating to "unjust dismissal". In so doing he rendered nugatory the arguments over specific performance.
It seems to me that this raises two problems pertaining to the characterization of the jurisdiction. How broadly should it be characterized, and can a broader or narrower characterization be used for the different steps of the Residential Tenancies test? These questions do not appear to have been canvassed in any previous decision of the Court, yet they could clearly be important. The way in which the power or jurisdiction is characterized can have significant consequences for the historical inquiry in which the courts must search for analogous jurisdiction in inferior courts. Although in the present case both the Attorney General and Sobeys saw an advantage for themselves in a narrow characterization, that is probably only so because of the unusual remedy at issue. In general, those challenging legislation will probably favour the narrower view as more likely to bring success through the historical test. Those supporting the legislation will no doubt advocate a more expansive view on the assumption that the broader the characterization the more likely it will be that at least some aspects of the jurisdiction will have been within the purview of inferior courts at Confederation.
To resolve these questions on characterization one must look to the different purposes served by the three stages of the Residential Tenancies test. The test represents a reconciliation of jurisprudence from two different types of cases, those that dealt with attempted expansions of inferior court jurisdiction and those that involved the assignment of subject areas of superior court jurisdiction to administrative tribunals. This distinction between the two principal types of s. 96 cases was noted in a different context by then Chief Justice Laskin in Re B.C. Family Relations Act,  1 S.C.R. 62, at p. 68. The first line of cases establish the proposition that, while the jurisdiction of the inferior courts will not be frozen as of the date of Confederation, neither will it be substantially expanded so as to undermine the independence of the judiciary which s. 96 protects: see The Adoption Reference, supra; Re B.C. Family Relations Act, supra; Séminaire de Chicoutimi v. Cité de Chicoutimi,  S.C.R. 681; Re Cour de Magistrat de Québec,  S.C.R. 772; Canadian Broadcasting Corporation v. Quebec Police Commission,  2 S.C.R. 618. The second line of cases, those dealing with administrative tribunals, provide what might be called permissible exceptions to the constitutional stricture against the reduction of superior court jurisdiction. The courts have recognized that s. 96 should not stand in the way of new institutional approaches to social or political problems. Departures from the strict rule against devolving superior court jurisdiction on inferior tribunals are permitted only if the scheme meets the criteria of the second or third stage of the test. Otherwise bald grants of superior court jurisdiction to inferior courts are precluded.
Viewed against this background the first step of the Residential Tenancies test, which is drawn from the "inferior court" cases, represents a kind of threshold test, a method of deciding whether, in a formal sense, s. 96 has been violated at all. The second and third steps serve to validate some legislative schemes despite the fact that they trench on the traditional jurisdiction of s. 96 courts. The purposes of s. 96 require a strict, that is to say a narrow, approach to characterization at the first stage. Given what I have to say below on concurrent superior/inferior court jurisdiction at Confederation, any other approach would potentially open the door to large accretions of jurisdiction and thereby defeat the purposes of the constitutional provision. I would therefore reject as too broad characterizations of the s. 67A jurisdiction as being in relation to employer/employee relations or labour standards.
Having rejected broad characterizations, the court is given a choice between two possible narrow ones, jurisdiction over reinstatement or jurisdiction over unjust dismissal. Dealing with a very similar provision in the Quebec Labour Standards Act that province's Court of Appeal in Asselin v. Industries Abex Ltée,  C.A. 72, 22 D.L.R. (4th) 212, characterized the jurisdiction as being in relation to the mandatory performance of an employment contract. As a result Nolan J.A. concluded that reinstatement "was not a power which the s. 96 courts could exercise in Lower Canada before Confederation" (p. 89 C.A., p. 236 D.L.R.)
I would, however, reject this characterization, preferring again to resolve the issue by reference to the language and purpose of the Residential Tenancies test. At the first stage the search is for "broad conformity" with the powers of s. 96 courts at Confederation. It is a search for analogous, not precisely the same, jurisdiction. Even if I were to accept the appellant's contention that the remedy of reinstatement was outside the purview of s. 96 courts, as was done in Asselin, I do not think that should be determinative in s. 96 cases. To do so would be to freeze the jurisdiction of those courts at 1867 by a technical analysis of remedies. It is, in my view, the type of dispute that must guide us and not the particular remedy sought. The question of new remedies for traditional causes of action is better suited to the second and third steps of the Residential Tenancies test which are specifically designed to allow the courts to consider new approaches to old problems, approaches which are more responsive to changing social conditions. Thus, the jurisdiction in this case should, in my view, be characterized as jurisdiction in relation to unjust dismissal.
The fact that the different stages of the Residential Tenancies test serve different purposes also, in my view, militates against any "broadening" of the characterization as the analysis progresses from one stage to another. The characterization chosen is irrelevant to a consideration at stage two of whether the Tribunal is functioning judicially or not. A broad characterization at the third stage would be equally unnecessary because this aspect of the test requires the courts to view the particular power or jurisdiction within a broad context. Thus, in this case, for example, a broadening of the characterization to "labour standards" would require the court to assess whether such a power or jurisdiction is "so integrated with the valid regulatory regime" (Residential Tenancies, at p. 736) of labour standards legislation as to take on a different character. The inquiry would have become a tautological one and the Residential Tenancies test would be deprived of its essential purpose.
(ii)Must the Superior Court Jurisdiction at Confederation be Exclusive?
The Appeal Division held that jurisdiction over unjust dismissal was exclusively the preserve of Nova Scotia's superior courts in 1867. In his reasons for judgment Hart J.A., speaking for the Court, said at p. 399:
This was not the type of jurisdiction exercised by any of the inferior courts in existence at that time....The action for wrongful dismissal in Nova Scotia has always been commenced and conducted in the superior courts.
The appellants presented historical evidence in this Court to demonstrate that inferior courts also exercised jurisdiction over unjust dismissal and other breaches of employment contracts. They do not deny that the Supreme Court of Nova Scotia dealt with such matters but argue that because various inferior courts also did so the legislation can be upheld under the historical test. The relevance of such evidence of "shared jurisdiction" depends on the resolution of an issue left uncertain by previous judgments of this Court. It is obvious that at the first stage s. 96 will be violated if provincial tribunals are accorded a power or jurisdiction that belonged exclusively to s. 96 courts at Confederation. It is equally trite law that there will be no violation if the power or jurisdiction was the exclusive preserve of inferior courts. These propositions, however, leave unclear what the consequences are of discovering a shared, or concurrent, jurisdiction between the two levels of court. Moreover, if concurrent jurisdiction will enable the provincial tribunal to pass the historical test, it is necessary to ask how much shared jurisdiction will suffice for this purpose.
As I noted above, these issues have not previously been directly addressed by this Court. In Residential Tenancies Dickson J. made no reference to the question of exclusivity or concurrency. He merely said at p. 734:
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.
. . .
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.
Cases before and after Residential Tenancies, however, do provide some guidance. In Dupont v. Inglis,  S.C.R. 535, Rand J. said, at p. 542:
A distinction is here necessary between the character of a tribunal and the type of judicial power, if any, exercised by it. If in essence an administrative organ is created as in Toronto Corporation v. York Corporation, there may be a question whether provincial legislation has purported to confer upon it judicial power belonging exclusively to Courts within s. 96. Judicial power not of that type, such as that exercised by inferior Courts, can be conferred on a provincial tribunal whatever its primary character . . . . [Emphasis added.]
