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Civil Litigation - Federal-Provincial Competing JurisdictionsThis topic is about the jurisdictional tension that occurs sometimes between the federal and the provincial superior s.96 constitutional courts - ie. when is a civil case properly before either, or both.
. Sharif v. Canada (Public Safety and Emergency Preparedness)
In Sharif v. Canada (Public Safety and Emergency Preparedness) (Ont CA, 2026) the Ontario Court of Appeal dismissed a deportation-related appeal, here brought against the dismissal of a JR, that in turn challenging the Minister's [of Public Safety and Emergency Preparedness] refusal to grant a UNHCR's request that "asked Canada to hold Mr. Sharif’s removal in abeyance while his communication [SS: regarding an complaint] to the UNHRC was under consideration".
Here the court extensively considers whether the Ontario Superior Court had jurisdiction to consider the underlying JR [brought under the Ontario JRPA], or whether it lay with the Federal Court:a. Jurisdiction
[50] Canada argued that the Superior Court lacked jurisdiction to hear the matter. The application judge disagreed. He held that the Minister’s decision not to accede to the UNHRC’s request was made in the exercise of the Crown prerogative over international relations and rejected Canada’s characterization of the decision as a pure exercise of the Minister’s statutory responsibilities under the IRPA.
[51] The application judge explained that s. 18(1) and s. 2(1) of the Federal Courts Act, R.S.C. 1985, c F-7, and the case law, together instruct that provincial superior courts and the Federal Court have “concurrent jurisdiction” to hear “matters involving the Charter and matters concerning the exercise of pure Crown prerogative”: Black v. Canada (Prime Minister) (2001), 2001 CanLII 8537 (ON CA), 54 O.R. (3d) 215 (C.A.), at para. 76; Ahani v. Canada (Attorney General) (2002), 2002 CanLII 23589 (ON CA), 58 O.R. (3d) 107 (C.A.), at para. 21 (“Ahani ONCA”), aff’d 2002 SCC 2 (CanLII), [2002] 1 S.C.R. 72; Toussaint v. Canada (Attorney General), 2023 ONCA 117, at paras. 102-105.
[52] He therefore determined that the Superior Court had jurisdiction to hear the matter.
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ANALYSIS OF THE FIRST ISSUE: JURISDICTION
[74] The first issue to be addressed is whether the application judge erred in holding that the Superior Court has jurisdiction to hear this matter.
a. What is Crown Prerogative?
[75] Crown prerogative refers to “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown”: Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at para. 34. The prerogative power over foreign affairs is well established: Khadr, at para. 35; Black, at para. 31.
[76] In Black, at paras. 25, 74-76, Laskin J.A. held that:... clear and explicit statutory language is required to oust the jurisdiction of provincial superior courts, which, unlike the Federal Court, are courts of inherent general jurisdiction: Ordon Estate v. Grail, 1998 CanLII 771 (SCC), [1998] 3 S.C.R. 437, 166 D.L.R. (4th) 193, where Iacobucci and Major JJ. wrote at p. 474 S.C.R.: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; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged. [77] As such, applications for judicial review of exercises of Crown prerogative can be heard by superior courts as they have inherent jurisdiction to hear all matters other than those specifically excluded by statute. See also: Operation Dismantle v. The Queen, 1985 CanLII 74 (SCC), [1985] 1 S.C.R. 441, at pp. 471-72.
[78] Crown prerogative can, however, be limited or displaced by statute: Ross River Dena Council Band v. Canada, 2002 SCC 54, [2002] 2 S.C.R. 816, at para. 54, quoting from P. W. Hogg and P. J. Monahan, Liability of the Crown (3rd ed. 2000), at p. 17. However, the Crown prerogative is only displaced “to the extent that the statute does so explicitly by necessary implication”: para. 54. See also the Interpretation Act, R.S.C. 1985, c. I-21, s. 17, which provides that the Crown’s authority is binding “except as mentioned or referred to in the enactment.”
[79] In Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, at paras. 42-46, the Supreme Court held:[A]ny derogation from the jurisdiction of the provincial superior courts (in favour of the Federal Court or otherwise) requires clear and explicit statutory language”.
The oft-repeated incantation of the common law is that “nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; .... [i]n contrast, the jurisdiction of the Federal Court is purely statutory.
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Parliament may by statute transfer jurisdiction from the superior courts to other adjudicative bodies including the Federal Court. … However, the onus lies here on the Attorney General to establish the existence and extent of such a transfer of jurisdiction in statutory terms that are clear, explicit and unambiguous. b. Federal Court Act Removal of the Superior Court’s Jurisdiction over Crown Prerogative
[80] Section 18(1)(a) of the Federal Courts Act, gives the Federal Court exclusive original jurisdiction to grant declaratory relief against any “federal board, commission or other tribunal.”
