All litigators have been asked by a Judge at some time or other- “where is the Courts jurisdiction to hear that?”
When no statute or legal precedent clearly exists to substantiate a court application or claim, the litigants often argue that the court has jurisdiction to hear the case, arguing that the court has either an inherent jurisdiction or general jurisdiction to assume judicial authority.
The decision of Reznik v Matty 2013 BCSC 1346 was a Wills Variation Action where the petitioner sought an order directing an interim distribution forth with a $15-$20,000 to each of the four residuary beneficiaries. There had already been a previous interim distribution.
The respondent argued that the court lacked the necessary jurisdiction to make such an order , and the court extensively reviewed the history of both inherent jurisdiction and general jurisdiction, and invoked the jurisdiction and ordered a further interim distribution of $10,000 for each of the four beneficiaries.
In summary, Reznik finds that the court is a court of general jurisdiction, with “all of the powers that are necessary to do justice between the parties”, and as a court of general jurisdiction, the court has jurisdiction to grant relief under common law and equity: Judicature Act 1879, S.B.C. 1879, c. 12 and Law and Equity Act, C.A.B.C. 1888, c. 68.
The Court’s Jurisdiction
[18] With due respect to respondent’s counsel, I think the phrase “inherent jurisdiction” may have created confusion. “Inherent jurisdiction” and “general jurisdiction” are often used interchangeably to describe the Court’s jurisdiction. I.H. Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Curr. Leg. Prob. 23. disentangles matters at 23:
To understand the nature of the inherent jurisdiction of the court, it is necessary to distinguish it first from the general jurisdiction of the court, and next from its statutory jurisdiction.
The term “inherent jurisdiction of the court” does not mean the same thing as “the jurisdiction of the court” used without qualification or description: the two terms are not interchangeable, for the “inherent” jurisdiction of the court is only a part or an aspect of its general jurisdiction. The general jurisdiction of the High Court as a superior court of record is, broadly speaking, unrestricted and unlimited in all matters of substantive law, both civil and criminal, except in so far as that has been taken away in unequivocal terms by statutory enactment. The High Court [our provincial superior courts] is not subject to supervisory control by any other court except by due process of appeal, and it exercises the full plenitude of judicial power in all matters concerning the general administration of justice within its area. Its general jurisdiction thus includes the exercise of an inherent jurisdiction.
Moreover, the term “inherent jurisdiction of the court” is not used in contradistinction to the jurisdiction conferred on the court by statute. The contrast is not between the common law jurisdiction of the court on the one hand and its statutory jurisdiction on the other, for the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision. There is, nevertheless, an important difference between the nature of the inherent jurisdiction of the court and its statutory jurisdiction. The source of the statutory jurisdiction of the court is of course the statute itself, which will define the limits within which such jurisdiction is to be exercised, whereas the source of the inherent jurisdiction of the court is derived from its nature as a court of law, so that the limits of such jurisdiction are not easy to define, and indeed appear to elude definition.
[19] In Peacock v. Bell and Kendal (1667), Wms. Saund. 73, the court describes the general jurisdiction of a superior court as follows:
And the rule for jurisdiction is, that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so.
[20] In Reference re: Matrimonial Causes Act (Alb.), [1919] 48 D.L.R. 13 (P.C.), Viscount Haldane, writing for the Judicial Committee of the Privy Council, in considering the general jurisdiction of a provincial superior court relating to divorce in the absence of a specialized divorce court, stated at 17-18:
If the right exists, the presumption is that there is a Court which can enforce it, for if no other mode of enforcing it is prescribed, that alone is sufficient to give jurisdiction to the King’s Courts of justice. In order to oust jurisdiction, it is necessary, in the absence of a special law excluding it altogether, to plead that jurisdiction exists in some other Court.
[21] Viscount Haldane also referred to the “admirable opinion” of Justice Stuart of the Supreme Court of Alberta, Appellate Division, in the proceedings in first instance below: Board v. Board (1918), 41 DLR 286 (A.S.C. App. Div.). Stuart J. in Board stated at 301:
… I think, apparent that if no special court is erected to administer that law then the law falls within the jurisdiction of those ancient courts whose immemorial duty and function it was to administer the laws of the realm and in which the King was bound to implement the promise of Magna Charta. If those courts in 1870 had no jurisdiction to enforce the new divorce law it was merely because a special court had been created for the purpose.
