By Paul Warchuk, July 8, 2026
Section 96 of the Constitution Act, 1867 says “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.”
At first glance, this looks like a rule about judicial appointments. But in practice, courts rarely use it for that purpose. Instead, s. 96 has become a legal tool used to review and sometimes limit what legislatures can do when they create laws or design parts of the court system.
For many years, courts mainly used s. 96 to decide how the judicial system is structured. More recently, however, it has been applied more broadly — sometimes affecting procedural rules and even laws about substance and policy.
The upcoming Ontario Place Protectors case at the Supreme Court highlights this shift, raising concerns that s. 96 is being used in ways that go beyond its original focus on judicial appointments.
The Constitution explicitly empowers both Parliament (under s. 101) and provincial legislatures (under s. 92(14)) to establish courts and other tribunals to further the administration of their laws. Pursuant to its authority, Parliament has established courts such as the Supreme Court of Canada, Federal Court, and Tax Court of Canada. Their operations are federally funded, and their judges are federally appointed and paid.
Provincial legislatures have similarly established provincial courts of justice whose judges are provincially appointed and paid. Section 96 contemplates a third type of court: courts that are provincially organized and funded but whose judges are federally appointed and paid. These courts have found a special place in the hearts of Supreme Court judges, who have dubbed them the “primary guardians of the rule of law” and “the cornerstone of Canada’s judicial system” for their role in fostering “national unity”.
The earliest expansions of s. 96 were to prevent provincial legislatures from reducing the jurisdiction of the venerable provincial superior courts. Throughout the 20th century, provinces sought to establish tribunals that could adjudicate more cheaply and efficiently than superior courts. For instance, Ontario enacted legislation establishing a residential tenancy commission to consolidate various landlord-tenant disputes into a single forum with more accessible informal summary proceedings. The Supreme Court recognized Ontario’s position that courts were “too formal, too cumbersome, too expensive” for residential tenancies cases. However, it struck down the law establishing the tribunal as contrary to s. 96 anyway. In the Court’s eyes, it was problematic that the commission had the power to order evictions and enforce contractual compliance. These were powers that had exclusively belonged to superior courts at the time of Confederation and thus needed to continue to reside in them exclusively.
By the mid-1980s, s. 96 discontent grew so strong that the federal Minister of Justice proposed a constitutional amendment that would have guaranteed the ability of provinces to establish tribunals to administer their laws. However, the amendment was never passed, and the threat to new administrative tribunals remains. In 2021, the Chief Justice of the Supreme Court of British Columbia struck down part of the innovative Civil Resolution Tribunal as trenching upon s. 96. The Tribunal was British Columbia’s attempt to build a proportionate forum for low-value civil disputes, where conventional courts were too slow, too expensive, and too formal to be worth using. The Tribunal was designed for parties to represent themselves with online dispute resolution at its centre. Ultimately, the decision was reversed 2–1 by the Court of Appeal. It found that minor motor-vehicle claims were not within the exclusive historical jurisdiction of superior courts. Despite the ultimate result, the threat of s. 96 clearly remains.
Section 96’s reach extends to courts as well as tribunals. In its most recent s. 96 case, a majority of the Supreme Court found it unconstitutional for Quebec to grant the Court of Quebec exclusive jurisdiction to hear civil claims up to $85,000. Apparently, this jurisdiction “gives the Court of Québec every appearance of being a parallel court and undermines the central role reserved to the superior courts in the Canadian judicial system”. For the Supreme Court, a central component of s. 96 is “the prohibition against creating parallel courts”, i.e., courts whose stature threatens the pre-eminence of the provincial superior courts. Ironically, no provincial court could ever truly run parallel to a s. 96 court because the Supreme Court has also held that s. 96 requires that judgments of the provincial courts and tribunals remain subject to appeal or review by a s. 96 court. The same fear of parallel courts may explain why the Supreme Court has read Parliament’s constitutional power to create new courts “for the better Administration of the Laws of Canada” as narrowly as it has read s. 96 broadly. In the words of future Justice John Evans, the Court has engaged in a “remarkable arrogation of power” with its s. 101 cases.
Section 96’s reach does not stop at the structure of the judiciary. Courts have extended it to how they adjudicate and what they adjudicate. This process began in the 1990s, when Chief Justice Lamer declared — over the dissent of four judges in MacMillan Bloedel v Simpson — that s. 96 also protected a “core jurisdiction” of provincial superior courts. This core contains the “powers which are essential to the administration of justice and the maintenance of the rule of law.” Part of this core jurisdiction is the power to try youths for contempt of court; thus, legislation conferring that power exclusively on youth courts was unconstitutional.
