Canada Life & Health Insurance Compensation Corporation v. Blue Cross of Canada

Canada Life & Health Insurance Compensation Corporation v. Blue Cross of Canada Court Court of Appeal Date 1997-01-15 Citation 1997 NSCA 27 Docket CA 130615 Judge/Registrar/Adjudicator Hallett, J. Doane (Honourable Justice) (CA); Jones, Malachi C. (Honourable Justice) (CA); Roscoe, Elizabeth A. (Honourable Justice) (CA) Document Type Decision Decision Content C.A. No. 130615 NOVA SCOTIA COURT OF APPEAL Cite as: Canada Life & Health Insurance Compensation Corporation v. Blue Cross of Canada, 1997 NSCA 27 Hallett, Jones and Roscoe, JJ.A. BETWEEN: CANADIAN LIFE AND HEALTH INSURANCE ) COMPENSATION CORPORATION ) Joel E. Fichaud, Q.C. ) for the Appellant ) Appellant ) ) - and - ) ) Roderick H. Rogers ) for the Respondent BLUE CROSS OF CANADA ) ) Respondent ) Appeal Heard: ) December 12, 1996 ) ) ) Judgment Delivered: ) January 15, 1997 AND BETWEEN: C.A. No. 130616 CANADIAN LIFE AND HEALTH INSURANCE ) COMPENSATION CORPORATION ) ) Appellant ) - and - ) ) MARITIME MEDICAL CARE INC. ) ) Respondent ) THE COURT: Leave to appeal is granted in both actions, appeals allowed and the Nova Scotia actions stayed per reasons for judgment of Jones, J.A.; Hallett and Roscoe, JJ.A. concurring. JONES, J.A.: This is an appeal from the dismissal of applications by the appellant to strike out portions of statements of claim filed in Nova Scotia by the respondents. The basis of the applications is that the claims simply duplicate proceedings between the same parties commenced in the Province of New Brunswick. The following facts are alleged in the pleadings. The appellant Canadian Life and Health Insurance Compensation Corporation (Comp.Corp.), is incorporated under the laws of Canada and provides compensation to policy holders of an insolvent insurer that is a member of Comp.Corp. and which has unpaid claims under its covered life, accident and sickness insurance policies. The Provinces of New Brunswick and Nova Scotia, in their respective Insurance Acts have provisions requiring certain insurers to be members of Comp.Corp. Comp.Corp's by-laws require its members to pay assessments approved by the corporation's Board of Directors. The assessments are an allocation among members of the expenses of Comp. Corp. included in fulfilling its obligations to policy holders. Maritime Medical Care Inc. (Maritime Medical) and Blue Cross of Atlantic Canada (Blue Cross) are incorporated under the laws of Nova Scotia and are licensed to carry on the business of insurers in the Province of New Brunswick. Maritime Medical signed an agreement dated January 24, 1991 and Blue Cross signed an agreement dated February 6, 1990 agreeing to accept the responsibilities of membership in the bylaws of Comp. Corp. It is also alleged that Maritime Medical and Blue Cross are deemed to be members of Comp. Corp by virtue of the legislation in each Province. Comp. Corp. issued periodic assessments to Maritime Medical and Blue Cross which were paid until August 14, 1994. Since that date they have refused to pay the assessments. Separate assessments were not issued for New Brunswick and Nova Scotia. The total assessment is based on a percentage of the insurer's five year average premium income in all provinces. The respondents refused to make further payments as they concluded that they were not required to be a member of Comp. Corp. under the New Brunswick or Nova Scotia Insurance Acts. On October 4, 1995, Comp. Corp. commenced an action in the New Brunswick Court of Queen's Bench. The Statement of Claim is for all outstanding assessments owed by the respondents. The respondents filed a defence and counterclaim in the New Brunswick action. The defence alleges that the defendants are not liable for the amounts claimed as they are not required to be members of Comp. Corp. under the New Brunswick Insurance Act or regulations. There is also an allegation that it is ultra vires the Province of New Brunswick to enact legislation which governs interprovincial trade and commerce. There is no reference to any particular sections of the New Brunswick Act which purport to regulate insurance outside the Province. There is no reference in the defence to the Nova Scotia Insurance Act or the agreements. The counterclaim is for reimbursement of all payments made to the appellant since 1990. The respondents also claim a declaration that they are not required to be members of Comp. Corp. by virtue of s. 92.2 of the New Brunswick Act and that it is null and void and