Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186 is a reference question

Reference question

In Canadian law, a Reference Question is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue. Typically the question concerns the constitutionality of legislation....

 put to the Supreme Court of Canada

Supreme Court of Canada

The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 regarding the ability of the federal government to appoint judges under section 96 of the Constitution Act, 1867

Constitution Act, 1867

The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...

.

The Court considered that giving all of the jurisdiction of Superior Courts to other bodies would make s. 96 meaningless. Instead, the Court developed a three-part test to determine whether it is permissible for a provincial government to give powers of a Superior, or "Section 96" Court, to another provincial, or "section 92" court.

1. Is the power in question something over which Superior Courts had jurisdiction in 1867?
2. Is the power in question a judicial function, rather than an administrative one?
3. Is the removal of the judicial power the main point of the exercise, rather than just an ancillary part of a larger reform of the way that the jurisdiciton is exercised?

If the answer to all three of these questions is "yes", then it is unconstitutional to remove this power.