Court system of Canada

The Constitution of Canada gives the federal Parliament of Canada exclusive jurisdiction in criminal law, while the provinces have exclusive control over much of civil law. Each province has authority over the administration of justice within that province.

Most cases are heard in provincial and territorial courts. Provincial and territorial superior courts have inherent jurisdiction over civil and criminal cases. Provincial and territorial lower courts try most criminal offences, small civil claims, and some family matters.

The smaller federal court system consists of the Federal Court, Federal Court of Appeal, and Tax Court. There are also the courts martial, for military offences, with an appeal to the Court Martial Appeal Court. The jurisdiction of the Federal Court and the Federal Court of Appeal is limited to cases where the subject matter is within federal jurisdiction and regulated by federal law, and where the administration of that law has been conferred upon the federal courts by a statute passed by Parliament. These matters include immigration and refugee law, navigation and shipping, intellectual property, federal taxation, some portions of competition law and certain aspects of national security, as well as the review of most federal administrative decisions. The federal courts and provincial and territorial courts share jurisdiction over civil actions against the federal government.

The Supreme Court of Canada is the final court of appeal for all levels of court in Canada. Any legal issue, whether under the Constitution of Canada, federal law, or provincial law, potentially can be heard and determined by the Supreme Court.

The federal government appoints and pays for both the judges of the federal courts and the judges of the superior appellate and trial level courts of each province. The provincial governments are responsible for appointing judges of the lower provincial courts. Although not judicial courts themselves, administrative tribunals also feed into the provincial/territorial and federal court hierarchies. This intricate interweaving of federal and provincial powers is typical of the Canadian constitution.

Levels and branches of the court system

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, under the principle of stare decisis. They are not bound by the rulings of other courts at the same level in the hierarchy, or of higher courts in a different branch of the hierarchy (for example, an appeals court in a different province from the trial court).

Terminology

There are two terms used in describing the Canadian court structure which can be confusing for which clear definitions are useful.

Provincial courts

The first is the term provincial court, which has two quite different meanings, depending on context. The first, and most general meaning, is that a provincial court is a court established by the legislature of a province, under its constitutional authority over the administration of justice in the province, set out in s. 92(14) of the Constitution Act, 1867. This head of power gives the provinces the power to regulate "... the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts". All courts created by a province, from the small claims court or municipal by-law court, up to the provincial court of appeal, are provincial courts in this general sense.

However, there is a more limited meaning to the term. In most provinces, the Provincial Court is the term used to refer to a specific court created by the province which is the main criminal court, having jurisdiction over most criminal offences except for the most serious ones. The Provincial Court of a particular province may also have a limited civil jurisdiction, over small claims and some family law matters. The exact scope of the jurisdiction of the Provincial Court will depend on the laws enacted by the particular province. Provincial Courts in this sense are courts of limited statutory jurisdiction, sometimes referred to as "inferior courts". As courts of limited jurisdiction, their decisions are potentially subject to judicial review by the superior courts via the prerogative writs, but in most cases there are now well-established statutory rights of appeal instead.

To distinguish between the two meanings of the term, capitalization is used. A reference to a provincial court normally is a reference to the broad meaning of the term, any court created by the province. A reference to Provincial Court normally is referring to the specific court of limited statutory jurisdiction, created by the province. The term "Provincial Court" is used in the name of each such court, except for those of Alberta (Alberta Court of Justice), Ontario (Ontario Court of Justice), and Quebec (Court of Quebec). The Northwest Territories and Yukon each possess an analogous Territorial Court, while the Nunavut Court of Justice, although a superior court, also has the jurisdiction which is assigned to provincial or territorial courts in other jurisdictions.

Superior courts

The second is the term superior courts. This term also has two different meanings, one general and one specific.

The general meaning is that a superior court is a court of inherent jurisdiction. Historically, these courts are the descendants of the royal superior courts in England. The decisions of a superior court are not subject to review unless a statute specifically provides for review or appeal. The term is not limited to trial courts. The provincial courts of appeal and the Federal Court of Appeal are also superior courts.

The more limited sense is that Superior Court can be used to refer to the superior trial court of original jurisdiction in the Province. This terminology is used in the court systems of Ontario and Quebec.

The difference between the two terms is also indicated by capitalization. The term superior court is used to mean the general sense of the term, while Superior Court is used to refer to specific courts in provinces which use that term to designate their superior trial courts.