unconstitutional. A defence was filed by the appellant to the counterclaim. The defence states that the respondents are liable by virtue of s. 10 of the Nova Scotia Insurance Act and s. 92.2 of the New Brunswick Insurance Act. On October 6, 1995, the respondents commenced separate actions against the appellant in the Supreme Court of Nova Scotia. Paragraphs 10, 14(I) and 14(IV) of the Statements of Claim pleaded unjust enrichment, claimed a declaration that any outstanding assessments from Comp. Corp. were not payable by the respondents and claimed recovery of all assessments already paid. The claim alleged that the respondents were not required to be a member of Comp. Corp. under s. 10(1) of the Insurance Act, R.S.N.S. 1989, c. 231 or the regulations and further that the regulations are ultra vires the powers of the Governor in Council. There is also an allegation that it is ultra vires of the legislature of Nova Scotia to enact legislation or regulations which govern inter-provincial trade and commerce. The respondents ask for a declaration that s. 10 of the Insurance Act is null and void in that its enactment is contrary to s. 91(2) of the Constitution Act 1867. A defence was filed by the appellant to the Nova Scotia actions. Section 21 of the defence states: 21. The issues raised in this proceeding are identical to issues in the New Brunswick proceeding 1265-95, described in paragraph 11 where the same parties have filed pleadings joining issue. To the extent that the present action raises the same issues being litigated in another court between these parties, the present action is duplicitous, vexatious and an abuse of process. No application has been made by the respondents to strike or stay the New Brunswick actions. The appellant made the present applications in Nova Scotia for orders under Rule 14.25(1) striking those portions of the statements of claim "which request this Honourable Court to order the defendant to pay amounts related to the assessments and declare that the plaintiff is not obligated to pay outstanding assessments, and in particular paragraphs 10, 14(I) and 14(IV) which issues are being litigated in the Court of Queen's Bench of New Brunswick". The chambers judge dismissed the application. He summarized the position of the parties as follows: CompCorp's position is that these and all related issues are already joined between the parties in an action commenced in New Brunswick and the current actions in Nova Scotia are frivolous, vexatious, or otherwise an abuse of the process of this court under the relevant Rule, Nova Scotia Civil Procedure Rule 14.25(1). The respondent companies oppose the motion, in part claiming that their challenge to the vires of the Insurance Act is at the core to CompCorp's entitlement to assessments from them and that the courts of Nova Scotia should be the jurisdiction to deal with litigation relating to the application of a statute in this province. After reviewing the pleadings he expressed the view that s. 10(1) of the Nova Scotia Insurance Act appeared to be an issue in the New Brunswick action. The chambers judge concluded: It is clear that the pleadings of the actions in the two provinces are somewhat different, in part because they are based on different legislative schemes and also because the Nova Scotia action is arguably focused on the Nova Scotia portion of the assessment. It is also arguable that the Nova Scotia portion of the assessment is subsumed in the New Brunswick claim. I am satisfied there is considerable duplication in the actions commenced in the two jurisdictions, but I am not satisfied they are totally duplicative. The paragraphs which the applicant CompCorp seek to set aside are paragraph 10, wherein Blue Cross and Maritime Medical claim they had assessments charged to them in the past by Comp Corp "under a misapplication of the [Nova Scotia] law"; paragraph 14(IV), wherein they require a repayment for assessments already paid "under a misapplication of [Nova Scotia] law"; and paragraph 14(I), where they request a declaration that they have "never been required to be a member of CompCorp under the terms of the [Nova Scotia] Insurance Act or on any other basis". In my opinion these paragraphs do not directly challenge the constitutionality or vires of the Nova Scotia legislative scheme. However, paragraph 14(II) does challenge the constitutionality of the relevant section and that paragraph seeks a declaration that the regulations made pursuant to that same section (s. 10) is ultra vires. I find that