This passage from Dupont was cited by Laskin C.J. in Attorney General of Quebec v. Farrah, supra, and he drew from it the following proposition: "where judicial power is not of the type belonging exclusively to courts within s. 96 it may be conferred upon a provincial tribunal whatever its character" (at pp. 642-43).
It is true that in both Dupont and Farrah the Court's comments were principally concerned with whether inferior court powers could be given to provincial administrative tribunals but the exclusivity test was also used in more recent decisions of this Court. In Re B.C. Family Relations Act, supra, Estey J., for a majority of the Court, said this in upholding some parts of the legislation (at pp. 109-10):
Thus it can be seen from the above authorities that the scope of the inherent jurisdiction of superior courts at the time of Confederation, so far from being broad and general, was at best co-extensive with the jurisdiction which has been conceded to the summary process courts in relation to The Children's Protection Act in the Adoption Reference...and which was analogized by this Court to the jurisdiction of magistrates under the English Poor Laws.
Not only was the superior court jurisdiction not broad; neither was it exclusive.
. . .
I seek to draw nothing from this sketch of legal history with reference to guardianship and custody other than the fact that the proponents of the superior courts cannot demonstrate the historic existence of an exclusive jurisdiction in the field of guardianship or custody analogous to that proposed in the legislation now before this Court. [Emphasis added.]
The most significant case dealing with exclusive and concurrent jurisdiction is Attorney General of Quebec v. Grondin,  2 S.C.R. 364. Chouinard J., for a unanimous Court, first concluded that in 1867 the superior courts had jurisdiction over the entire area in dispute, lessor-lessee relations, but then went on to note that this jurisdiction was to some extent shared by inferior courts. As a result the legislature could validly establish an administrative tribunal to deal with landlord/tenant relations. He said at p. 383:
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 foregoing leads me to conclude that a certain gloss must be added to the Residential Tenancies test. At the first step, the threshold question is whether at Confederation superior courts exercised an exclusive jurisdiction. This test accords with the general principle that inferior court jurisdiction need not be frozen at its pre-Confederation level: see Re Cour de Magistrat de Québec, supra. If the jurisdiction was exclusive to superior courts, then the inquiry must pass on to the second and third stages of the test. If the jurisdiction was shared, the legislation under challenge may, in some circumstances, be held valid by the historical test.
How much concurrent jurisdiction is necessary for the purposes of the test? It would obviously largely defeat the purpose of s. 96 if a finding of one small aspect of jurisdiction, limited, for example, by subject matter, geography or monetary amount, in an inferior court were sufficient to permit legislatures to oust the jurisdiction of today's superior courts. However, the dangers of this are not as great as they might at first sight appear, given what I have said earlier about the need to characterize the power or jurisdiction relatively narrowly for the purposes of the historical test. Yet they must be borne in mind in fashioning a test of general application.
In my view the correct approach to this problem can be found in Grondin. Chouinard J. summarized inferior court jurisdiction in the following manner at pp. 379-81:
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 . . . .
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 . . . .
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 . . . .
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".
. . .
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.
Thus, in Grondin, although inferior court jurisdiction was subject to pecuniary limits, it was province-wide and included most matters of dispute between landlords and tenants. Chouinard J. found sufficient jurisdiction to uphold the provincial legislation.
It seems to me that in Grondin this Court laid down a test which requires the practical involvement of inferior courts to have been broadly co-extensive with the work of superior courts. This is not to suggest that jurisdiction must have been entirely or even generally concurrent, for the nature of the inferior-superior court distinction will invariably mean that the former's jurisdiction was limited in some way. But some limits will be more significant than others. A significant geographical limitation would tell against the legislative scheme much more than a purely pecuniary limit. The former might well have prevented recourse to the inferior courts for the majority of colonial residents, while the latter, given inflation, would be a much less dramatic bar. The courts must search for what I would term a general shared involvement in a jurisdiction, not concurrent jurisdiction in all respects. It is impossible to define with precision just how much jurisdiction is enough for a finding of shared involvement in all cases. But the following questions, in my view, are relevant:
(a) was the inferior court jurisdiction geographically restricted? Was it confined to certain municipal or district courts or was it being exercised province-wide?
(b) was the inferior court jurisdiction limited to a few specific situations? For example, in the area of unjust dismissal, did only certain types of employees have recourse to the inferior courts?
(c) was the inferior court jurisdiction restricted by pecuniary limits so as to reduce its scope even after allowing for inflation?
These are by no means the only questions the courts should address and I proffer them by way of illustration only. Others will appear germane in different contexts. In all cases, however, the inquiry should be directed to the question whether or not the work of the inferior courts at the time of Confederation was broadly co-extensive with that of the superior courts. Only if this standard is met will the history of shared jurisdiction validate the contemporary scheme under the historical test.
(iii)Extent of the Historical Inquiry
In argument before us counsel for the parties and some of the interveners also raised the issue of which jurisdiction(s) should be examined in the historical test. It was suggested that the correct approach was a "global" one in which more than one province's pre-confederation jurisdiction should be considered. Two principal arguments were offered in support of this position: firstly, that the Court had done so before, notably in Re B.C. Family Relations Act; secondly, that since s. 96 was a constitutional provision it should yield the same results on the historical test irrespective of which province's legislation was challenged.
It seems to me that this issue should be resolved by answering a somewhat broader question - does pre-confederation jurisdiction refer to pre-1867 jurisdiction or to jurisdiction in a particular province immediately prior to that province joining confederation? If the former approach is adopted, the courts must consider only the four original confederating provinces (Quebec, Ontario, Nova Scotia and New Brunswick) irrespective of which present-day province is involved in the litigation. If the latter approach is adopted, the test will involve perhaps only one colony, perhaps as many as eight, and a potential chronological span of as many as 82 years, from 1867 to 1949. I note that on all of these points past decisions of this Court have been somewhat inconsistent. In Re B.C. Family Relations Act, Estey J., for the majority, ignored British Columbia altogether and looked at U.K. and Upper Canadian jurisdiction in 1867 while Laskin C.J. made reference to those two plus New Brunswick and Prince Edward Island, but again not British Columbia. Some provincial courts have done likewise. In Evans v. Employment Standards Bd. (1983), 46 B.C.L.R. 198, the British Columbia Court of Appeal upheld the Board's jurisdiction over unpaid wages solely by reference to a comparable jurisdiction in Upper Canada. References to jurisdiction in other provinces were employed for the same purpose in Re Telegram Publishing Co. and Zwelling (1973), 41 D.L.R. (3d) 176 (Ont. H.C.), reversed in part on other grounds (1975), 67 D.L.R. (3d) 404 (C.A.) In John East Iron Works, Ld. the Privy Council also appears to have considered 1867 as the reference point for any historical inquiry, stating at pp. 150-51:
It is in the light of this new conception of industrial relations that the question to be determined by the board must be viewed, and, even if the issue so raised can be regarded as a justiciable one, it finds no analogy in those issues which were familiar to the courts of 1867. This matter may be tested in another way. If the appellant board is a court analogous to the superior and other courts mentioned in s. 96 of the British North America Act, its members must not only be appointed by the Governor-General but must be chosen from the Bar of Saskatchewan. It is legitimate, therefore, to ask whether, if trade unions had in 1867 been recognized by the law, if collective bargaining had then been the accepted postulate of industrial peace, if, in a word, the economic and social outlook had been the same in 1867 as it became in 1944, it would not have been expedient to establish just such a specialized tribunal as is provided by s. 4 of the Act. [Emphasis added.]