[81] However, s. 2 provides that the terms “federal board, commission or other tribunal” include only those exercises of Crown prerogative “established by or under an order made under the prerogative of the Crown” (emphasis added).
[82] Therefore, exercises of Crown prerogative not made by or under an order are not displaced by the statute. In Black, this court held that absent an “order made pursuant to” Crown prerogative, the exercise of a prerogative power is reviewable in the provincial superior courts. Laskin J.A. offered the following explanation at paras. 71, 74-75:[T]he phrase "by or under an order made pursuant to a prerogative of the Crown" admits of two possible interpretations.
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A fair reading of s. 2(1) suggests that "an order made pursuant to" modifies both "by" and "under". This interpretation is supported by the parallel structure of s. 2(1) -- "by or under an Act of Parliament" and "by or under an order made pursuant to a prerogative of the Crown". The former phrase must mean by an Act of Parliament or under an Act of Parliament; similarly, the latter phrase must mean by an order made pursuant to a prerogative of the Crown or under an order made pursuant to a prerogative of the Crown.
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[C]lear and explicit statutory language is required to oust the jurisdiction of provincial superior courts, which, unlike the Federal Court, are courts of inherent general jurisdiction. The Supreme Court of Canada articulated this principle in Ordon Estate v. Grail, 1998 CanLII 771 (SCC), [1998] 3 S.C.R. 437, 166 D.L.R. (4th) 193, where Iacobucci and Major JJ. wrote at p. 474 S.C.R.:
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; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged. [Emphasis added.] [83] Given the Superior Court’s inherent jurisdiction, where Parliament has left a "gap" in its grant of statutory jurisdiction to the Federal Court, the institutional and constitutional position of provincial superior courts warrants granting them residual jurisdiction over federal matters: Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC), [1998] 1 S.C.R. 626, at paras 25-26.
[84] In Hupacasath First Nations v. Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4, 379 D.L.R. (4th) 737, at para. 52, Stratas J.A. for the court, held that Parliament intended to give the federal courts jurisdiction over all federal decision makers. He held that, while provincial superior courts have inherent jurisdiction, this “raises no valid reasons… for jealously protecting the jurisdiction of provincial superior courts as against the Federal Court”: para. 53. Stratas J.A. suggested that the textual analysis of s. 2(1) of the Federal Courts Act in Black may have been overtaken by subsequent developments in the law of statutory interpretation.
[85] Since Hupacasath was decided, this court decided Toussaint and upheld the motion judge’s conclusion that the Minister’s decision not to implement a recommendation of the UNHRC was an exercise of Crown prerogative outside the exclusive jurisdiction of the Federal court. I therefore do not accept the Minister’s submission that the Federal Court of Appeal’s decision in Hupacasath (which is not binding on this court in any event) has overtaken Black.
c. Whether the Minister’s Decision is an Exercise of Crown Prerogative within the Jurisdiction of the Superior Court
[86] The respondent submits that the decision was not an exercise of Crown prerogative, but rather the exercise of a statutory power made pursuant to the IRPA, a federal statute, such that the Superior Court had no jurisdiction to hear an application for judicial review.
[87] I disagree.
[88] Federal officers enforce removal orders pursuant to IRPA. Section 115 of IRPA provides that while there is a general bar on removing Convention refugees, a removal order may still be enforced if the individual is inadmissible on grounds of serious criminality and constitutes, in the opinion of the Minister, a danger to the public in Canada.
[89] Federal officers may also grant an administrative deferral from the enforcement of a removal order pursuant to s. 48(2) of the IRPA, which otherwise requires that removal orders be enforced “as soon as possible”. This provision leaves officers with discretion to delay the enforcement of a removal order: see, for example, Atawnah v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 144, [2017] 1 F.C.R. 153, at paras. 13‑18, leave to appeal refused, [2016] S.C.C.A. No. 313; Revell v. Canada (Citizenship and Immigration), 2019 FCA 262, [2020] 2 F.C.R. 355, at para. 50, leave to appeal refused [2019] S.C.C.A. No. 478; Tapambwa v. Canada (Citizenship and Immigration), 2019 FCA 34, [2020] 1 F.C.R. 700, at para. 87, leave to appeal refused [2019] S.C.C.A. No. 105.
[90] As such, the decision to deport Mr. Sharif, on the basis that he fit within the exception to the general bar on removing refugees under s. 115(2)(a) of the IRPA was a decision made pursuant to federal legislation. It is a decision subject to review within the exclusive jurisdiction of the federal courts.
[91] However, the decision not to hold Mr. Sharif’s deportation in abeyance at the request of the UNHRC, pending consideration of Mr. Sharif’s complaint, was an exercise of Canada’s Crown prerogative. Like Black, the prerogative was not exercised pursuant to an Act of Parliament or an order made. The decision was made in response to a request from an international body as in Toussaint.
