# Canadian Constitutional Law/The Courts

Very generally speaking, Canada's court system is a four-level hierarchy as shown below from highest to lowest in terms of legal authority. Each court is bound by the rulings of the courts above them; however, they are not bound by their own past rulings or the rulings of other courts at the same level in the hierarchy.

## Supreme Court of Canada

Although created by an Act of Canada's Parliament in 1875, its decisions could be reviewed by the Judicial Committee of the Privy Council until 1949 when the Supreme Court of Canada truly became the final and highest court in the country. The court currently consists of nine justices, which include the Chief Justice of Canada, and its duties include hearing appeals of decisions from the appellate courts (to be discussed next) and, on occasion, delivering references (i.e. the court's opinion) on constitutional questions raised by government. By tradition, three of the nine justices are appointed from Quebec. This has come about because of two reasons, the Court will sometimes have cases heard by three of the nine justices and Quebec uses the civil code rather than common law, which requires the Court to have justices versed in the civil code.

## Appellate Courts of the Provinces and Territories

These courts of appeal (as listed below by province and territory in alphabetical order) exist at the provincial and territorial levels. Their function is to review decisions rendered by the superior-level courts and to do references (i.e. deliver a judicial opinion) when requested by a provincial or territorial government. These appellate courts do not normally conduct trials and hear witnesses.
These courts are Canada's equivalent of the Court of Appeal in England and the various United States Courts of Appeals. Each of the above-listed appellate courts is the highest court from its respective province or territory. A province's chief justice (i.e. highest ranking judge) sits in the appellate court of that province.

## Superior-level Courts of the Provinces and Territories

These courts (as listed below by province and territory in alphabetical order) exist at the provincial and territorial levels. The superior courts are the courts of first instance for divorce petitions, civil lawsuits involving claims greater than small claims, and criminal prosecutions for "indictable offences" (i.e. "felonies" in American legal terminology). They also perform a reviewing function for judgments from the local "inferior" courts and administrative decisions by provincial or territorial government entities such as labour boards, human rights tribunals and licensing authorities.
Furthermore, some of these superior courts (like the one in Ontario) have specialized branches that deal only with certain matters such as family law or small claims. To complicate things further, the Ontario Superior Court of Justice has a branch called the Divisional Court that hears only appeals and judicial reviews of administrative tribunals and whose decisions have greater binding authority than those from the "regular" branch of the Ontario Superior Court of Justice. Although a court, like the Supreme Court of British Columbia, may have the word "supreme" in its name, it is not necessarily the highest court from its respective province or territory.

## Provincial and Territorial ("inferior-level") Courts

These courts operate locally and exist only at the provincial and territorial levels. They do trials, often concerning "summary conviction offences" (i.e. "misdemeanors" in U.S. legal vocabulary), but their judgments must be appealed to the "superior" courts instead of directly to the higher appellate courts. These "inferior" courts do not have "inherent jurisdiction" (to be explained later) and are descended from the old localized courts presided over by lay magistrates and Justices of the Peace who did not necessarily have formal legal training. Many of such "inferior" courts have specialized functions, such as hearing only criminal law matters, juvenile delinquency matters, family law matters, small claims matters, or "quasi-criminal" offences such as not paying fines or not complying with building safety standards. It is improper to call these courts "inferior" and this derogatory term is used here only to help readers understand and remember these courts' subordinate relationship to the "superior" courts. Instead, the phrase "provincial court" or "territorial court" is often used to mean a low level court whose decisions can be reviewed by a "superior" court. Decades ago they were commonly referred to as "district courts" and "county courts".

## Federal Courts

The Federal Court and the more specialized Tax Court of Canada exists primarily to review administrative decisions by federal government bodies such as the immigration board and hear lawsuits under the federal government's jurisdiction such as intellectual property and maritime law.
The Federal Court of Appeal hears appeals from decisions rendered by the Federal Court, the Tax Court of Canada and a certain group of federal administrative tribunals like the National Energy Board and the federal labour board. The chief justice of the Federal Court sits in the Federal Court of Appeal.
Before 2003, the Federal Court was known as the Federal Court of Canada - Trial Division while the Federal Court of Appeal was known as the Federal Court of Canada - Appeal Division. In turn, the Federal Court of Canada is descended from the old Exchequer Court of Canada created back in 1875.
Although the federal type courts can be said to have the same prestige as the superior courts from the provinces and territories, the federal ones lack the "inherent jurisdiction" (to be explained later) possessed by superior courts such as the Ontario Superior Court of Justice.