these paragraphs are so interwoven that they cannot be separated without risk to remaining paragraphs of the Statement of Claim. The appellant has appealed on the ground that the chambers judge erred by ruling that paragraphs 10, 14(I) and 14(IV) of the Statement of Claim should not be struck under Rule 14.25(1) of the Civil Procedure Rules. The basis of the application is that the actions in New Brunswick and Nova Scotia are substantially the same. Notwithstanding that position, the appellant requests that only certain paragraphs of the Nova Scotia actions be struck. The original motion was more general and did not refer to specific paragraphs. Appellants' counsel even went so far as to argue that the constitutional issues could be tried in Nova Scotia as part of the ongoing litigation in New Brunswick. I agree with the chambers judge that the Statements of Claim cannot be severed. Prima facie it is vexatious and oppressive for a plaintiff to sue concurrently in two courts for the same matter. The relief is simply to stay or strike the second action. As various actions can be stayed as vexatious and oppressive or an abuse of process there is confusion in the cases as to burdens of proof and the principles to be applied on different applications falling under Rule 14.25(1). See Holmstead & Watson, Ontario Civil Procedure V2, 21-99. This has been clarified to some extent in the Ontario Rules. Rule 21.01 of the Ontario Rules provides: 21.01(1) A party may move before a judge (b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, (2) No evidence is admissible on a motion (b) under clause (1)(b), (2) A defendant may move before a judge to have an action stayed or dismissed on the ground that, (c) another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter; or (d) the action is frivolous or vexatious; or is otherwise an abuse of the process of the court; Notwithstanding clause 3(c) the courts still apply the principles developed for frivolous or vexatious actions or forum conveniens. The appellant relies on the following statements of the law as set out in paragraphs 24 and 25 of its brief: These principles still represent the law. Halsbury's Laws of England (4th Ed.) Vol. 37 [attached Tab "I"], under the title Practice and Procedure, states (para. 446): Two actions or proceedings on the same matter. Prima facie it is vexatious and oppressive for the plaintiff to sue concurrently in two English courts or tribunals, and the court will stay the second proceedings [citing Poulett and Williams]. A defendant will not be called upon to meet, in substance and in reality, the same claim or charge he has already answered in an earlier action. If there are two courts faced with substantially the same question or issue, that question or issue should be determined in only one of those courts, and the court will if necessary stay one of the actions. The same principles apply to proceedings other than actions. (Emphasis added] Halsbury cites several English cases as authority. 25. The Supreme Court Practice, 1988 (Vol. 2), para. 5237 [attached Tab"J"] states: Two actions or proceedings for same matter - If two actions are commenced, the second asking for relief which may have been obtained in the first, the second is prima facie vexatious and may be stayed (Poulett v. Hill, [1893] 1 Ch. 277, C.A.; followed Williams v. Hunt, [1905] 1 K.B. 512 C.A., where an action founded on a certain cause of action is in existence, albeit stayed, it is an abuse of process to bring new proceedings founded upon the same cause of action; the second action will be struck out and the proper course would be to apply for the stay to be removed in respect of the first action (Buckland v. Palmer, [1984] 1 W.L.R. 1109; [1984] 3 A.E.R. 554 (C.A.)). Plaintiff cannot bring two actions for different parts of damage arising from the same breach (Rowner v. Allen & Sons (1936), 41 Com. Cas.90). If there are two courts faced with substantially the same question or issue, it is desirable that the question or issue shall be determined in only one of those two courts if by that means justice can be done, and the court will if necessary stay one of the actions (Royal Bank of Scotland Ltd. v. Citrusdal Investments Limited, [1971] 1 W.L.R. 1469; [1971] 3 All E.R. 558, applying Thames Launches Limited v. Trinity House Corporation (Deptford Strond), [1961] Ch. 197; [1961] 1 All E.R. 26. [Emphasis added] In Thompkins Contracting Ltd. v. Northern Clearing Enterprises Ltd. etc., [1964] 50 W.W.R. 246 Davey, J.A. in delivering the