In Trial Lawyers Association of British Columbia v British Columbia, the Supreme Court of Canada held that hearing fees also violated the core jurisdiction of superior courts. At the time, BC’s Supreme Court Civil Rules and Family Rules imposed hearing fees for trials lasting longer than three days: $500 per day for days four to ten, and $800 for each day over ten. The applicable Rule provided for an exemption where the litigant was a person receiving benefits under certain statutes or was “otherwise impoverished.”
Writing for the majority, Chief Justice McLachlin found that the hearing fees were unconstitutional because they intruded on the core jurisdiction of superior courts. As the core function of superior courts is to resolve disputes, and hearing fees denied some litigants access to the superior courts, the fees prevented the core functions of the court from being carried out.
The logic that laws preventing the court from adjudicating violate s. 96 has spread rapidly. In 2019, the BC Supreme Court struck down a rule limiting the number of expert reports on damages in motor-vehicle injury actions to three. Chief Justice Hinkson held the limit on the number of experts trenched on the superior court’s core jurisdiction by interfering with party presentation. In Le v. British Columbia (Attorney General), , litigants successfully recast British Columbia’s cap on recoverable litigation disbursements as an assault on the superior courts’ core jurisdiction. A chambers judge agreed, and one appellate judge would have, though the majority struck the regulation on administrative law grounds instead.
In Ontario, a judge struck down a provision requiring plaintiffs to show a reasonable possibility of success in order to bring actions for bad faith and misfeasance against the Crown. The judge held that the provision denied meaningful access to the Superior Court because it left claimants unable to assemble the evidence to meet the leave threshold. The Court of Appeal allowed the appeal, with Justice Huscroft explaining s. 96 is a structural provision, not an individual right of access. He explained that a screening process, administered by the court, was not a measure that prevented the court from doing its business.
In 2023, Ontario enacted legislation to redevelop Ontario Place, a former amusement park on the waterfront of Lake Ontario. The legislation included a provision extinguishing the liability of the Crown and its agents arising from the redevelopment. The Government says the provision is meant to prevent delays caused by litigation that often arises in large projects. Ontario Place Protectors challenged the provision, arguing that it violates s. 96 by creating complete government immunity. Judges in the Ontario Superior Court and Court of Appeal rejected this argument. Writing in the Court of Appeal again, Justice Huscroft found that a legislature is free to abolish a cause of action, as it does not interfere with the adjudication of an action or the exercise of the court’s inherent powers. However, in January 2026, the Supreme Court granted leave to appeal.
Before the Supreme Court, the appellants argue that the law creates absolute immunity for the Crown, which deprives the Ontario Superior Court of Justice of its ability to hear said claims and hold the government to account. They compare this situation to the Supreme Court’s reasoning in Trial Lawyers: “If s. 96 is infringed by court fees that merely dissuade some litigants” without barring anyone, then in their view, “it follows that s. 96 is likewise infringed by a statute that provides almost absolute immunity to the Crown and Related Entities for conduct both past and future, bars almost all proceedings against them, and precludes the court from granting remedies.”
In contrast, the Attorney General of Ontario argues that none of the courts’ essential adjudicative functions are affected by a change to the substantive law. The power of the legislature to extinguish causes of action is well-established, and Crown liability is in fact a creature of statute. At common law, the Crown was immune from all torts. It was only through legislation — specifically, the Proceedings Against the Crown Act of 1963 — that the province opened itself up to civil liability. Thus, it is impossible for liability of the Crown to be part of the core jurisdiction of provincial superior courts.
Crown immunity has real costs, not only for those wronged by government action but for government too. Savvy contractors will force taxpayers to pay up front by adding heavy risk premiums to their bids. Recognizing the broader economic and legal consequences of such immunities, Peter Hogg and other Crown liability scholars have long argued that the Crown should be governed by the same rules of liability for causing harm as a private defendant. But in a democracy, legislatures are entitled to enact bad policy, and voters are entitled to hold them accountable for it at the ballot box.
The Constitution vests provincial legislatures with authority over property and civil rights, which has always been understood to include the power to extinguish causes of action and enact immunities. To find that s. 96 — a provision that merely says how certain provincial judges are to be appointed — somehow strips legislatures of this power stretches constitutional interpretation past its breaking point. The Supreme Court of Canada has spent long enough treating s. 96 as an empty vessel, filling it with its own preferences for how the justice system should operate. It is time for the Court to stop pouring new meaning into s. 96.
Paul Warchuk is an assistant professor at the University of New Brunswick Faculty of Law.