Conversely, in Attorney General of British Columbia v. McKenzie,  S.C.R. 490, reference was made only to pre-confederation jurisdiction in British Columbia, an approach followed in Grondin (Quebec) and in Jones v. Edmonton Catholic School District No. 7,  2 S.C.R. 872 (Alberta), the latter bringing the applicable date forward to 1905.
In resolving this issue I take as my starting point this Court's decision in Residential Tenancies. In describing the historical test Dickson J. had this to say at pp. 729 and 734:
The belief that any function which in 1867 had been vested in a s. 96 court must forever remain in that court reached its apogee in the judgment of Lord Atkin in Toronto Corporation v. York Corporation.
. . .
. . . the test must now be formulated in three 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. [Emphasis added.]
Although it might be argued that the references to 1867 were the result of the fact that the Residential Tenancies case emanated from Ontario, I think the better view is that they were intended to refer generally to the original bargain made in 1867. In Residential Tenancies the members of this Court clearly believed that it was necessary to clarify the jurisprudence and lay down a consistent test for the future. The judgment referred to 1867 and that deliberate choice must be given effect. One of the leading academic commentators has done so, referring to the historical test as the "1867 Statute Book Test": see Pépin, "The Problem of Section 96 of the Constitution Act 1867", at p. 236.
I would not, however, rest this conclusion purely on an analysis of the language of Residential Tenancies but would note two further points. Firstly, the judgment of this Court in Re B.C. Family Relations Act was released only a few months after that in Residential Tenancies (January 26, 1982 and May 28, 1981, respectively). The Re B.C. Family Relations Act judgment provides clear evidence that the Court at that time thought it necessary to look at jurisdiction at 1867 when the Confederation bargain was made. Secondly, in his discussion of the purposes of s. 96 Dickson J. made it clear that he saw the provision as one intimately related to the division of powers and to the need to maintain a guaranteed core of superior court jurisdiction. He said at p. 728:
As Professor Hogg has noted in his work on Constitutional Law of Canada (1977), p. 129, there is no general "separation of powers" in the British North America Act, 1867. Our Constitution does not separate the legislative, executive, and judicial functions and insist that each branch of government exercise only its own function. Thus it is clear that the Legislature of Ontario may confer non-judicial functions on the courts of Ontario and, subject to s. 96 of the B.N.A. Act, which lies at the heart of the present appeal, confer judicial functions on a body which is not a court.
Under s. 92(14) of the B.N.A. Act the provincial legislatures have the legislative power in relation to the administration of justice in the province. This is a wide power but subject to the subtraction of ss. 96 to 100 in favour of the federal authority. Under s. 96 the Governor General has the sole power to appoint the judges of the Superior, District and County Courts in each province. Under s. 97 the judges who are to be appointed to the Superior, District and County Courts are to be selected from the respective bars of each province. Under s. 100 the Parliament of Canada is obliged to fix and provide for their salaries. Section 92(14) and ss. 96 to 100 represent one of the important compromises of the Fathers of Confederation. It is plain that what was sought to be achieved through this compromise, and the intended effect of s. 96, would be destroyed if a province could pass legislation creating a tribunal, appoint members thereto, and then confer on the tribunal the jurisdiction of the superior courts. What was conceived as a strong constitutional base for national unity, through a unitary judicial system, would be gravely undermined. Section 96 has thus come to be regarded as limiting provincial competence to make appointments to a tribunal exercising s. 96 judicial powers and therefore as implicitly limiting provincial competence to endow a provincial tribunal with such powers. [Emphasis added.]
The significance of this passage lies in the stress placed on the arrangements made in 1867. In particular, the references to s. 92 of the Constitution Act, 1867 support the view that what must be examined is jurisdiction in 1867, not when a province joined thereafter. No-one would suggest that the meaning of ss. 91 and 92 should be determined by reference to imperial/colonial relations in 1870, or 1905 or 1949 so that their meaning changes depending on the province involved. When new provinces joined confederation they accepted the existing constitutional arrangements in ss. 91 and 92 and must, in my view, be taken to have done the same with s. 96.
Once this principle is accepted, it seems to me unavoidable to conclude that the Residential Tenancies test of 1867 jurisdiction should be expanded somewhat to include examination of the general historical conditions in all four original confederating provinces. I say this for two reasons. The first is a practical one. While it might make sense to examine only Ontario in an Ontario case (as was done in Residential Tenancies) or Quebec in a Quebec case (as was done in Grondin) there would be no reason to choose one or the other in deciding a case emanating from Alberta, Prince Edward Island or elsewhere.
The second and more important reason is that implicit in what I have said above is the principle that s. 96 should apply in the same way across the country. The "strong constitutional base for national unity, through a unitary judicial system" (Residential Tenancies, at p. 728) would indeed be undermined by inconsistent results derived from a jurisprudence developed province by province. Indeed, this has already occurred. The Ontario legislative scheme which was struck down in Residential Tenancies was practically indistinguishable from the Quebec scheme upheld in Grondin. Comparable landlord and tenant legislation in Alberta was invalidated while that of British Columbia and Nova Scotia survived s. 96 challenges: see, respectively, Reference Re Proposed Legislation Concerning Leased Premises and Tenancy Agreements (1978), 89 D.L.R. (3d) 460 (Alta. C.A.); Re Pepita and Doukas (1979), 101 D.L.R. (3d) 577 (B.C.C.A.); and Re Fort Massey Realties and Rent Review Commission (1982), 132 D.L.R. (3d) 516 (N.S.C.A.) Similarly, reinstatement provisions in employment standards legislation have suffered conflicting fates under the historical test in this case and in Asselin.
I do not wish to suggest that there must be uniformity of result for all s. 96 challenges to provincial initiatives in a given area. It is entirely possible that different results may emerge from analyzing contemporary schemes in light of the second and third stages of the Residential Tenancies test. I am suggesting only that consistency at the level of the historical analysis would seem to be desirable and that it is best achieved by measuring each s. 96 challenge against the same historical yardstick. The test at this stage should be national, not provincial.
There remains only to consider one practical problem -- the difficulties created if, as in this case, the four original provinces produce a "tie", two upholding jurisdiction and two denying it. While there is probably no ideal solution to such a problem, I am persuaded that the best approach would be to examine jurisdiction in the United Kingdom at the time of Confederation. The inquiry is one generally into jurisdiction in 1867 and our court structure is derived from the British model. Moreover, this Court certainly considered U.K. jurisdiction relevant in its judgments in The Adoption Reference and Re B.C. Family Relations Act.
I turn now to a consideration of jurisdiction over unjust dismissal in Nova Scotia, New Brunswick, Ontario and Quebec.
(a) Nova Scotia
At Confederation the Supreme Court of Nova Scotia had a general jurisdiction over unjust dismissal by virtue of its power over all actions in contract (Of the Supreme Court and its Officers, R.S.N.S. 1864, c. 123, s. 1). This jurisdiction was partially shared by the inferior courts. The Halifax City Court could deal with all contract actions for sums not exceeding $80 provided the cause of action originated within the city (Halifax City Charter, S.N.S. 1864, c. 81, s. 115). It was contended by the appellants that jurisdiction was also shared by inferior court judges such as Justices of the Peace, Stipendiary Magistrates, County Wardens and Commissioners' Courts by virtue of the fact that they exercised a small debt jurisdiction throughout the province (Of the Jurisdiction of Justices of the Peace in Civil Cases, R.S.N.S. 1864, c. 128, s. 1; Of Stipendiary or Police Magistrates, R.S.N.S. 1864, c. 129, s. 18; Of Municipalities, R.S.N.S. 1864, c. 133, ss. 64, 96-109). Jurisdiction in debt, however, is not to be equated to jurisdiction over unjust dismissal. Unpaid wages for services rendered are liquidated damages which may properly be classified as a debt, but damages payable in the event of an unjust dismissal are unliquidated and do not constitute a debt. In an action for breach of the terms of an employment contract based on insufficient notice any sum of money to be paid to the employee will become due only when a court decides (1) that the termination was without just cause and (2) that insufficient notice was given.