judgment of the British Columbia Court of Appeal stated at p. 251: There is no question but that the Supreme Court of British Columbia has jurisdiction to stay proceedings before it when litigation between the same parties and over the same subject matter is before the courts of another country. The ground upon which that jurisdiction is exercised is to restrain vexatious and oppressive litigation, and it will be more readily exercised when the litigation is pending in another province of Canada where the same rights are recognized, similar remedies are available and similar procedure prevails, for then prejudice is unlikely to either party in allowing the litigation to proceed in the more convenient forum. But litigation ought not to be stayed if there is real reason to apprehend prejudice to one of the parties because of differences in rights, remedies, or procedure by requiring the action to proceed in another forum: Cruikshank v. Robarts (1821) 6 Madd 104, 56 ER 1031; McHenry v. Lewis (1882) 22 Ch D. 397, 52 LJ Ch 325; Logan v. Bank of Scotland (No. 2) [1906] 1 KB 141, 75 LJKB 218. In Burt et al v. Clarkson Gordon et al (1989), 62 D.L.R. (4th) 676 the Manitoba Court of Appeal had to consider an appeal from a decision of Barkman, J. who denied an application by the defendants to strike out the action in Manitoba or to stay the Manitoba proceedings until similar actions in Alberta had been heard and disposed of. Monnin, C.J.M. in delivering the judgment of the Court allowing the appeal stated at p. 678: It is trite law to state that the plaintiffs can litigate in this jurisdiction since they reside or carry on business in this province and defendants have offices here as well. But is that enough? Is it good law when, on the findings of Barkman J., Alberta is clearly and distinctly the more suitable forum for this lawsuit since witnesses, experts, documents, files, working papers, etc., are situate in Alberta and the partners of the defendants primarily responsible for the audits are either in Edmonton or Toronto - not in Manitoba? Barkman J. also made a finding that the Manitoba action is not oppressive, vexatious or an abuse of process of the Manitoba courts. That may be so but it still leaves open the question of which of the two jurisdictions is the more convenient forum to hear and dispose of this lawsuit. In 1984, in Suncorp Realty Inc. v. Reid, [1984] 3 W.W.R. 219, 27 Man. R. (2d) 72, 42 C.P.C. 68 (Man. C.A.), speaking for the court in discussing Van Vogt v. All- Canadian Group Distributors Ltd. (1967), 60 W.W.R. 729; affirmed 61 W.W.R. 704, an earlier decision of this court, I indicated that the Manitoba Court of Appeal seemed to have adopted the principle of forum conveniens, a Scottish principle of law which, at that time, was not being followed or accepted by English courts. The situation is different today since the House of Lords has now adopted the more sensible Scottish principle. In Spiliada Maritime Corp. v. Cansulex Ltd., [1986] 3 All E.R. 843, and de Dampierre v. de Dampierre, [1987] 2 All E.R. 1, the House of Lords clearly cast away any doubts it had about the Scottish principle of forum conveniens and has accepted it. In doing so, the House of Lords has abandoned the rather chauvinistic view that English courts held of courts other than their own. It now seems clear that the tribunal which is distinctly the more convenient and appropriate forum should have the conduct of the litigation. That test has now been applied in Alberta by its Court of Appeal in United Oilseed Products Ltd. v. Royal Bank of Canada, [1988] 5 W.W.R. 181, 60 Alta. L.R. (2d) 73, 87 A.R. 337. The Court there applied the principle of forum conveniens as opposed to the rule of lis pendens. Lis alibi pendens is defined in Black's Law Dictionary, 4th ed. at p. 1080 as "a suit pending elsewhwere". The author's note states: The fact that proceedings are pending between a plaintiff and defendant in one court in respect to a given matter is frequently a ground for preventing the plaintiff from taking proceedings in another court against the same defendant for the same object and arising out of the same cause of action. In May et al v. Greenwood (1992), 96 D.L.R. (4th) 581 the Ontario Divisional Court considered an appeal from a decision refusing to stay Ontario proceedings when proceedings involving the same issues were under way in Manitoba. In allowing the appeal the court considered the balance of convenience. The Court concluded at p. 586: If the test is one of establishing legitimate