In Ontario and Quebec, this court is known as the Superior Court (Cour supérieure); in Alberta, Saskatchewan, Manitoba, and New Brunswick, as the Court of King's Bench (Cour du Banc du Roi); and in Newfoundland and Labrador, British Columbia, Nova Scotia, Prince Edward Island, Yukon, and the Northwest Territories as the Supreme Court (Cour suprême). The term Supreme Court can be confusing, as it could suggest a final appellate court, like the Supreme Court of Canada; each province has an appellate court with an appellate jurisdiction from the superior trial court.

Certain superior courts include specialized commercial court programs. The Superior Court in Toronto has a Commercial List created in 1991, with a team of judges who have experience in managing complex commercial litigation matters. Similarly, the Superior Court in Montreal has a Commercial Division, while the Court of the King's Bench of Alberta has a Commercial List.

In Nunavut, there is a single unified trial court, the Nunavut Court of Justice, which is a superior court of general jurisdiction.

Supreme Court of Canada

The Supreme Court is established by the Supreme Court Act as the "General Court of Appeal for Canada". The Court consists of nine justices, the Chief Justice of Canada and eight puisne justices. The court's duties include hearing appeals of decisions from the appellate courts and, on occasion, delivering references (i.e., the court's opinion) on constitutional questions raised by the federal government. By law, three of the nine justices are appointed from Quebec because of Quebec's use of civil law; by convention, the other justices are divided among the other regions of Canada.

The Constitution Act, 1867 gives the federal Parliament the power to create a "General Court of Appeal for Canada". Following Confederation, the Conservative government of Sir John A. Macdonald proposed the creation of a Supreme Court and introduced two bills in successive sessions of Parliament to trigger public debate on the proposed court and its powers. Eventually, in 1875, the Liberal government of Alexander Mackenzie passed an Act of Parliament that established the Supreme Court. The 1875 Act built upon the proposals introduced by the Macdonald government, and passed with all-party support.

Initially, decisions of the Supreme Court could be appealed to the Judicial Committee of the British Privy Council. As well, litigants could appeal directly from the provincial courts of appeal directly to the Judicial Committee, by-passing the Supreme Court entirely. There was a provision in the 1875 Act which attempted to limit appeals to the Judicial Committee. That clause resulted in the Governor General reserving the bill for consideration by the Queen-in-Council. After much debate between Canadian and British officials, royal assent was granted on the understanding the clause did not in fact affect the royal prerogative to hear appeals, exercised through the Judicial Committee.

The question of the power of Parliament to abolish appeals to the Judicial Committee eventually was tested in the courts. In 1926, the Judicial Committee ruled that the Canadian Parliament lacked the jurisdiction to extinguish appeals to the Judicial Committee, as the right of appeal was founded in the royal prerogative and could only be terminated by the Imperial Parliament.

Following the enactment of the Statute of Westminster, in 1933 the federal Parliament passed legislation again abolishing the right of appeal in criminal matters. In 1935, the Judicial Committee upheld the constitutional validity of that amendment.

In 1939, the federal government proposed a reference to the Supreme Court of Canada, asking whether the federal Parliament could terminate all appeals to the Judicial Committee. By a 4–2 decision, the Supreme Court held that the proposal was within the powers of the federal Parliament and would be constitutional. The question was then appealed to the Judicial Committee, but the hearing of the appeal was delayed by the outbreak of World War II. In 1946, the Judicial Committee finally heard the appeal and upheld the decision of the majority of the Supreme Court, clearing the way for Parliament to enact legislation to end all appeals to the Judicial Committee, whether from the Supreme Court or from the provincial courts of appeal.

In 1949, Parliament passed an amendment to the Supreme Court Act which abolished all appeals to the Judicial Committee, making the Supreme Court of Canada the final court of appeal. However, cases which had been instituted in the lower courts prior to the amendment could still be appealed to the Judicial Committee. The last Canadian appeal to the Judicial Committee was not decided until 1960.

Courts of the provinces and territories

Provincial and territorial appellate courts

These courts of appeal exist at the provincial and territorial levels. They are superior courts and were separately constituted in the early decades of the 20th century, replacing the former full courts of the old supreme courts of the provinces. Their function is to hear appeals from decisions rendered by the trial courts and to deliver references when requested by a provincial or territorial government as the Supreme Court of Canada does for the federal government. These appellate courts do not normally conduct trials or hear witnesses.