[92] The IRPA does not address the Minister’s response to a diplomatic request from an international organization. The authority to do so does not derive from an Act of Parliament. As noted by the senior litigation advisor at the CBSA, “such requests are not binding on Canada and do not in and of themselves create a stay of removal under IRPA”.
[93] For these reasons, the Minister’s decision is not within the exclusive jurisdiction of the Federal Court. Pure exercises of prerogative power such as this one are reviewable by the Superior Court.
[94] Given the inherent jurisdiction of superior courts to review exercises of Crown prerogative unless Parliament has clearly removed that jurisdiction, and because Parliament has not done so here, I agree with the application judge that the Minister’s decision is an exercise of Crown prerogative that is not governed by federal statute. He correctly determined that Superior Court has inherent jurisdiction to hear this matter. . Mahjoub v. Canada (Public Safety and Emergency Preparedness)
In Mahjoub v. Canada (Public Safety and Emergency Preparedness) (Ont CA, 2023) the Court of Appeal considers the interesting issue of when the Ontario Superior Court has jurisdiction to hear a habeas corpus application challenging a federal court-ordered detention, here under the IRPA:(3) Application for habeas corpus in the Superior Court [SS: this is the lower court ruling being challenged]
[38] On July 14, 2021, Mr. Mahjoub commenced an application in the Superior Court seeking a writ of habeas corpus with certiorari in aid. Specifically, Mr. Mahjoub seeks to be relieved of all the conditions of his detention, except for the requirement that he keep the peace, surrender his passport and notify the CBSA of any change of address. Mr. Mahjoub takes the position that the deprivation of his liberty for a lengthy and uncertain period is unlawful and violates his rights under ss. 7, 9 and 12 of the Charter.
[39] In response, the Minister brought a motion to stay the application on the basis that habeas corpus is not available in the Superior Court against the order of a Federal Court judge. In addition, the Minister argued that the application should be stayed because Mr. Mahjoub has a right of appeal from his conditions of release under the IRPA and because the security scheme under the IRPA is at least as advantageous as a habeas corpus application.
[40] In a decision dated February 15, 2022, the motion judge granted the Minister’s motion and stayed the application.
[41] As the first step in his analysis, the motion judge rejected the Minister’s argument that the Superior Court in Ontario does not have jurisdiction to grant habeas corpus in this case because the original order was made by the Federal Court. The motion judge explained that Mr. Mahjoub does not take issue with the finding that he is a security risk or the deportation order. Rather, the question raised by Mr. Mahjoub is “whether the lengthy and uncertain duration of the deprivation of his liberty violates his Charter rights”. The motion judge concluded that the Superior Court has jurisdiction to consider a habeas corpus application that raises this issue.
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(3) Whether the Superior Court has jurisdiction [SS: this is the appeal ruling, upholding the lower court]
[57] The Minister argues that the motion judge erred in law in holding that the Superior Court has jurisdiction to grant habeas corpus in relation to an order made by the Federal Court. I reject this argument. There is no blanket principle that the Superior Court cannot grant habeas corpus in relation to an order made by the Federal Court. While habeas corpus is generally not available in one superior court to alter or attack an order made by another superior court, a recognized exception is where the applicant seeks to establish, as here, that a detention is unlawful because it breaches the applicant’s Charter rights.
[58] The general rule at common law is that a superior court order is not subject to collateral attack by another superior court through a prerogative writ, including habeas corpus: R. v. Sarson, 1996 CanLII 200 (SCC), [1996] 2 S.C.R. 223, at para. 23. In part, the rationale for this principle is that habeas corpus challenges the legality of a detention, and orders made by a superior court are presumptively lawful unless they are successfully challenged on appeal.
[59] In R. v. Gamble, 1988 CanLII 15 (SCC), [1988] 2 S.C.R. 595, at paras. 67 and 74, a majority of the Supreme Court of Canada held that this is an overly technical approach to the availability of habeas corpus where an applicant alleges a Charter breach. The Court held that, in such cases, habeas corpus may be available in relation to an order made by a superior court where “the appeal process may not be able to vindicate an applicant’s Charter interest in having the legality of his or her deprivation of liberty reviewed”. In Sarson, at paras. 41 and 43, the Supreme Court confirmed this “expanded” approach to habeas corpus, but cautioned that it is only available where “the applicant is able to demonstrate that his or her detention fails to accord with the principles of fundamental justice, or otherwise offends the Charter”.
[60] In this case, Mr. Mahjoub argues that the ongoing and indeterminate length of the restrictions on his liberty violate his Charter rights. This was recognized by the motion judge when he rejected the Minister’s argument that the Superior Court does not have jurisdiction to grant habeas corpus. In my view, given the grounds on which Mr. Mahjoub seeks habeas corpus, the fact that he seeks to challenge restrictions on his liberty imposed by the Federal Court on its own does not preclude the Superior Court in Ontario from considering his application.