juridical advantage, we do not believe the plaintiffs have done so, proceeding as they have in Manitoba and now, four years later, seeking to litigate in Ontario. If the test is to balance those two factors, the application to stay should succeed for the same reason. In our view, it is preferable to stay the Ontario proceedings pending the disposition of the Manitoba action. If the F.L.A. claims are not dealt with in Manitoba, they can then proceed in Ontario. There may be some problems in duplication of proceedings if that occurs but, in our view, that is much preferable to letting the Ontario action proceed now after extensive proceedings in Manitoba. The Ontario action is therefore stayed pending the outcome of the Manitoba action. If F.L.A. proceedings are not dealt with, those claims only can subsequently proceed in Ontario. The principles upon which a court will grant a stay of proceeding on the basis of forum non conveniens have been reviewed by the Supreme Court of Canada in the case of Amchem Products Inc. v. B.C. (W.C.B.), [1993] 1 S.C.R. 897. I am not unmindful of the principles discussed in that case and as I have noted, cases involving duplicative actions have been decided on the basis of forum conveniens. However I am satisfied that the basic principle here is one of lis pendens. In Rocois Construction v. Quebec Ready Mix, [1990] 2 S.C.R. 440 the appellant brought an action for damages for unfair trade practices against the respondents in the Quebec Superior Court. The respondents brought a motion to dismiss this action on the ground of lis pendens since an action for damages for unfair trade practices, based both on s. 31.1(1) of the Combines Investigation Act and on general civil liability, was pending in the Federal Court. The Supreme Court of Canada dismissed an appeal from the decision of the Quebec Court of Appeal granting the motion. Gonthier, J. in delivering the judgment of the Supreme Court of Canada stated at p. 447: McCarthy J.A., for the court, first pointed out that the eventual outcome of the argument on the preliminary questions would be binding on Rocois Construction Inc. I agree, and there is no need to deal any further with this point. The matter was then still before the Federal Court, pending the final decision on the preliminary questions, and it remains there, in view of the content of the final judgment subsequently rendered by this Court. McCarthy J.A. then referred to the three criteria for lis pendens, namely identity of parties, object and cause: Cargill Grain Co. v. Foundation Co. of Canada Ltd., [1965] S.C.R. 594, at pp. 596-97. He was of the view that the three identities were present in this case. On the question of the identity of parties, the judge simply noted that this was obvious. On the identity of object, he observed that an additional amount was claimed in the statement of claim filed in the Federal Court, corresponding to the costs of the investigation and proceedings brought to assert the rights conferred by the Act. This amount can be claimed under a specific provision of the federal Act. Relying on Cargill Grain Co., supra, McCarthy J.A. held that a difference between the amounts claimed in the two actions did not preclude a finding of identity of object. The sum of one million dollars is claimed in both actions for damage sustained and is the object of each action; the rest is merely incidental. On identity of cause, the learned judge concluded that it existed for a reason he stated as follows, at p. 50: However, in both actions the same legal facts are the basis in law of the benefit which is the object of the action. Accordingly, noting that the triple identity of parties, object and cause was present, McCarthy J.A. allowed the appeals and dismissed the action for damages on grounds of lis pendens. It has long been recognized that the preliminary exception of lis pendens is governed by the same principles as those that apply to the exception of res judicata: Cloutier v. Traders Finance Corp., [1958] Que. Q.C. 274n; Cargill Grain Co., supra. Both exceptions serve similar mediate purposes, being designed essentially to avoid a multiplicity of court proceedings and the possibility of contradictory judgments. Their ultimate purpose is one of public interest which is to protect the security and stability of social relationships. At the level of private interest, res judicata protects acquired rights for the benefit of the parties, and lis pendens shields the defendant from the hardships that would result from multiple