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Access to justice and Quebec's dispute over claim limits in provincial court

A constitutional challenge by a group of Quebec Superior Court judges may have profound implications for access to justice in Canada.

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There is a growing concern over a constitutional challenge by a group of Quebec Superior Court judges against the federal government and the province that may have profound implications for access to justice in Canada.

In their suit the judges are seeking a judgment (in Superior Court no less) declaring that the Court of Québec has exclusive jurisdiction only over civil claims under $10,000 (a figure that has been adjusted for inflation), in accordance with section 96 of the Constitution Act, 1867. Under current civil procedure rules in the province, the court can hear claims up to $85,000.

Montreal litigator and blogger Karim Renno calls the challenge justified.  “It’s an important constitutional question and it’s difficult to imagine who would be in a better position than judges of the Superior Court to submit the matter for adjudication,” he told Droit-inc (Our translation).

Léonid Sirota has also written about the merits of the action. In his view, the judges have a strong case (and standing as well). Over the last half-century, he writes, the Québec government has “expanded the jurisdiction of its provincial court more and more out of the former exclusive jurisdiction of the Superior Court.” Sirota, however, questions the wisdom of having the matter adjudicated in Superior Court, suggesting the matter ought to be resolved by reference to the Court of Appeal, or better yet the Supreme Court. “This question deserves to be answered, but having it litigated by senior judges in their own court is surely not the right way to go about it,” he pleads.

On this last point, Former CBA President Simon Potter has expressed a similar view, as has the Barreau du Québec’s bâtonnier, Paul-Matthieu Grondin. Grondin also bemoans the timing of the challenge, as the justice system is struggling to keep up with its current workload. Indeed, a successful lawsuit would presumably lead to a sudden pile-up of cases at Quebec’s Superior Court whose resources are already stretched thin, though it is possible to delay striking down the upper limit threshold to give Ottawa and the province time to adjust.

Even so, as Jonnette Watson Hamilton points out over at ABlawg.ca, it would also carry major implications for the courts in other provinces, where upper limits on small claims courts – generally considered more accessible to the public -- are well above $10,000.  In Ontario, Nova Scotia and the Yukon it now stands at $25,000. B.C. has raised its limit to $35,000 and Alberta to $50,000.

The dispute over the Court of Quebec’s exclusive jurisdiction is perhaps necessary due diligence from a constitutional point of view. But it could derail past efforts by the provinces to simplify trials for cases with lower monetary value. That will require a more urgent response to the access to justice crisis.