It was also argued by the appellants that the power of inferior courts throughout the province to compel deserting seamen and apprentices to return to their employ is tantamount to a shared jurisdiction over the enforcement of employment contracts; Of Shipping and Seamen, R.S.N.S. 1864, c. 75, ss. 12 and 18; Of Masters, Apprentices and Servants, R.S.N.S. 1864, c. 122, ss. 11-15; Of Municipalities, supra, s. 123). I do not think that the power to compel a specific group of employees to complete their contracts is analogous to a general jurisdiction over unjust dismissal.
I conclude that at Confederation Nova Scotia's inferior courts did not exercise sufficient concurrent jurisdiction in the area of unjust dismissal to pass the first stage of the Residential Tenancies test. Although the $80 limit was, in 1867 terms, a broad jurisdiction, the geographical scope, restricted to actions in Halifax, was too narrow.
(b) New Brunswick
The same conclusion must be reached on an examination of New Brunswick. Jurisdiction over small debts, some unpaid wages, and seamen's contracts were all given to inferior courts, but for the reasons noted above none of this can be equated to a general jurisdiction over unjust dismissal: see Of Regulations for Seamen, R.S.N.B. 1854, c. 86, s. 10; Of Regulations for Shipping Seamen at the Port of Saint John, R.S.N.B. 1854, c. 87, s. 9; Of the Jurisdiction of Justices in Civil Suits, R.S.N.B. 1854, c. 137, s. 1.
In pre-Confederation Ontario many aspects of the employer/employee relationship were governed by An Act respecting Master and Servant, C.S.U.C. 1859, c. 75. It provided that employment contracts were binding on parties to them (s. 3), that breach of the terms of such a contract was an offence (s. 4), and that complaints were to be heard by Justices of the Peace (s. 7). Section 12 permitted an employee to also seek restitution in the inferior courts for "any misusage, refusal of necessary provisions, cruelty, ill-treatment or non-payment of wages". This section was cited by Fraser J. to support the constitutionality of Ontario's Employment Standards Act in Re Telegram Publishing Co. and Zwelling, a case dealing with unpaid wages and severance pay pursuant to a written agreement. While I would not disagree with that decision, I do not believe that the scope of the Master and Servant Act is broad enough to cover claims for unjust dismissal. I would note that Master and Servant Acts still exist in many provinces and are used primarily for the recovery of unpaid wages. They do not provide a basis for claims of unjust dismissal: see Christie, Employment Law in Canada, at pp. 250-51 and 444-45.
An examination of the court system in pre-Confederation Upper Canada reveals, however, that inferior courts had sufficient shared involvement in the area of unjust dismissal. The Division Courts, of which there could be as many as twelve per district, were the forerunners of today's Small Claims Courts, and their civil jurisdiction was defined in An Act respecting the Division Courts, C.S.U.C. 1859, c. 19, s. 55:
55. The Judge of every Division Court may hold plea of, and may hear and determine in a summary way, for or against persons, bodies corporate or otherwise:
1. All personal actions where the debt or damages claimed do not exceed forty dollars; and
2. All claims and demands of debt, account or breach of contract, or covenant, or money demand, whether payable in money or otherwise, where the amount or balance claimed does not exceed one hundred dollars, and except in cases in which a jury is legally demanded by a party as hereinafter provided, he shall be sole judge in all actions brought in such Division Courts, and shall determine all questions of law and fact in relation thereto, and he may make such orders, judgments or decrees thereupon as appear to him just and agreeable to equity and good conscience, and every such order, judgment and decree, shall be final and conclusive between the parties.
Given inflation, a contract jurisdiction of up to $100 in 1867 must be considered the equivalent of quite a substantial monetary jurisdiction today. Since the Division Court system also covered the entire colony, I would conclude that at Confederation jurisdiction in the area of unjust dismissal was shared by superior and inferior courts to an extent sufficient to pass the historical test.
In Quebec also jurisdiction was shared. The relevant history is discussed at length in Asselin, at pp. 229-34 and I will not reproduce it all here. I would merely note the following:
(1) An Act respecting Masters and Servants in the Country Parts, C.S.L.C. 1861, c. 27, s. 5, provided for statutory notice periods to be given by both employers and employees before termination or voluntary leaving. Lower Canada Master-Servant law was therefore broader in scope than that of Upper Canada. This Act did not apply in Québec, Montréal and Trois-Rivières. Where it did apply, suits under it were to be brought before Justices of the Peace.
(2) Commissioners' Courts exercised a contract jurisdiction limited to $25 and limited geographically also.
(3) The Recorder's Courts of Montréal and Québec exercised the same Master-Servant jurisdiction as Justices in the countryside.
I would agree with Nolan J.A. in Asselin, at p. 88 C.A., p. 234 D.L.R. that:
It is clear . . . that before Confederation, the Commissioners courts, Recorder's courts and justices of the peace had jurisdiction to adjudicate disputes between master and servants and were vested with the right to award damages to an employee who was illegally dismissed.
The result of this investigation into the four original confederated provinces, therefore, is that in two of them there was sufficient shared jurisdiction, in two there was not. This requires us to examine the situation in the United Kingdom in 1867. The action for wrongful dismissal was recognized by the beginning of the nineteenth century and any doubts as to its legitimacy dispelled by the House of Lords in mid-century: see Robinson v. Hindman (1800), 3 Esp. 235, 170 E.R. 599; Emmens v. Elderton (1853), 13 C.B. 495, 138 E.R. 1292 (H.L.); Freedland, The Contract of Employment (1976), at pp. 21-23. Although the English Master and Servant Acts (20 Geo. 2, c. 19 (1747); 4 Geo. 4, c. 34 (1823); 30 & 31 Vict., c. 141 (1867)) provided for the summary disposition of some disputes between employers and some limited classes of employees, they did not extend to actions for unjust dismissal. They were concerned with claims for non-payment of wages due and with complaints "touching or concerning any misusage, refusal of necessary provision, cruelty or other ill-treatment": 20 Geo. 2, c. 19, s. 2. The 1823 Act, while it extended the scope of the 1747 statute, did not bring claims for unjust dismissal within the purview of the justices of the peace.
Claims based on unjust dismissal could be brought in the county courts or other superior courts of record: see W. A. Holdsworth, The Law of Master and Servant (1876), at pp. 135-36. The County Courts Act (Eng.), 9 & 10 Vict., c. 95, s. 58 provided, at p. 1316:
. . . all pleas of personal actions, where the debt or damage claimed is not more than twenty pounds, whether on balance of account or otherwise, may be holden in the county court . . .
Even the reforms of 1875 by which justices of the peace were given the authority to "order payment of any sum which [they] . . . may find to be due as wages, or damages, or otherwise" (Employers and Workmen Act, 1875 (Eng.), 38 & 39 Vict., c. 90, s. 4) gave only limited access to summary jurisdiction courts. Domestic servants, among others, were excluded from it and this exclusion in the conditions of the time represented a considerable limitation on the reach of the justices' jurisdiction.