proceedings (see André Nadeau, "L'autorité do la chose jugée (1963), 9 McGill L.J. 102). The three conditions required for there to be lis pendens within the meaning of para. 1 of art. 165 of the Code of Civil Procedure, R.S.Q., c. C-25, correspond to the requirements of art. 1241 C.C.L.C., which deals with res judicata: there must be identity of parties, object (or thing) and cause (see this Court's judgment in Cargill Grain Co., supra). The appellant admitted in this Court that the condition regarding identity of the parties was met in this case. However, it challenged the Court of Appeal's judgment regarding the identity of object and cause. It also put forward a preliminary argument that the action brought in the Superior Court is not pending in an equally competent court, a prerequisite for a finding of lis pendens. I propose first to dispose of this preliminary argument, and then to analye the identities. In the present case the actions are between the same parties. Not only did the respondents file a defence in the New Brunswick action but also filed a counterclaim. The New Brunswick action is an action for debts owing by the respondents to the appellant. The defence claims that the respondents do not owe any money and reclaims money paid in the past. In the Nova Scotia action the respondents make essentially the same claim based on the same facts. By filing a defence and counterclaim in the New Brunswick Court the respondents accepted the jurisdiction of that Court. See The Law of Civil Procedure, Williston and Rolls, Vol. 1 p. 20. A party must claim all the relief he seeks in one action. The following is from the same volume of Williston and Rolls at p. 382: Where two separate remedies are possible, and a start is made by putting in force one of those remedies by a writ which would entitle the plaintiff to the relief he subsequently desires, he cannot by deliberately leaving that out of his claim reserve his right to ask for it in another proceeding. Where proceedings have been started, it is an abuse of the process of the Court to divide the remedy where there is a complete remedy in the Court in which the suit was first started. The same principle applies to pleadings by way of defence. All of the issues between the parties have been joined between the parties in the New Brunswick action or can be by way of amendment to the pleadings. One of the respondents' main contentions is that only the Nova Scotia Supreme Court can properly deal with a constitutional challenge to s. 10(1) of the Nova Scotia Insurance Act. In Hunt v. T. & N PLC, [1993] 4 S.C.R. 289 the appellant suffered from cancer which he alleged was caused by the inhalation of asbestos fibres to which he was exposed while working as an electrician in British Columbia. The fibres were allegedly contained in products manufactured and sold by the respondents, which were Quebec companies. The appellant sued the respondents for damages in British Columbia. He requested the production of documents relating to the action. The Quebec Business Concerns Records Act prohibited the removal from that province of documents relating to any business concern in Quebec pursuant to any requirement of a judicial authority outside that province. When the respondents did not respond, the appellant served demands for discovery of documents on them under the British Columbia Rules of Court. Certain of the respondents asserted that the Quebec Act prevented compliance. The appellant applied to the British Columbia Supreme Court for an order compelling production of the documents. The application was dismissed and an appeal to the Court of Appeal upheld that judgment. Both courts acted on the basis that the Quebec Act was valid, ruling that the British Columbia courts did not have jurisdiction over the constitutional validity of a Quebec statute. An appeal to the Supreme Court of Canada was allowed. In delivering the decision of the Court LaForest, J. stated at p. 308: I do not agree with this submission. In my view, the jurisdiction to at least consider the constitutionality of another province's legislation can be found in the right of any superior court to consider and make findings of fact respecting the law of another jurisdiction for the purposes of litigation before it. This jurisdiction to consider the laws of another province seems to me to be even more clearly justified when both jurisdictions are Canadian and governed by our Constitution. I will look at each of these questions in turn, and then address the specific jurisdiction