• Court of Appeal of Alberta (ABCA)
• Court of Appeal of British Columbia (BCCA)
• Manitoba Court of Appeal (MBCA)
• Court of Appeal of New Brunswick (NBCA)
• Court of Appeal of Newfoundland and Labrador (NLCA)
• Court of Appeal for the Northwest Territories (NTCA)
• Nova Scotia Court of Appeal (NSCA)
• Nunavut Court of Appeal (NUCA)
• Court of Appeal for Ontario (ONCA)
• Prince Edward Island Court of Appeal (PECA)
• Quebec Court of Appeal (QCCA)
• Court of Appeal for Saskatchewan (SKCA)
• Court of Appeal of Yukon (YKCA)

Each of these appellate courts is the highest court of its respective province or territory. The chief justice of each province or territory's court of appeal is styled the province or territory's chief justice.

Provincial and territorial superior trial courts

The superior trial courts of the provinces and territories have inherent jurisdiction over civil and criminal matters, except where that jurisdiction is limited by statute. Though statutes grant authority over small claims, some family claims, and almost all criminal matters to provincial courts, the superior trial courts remain the courts of first instance for divorce petitions, any civil claims, and criminal prosecutions for some indictable offences. They also hear appeals from the lower trial court and decide upon petitions for judicial review of decisions of administrative agencies such as labour relations boards, human rights tribunals and licensing authorities. Superior trial court judges establish and interpret legal precedents in civil and criminal law. The judges sitting on these courts, like those of the appellate courts, are appointed and paid by the federal government.

• Court of King's Bench of Alberta (ABKB or ABQB)
• Supreme Court of British Columbia (BCSC)
• Court of King's Bench of Manitoba (MBKB or MBQB)
• Court of King's Bench of New Brunswick (NBKB or NBQB)
• Supreme Court of Newfoundland and Labrador (NLSC)
• Supreme Court of the Northwest Territories (NTSC)
• Supreme Court of Nova Scotia (NSSC)
• Nunavut Court of Justice (NUCJ)
• Court of Ontario – Superior Court of Justice (ONSC)
• Supreme Court of Prince Edward Island (PESC)
• Quebec Superior Court (QCCS)
• Court of King's Bench for Saskatchewan (SKKB or SKQB)
• Supreme Court of Yukon (YKSC)

Many of these courts have specialized branches that deal only with certain matters such as family law or, in the case of Ontario, a Divisional Court which 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 some of these courts are named the "Supreme Court", they are not the highest courts in their respective province or territory.

Most provinces and territories have special courts dealing with small claims. The value of such claims varies between $15,000 and $50,000. Some are divisions of superior courts, while in other provinces they are lower courts or divisions of lower courts. Parties often represent themselves, without lawyers, in these courts.

Provincial and territorial courts of limited jurisdiction

Each province and territory in Canada (other than Nunavut) also has an additional trial court, usually called a Provincial (or Territorial) Court, to hear certain types of cases. For historical reasons, these courts are sometimes referred to as "inferior courts", indicating their position in the judicial hierarchy as subject to the superior courts. The term is not a commentary on their professionalism or expertise. In Nunavut, the functions of superior and territorial court are combined in the Nunavut Court of Justice.

Appeals from these courts are heard either by the superior trial court of the province or territory or by the provincial or territorial court of appeal. In criminal cases, this depends on the seriousness of the offence. Preliminary hearings are normally held in provincial courts prior to the case being transferred to superior court for trial. These courts are created by provincial statute and only have the jurisdiction granted by statute. Accordingly, inferior courts do not have inherent jurisdiction. These courts are usually the successors of older local courts presided over by lay magistrates and justices of the peace who did not necessarily have formal legal training. However, today all judges are legally trained, although justices of the peace may not be. Many inferior courts have specialized functions, such as hearing only criminal law matters, youth matters, family law matters, small claims matters, "quasi-criminal" offences (i.e., violations of provincial statutes), or bylaw infractions. In some jurisdictions these courts serve as an appeal division from the decisions of administrative tribunals.

In the province of Ontario, most municipal and provincial offences are dealt with in the Provincial Offences Court, established under the Ontario Provincial Offences Act and the Courts of Justice Act.

Quebec also has a system of municipal courts that hear cases such as municipal and traffic infractions. Municipal courts in large cities such as Montreal and Quebec City may also hear minor criminal cases.