## Administrative Tribunals

Known in Canada as simply "tribunals", these are non-judicial adjudicative bodies, which means that they adjudicate (hear evidence and render decisions) like the courts do BUT are not presided over by judges. Instead, the adjudicators are experts of the very specific legal field handled by the tribunal (e.g. labour law, human rights law, immigration law, enegry law, liquor licensing law, etc.) who hear arguments and evidence provided by lawyers before making a written decision on record. Its decisions can be reviewed by a court through an appeal or a process called "judicial review". The reviewing court may be required to show some deference to the tribunal if the tribunal possesses some highly specialized legal knowledge that the court does not have.
Appearing before an administrative tribunal may feel like appearing in a court, but the appearing lawyer will appreciate the fact that the tribunal's procedure is relatively less formal than that of the court, and more importantly, the rules of evidence are not as strictly observed. In other words, evidence that would be inadmissible in a court hearing would be allowed in a tribunal hearing. The presiding adjudicator is normally called "Mister/Madam Chair", and lawyers routinely appear in tribunals advocating a matter for their clients.
What tribunals all have in common is that they are created by statute, their adjudicators are appointed by government, and they focus on very particular and specialized areas of law. Because some subject matters (e.g. immigration) fall within federal jurisdiction while others (e.g. liquor licensing) in provincial jurisdiction, some tribunals are created by federal law while others are created by provincial law. Yet, there are both federal and provincial tribunals for some subject matters such as unionized labour and human rights.
Most importantly, from the lawyer's perspective, is the fact that the principle of stare decisis does not apply to tribunals. In other words, a tribunal adjudicative could legally make a decision that differs from a past decision, on the same subject and issues, delivered by the highest court in the land. Because a tribunal is not bound by legal precedent, established by itself or by a reviewing court, A TRIBUNAL IS NOT A COURT even though it performs an important adjudicative function and contribute to the development of law like a court would do. Although stare decisis does not apply to tribunals, their adjudicators will nonetheless find a prior court decision on a similar subject to be highly persuasive and will likely follow the courts in order to ensure consistency in the law and to prevent the embarrassment of having their decisions overturned by the courts.
Among the federal tribunals, there is a small group of tribunals whose decisions must be appealed directly to the Federal Court of Appeal rather than to the Federal Court. These so-called "super tribunals" are listed in Subsection 28(1) of the Federal Courts Act (R.S.C. 1985, Chapter F-7) and some examples include the National Energy Board, Canadian International Trade Tribunal, the Competition Tribunal, the Canada Industrial Relations Board (e.g. federal labour board), the Copyright Board, and the Canadian Radio-television and Telecommunications Commission ("CRTC").

## Courts of Inherent Jurisdiction

These are the superior courts from the provinces and territories as discussed above. The words "inherent jurisdiction" refers to the idea that the decision-making power of Canada's superior courts is inherited from England's superior courts rather than granted by Canada's federal parliament or provincial legislatures. Because the superior courts possess "inherent jurisdiction", they can hear cases concerning any area of law except those which are specifically reserved by legislation for the lower "provincial" courts. The doctrine of "inherent jurisdiction" gives superior courts greater freedom than statutory courts (to be explained next) to be flexible and creative in the delivering of legal remedies and relief.

## Statutory Courts

These courts include the Supreme Court of Canada, the different types of federal courts, the various appellate courts from the provinces and territories, and the numerous low level "provincial" courts. Their decision-making power is granted by either the federal parliament or a provincial legislature.
The word "statutory" refers to the fact that these courts' powers are derived from a type of legislation called a statute and is defined and limited by a statute. A statutory court cannot try cases in areas of law that are not mentioned or suggested in the statute. In this sense, statutory courts are similar to non-judicial adjudicative bodies such as administrative tribunals, boards, commissions, etc. which are created and given limited power by legislation. The practical implication of this is that a statutory court cannot provide a type of legal remedy or relief that is not expressly or implicitly referred to in its enabling or empowering statute.

## Appointment and Regulation of Judges

Judges in Canada are appointed and not elected. Judges of the Supreme Court of Canada, the appellate courts and the "superior" courts are appointed by the federal government. Thus, judges of the Ontario Superior Court of Justice are chosen not by Ontario's provincial government but by the same level of government that appoints judges to the federal courts. Meanwhile, judicial appointments to judicial posts in the so-called "inferior" or "provincial" courts are made by the local provincial government. There are Canadians who would like to see their judges be elected as is the case for some American judges, but as of 2005 there is no indication that the longstanding British tradition of appointing judges will be altered in Canada anytime soon. Those who favour the appointment method point out that the election approach could possibly threaten the judiciary's ability to be independent in its decision-making. Because judicial independence is seen by Canadian law to be essential to a functioning democracy, the regulating of Canadian judges requires the involvement of the judges themselves. The Canadian Judicial Council, made up of the chief justices of the various courts, receives complaints from the public concerning questionable behaviour from members of the bench.
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