Civil procedure

3. Courts, Jurisdiction & Standing

TOPICS:

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  Canadian Courts
  
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  Purpose of the Rules
  
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  How the Rules of Court are made and who makes them
  
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  Jurisdiction – inherent & statutory jurisdiction
  
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  Standing – as of right & public interest standing
  

Canadian Courts

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  Historically, we had 2 separate court systems developing: one with equity, and one with common law but, they started getting fused where law & equity came together in a single court system – here, we find the modern day civil justice system.
  
• 
  First Civil Procedure rules created in 1888, rules stayed largely the same until 1985 (reforms)
  

Judicature Act – United common law and equity

Rules Consolidation of 1888 created harmonized procedure codes for all to follow

Constitution Act

92(14) - The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.

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  Exclusive legislative competence regarding administration of justice, organization of provincial courts and procedures to be followed
  

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  Provinces are capable of administration, trade-off is judges are appointed federally
  

92(13) – Property and Civil Rights – provinces developed their own property laws
96 - The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick

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  It requires that judges of the superior courts be appointed by the GG (first example of obvious balancing b. provinces and feds)
  

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  Prov govnt structure courts and fed govnt selects the judges
  
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  Prov staffs the necessities of the justice system
  

Court Systems at Confederation

1. 
   Superior court of inherent jurisdiction (English Section 96 Court)
   
2. 
   Country or district courts (limited by territory and subject matter ala family courts, traffic courts)
   
3. 
   Inferior courts staffed by lay magistrates and JOPS to hear “minor” crim/civil cases
   

Appellate Courts

101 – Allows for construction of Federal and SCC courts.

The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada

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  The SCC is simply a creation of this constitutional provision; as is the Fed Crt system
  

How do cases get to the SCC TEST  the issues has to be one of national or public importance The SCC constantly grants leave to appeal where they are certain the Court of Appeal got it right and they want to provide some national clarification so that that ruling carries over across the country. You need to explain to the court why this issue is of national or public importance

Jurisdiction

Rule 4-5 - Service Outside BC

Pg. 13

General Overview on Jurisdcition

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  The rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specifically appears to be so; and, on the contrary, nothing shall be intended to be w/in the jurisdiction of an Inferior Court but that which is so expressly alleged
  
  • 
    Ex) WCB – out of BCSC jurisdiction.
    
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  Inherent jurisdiction includes all the powers necessary to do justice between the parties.
  
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  Rules of court codify how civil matters are adjudicated. Historically though, judges had to make up rules on the fly and attempt to be fair to both parties.
  
  • 
    BCSC judges can forgive transgressions due to inherent jurisdiction
    
  • 
    BCCA cannot, must file for forgiveness.
    
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  Inherent jurisdiction of court is what judge uses to make these rules. Power was the power to be creative.
  
  • 
    Contempt of court: Example of pure inherent jurisdiction, not an official power
    
  • 
    Summary dismissal: Another inherent jurisdiction power.
    

Rules from Cases

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  Courts powers stop at provincial borders (Endean v BC)
  
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  Judges are not permitted to sit as judges of their province outside borders unless teleconferencing into the courtroom proper (Endean v BC)
  
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  Power to sit outside of territorial limit isn’t included in inherent jurisdiction (Endean v BC)
  

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  Court cannot interfere with upper level prerogative power decisions (Black v Canada)
  
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  Court may interfere with more common place exercise of prerogative powers like Passports (Black v Canada)
  

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  Forum Non Conveniens - Power to assert jurisdiction over matters where jurisdiction is disputed – Vanbreda [below]
  

Test is similar to real and substantial jurisdiction test except for the fact that both forums are legally entitled to hear the case.

Levels of Courts IN BC

Prov Court  Superior Court  CoA  SCC  Federal Ct. of Appeal  Federal Ct. (trial)
BC PROVINCIAL COURT (Provincial Court)

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  Court of statutory jurisdiction, meaning that it only has power that has been given to them from the enabling statute (BC Provincial Courts Act), and so it possesses jurisdiction limited to that given by statute
  
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  Given jurisdiction under various federal and provincial statutes to hear a wide range of criminal and youth, family, child protection, small claims and traffic and bylaw cases
  
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  With a few exceptions, the Provincial Court hears most kinds of civil disputes
  
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  Cannot bring actions against government in small claims for 24(1) or 52 remedies.
  
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  Meant to bring justice to lower dollar claims in a speedy and efficient mannor.
  

BC SUPREME COURT (Superior Court)  inherent jurisdiction

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  Generally inherent jurisdiction, which means unlimited jurisdiction to hear any matter, unless specifically limited by statute.
  
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  This Court also acts as an appeal court from prov Court
  

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  A judge of superior court should not ever make advance costs.
  

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  Judges of superior court appointed by the governor general (s.96)
  

BC COURT OF APPEAL  NO inherent jurisdiction

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  Does not have inherent jurisdiction – but CoA can rule on an appeal on a decision from a superior court judge.
  
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  Fed. Gov appoints and pays for these judges
  
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  CoA is beholding to the statute that created it
  

SUPREME COURT OF CANADA

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  Court of general jurisdiction; general appellate jurisdiction – established 1875
  
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  SCC is a constitutional creation - s.101
  

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  Sits as a CoA for the province of where the originating cases come from.
  
