| Two of the most problematic issues of constitutional adjudication since Confederation have been the definition of the relationship between the provincial superior courts and the Provincial Courts, and between the provincial superior courts and the provincial administrative tribunals. The boundaries among the judicature provisions of the Constitution Act, 1867, the rule of law concept, and the provincial authority to constitute, organize and maintain all provincial courts and to empower provincial administrative officials have been uncertain. The constitutional disputes have involved questions of principle, philosophy, and competing interests of power between levels of government, courts, and administrative tribunals. Recently, these struggles have also been affected by the demand for greater accountability, corporatism, and the new public management system.;This thesis argues that there are two paramount principles which are promoted by the judicature provisions. These sections encourage a predominantly unitary court system which adjudicates disputes involving federal and provincial laws, and has an integrated nature that includes both federal and provincial participation. Secondly, the judicature provisions contain certain guarantees of security of tenure and remuneration, and the requirement of specific professional qualifications which are intended to encourage the independence of the judiciary.;One of the core functions of the provincial superior courts has been judicial review of the actions of administrative tribunals and executive officials. There is a major division between those who regard the powers of government as legally limited by the judiciary, (normativists), and those who believe that it is the function of law to allow administrative agencies to perform their statutory tasks with very limited judicial supervision, (functionalists). There should be independent review of administrative action in order to prevent abuse of power. The provincial superior courts possess the requisite qualifications to perform this function, which is based upon the constitutional foundations of the rule of law and the judicature provisions.;The three forces of change of judicialization, constitutionalism, and alternative dispute resolution are affecting both the relationship of the provincial superior courts to the Provincial Courts and to the provincial administrative tribunals. |