• Alberta Court of Justice (ABCJ)
• Provincial Court of British Columbia (BCPC)
• Provincial Court of Manitoba (MBPC)
• Provincial Court of New Brunswick (NBPC)
• Provincial Court of Newfoundland and Labrador (NLPC)
• Territorial Court of the Northwest Territories (NTTC)
• Provincial Court of Nova Scotia (NSPC)
• Nunavut Court of Justice (NUCJ)
• Court of Ontario – Ontario Court of Justice (ONCJ)
• Provincial Court of Prince Edward Island (PEPC)
• Court of Quebec (QCCQ)
• Provincial Court of Saskatchewan (SKPC)
• Territorial Court of Yukon (YKTC)

Federal courts

In addition to the Supreme Court of Canada, there are three civil courts created by the federal Parliament under its legislative authority under section 101 of the Constitution Act, 1867: the Federal Court of Appeal, the Federal Court, and the Tax Court of Canada. There is also the military court system of courts martial, with an appeal to the Court Martial Appeal Court of Canada.

Parliament's ability to grant jurisdiction to federal courts is limited to matters which are governed by existing federal laws. The Federal Court has concurrent jurisdiction with the provincial superior courts over claims against the federal government, and review of the constitutional validity of federal laws.

Federal Court of Appeal

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 Canada Industrial Relations Board. All judges of the Federal Court are ex officio judges of the Federal Court of Appeal, and vice versa, although it is rare that a judge of one court will sit as a member of the other. The Federal Court of Appeal is a travelling court. The judges of the Court sit in panels of three, and hear cases in English and in French in 18 cities, from Vancouver to St. John's, including locations in northern Canada.

Federal Court

The Federal Court exists primarily to review administrative decisions by federal government bodies such as the immigration board and to hear lawsuits under the federal government's jurisdiction such as intellectual property and maritime law. It also has concurrent jurisdiction with the superior trial courts of the provinces to hear civil lawsuits brought against the federal government. The Federal Court also has jurisdiction to determine inter-jurisdictional legal actions between the federal government and a province, or between different provinces, provided the province in question has passed corresponding legislation granting the Federal Court jurisdiction over the dispute. The Federal Court have the power to review decisions, orders, and other administrative actions of most federal boards, commissions, and tribunals. That means most federal government administrative decisions can be challenged in the Federal Court. Also with the Federal Court, the system may refer back to questions of law, jurisdiction, or price to one of the federal courts at any stage of proceeding.

In the aftermath of 9/11, Parliament enacted a number of laws to protect national security. The Federal Court has exclusive jurisdiction to determine many issues which arise under those laws relating to national security.

Appeals lie from the Federal Court to the Federal Court of Appeal.

Tax Court of Canada

The Tax Court of Canada has a very specialized jurisdiction. It hears disputes over federal taxes, primarily under the federal Income Tax Act, between taxpayers and the federal government. Also, for most people that live in Canada, it is the Tax Court's power to hear appeals under the Income Tax Act. The Tax Court has the jurisdiction to hear appeals under various statutes. However, as a federal court, it lacks the power to deal with disputes relating to provincial income taxes and provincial sales taxes, and has no jurisdiction to grant any relief where a taxpayer wishes to sue the Canada Revenue Agency for damages. Lastly, the Tax Court's powers are also limited by the statutes that impose the tax in dispute. The Tax Court is not empowered to make decisions on the basis that they will yield a fair result. Rather, the Tax Court can only make decisions based on its interpretation of the legislation.

History of the federal courts

The first federal court was the Exchequer Court of Canada, created in 1875 at the same time as the Supreme Court of Canada. The Exchequer Court was a trial court, with a limited jurisdiction over civil actions brought against the federal government, tax disputes under federal tax laws, admiralty matters, compensation for expropriation of private property by the federal Crown, negligence of federal public servants, and intellectual property, including patents and copyright. The name of the court came from the Exchequer Court of England, which had a similar jurisdiction over tax disputes. At first, there were no separate judges for the Exchequer Court. The judges of the Supreme Court of Canada were also appointed to the Exchequer Court. Individual judges of the Supreme Court would sit as a judge of the Exchequer Court, with an appeal lying to the Supreme Court. The Exchequer Court did not have any jurisdiction to review the actions of federal administrative agencies; this function was fulfilled by the provincial superior trial courts.

In 1971, Parliament passed the Federal Court Act which abolished the Exchequer Court and created a new court, the Federal Court of Canada. The jurisdiction of the Federal Court was significantly greater than the Exchequer Court, as it received the power to review decisions of federal administrative officials and tribunals. That Court had two divisions: the Federal Court – Trial Division, and the Federal Court – Appeal Division. Although the two divisions had different functions, they were all part of a single court.

The Exchequer Court and then the Federal Court initially had exclusive jurisdiction over claims against the federal government, but this jurisdiction was made concurrent with the provincial superior courts by amendments to the Federal Courts Act in 1990.

