Slideshow 4: Canadian Constitutional and Judicial System

Question 1

Canadian Constitutional
Organization
1. Federal Government

Answer 1

CONSTITUTION ACT, 1867 (as amended)
formerly the British North America Act

GOVERNOR GENERAL
(The Queen)

|-HOUSE OF COMMONS
(includes P.M. and Cabinet)

|- SENATE
(appointed directly by GG)

Question 2

Canadian Constitutional
Organization-Notes on Federal Level:

Answer 2

• executive powers rest in the Governor General, not the Prime Minister
  or Cabinet
• legislative powers rest in House of Commons and Senate
• s. 91 lists federal government responsibilities as including trade and
  commerce, taxation, postal service, defence, navigation and shipping,
  banking, criminal law and generally, “Laws for the Peace, Order and
  good Government of Canada” for matters not exclusively given to the
  Provinces.

Question 3

Canadian Constitutional
Organization
2. Provincial Government

Answer 3

CONSTITUTION ACT, 1867
(as amended)
|
LIEUTENANT GOVERNOR
(the Queen)
|
PROVINCIAL LEGISLATIVE ASSEMBLIES
(includes Premier and Cabinet)

Question 4

Canadian
Constitutional
Organization
Notes on Provincial Level:

Answer 4

• the executive power rests with the Lieutenant Governor not the Premier and Cabinet
• the legislative power rests in only one body (which is elected)
• s. 92 lists provincial areas of responsibility as including taxation to raise revenue for provincial purposes, administration of justice in the
  province (including courts), health care and the establishment of hospitals along with property and civil rights in the province”;
• s. 93 gives the provinces exclusive jurisdiction over education.

Question 5

Canadian Constitutional
Organization

Answer 5

• Regulation of business under the Canadian
  Constitution is based generally on the activity
  being carried on, rather than the location or
  jurisdiction of incorporation of the actor
• For e.g., although airlines are regulated federally,
  an airline company can be incorporated under
  provincial laws; a federally-incorporated securities
  firm is still subject to provincial securities laws

Question 6

Canadian Constitutional
Organization

Answer 6

3. Superior Courts

CONSTITUTIONAL ACT, 1867
SUPERIOR COURTS
(includes all superior level trial courts and courts of appeal in each province and the Supremet Court of Canada)

|- GOVERNOR GENERAL
appoints judges to Sup. Cts.
(on recommendation of P.M.
and cabinet)

|-PROVINCES
responsible for court
proceedings, rules etc.

Question 7

Canadian Constitutional
Organization- Organization
Notes on Superior Court Level:

Answer 7

• In the constitutional hierarchy, superior court judges are not
  accountable to any higher body (however decisions may be reviewed
  by higher level appeal courts).
• Both the federal and provincial governments are bound by decisions of
  the courts in the same manner any other private Canadian litigant
  would be. We will discuss Government Liability in Tort Law.
• Judicial misconduct is reviewed by the Canadian Judicial Council – i.e.
  conduct is reviewed by other senior judges.

Question 8

The Structure of Canadian
Courts: Canadian Court Structure

Answer 8

Canadian Court Structure
Typical Court structure applicable to each Province:

COURT OF FIRST INSTANCE
(the Trial level Court)

Appeal to…
APPELLATE COURT
(usually the provincial Court of Appeal)

Appeal to…
SUPREME APPELLATE COURT
(usually only with leave of the court)

Question 9

Canadian Court Structure -
Superior Courts - Using Ontario as the example:

Answer 9

ONTARIO SUPERIOR COURT OF JUSTICE
- Small Claims Court, $1 - $35,000;
- Rule 76 – Simplified procedure, $35,000 - $200,000;
- unlimited jurisdiction in civil matters.
Appeal to:
COURT OF APPEAL FOR ONTARIO
Appeal to:
SUPREME COURT OF CANADA
(with leave of the Court)

Question 10

Canadian Court Structure -
Superior Courts

Answer 10

• All Canadian provinces have so-called “Section
  96” courts, the existence of which is entrenched in
  the Constitution
• Generally all have unlimited monetary jurisdiction
  in civil lawsuits (or which hear lawsuits within a
  certain dollar threshold such as $35,000 as in
  Ontario’s Small Claims Court)
• The superior courts are known by different names
  in the different provinces - “Supreme Court”,
  “Court of Queen’s Bench”, etc.

Question 11

Canadian Court Structure-
Provincial Courts

Answer 11

• Virtually every province has set up a court to hear smaller civil claims – “small claims courts” (or
  provincial courts) – whose upper monetary
  jurisdictions vary (Ontario: $1.00 - $35,000.00)
• These courts are entirely provincial in jurisdiction, are meant to be quick cheap and a forum to resolve disputes without lawyers.

Question 12

Appeals

Answer 12

• Civil Appeals are generally “as of right” in the
  Court of Appeal for Ontario. However, “Leave to
  Appeal” is required in some circumstances.
• Civil Appeals to the Supreme Court of Canada
  almost always require a successful “Leave to
  Appeal” application. Appeals to the Supreme
  Court of Canada also require a point or issue of
  national importance as part of the grounds.