Further support for the conclusion that justices of the peace did not possess jurisdiction in this area is provided by reported cases before 1867. Actions were launched variously in the Court of Exchequer of Pleas (Beckham v. Drake (1849), 2 H.L.C. 579, 9 E.R. 1213 (H.L.)), in the Court of Queen's Bench (Wilkinson v. Gaston (1846), 9 Q.B. 137, 115 E.R. 1227; Hartley v. Harman (1840), 11 Ad. & E. 798, 113 E.R. 617), and in the Court of Common Pleas (Smith v. Thompson (1849), 8 C.B. 44, 137 E.R. 424).
I would conclude therefore that jurisdiction over unjust dismissal in the U.K. in 1867 was the preserve of courts equivalent to Canada's superior, district and county courts. It is, accordingly, not a power or jurisdiction which may be conferred on provincially-appointed tribunals today.
B. Judicial Function
Given this conclusion on the historical analysis, it is necessary to move to the second stage of the Residential Tenancies test which requires the Court to consider whether the provincial tribunal exercises a judicial function. Only if it does so will s. 96 be violated. In assessing the nature of the tribunal's function procedural trappings are not determinative. Rather, in the words of Dickson J.'s judgment in Residential Tenancies at p. 735:
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'.
The Appeal Division dealt with this issue in the following manner at pp. 399-400:
I can see no reason for reaching the conclusion that there is any change in the judicial nature of the powers vested in the tribunal when looking at it in its institutional setting. It may very well be that the tribunal when making orders to remedy breaches of minimum wages under the Act and others of its provisions is in reality simply carrying out an administrative function necessary to obtain the objects of the legislation, but when dealing with s. 67A, which is in reality an amendment to the common law relating to contracts of employment and in considering whether "just cause" exists or not, the tribunal can only be performing a judicial function. It is the type of dispute between parties that traditionally falls for resolution to the superior courts, and although these courts now may have to consider the remedy of reinstatement as an alternative to damages it is for them to do so and not a provincially appointed tribunal.
Although the Appeal Division did not do so, I think it is necessary for the purposes of this part of the analysis to draw a distinction between the role of the Director (s. 67A(2)) and that of the Tribunal (s. 67A(3)). The former does not perform a judicial function, the latter does. Indeed, I note that before this Court the respondents presented no arguments relating to the judicial nature of the Director's powers.
While the Director does deal with private disputes between parties, there are a number of aspects of his role that make it a non-judicial one. Under section 19(1) of the Code he is required on receipt of a complaint, to make inquiries and to endeavour to effect a settlement. This inquisitorial and mediative mandate makes his function non-judicial. In Tomko, Laskin C.J. said at p. 122:
What is significant about the provision for a cease and desist order obtainable from the Board or, in the construction industry, from the special Panel for that industry, is that it makes allowance for efforts at settlement before or after the making of an interim cease and desist order. The fluidity and the volatility of labour relations issues must be counted as weighing heavily with the Legislature in providing this alternative means of seeking an accommodation between employers and trade unions under the superintendence of the Board or its special division and with the assistance of the Department of Labour, an accommodation that puts to one side the alternative routes of prosecution and Court injunction. The policy considerations are evident, and in pursuit thereof the mechanism of a cease and desist order to restore the lawful status quo ante seems to me to be a rational way of dealing administratively with a rupture of peaceful labour relations.
Although the Director will likely deal only with one rather than with a number of individuals, he or she is, like the Labour Relations Board in Tomko, attempting to preserve harmony in the work-place.
Although this is the major factor militating against a judicial role for the Director, there are others. He is given the power to initiate his own inquiries by s. 19(2), to make an order without notice and without hearing one party (s. 19(8)), and to use his discretion over what remedy to impose (s. 19(3)). Other departures from the judicial model are found in the fact that he may designate someone else to make the inquiry and effect a settlement (s. 19(1)), that no record is kept of the proceedings, and that he himself assumes carriage of certain complaints before the tribunal (s. 20(a)). Taken together these factors lead to the conclusion that the Director is not exercising a judicial function in administering the Code including s. 67A.
The Tribunal is, I think, in a somewhat different position from the Director. Certainly in its powers and procedures it appears to exercise a judicial function. It must hear from both parties to a dispute (s. 15(9)), complainants cannot have access to it except by appeal, and it is an offence to disobey one of its orders (s. 90). It does not generally make policy or intermingle policy deliberations and particular adjudications as did the Agricultural Implements Board in Massey-Ferguson. Its role can be contrasted with that of the British Columbia Employment Standards Board which that province's Court of Appeal found in Evans not to be performing judicial functions. Rather, its "adjudicative role" was "for the purpose of carrying into effect a broad social scheme". It could, on appeal, "overrule or confirm the determination [of the Director] on grounds of policy", and in some areas covered by the Act it had exclusive, initial jurisdiction, ousting the Director from administration of the Act (at p. 206).
The Nova Scotia Labour Standards Tribunal is not as involved in administration and policy-making as its British Columbia counterpart. Its primary function is to hear appeals from the decisions of the Director and to settle them according to law. Its role may be compared to that of the Residential Tenancy Commission which was found to be acting judicially in Residential Tenancies (at pp. 743-44):
With very few exceptions, the Residential Tenancy Commission is not free to intervene of its own motion in disputes between landlords and tenants . . . . Moreover, the power to order eviction or compliance will, in all cases, be exercised in the context of a lis between parties . . . .
When confronted with a lis, the task of the Commission will be to determine the respective rights and obligations of the parties according to the terms of the legislation. The Commission does not have an untrammelled discretion to `set matters right'. The powers which it may invoke and the remedies which it may award are circumscribed by the terms of the Act. At no point is the individual's right at law surrendered for the benefit of a common group or policy. The Commission deals exclusively with matters of contract and land law as they arise between landlords and tenants.
It is true that the Commission is given a certain degree of discretion when performing its adjudicative function. Under s. 93(1) for example, the Commission is instructed to decide "upon the real merits and justice of the case"; s. 93(2) provides that the Commission "shall ascertain the real substance of all transactions and activities": s. 110(3) states that the Commission "may include in any order terms and conditions it considers proper in all the circumstances". Yet such terminology is certainly not foreign to courts within the purview of s. 96. The County Court under The Landlord and Tenant Act has the power to "make such further or other order as the judge considers appropriate" (s. 96); to make an order "granting relief against forfeiture on such terms and conditions as the judge may decide" (s. 106(1)), and to "refuse to grant the application (for possession) unless he is satisfied, having regard to all the circumstances, that it would be unfair to do so" . . . .
The Commission has authority to hear and determine disputes in accordance with rules of law, and by the authority of the law. It authorizes actions for which application is made. It has the power to impose penalties and sanctions and to award remedies for the infringement of rights. Disobedience of an order of the Commission is a penal offence.
The scheme under challenge in this case bears many similarities to that impugned in Residential Tenancies. Yet there are subtle differences and the appellants submitted to this Court a number of aspects by which, they claimed, Residential Tenancies could be distinguished. First, the Director and not the party which was successful at first instance will normally be involved in the hearing. But to make much of this would be to elevate form over substance. Although the Director may stand in one party's shoes, the Tribunal is still being asked to adjudicate a dispute between parties. Second, we were referred to the broad discretion contained in s. 24(2)(a) to order an offending party to "do any act or thing that, in the opinion of the Tribunal, constitutes full compliance with the provision". This, it was suggested, indicates that the Tribunal is not bound by fixed legal principles and is therefore not exercising a truly judicial function. But discretionary powers are by no means unknown to superior courts and I do not think that much store can be set by this distinction.
