Order In The Court? The Van Breda Trilogy - Part V - Constitutional Issues

The constitutionalization of private international law has been one of the major projects of the Supreme Court of Canada since the decision in Morguard. However, the precise relationship between the Constitution, and the "real and substantial connection" test, has yet to be fully defined. In the Van Breda Trilogy, the Supreme Court returned to this issue, and sought to provide private international law with a clearer constitutional foundation. Paradoxically, the result is a new approach to the role of superior courts and provincial legislatures in the Canadian federation, which raises more questions than it answers.

The Role of the Constitution in Van Breda

The Court began its analysis in Van Breda by indicating that "[c]onflicts rules must fit within Canada's constitutional structure". (para. 21) It then drew a distinction between two ways in which the "real and substantial connection" test had been used in the jurisprudence: (1) as a constitutional rule; and (2) as a conflict of laws rule. The basic insight of Van Breda is that the constitutional rule explains, but does not exhaust, the conflict of laws rule.

According to the Court, the constitutional rule is designed to ensure that the exercise of jurisdiction respects the territorial limits of provincial power in s. 92 of the Constitution Act, 1867. LeBel J. suggested that this is so regardless of whether the jurisdiction being exercised is "adjudicative" jurisdiction (i.e., the jurisdiction of courts to decide extraterritorial disputes) or "legislative" jurisdiction (i.e., the jurisdiction of provincial legislatures to enact laws with extraterritorial effect). In the view of the Court, the territorial limits in s. 92 – and the real and substantial connection rule formulated in response to them – place constraints upon both forms of jurisdiction:

... In its constitutional sense, [the real and substantial connection test] places limits on the reach of the jurisdiction of a province's courts and on the application of provincial laws to interprovincial or international situations.

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Since Hunt, the real and substantial connection test has been recognized as a constitutional imperative in the application of the conflicts rules. It reflects the limits of provincial legislative and judicial powers and has thus become more than a conflicts rule.

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...With respect to the constitutional principle, the territorial limits on provincial legislative competence and on the authority of the courts of the provinces derive from the text of s. 92 of the Constitution Act, 1867. These limits are, in essence, concerned with the legitimate exercise of state power, be it legislative or adjudicative. The legitimate exercise of power rests, inter alia, upon the existence of an appropriate relationship or connection between the state and the persons who are brought under its authority. The purpose of constitutionally imposed territorial limits is to ensure the existence of the relationship or connection needed to confer legitimacy.

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...[T]he real and substantial connection test... has evolved into an important constitutional test or principle that imposes limits on the reach of a province's laws and courts. As I mentioned above, this constitutional test reflects the limited territorial scope of provincial authority under the Constitution Act, 1867. ... [emphasis added] (paras. 23, 28, 31 and 69)

The Court went on to note that this "constitutional test aimed at maintaining the constitutional limits on the powers of a province's legislature and courts" (para. 34) only sets the "outer boundaries" within which the real and substantial connection test as a conflict of laws rule can be applied. It does not itself determine when a provincial court may assert jurisdiction over a dispute, since that is the role of the conflict of laws rule. As LeBel J. put it:

The constitutionally imposed territorial limits on adjudicative jurisdiction are related to, but distinct from, the real and substantial connection test as expressed in conflicts rules. Conflicts rules include the rules that have been chosen for...