This principle was so fully recognised that the rule was that if a defendant, sued in one of the King’s superior courts of general jurisdiction, desired to dispute the jurisdiction, he was not allowed to put in a mere denial of that jurisdiction but unless he could and did name the court which had jurisdiction upon which there might be a triable issue, his plea was treated as bad.
In Mostyn v. Fabrigas, 1 Cowp. 161, at 172,98 E.R. 1021, at 1028, Lord Mansfield said:–
In every plea to the jurisdiction, you must state another jurisdiction; therefore, if an action is brought here for a matter arising in Wales, to bar the remedy sought in this court, you must shew the jurisdiction of the court of Wales; and in every case to repel the jurisdiction of the King’s court, you must shew a more proper and more sufficient jurisdiction; for if there is no other mode of trial, that alone will give the King’s court a jurisdiction.
Stuart J. then discussed further authorities and stated at 302:
These cases are also quoted and approved in Mayor of London v. Cox, 2 E. & I. App. 239, by Willes, J., and he there quotes the words of the court in Jennings v. Hankyn, Cartli. 11, saying: “For this court (King’s Bench) is not, like one of a limited jurisdiction holding plea of a cause arising without, for in such case all is void, as coram nonjudice but it is of an universal jurisdiction and superintendency.”
I am not overlooking the circumstance that in all of these cases a question of territorial areas was involved rather than a question of subject matter. But it is significant, it seems to me, that in the passage in 9 Hals., p. 12, where these cases are cited, although the statement of the law is quite general there is no case cited where there was a plea to the jurisdiction merely on the ground of subject matter aside from any territorial question.
In 9 Hals., at p. 16, it is said:—
The jurisdiction of each particular court is that which the King has delegated to it and this delegation has been complete for the King has distributed his whole power of judicature to divers courts of justice,
and for this is cited 4 Co. Inst. 70, as follows:
The King hath committed all his power judicial some in one court and some in another so as if any would render himself to the judgment of the King in such case where the King hath committed all his power judicial to others such a render should be to no effect (Y.B. 8 H. 4, fo. 19). The King doth judge by his judges (the King having distributed his power judicial to several courts) and the King hath wholly left matters of judicature according to his laws to his judges (Y.B. 8 H. 6, fo. 20).
[22] In 80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., [1972] 2 O.R. 280 (C.A.), Justice Brooke for the Ontario Court of Appeal stated at 282:
As a superior Court of general jurisdiction, the Supreme Court of Ontario has all of the powers that are necessary to do justice between the parties. Except where provided specifically to the contrary, the Court’s jurisdiction is unlimited and unrestricted in substantive law in civil matters.
The foregoing passage was cited with approval in TeleZone Inc. v. Canada (Attorney General), 2008 ONCA 892 at para. 8 (see also Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62 at paras. 42 – 46 for a discussion of the relationship between the provincial superior courts and the federal court).
[23] In sum, the court is a court of general jurisdiction, with “all of the powers that are necessary to do justice between the parties”.
[24] As a court of general jurisdiction, the court has jurisdiction to grant relief under common law and equity: Judicature Act 1879, S.B.C. 1879, c. 12 and Law and Equity Act, C.A.B.C. 1888, c. 68.
[25] For completeness, I note that provincial superior courts also have a supervisory role and the jurisdiction “to render assistance to inferior courts” as circumstances require (R. v. Caron, 2011 SCC
5 at para. 27). See generally Jones and de Villars, Principles of Administration Law, 5l ed. (Toronto:
Carswell, 2009) at 9 to 13 and Baker, An Introduction to English Legal History, 4th ed. (London: Butterworths, 2002) at 143-153.
[26] The court is litigant-driven. Litigants within (or with sufficient connection to) our province, may come to court to resolve disputes. It is the litigants who frame the case through pleadings and decide what evidence should be placed before the court. Our judges play a limited role. Under our legal system, judges do not frame the case. They do not collect evidence. Nor do they investigate matters.
[27] As the needs of litigants evolve, the court will address the disputes as they are brought before it. As Maitland (F.W. Maitland and F.C. Montague, A Sketch of English Legal History (London: G.P. Putnam’s Sons,1915) at 14 observed:
Our increasing mastery over the physical world is always amplifying the province of law, for it is always complicating the relationships which exist between human beings.
[28] The current litigants before the court have framed matters and provided the evidence they have respectively chosen. The court has the jurisdiction to do justice whether based on the common law, equity or statute.