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  Supreme Court Act governs this Court (federal legislation). The way things are done within the Court are very different from other Courts.
  
  • 
    Jurisdiction and procedure of SCC are regulated by the Supreme Court Act
    
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  Can sit as an appeal Court from provincial CoA or from Federal Ct. of Appeal
  
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  9 judges (chief justice, 8 supporting justices – with 3 from QC as a matter of law, 3 from ON as a juridical convention, 1 from Atlantic , 2 from West)
  

FEDERAL COURTS (TRIAL & APPEAL)

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  Hear matters of national importance, public policy issues.
  
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  Only given jurisdiction over matters enumerated by section 91 (federal jurisdiction matters)
  
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  Cannot assume jurisdiction over a case unless it touches on federally enumerated powers
  

**NOTE:

Keep in mind: the govnt is always creating new initiatives

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  IE: Compliance Court - a specialized court/trib to deal with areas where you had people breaching bail conditions  want to avoid using up provincial court time because of the consistency of some of the people that kept coming back to court (almost daily). This was created in an effort to experiment with a diff way to achieve justice and to come at this issue of bail compliance with a diff perspective
  
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  IE: Small Claims Tribunal - The government has created an admin trib to deal w/ small claims matters in the province – a small claims trib that is meant to deal w/ some of the small claims civil matters that the prov court used to deal with
  

**These are all efforts to achieve justice in the respective fields that are more effective than using the court of law**

Cases – Jurisdiction

Club Resorts v Vanbreda (headnote)

[Effort to make more of a framework of jurisdiction; Presumptive connecting factors that assume jurisdiction; Forum non conveniens]

FACTS

V injured herself at a Club Resort and she sued them in Ontario, company incorporated in the Caymans where the injuries happened.

RULE

Real & Substantial Connection Test  I technically made up the steps, not a strict test

Step 1:

Following factors are presumptive connecting factors that, prima facie, entitle a court to assume jurisdiction over a dispute:

1. 
   D is domiciled/resident in the prov
   
2. 
   D carries on business in the prov
   
3. 
   Tort was committed in the prov
   
4. 
   A contract connected w/ the dispute was made in the prov
   

Step 2: SCC lists 4 additional considerations – list is non exhaustive

a) similarity of the connecting factor w/ the recognized presumptive connecting factors

b) treatment of the connecting factor in case law

c) treatment of the connecting factor in statute law and;

d) treatment of the connecting factor in the private int’l law of other legal systems with a shared commitment to order, fairness and comity

*If court concludes that it lacks jurisdiction b/c of lack of presumptive connecting factors – it may dismiss or stay action. If jurisdiction is established, claim may proceed.
Step 3:

Presumption of jurisdiction after connecting factors is still rebuttable.

Once jurisdiction is established, D can invoke Forum non conveniens (discretionary power that allows courts to dismiss a case to another Court, where its better suited to hear the case)

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  Burden is on D to show Court why they should decline to exercise its jurisdiction and go with another forum that would be more suitable/fair to the parties
  

*Note: Test not about whether the court can assert jurisdiction, but whether it is fair to both parties to do so and whether it will produce the most effective litigation

ANALYSIS

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  Contract was entered in ON, which is a presumptive factor of jurisdiction in ON as well as facts support that Club Resorts was carrying on business in ON beyond mere promo.
  
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  Club Resorts failed to rebut the presumption that ON Courts were in a position to hear those cases
  
  • 
    They failed to show how Cuban Courts are more appropriate
    
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  Therefore, sufficient connection b/w ON court and subj. matter of litigation
  
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  A trial held in Cuba would present serious challenges to the parties.
  

Endean v BC

[Judges not allowed to sit as judges of other provs, unless teleconferencing]

FACTS

Court proceeding of a multi-jurisdictional case.

ISSUE

Can a judge of BC sit on another province’s court hearing as a BC judge and exercise the powers of the BC courts?

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  TJ – yes; CoA – no
  
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  Ultimately, yes judges can join the hearing via teleconference
  

Inherent jurisdiction is not derived from rule/statute but from the very court.

RULE

Courts powers stop at provincial borders. Judges are not permitted to sit as judges of their province outside borders unless teleconferencing into the courtroom proper

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  Power to sit outside of territorial limit isn’t included in inherent jurisdiction
  

Black v Canada (Prime Minister)

[Jurisdiction; Federal courts & provincial courts (under Fed. Court Act) have concurrent jurisdiction to entertain claims for relief against the Crown]

FACTS

A dual British-Canadian citizen wanted to be a member of British House of Lords. This was prevented by Chretien and said that he had to give up citizenship to do it. PM exercised prerogative powers.

RULE

If Parliament left a gap in its statutory jurisdiction to Federal Court, then superior courts have this residual power over federal matters.

Rule 21.01(1)(3)(a) of Civ Pro – allow Court to dismiss an action on the ground “the court has no jurisdiction over the subject matter of the action”
ANALYSIS

Federal courts & provincial courts (under Fed. Court Act) have concurrent jurisdiction to entertain claims for relief against the Crown.

18(1) of Fed Court Act gives Fed Court exclusive jurisdiction to grant relief against any “fed board, commission, or other tribunal” meaning anybody/person having powers conferred under the Act of Parliament or by or under any order pursuant to prerogative of the Crown  Prerogative powers are reviewable by courts.