In 2003, Parliament passed legislation which divided the Federal Court into two courts. The Federal Court – Trial Division became the Federal Court of Canada, while the Federal Court – Appeal Division became the Federal Court of Appeal. The jurisdiction of the two new courts is essentially the same as the corresponding former divisions of the Federal Court.

Military courts

Military courts in Canada include the summary trial hearing, court martial (including general court martial and standing court martial), and the Court Martial Appeal Court of Canada.

Summary trials are ad hoc hearings used to dispense with minor service offences. The Presiding Officer will have little formal legal training and is generally the service member's Commanding Officer. In this respect, these hearings are similar to the former lay magistrates' courts.

The courts martial are conducted and presided over by military personnel and exist for the prosecution of military personnel, as well as civilian personnel who accompany military personnel, accused of violating the Code of Service Discipline, which is found in the National Defence Act and constitutes a complete code of military law applicable to persons under military jurisdiction.

The decisions of the courts martial can be appealed to the Court Martial Appeal Court of Canada which, in contrast, exists outside the military and is made up of civilian judges. This appellate court is the successor of the Court Martial Appeal Board which was created in 1950, presided over by civilian judges and lawyers, and was the first ever civilian-based adjudicating body with authority to review decisions by a military court. The Court Martial Appeal Court is made up of civilian judges from the Federal Court, Federal Court of Appeal, and the superior courts of the provinces.

Administrative tribunals

Known in Canada as simply "tribunals", these are quasi-judicial adjudicative bodies, which means that they hear evidence and render decisions like courts, but are not necessarily presided over by judges. Instead, the adjudicators may be experts in the subject matter handled by the tribunal (e.g., labour law, human rights law, immigration law, energy law, workers' compensation law, liquor licensing law, etc.). Adjudicators hear arguments and receive evidence from parties before making a decision.

Adjudicative functions which can be given to provincially appointed administrative tribunals are limited by section 96 of the Constitution Act, 1867, as this section will be violated where an adjudicative function is the sole or central aspect of a tribunal, and where that power broadly conforms to one that was exercised by superior courts at the time of Confederation. This has not significantly affected the ability of provincial governments to establish expert administrative tribunals, and there have been few challenges of this kind to administrative tribunal powers.

Depending on its enabling legislation, a tribunal's decisions may 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 expertise or knowledge that the court does not have. The degree of deference will also depend on such factors as the specific wording of the legislation creating the tribunal. Tribunals whose enabling legislation contains a privative clause are entitled to a high degree of deference, although a recent decision of the Supreme Court of Canada has arguably lowered that degree of deference.

Tribunals which have the power to decide questions of law may take into consideration the Canadian Charter of Rights and Freedoms, which is part of Canada's constitution. The extent to which tribunals may use the Charter in their decisions is a source of ongoing legal debate.

Appearing before some administrative tribunals may feel like appearing in court, but the tribunal's procedure is relatively less formal than that of a court, and more importantly, the rules of evidence are not as strictly observed, so that some evidence that would be inadmissible in a court hearing may be allowed in a tribunal hearing, if relevant to the proceeding. While relevant evidence is admissible, evidence which the adjudicator determines to have questionable reliability, or is otherwise questionable, is most likely to be afforded little or no weight.

As with courts, lawyers routinely appear in tribunals as representatives of their clients. A person does not require a lawyer to appear before an administrative tribunal. Indeed, many of these tribunals are specifically designed to be more representative to unrepresented litigants than courts. Some tribunals are part of a comprehensive dispute-resolution system, which may emphasize mediation rather than litigation. For example, provincial human rights commissions routinely use mediation to resolve many human rights complaints without the need for a hearing.

What tribunals all have in common is that they are created by statute, their adjudicators are usually appointed by government, and they focus on very particular and specialized areas of law. Because some subjects (e.g., immigration) fall within federal jurisdiction while others (e.g., liquor licensing and workers' compensation) are within provincial jurisdiction, some tribunals are created by federal law while others are created by provincial law. There are both federal and provincial tribunals for some subjects, such as unionized labour and human rights.

The principle of stare decisis does not apply to tribunals. In other words, a tribunal adjudicator 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 contributes to the development of law like a court would do.

Although stare decisis does not apply to tribunals, their adjudicators will likely 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. The same is usually true for past decisions of the tribunal.

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 Trial Division. These so-called "super tribunals" are listed in subsection 28(1) of the Federal Courts Act and some examples include the National Energy Board, Canadian International Trade Tribunal, the Competition Tribunal, the Canada Industrial Relations Board (i.e., federal labour board), the Copyright Board and the Canadian Radio-television and Telecommunications Commission (CRTC).