Legal System of Canada

The Canadian Judicial System

The Canadian Judicial System recived an analysis here.

Organization of Courts

The courts in Canada are organized in a four-tiered structure. The Supreme Court of Canada sits at the apex of the structure and, consistent with its role as “a General Court of Appeal for Canada”, hears appeals from both the federal court system, headed by the Federal Court of Appeal and the provincial court systems, headed in each province by that province’s Court of Appeal. In contrast to its counterpart in the United States, therefore, the Supreme Court of Canada functions as a national, and not merely federal, court of last resort.

The next tier down from the Supreme Court of Canada consists of the Federal Court of Appeal and the various provincial courts of appeal. Two of these latter courts, it should be noted, also function as the courts of appeal for the three federal territories in northern Canada, the Yukon Territory, the Northwest Territories, and the Nunavut Territory.

The next tier down consists of the Federal Court, the Tax Court of Canada and the provincial and territorial superior courts of general jurisdiction. These latter courts can fairly be described as the lynchpin of the Canadian judicial system since, reflecting the role of their English counterparts, on which they were modelled, they are the only courts in the system with inherent jurisdiction in addition to jurisdiction granted by federal and provincial statutes.

At the bottom of the hierarchy are the courts typically described as provincial courts. These courts are generally divided within each province into various divisions defined by the subject matter of their respective jurisdictions; hence, one usually finds a Traffic Division, a Small Claims Division, a Family Division, a Criminal Division, and so on.

Court Locations

There are approximately 750 court locations in Canada. The Supreme Court of Canada sits only in Ottawa, although teleconferencing facilities to locations across the country are available. Hence it is possible for the parties to litigation before the Court to make their arguments in locations other than Ottawa, and to have those arguments transmitted to the Supreme Court of Canada via satellite. The other three federally established courts, the Federal Court of Appeal, the Federal Court and the Tax Court of Canada, altogether have offices at seventeen permanent locations. The provincial and territorial courts sit at over 700 locations. These include fifteen permanent provincial and territorial appellate court sitting locations – one in each province and territory except for Quebec and Alberta, which have two each.

The Supreme Court of Canada

The Supreme Court of Canada was constituted in 1875 by an act of Parliament and is now governed by the Supreme Court Act. It is comprised of a Chief Justice and eight puisne judges (puisne meaning ranked after), all appointed by the Governor-in-Council for terms of “good behaviour”, with a minimum of three judges coming from Quebec. Supreme Court judges must live within forty kilometres of the National Capital Region.

Federal Courts
The Federal Court of Appeal and the Federal Court have a long history. Since 2003, they are the successors of the appeal and trial divisions of the Federal Court of Canada, which in 1971 succeeded the Exchequer Court of Canada which itself was created in 1875 and had jurisdiction only over revenue, the Crown in Right of Canada as litigant, industrial and intellectual property, admiralty and a few other subject matters regulated by federal legislation. The Federal Court was given jurisdiction over these matters, but in addition was given the power of judicial review with respect to decisions of federal administrative tribunals and jurisdiction over claims with respect to several other matters falling within federal legislative jurisdiction, including inter-provincial transportation and communication undertakings, bills of exchange and aeronautics. These latter grants of new jurisdiction have spawned a good deal of litigation regarding the nature and scope of the federal government’s authority to grant jurisdiction to courts of its own making. Generally speaking, the Supreme Court of Canada has interpreted that power narrowly, with the result that the Federal Courts now exercise jurisdiction over a somewhat narrower range of disputes than was initially intended.

Tax Court of Canada

The Tax Court of Canada was established in 1983 and has as its primary responsibility, the hearing of appeals in the area of income tax. Its predecessor, the Tax Review Board, was an administrative tribunal.

Provincial and Territorial Superior Courts

The superior courts of each province and territory include both a court of general trial jurisdiction and a provincial court of appeal. A significant feature of these courts insofar as their jurisdiction is concerned is that that jurisdiction is not limited to matters over which the provincial governments have legislative jurisdiction. In this respect, they are very different from the state courts in the United States. Hence these courts have jurisdiction over disputes arising in many of the areas over which the federal government is granted legislative jurisdiction in the Constitution Act, 1867 – for example, criminal law and banking. Moreover, the power to decide disputes in such areas does not have to be explicitly assigned to these courts by the federal government in order for these courts to have jurisdiction over them. Hence, if federal legislation calls for the exercise at some point of judicial authority, but says nothing about which body is to exercise that authority, it is assumed that that authority will reside with these courts.

As noted above, therefore, these courts can fairly be described as the lynchpin of the Canadian judicial system.

Provincial and Territorial Courts

Although at the bottom of the hierarchy, these courts handle the overwhelming majority of cases that come into the Canadian court system. They deal with a broad range of criminal matters, much of the litigation in the area of family law, and all of the civil litigation in which the amount at issue is relatively small. If the average citizen has occasion to become involved in a dispute that requires adjudication on the part of a court, the likelihood is that he or she will appear before one of these courts.

Administrative Tribunals

Although not formally part of the Canadian judicial system, because they are not in a formal sense “courts”, administrative tribunals are an integral component of the system that has been created in Canada by government to resolve disputes. No description of the latter system would be complete without mention being made of these important bodies. Some areas – for example, labour relations (both in the unionized and in the non-unionized sectors of the economy) and individual claims of discrimination in areas like employment, housing and access to services and facilities customarily available to the public – are dealt with almost exclusively by them.

The Judiciary

All members of the judiciary in Canada, regardless of the court, are drawn from the legal profession. In the case of those judges appointed by the federal government, which includes the judges of all of the courts apart from those at the bottom of the hierarchy and described generally as provincial courts, are required by federal statute to have been a member of a provincial or territorial bar for at least ten years.

Law is our Passion

This entry about Legal System has been published under the terms of the Creative Commons Attribution 3.0 (CC BY 3.0) licence, which permits unrestricted use and reproduction, provided the author or authors of the Legal System entry and the Encyclopedia of Law are in each case credited as the source of the Legal System entry. Please note this CC BY licence applies to some textual content of Legal System, and that some images and other textual or non-textual elements may be covered by special copyright arrangements. For guidance on citing Legal System (giving attribution as required by the CC BY licence), please see below our recommendation of "Cite this Entry".

• APA
• MLA
• MLA 7
• CHICAGO
• OSCOLA

Usage Metrics

180 Views. 135 Visitors.

Google Scholar: Search for Legal System Related Content

 

Schema Summary

This entry was last updated: May 20, 2018