A third submission was based on the powers accorded to the Tribunal. It proceeds by way of trial de novo, is not restricted to questions of law alone, and is not immune from superior court review on questions of law and jurisdiction. It was argued that these factors, particulary the absence of a privative clause, mean that the Tribunal is not exercising a judicial function. I do not think this argument can succeed. Although Farrah and Crevier v. Attorney General of Quebec,  2 S.C.R. 220, establish the proposition that a broad privative clause will offend the constitution by creating a s. 96 court, the mere absence of such a clause does not by itself validate an inferior tribunal. The crucial issue at this stage is that of judicial function and, in my view, the Tribunal is acting sufficiently like a court that it cannot pass this stage of the test.
C. The Institutional Setting
The fact that under s. 67A(3) the Labour Standards Tribunal is exercising a power exercised by s. 96 courts at Confederation and doing so in a judicial manner does not end the inquiry. The third stage of the test in Residential Tenancies, derived primarily from the John East Iron Works, Ld. and Tomko cases, was summarized in Residential Tenancies, at pp. 735-36 as follows:
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'.
I have already noted that the Tribunal is not operating like a s. 96 court in the way that the tribunals in Farrah and Crevier were. It is not restricted to questions of law and jurisdiction and its decisions are subject to both review and appeal in the superior courts. On the question whether the judicial power is ancillary to the Tribunal's administrative function or necessarily incidental to the achievement of a broader policy goal, the Appeal Division said at p. 400:
In my opinion it is completely unnecessary to pass the question of whether or not an employee has been unjustly dismissed to a provincial tribunal. The question is simply a matter of dispute between two parties to a contract of employment and is not a matter ancillary to the broad social purpose of obtaining industrial peace as held in the Labour Relations Board cases. Section 67A is simply one piece of social legislation which was coupled together with a group of others relating to labour standards as a convenient single statute. There is, in my opinion, no valid need to have the determination of such a dispute resolved by the Labour Standards Tribunal.
With respect, I think that the Appeal Division was in error here. It seems to have put great emphasis on two points, namely the fact that the provision deals with individual employer/employee relationships and the fact that the Code represents an amended compilation of a number of separate statutes. While the former point certainly distinguishes the Code from labour relations statutes, that is not the test. The question to be asked is whether the provision is necessarily incidental to a broader policy goal of the legislature, be it in the area of collective bargaining, individual employment relationships, landlord and tenant law, or otherwise. The latter point in the Appeal Division's reasons actually assists the appellants here. The fact that the legislature combined into a single Code a number of separate statutes dealing with individual employees and gave the administration of the entire Code to a unitary administrative agency demonstrates a desire to consolidate, rationalize and unify policy in the area. When the Nova Scotia legislature enacted the Code in 1972 it brought together a number of diverse statutes all dealing with minimum employment standards. Consolidated in the Code were the Vacation Pay Act, R.S.N.S. 1967, c. 322; Industrial Standards Act, R.S.N.S. 1967, c. 142; Minimum Wage Act, R.S.N.S. 1967, c. 186; Equal Pay Act, S.N.S. 1969, c. 8; Limitation of Hours of Labour Act, R.S.N.S. 1954, c. 154; Employment of Children Act, R.S.N.S. 1967, c. 88. Since 1972 the Code has been amended on six occasions including the 1975 and 1976 amendments which together incorporated what is now s. 67A: see S.N.S. 1975, c. 50; S.N.S. 1976, c. 41.
The Code represents a comprehensive scheme for the protection of non-unionised workers. It provides what I would classify as both substantive and procedural protections and benefits to such workers. By substantive protections I refer to the provisions dealing with minimum wages, equal pay, maternity leave, hours of work, child employment, statutory minimum notice periods on termination, and reinstatement. Most of these areas are the standard fare of collective agreements and in designating certain minimum standards the legislature has recognized the historic imbalance in bargaining power between an employer and an individual employee and has sought to provide some counterbalance to that. Under section 4 the Code's standards give way to any rights or benefits that are more favourable to an employee. All Canadian jurisdictions have similar legislation and in each case the scope of protections has increased gradually over the years, although thus far only Nova Scotia, Quebec and the federal government have included a reinstatement provision. The growing importance of labour standards legislation has been noted by many commentators, including the authors of Labour Law: Cases, Materials and Commentary, 4th ed., at p. 1:
Until quite recently, such legislation was seen as having a very subordinate role -- as being little more than a stopgap to provide basic protection for employees who remained outside the reach of collective bargaining or whose bargaining power, even when marshalled collectively, was insufficient to provide minimally acceptable employment terms.
In recent years, it has become clear that collective bargaining cannot be relied upon to provide as much protection as was once expected of it. Some 40 percent or more of the Canadian workforce remains beyond the reach of collective bargaining. That is so for historical, social and economic reasons, and because of the length and difficulty of the legal procedures for setting up collective bargaining relationships.
. . .
Growing public awareness of these limitations on the scope and effectiveness of collective bargaining has brought a growing realization that direct, substantive legislative intervention is often the only answer. Such intervention is quickly outgrowing the "stopgap" concept of its role and is becoming more pervasive and more fully elaborated.
By enacting s. 67A the Nova Scotia legislature has chosen to extend employees' statutory protections to a right of reinstatement in certain cases. This it has done in support of a general social policy of assisting non-unionized workers. While the section represents an extension of previous provisions, it is undoubtedly related to them as one further aspect of the broad social policy goal.
Along with its substantive protections the Code provides workers with a number of procedural protections. The provision which assures an employee of confidentiality with respect to his or her complaint recognizes the practical problems that may beset an employee who wants to complain about his or her employer. More importantly, the Code provides a cheap and speedy mechanism whereby complaints can be investigated and resolved. This is at least as important as the substantive protections offered. These procedures are in the Code in part because the courts have historically proved too slow and expensive a mechanism for dealing with the relatively small amounts of money that would be claimed in lost wages or wages in lieu of notice by unskilled or semi-skilled workers. The importance of such speedy administrative procedures was recognized in the context of a s. 96 challenge by the Manitoba Court of Appeal in Re Mitchell and Employment Standards Division, Department of Labour (1977), 82 D.L.R. (3d) 339, and in Central Canadian Structures Ltd. v. Director of Employment Standards Division,  4 W.W.R. 182.
The social policy of providing employee protections and enforcing them expeditiously is reflected in the Code as a whole and in s. 67A in particular. When dealing with a claim for reinstatement under s. 67A the Director and Tribunal together provide low-cost and accessible methods of investigation and dispute resolution. They do so in response to changed social conditions since Confederation and in an administrative context significantly different from the practice in the courts. Neither the Director nor the members of the Tribunal are required to be lawyers. Although the Tribunal does carry out a judicial function with regard to s. 67A and many other aspects of the Code, that function is necessarily incidental to the broader social policy goals that the Code is designed to achieve. In this regard I am in general agreement with the reasoning of L'Heureux-Dubé J.A. in Asselin which dealt with the power of an arbitrator under the Quebec Labour Standards Act to order reinstatement (at pp. 90-91 C.A., at p. 238 D.L.R. in English translation):
(TRANSLATION) My preference would be to focus debate on the modern aspect of labour relations as compared to the situation in 1867 . . . . This is especially true for the Labour Standards Act which gives the employee a right to his job, regardless of the individual employment contract, and gives the arbitrator extended powers, including the power to reinstate an employer . . . . The decision in Tomko v. Labour Relations Board (N.S.) et al. (1975), 69 D.L.R. (3d) 250,  1 S.C.R. 112, 14 N.S.R. (2d) 191, seems to me particularly relevant to this discussion. Since it held that a labour tribunal's power to issue an injunction is constitutional, it seems to me to be difficult to imagine why the power to reinstate and other less radical powers listed in the Act could not be conferred on a arbitrator in the context of an Act which regulates relations between employers and employees, an Act of a clearly social nature which reflects a distinct evolution since 1867 and a completely different notion of labour relations from that which existed at that time.