of this Court in the interpretation of the laws of every province and their constitutionality. Ordinary Power of Courts to Consider the Constitutionality of Foreign Law I begin by noting that at common law the issue of what is foreign law, which most frequently but not exclusively arises in conflicts law, is a question of fact to be determined by the trial judge. In the present case, the law of Quebec is clearly a material fact for the consideration of whether there was a "lawful excuse" under Rule 2(5) of the British Columbia Rules of Court for failing to obey that province's rules for discovery. It is also a material fact in relation to the public policy of British Columbia. Since the Quebec statute is material to these issues , it follows that the validity of that statute, its constitutionality, is equally material. In determining what constitutes foreign law, there seems little reason why a court cannot hear submissions and receive evidence as to the constitutional status of foreign legislation. There is nothing in the authorities cited by the respondents that goes against this proposition. Quite the contrary, Buck v. Attorney General, [1965] 1 All E.R. 882 (C.A.), holds only that a court has no jurisdiction to make a declaration as to the validity of the constitution of a foreign state. That would violate the principles of public international law. But here nobody is trying to challenge the constitution itself. The issue of constitutionality arises incidentally in the course of litigation. He continued at p. 309: The policy reasons for allowing consideration of constitutional arguments in determining foreign law that incidentally arises in the course of litigation are well founded. The constitution of another jurisdiction is clearly part of its law, presumably the most fundamental part. A foreign court in making a finding of fact should not be bound to assume that the mere enactment of a statute necessarily means that it is constitutional. Formal determination of constitutionality is often purely fortuitous. It is often dependent on there happening to be parties interested in challenging the statute. This is unlikely to happen where, as in this case, most of the parties affected are outside the enacting jurisdiction. In this case, the Quebec statute has never been challenged by Quebec litigants because it does not arise in normal litigation in the province, and in extraprovincial litigation, Quebec defendants benefit while Quebec plaintiffs are normally unaffected. Why should a litigant not be able to argue constitutionality in the course of litigation that directly raises the issue? As a practical matter, it is not much more difficult to determine constitutionality than any other aspect of foreign law. The fact that there is no mandatory provision for advising the appropriate Attorney General does not make the procedure invalid. Nor did I see it as resulting in great inconvenience. Situations like this are rare and the findings, essentially of a factual nature, are not binding on the courts of other provinces. And if the constitutional issue is raised in this Court, there are provisions for advising the appropriate Attorney General. The British Columbia courts in this case were commendably, but in my view excessively, cautious in refusing to consider constitutionality even in this limited sense, at the potential price of injustice to the plaintiff. With respect, I therefore find that the lower courts were in error in believing that the rules of conflicts law prevented consideration of the constitutionality of the laws of another jurisdiction. The British Columbia courts in this case, therefore, did possess at least the normal court power to consider and make findings of fact as to the constitutionality of the laws of another jurisdiction. Such findings would have affected their conclusions on lawful excuse, comity and public policy. To simply ignore the constitutional issues was an error of law that vitiated their findings. Moreover, there is an additional factor that reinforces and possibly augments the powers of the superior courts to consider the constitutional issues, namely, that both jurisdictions in question are part of the same Canadian federation and governed by the same Constitution. I shall now turn to that issue. Impact of the Canadian Constitution It is well established that a range of Canadian courts and tribunals in Canada are empowered to consider the constitutionality of the laws they apply. In doing so, they are applying the principle of the