Therefore, it is my view that on this basis a province may, within its area of jurisdiction (in this case exclusive jurisdiction)), grant judicial powers to a provincial body or to judges or individuals whom it has appointed, even if such powers, exercised per se in 1867 by the superior courts, exclusively or otherwise, are exercised in a different institutional context. In my opinion, this is the basic thrust of the decision in Reference re Residential Tenancies Act, supra. The powers are the same, or at any rate, similar, but they arise from a completely different conceptual context which militates in favour of specialization, rearrangement and institutionalization. The Labour Standards Act seems to me to come within this framework and the powers of the arbitrator naturally belong there since they are a necessary accessory to the operation of this new right to work, new at least in comparison to the times of Confederation.
I conclude therefore that, although the Labour Standards Tribunal exercises a jurisdiction broadly conformable to that of s. 96 courts at the time of Confederation, and although in doing so it performs a judicial function, it does so as a necessarily incidental aspect of the broader social policy goal of providing minimum standards of protection for non-unionized employees.
I would allow the appeal and answer the first constitutional question in the affirmative and the second in the negative. Subsections (2) and (3) of s. 67A of the Labour Standards Code are intra vires the province of Nova Scotia. The decision of the Labour Standards Tribunal is reinstated. The respondent may pursue its other grounds of appeal in the Appeal Division of the Nova Scotia Supreme Court. There will be no order as to costs.
//La Forest J.//
The reasons of Beetz, La Forest and L'Heureux-Dubé JJ. were delivered by
LA FOREST J. -- I have had the benefit of reading the reasons of my colleague Justice Wilson, and, while I would dispose of the case and respond to the constitutional questions in the same manner as she does, I have arrived at that conclusion by a different route. My colleague has set forth the relevant facts and legislation as well as the judicial history of the case. I can, therefore, move directly to the reasons that have led me to my conclusion.
The issue for determination is whether the provisions of the Labour Standards Code, S.N.S. 1972, c. 10, s. 67A(2) and (3), which authorize the Director of Labour Standards to endeavour to effect a settlement when there has been a complaint or he concludes that an employee has been discharged without just cause in contravention of the Code (s. 67A(1)), and empower the Labour Standards Tribunal to decide whether such contravention has occurred and to impose remedial measures, are unconstitutional as providing for the exercise of a power corresponding to that exercised at Confederation by courts mentioned in s. 96 of the Constitution Act, 1867.
As the name of the Code implies, the standard mentioned is only one of many provided by the Code and enforced through conciliation by the Director and adjudication by the Tribunal. The Code is a consolidation of post-Confederation legislation guaranteeing minimum standards of employment respecting vacation pay, holiday pay, minimum wage, equal pay (including maternity and adoption leave, and protection of seniority and benefits where an employee takes maternity leave), frequency and form of pay, rates of pay and working hours of labour in the construction industry and in industrial undertakings, termination and suspension from employment, discrimination by an employer because of a garnishment of the employee's wages or complaints by an employee, and employment of children. It applies to unorganized labour many of the norms ordinarily provided for under a régime of collective agreement. Unorganized labour accounts for some 70 percent of the province's labour force.
The underlying social and economic philosophy of this legislation could not be in sharper contrast to that which existed at Confederation. At that time, the philosophy of laissez-faire was at its zenith. This was reflected in a legal environment that promoted strict individual equality and freedom of contract. Legislative control of economic activity was minimal. In the field of labour relations, then, what the courts enforced were individual contracts (governing what was then appropriately called a "master-servant" relationship). As G. England "Unjust Dismissal in the Federal Jurisdiction: The First Three Years" (1982), 12 Man. L.J. 9, at p. 10, puts it:
The protection afforded by a common law action for wrongful dismissal was seen as deficient in several respects. It permits an employer to dismiss for any or no reason so long as the requisite formalities in the employment contract are observed and so long as the contractually based notice period, or wages in lieu thereof, is honoured. It applies an unrealistic standard of "cause" where summary dismissal is invoked, hampered as it is by the contract law concept of repudiation.
See also Clyde W. Summers, "Individual Protection Against Unjust Dismissal: Time for a Statute" (1976), 62 Va. L. Rev. 481. In enacting the Code, the Legislature was not concerned with rules of contracts, but with establishing minimum standards. As section 4 puts it: "This Act applies notwithstanding any other law or any custom, contract or arrangement...." The provision regarding dismissal, like the other standards in the Code, applies independently of any contractual arrangement that may exist. Essentially it is a new obligation imposed by law. It transcends the relationship between private parties.
The latter point is reflected by the enforcement mechanisms established by the Code. Enforcement is not by legal action by an aggrieved individual. Enforcement is centred in the Director appointed under the Code. An alleged contravention of a Code standard is first dealt with by the Director, either on complaint made to him or where he has reasonable cause to believe such a contravention has occurred (s. 19(1) and (2)). The Director's task is to effect a settlement if he can, but if he is unable to do so, he may order compliance with the Code and the rectification of injury or the payment of compensation. Essentially, these are conciliatory procedures having some affinity to those employed by human rights commissions discussed in my dissenting opinion in Scowby v. Glendinning,  2 S.C.R. 226 (the majority opinion was not directed to this matter). The Director is not governed by legal norms but by the dynamics of labour relations. There is no requirement that he, or for that matter the members of the Tribunal, be members of the Bar, and we understand that they are not. They are, however, knowledgeable in labour relations.
An appeal lies from an order of the Director to the Tribunal which decides whether there has been a contravention of the Code and orders the contravening party to comply with the Code and to rectify the injury or pay compensation. There is undoubtedly a judicial component here, but it does not involve a lis between the complainant and the alleged contravenor. The Director has the carriage of the matter (s. 20). And the dispute, we saw, is not concerned with contract, but with modern statutory norms devised to displace contractual terms offensive to these norms. It is not surprising, then, that these bodies tend to find labour arbitration rather than common law experience more relevant in determining the meaning of standards such as "unjust dismissal"; see England, supra, at p. 21; see also Gérard Hébert and Gilles Trudeau, Les normes minimales du travail au Canada et au Québec, at p. 168.
On the basis of the foregoing, I have no difficulty in holding that the judicial component of the Code bears no relationship to the contractual issues assigned to s. 96 courts in 1867. As mentioned, it provides for labour relations standards that transcend the relationship between the parties. It is unnecessary, then, to enter into a minute examination of what courts exercised jurisdiction over contracts of master and servant at Confederation.
The approach I have taken to the present legislation parallels that adopted by the courts in dealing with legislation respecting labour relations governed by collective agreements. And it is entirely appropriate that this should be so. Both types of legislation were responses to the plight of workers in a social and economic setting where employers held a dominant position, and they play a complementary role in the resolution of the problems to which it gave rise; see Robert P. Gagnon, Louis LeBel, Pierre Verge, Droit du travail, at pp. 15 and 19. They are reflections of the same social reality, and similar machinery was adopted for both organized and unorganized labour.