supremacy of the Constitution confirmed by s. 52(1) of the Constitution Act, 1982. This Court has had to deal with the implications of this provision on a number of occasions in different contexts. Thus in Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, and Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, this Court found that administrative tribunals expressly empowered by their enabling statutes to interpret or apply any law necessary to reach their findings had the power to apply the Canadian Charter of Rights and Freedoms. Similarly, the Court has ruled that some administrative tribunals are competent to consider issues of the division of powers; see for example, Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733. The latter decision also held that the Federal Court in the exercise of its statutory jurisdiction had the power and duty to review legislation for constitutionality in determining issues arising before them; see Northern Telecom, supra, at p. 740. The same principle applies with, if anything, more force to the provincial superior courts. These are the ordinary courts of the land having inherent jurisdiction over all matters, both federal and provincial, unless a different forum is specified; see Ontario (Attorney General) v. Pembina Exploration Canada Ltd., [1989] 1 S.C.R. 206, at pp. 217-18. Estey J. felicitously put the matter in Attorney General of Canada v. Law Society of British Columbia (the Jabour case), [1982] 2 S.C.R. 307... . He stated at p. 315: I agree that, because of the far-reaching impact of such rulings, the courts should restrict themselves to hearing constitutional challenges to the legislation of other provinces only where there is a real interest affected in their province. Unfortunately, there are intractable "chicken and egg" problems: if the extraterritorial effects of the law are themselves a prerequisite to the British Columbia court taking jurisdiction, then who is to determine that such extraterritorial effects exists in a particular case? The process must begin somewhere, and we must rely on the good sense of our superior courts in the respective provinces to not gratuitously assume jurisdiction. LaForest, J. went on to consider the constitutional issue. He concluded that the Quebec legislation was constitutionally inapplicable because it offended the principles enunciated in the Morguard case. It was therefore unnecessary to consider whether the Act was wholly unconstitutional in pith and substance. It is clear from that decision that courts should only decide constitutional issues which necessarily arise in determining the issues before the court. Canadian courts are also reluctant to grant declaratory relief in the absence of clearly defined factual issues. See Whynot v. Nova Scotia (1988), 86 N.S.R. (2d) 50. The pleadings in this case do not clearly define a constitutional issue apart from the statement that the regulations are ultra vires of the Insurance Acts. Apart from that a reference is made to interference with the regulation of interprovincial trade. It is clear, of course, that the Insurance Acts of New Brunswick and Nova Scotia are confined to the respective provinces. In Citizens' Insurance Co. v. Parsons (1881), the Privy Council held that regulation of the terms of insurance contracts came within property and civil rights in the province and did not come within the trade and commerce clause. In any event a determination of those issues in Nova Scotia would be purely speculative as the constitutional issue may never arise in the New Brunswick actions. With respect the learned chambers judge erred in law in concluding that the actions in Nova Scotia did not raise substantially the same issues as set forth in the New Brunswick action and that any constitutional issues could best be determined in Nova Scotia. I would grant leave to appeal in both actions, allow the appeals and stay the Nova Scotia actions. The appellant is entitled to costs of the applications and the appeals against both respondents in one bill of costs which I would fix at $1500.00 plus disbursements. Jones, J.A. Concurred in: Hallett, J.A. Roscoe, J.A. C.A. No.130615 C.A. No. 130616 NOVA SCOTIA COURT OF APPEAL BETWEEN: CANADIAN LIFE AND HEALTH INSURANCE COMPENSATION CORPORATION ) Appellant ) - and - ) REASONS FOR ) JUDGMENT BY: BLUE CROSS OF CANADA ) ) JONES, ) J.A. Respondent ) ) AND BETWEEN: ) ) CANADIAN LIFE AND HEALTH ) INSURANCE COMPENSATION ) CORPORATION ) ) Appellant ) ) - and - ) ) MARITIME MEDICAL CARE INC. ) ) Respondent ) )