The most relevant case dealing with collective agreements is Labour Relations Board of Saskatchewan v. John East Iron Works, Ld.,  A.C. 134. There the Privy Council held that the power given to a specialized tribunal to order reinstatement and to award compensation to an employee whose employment had been terminated did not infringe on s. 96. The Privy Council emphasized that the purpose of the legislation was not the enforcement of the employer-employee contract but the enforcement of the rights under a régime of collective agreement. Lord Simonds thus put it at p. 150:
It is in the light of this new conception of industrial relations that the question to be determined by the board must be viewed, and even if the issue so raised can be regarded as a justiciable one, it finds no analogy in those issues which were familiar to the courts of 1867.
The new conception there referred to was, of course, a régime of collective agreement. As already mentioned, however, legislation establishing minimum labour standards also reflects a new conception of labour relations, one moreover that is complementary to collective agreements, which were also unknown in 1867.
Labour standards legislation, including s. 67A of the Code which grants tenure to an employee who has served for ten years, is part and parcel of the modern conception of labour relations quite as much as similar protection accorded under a collective agreement. The parallel is immediately obvious from the following quotation from the John East Iron Works, Ld. case, at p. 150:
The jurisdiction of the board under s. 5(e) is not invoked by the employee for the enforcement of his contractual rights: those, whatever they may be, he can assert elsewhere. But his reinstatement, which the terms of his contract of employment might not by themselves justify, is the means by which labour practices regarded as unfair are frustrated and the policy of collective bargaining as a road to industrial peace is secured.
It seems expedient, then, for the provinces to be empowered to vest in specialized bodies the task of enforcing these standards using techniques appropriate to the subject-matter, techniques that are at once speedy, effective and inexpensive. Enforcing these standards on a daily basis by action in s. 96 courts would seem to me to be entirely inappropriate, let alone considering this to be part of the protected jurisdiction of these courts. This again is consistent with the John East Iron Works, Ld. case, where at pp. 150-51, Lord Simonds suggested another way of testing the conclusion he had reached. He stated:
It is legitimate, therefore, to ask whether, if trade unions had in 1867 been recognized by the law, if collective bargaining had then been the accepted postulate of industrial peace, if, in a word, the economic and social outlook had been the same in 1867 as it became in 1944, it would not have been expedient to establish just such a specialized tribunal as is provided by s. 4 of the Act.
He also referred to the desirability of specialized knowledge in the members of the tribunal and the inappropriateness of requiring that they be chosen from members of the Bar under s. 96. To adapt Lord Simonds' language to the matter at hand, it is legitimate to ask whether, if minimum labour standards had in 1867 been recognized by the law and had then been the accepted postulate of labour relations management, if in a word, the economic and social outlook had been the same in 1867 as it has become now, it would not have been expedient to establish just such a specialized tribunal as is provided by the Code. To that question, I have no hesitation in saying that it clearly would have been.
My colleague Justice L'Heureux-Dubé took a similar position, when sitting on the Quebec Court of Appeal in Asselin v. Industries Abex Ltée,  C.A. 72, 22 D.L.R. (4th) 212. Having referred to her colleagues' minute examination of the jurisdiction of the courts over master and servant contracts in 1867, she stated at p. 90 (C.A.), 238 (D.L.R.):
(TRANSLATION) My preference would be to focus debate on the modern aspect of labour relations as compared to the situation in 1867, as did Gagnon J.A. in the decision in United Last Co. v. Labour Board and Adamovicz,  R.D.T. 423 (C.A.), as cited by my colleague Nolan. This is especially true for the Labour Standards Act which gives the employee a right to his job, regardless of the individual employment contract, and gives the arbitrator extended powers, including the power to reinstate an employee. This latter power was unknown and unrecognized by our courts of justice in 1867 as is clearly demonstrated by my colleague Nolan. If that is true of s. 128(1) of the Act in particular, I would say that all the other powers at issue are derived from the same philosophy of labour relations, from the same concept which runs from conciliation to negotiation and to arbitration of labour disputes. The arbitrator is not only part of the whole process, he is also that to which the various stages in that process lead. The decision in Tomko v. Labour Relations Board (N.S.) et al. (1975), 69 D.L.R. (3d) 250,  1 S.C.R. 112, 14 N.S.R. (2d) 191, seems to me particularly relevant to this discussion. Since it held that a labour tribunal's power to issue an injunction is constitutional, it seems to me to be difficult to imagine why the power to reinstate and other less radical powers listed in the Act could not be conferred on a [sic] arbitrator in the context of an Act which regulates relations between employers and employees, an Act of a clearly social nature which reflects a distinct evolution since 1867 and a completely different notion of labour relations from that which existed at that time.
Having determined that the jurisdiction exercised by the Tribunal does not conform to the power or jurisdiction of a s. 96 court in 1867, it becomes irrelevant to consider the other tests set forth in the cases (see in particular Re Residential Tenancies Act, 1979,  1 S.C.R. 714), although I have no doubt the institutional setting in which the Tribunal operates would be sufficient to place it outside the requirements of s. 96; see Scowby v. Glendinning, supra.
It is also unnecessary for me to consider the issues regarding the precise nature of the historical inquiry raised by my colleague Wilson J., but it may be useful for me to make a few comments about some of these. As I view it, the question to consider is whether a tribunal's jurisdiction "broadly" conforms to the jurisdiction exercised by a s. 96 court at Confederation. The very question indicates that we are dealing with a matter that is not precisely definable. It is, therefore, not surprising that precision is lacking in earlier judgments. If one must pick a specific date to govern the inquiry, 1867 would seem to be appropriate, but even here I am not sure one should be so much concerned with precise dates as with avoiding incorporating into s. 96 court jurisdiction matters that may be specific to a province by reason of a situation peculiar to the province at the time. For what we are seeking after all is a generalized and workable meaning for the jurisdiction exercisable by s. 96 courts. I certainly do not think we should confine our enquiries to the particular province where an issue arises. Nor do I think we should limit it to the original confederating provinces. Some light may be cast by the experience of other British North American colonies at the time, Newfoundland and Prince Edward Island (which were involved in the original negotiations) and British Columbia which entered Confederation just a few years later. And I would also look to the experience in England at the time, for after all, we derive the concept of these courts from that country.
All of this can throw light on what can often be a very difficult question. But I would be concerned with an approach that attempted to devise a test with a level of exactness that cannot realistically be applied given the sometimes fragmentary evidence available and the difficulty of weighing its relevance in a modern setting. What requires determination is whether the jurisdiction of a judicial institution is in broad conformity with that of a s. 96 court as these institutions were understood at Confederation. In doing this, I think we should avoid too much precision in a matter that is inevitably imprecise, as well as mechanistic tests for determining the precise measure of evidence required. What we must do is exercise the best judgment we can in the light of the information before us and what we know to be the functions and purposes of s. 96 courts.
These matters, however, do not seem to me to have immediate relevance here. For I have no doubt that the administration and enforcement of modern legislation respecting labour standards form no part of the protected jurisdiction of a s. 96 court.
Appeal allowed; the first constitutional question should be answered in the affirmative and the second in the negative.
Solicitor for the appellant the Attorney General of Nova Scotia: The Department of the Attorney General, Halifax.
Solicitors for the appellants Clifford George Yeomans, et al.: C. Peter McLellan and Ian C. Holloway, Halifax.
Solicitors for the respondent: Stewart, MacKeen & Covert, Halifax.
Solicitor for the intervener the Attorney General of Canada: Frank Iacobucci, Ottawa.
Solicitor for the intervener the Attorney General of Quebec: The Attorney General of Quebec, Ste-Foy.
Solicitor for the intervener the Attorney General of Manitoba: Tanner Elton, Winnipeg.
Solicitor for the intervener the Attorney General of British Columbia: The Attorney General of British Columbia, Victoria.