[61] Rather, as addressed below, the viability of Mr. Mahjoub’s application for habeas corpus should be considered through the lens of the two established exceptions. As discussed below, these are carefully tailored exceptions. They are meant to respect the decisions from other courts or the legislated processes for challenging a detention, while nevertheless recognizing the key role habeas corpus plays in protecting a person’s liberty interest. . Toussaint v. Canada (Attorney General)
In Toussaint v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal held that it was appropriate for the court to declare that it had jurisdiction to hear the case, even though that wasn't sought by the moving party:The motion judge did not err in concluding the Ontario court has jurisdiction
[17] The motion judge rejected the appellant’s argument that the action was in essence a matter of judicial review within the exclusive jurisdiction of the Federal Court. He noted, first, that the Ontario court has concurrent jurisdiction with the Federal Court with respect to Charter claims against the federal government; and second, that the Minister’s decision on whether to implement a recommendation of the UNHRC was an exercise of a Crown prerogative, and thus was outside the exclusive jurisdiction of the Federal Court.
[18] The appellant argues that the motion judge was asked only to dismiss the claim under r. 21.01(3)(a) of the Rules of Civil Procedure but went further by ruling that the action was within the jurisdiction of the Ontario court. We do not agree.
[19] Jurisdiction is an either/or concept: the decision not to dismiss the claim on the basis that it was beyond the jurisdiction of the Ontario court necessarily means that it is within the jurisdiction of the Ontario court. The order allows the action to proceed in the Superior Court of Justice in Ontario, and consequently the appellant is precluded from continuing to dispute the Ontario court’s jurisdiction over the subject matter of the action: see Skof v. Bordeleau, 2020 ONCA 729, 456 D.L.R. (4th) 236, at para. 8, leave to appeal refused, [2021] S.C.C.A. No. 17. It is well settled that this is a final order: see e.g., Hopkins v. Kay, 2014 ONCA 514, at para. 12.
[20] It cannot be said that the motion judge’s order was made unfairly because it granted relief that the parties did not request. If the appellant did not contemplate this result, it should have. The appellant offers no basis to conclude that the motion judge’s decision is erroneous as a matter of law and we see none. Accordingly, this ground of appeal must be rejected. . Windsor (City) v. Canadian Transit Co.
In Windsor (City) v. Canadian Transit Co. (SCC, 2016), an appeal from the Federal Court of Appeal, the Supreme Court of Canada considered whether the federal court system had jurisdiction where a federally-incorporated company, co-owner of an international bridge, sought relief in that court against Canadian municipal property standards orders:[25] In order to decide whether the Federal Court has jurisdiction over a claim, it is necessary to determine the essential nature or character of that claim (JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue)), 2013 FCA 250 (CanLII), [2014] 2 F.C.R. 557, at para. 50; Sifto Canada Corp. v. Minister of National Revenue, 2014 FCA 140 (CanLII), 461 N.R. 184, at para. 25). As discussed in further detail below, s. 23(c) of the Federal Courts Act only grants jurisdiction to the Federal Court when a claim for relief has been made, or a remedy has been sought, “under an Act of Parliament or otherwise”. The conferral of jurisdiction depends on the nature of the claim or remedy sought. Determining the claim’s essential nature allows the court to assess whether it falls within the scope of s. 23(c). Jurisdiction is not assessed in a piecemeal or issue-by-issue fashion.
[26] The essential nature of the claim must be determined on “a realistic appreciation of the practical result sought by the claimant” (Domtar Inc. v. Canada (Attorney General), 2009 FCA 218 (CanLII), 392 N.R. 200, at para. 28, per Sharlow J.A.). The “statement of claim is not to be blindly read at its face meaning” (Roitman v. Canada, 2006 FCA 266 (CanLII), 353 N.R. 75, at para. 16, per Décary J.A.). Rather, the court must “look beyond the words used, the facts alleged and the remedy sought and ensure . . . that the statement of claim is not a disguised attempt to reach before the Federal Court a result otherwise unreachable in that Court” (ibid.; see also Canadian Pacific Railway v. R., 2013 FC 161, [2014] 1 C.T.C. 223, at para. 36; Verdicchio v. R., 2010 FC 117 (CanLII), [2010] 3 C.T.C. 80, at para. 24).
[27] On the other hand, genuine strategic choices should not be maligned as artful pleading. The question is whether the court has jurisdiction over the particular claim the claimant has chosen to bring, not a similar claim the respondent says the claimant really ought, for one reason or another, to have brought.
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[31] The role and jurisdiction of the Federal Court appear most clearly when seen through the lens of the judicature provisions of the Constitution Act, 1867. Section 96 recognized the superior courts of general jurisdiction which already existed in each province at the time of Confederation. Section 101 empowered Parliament to establish “additional Courts for the better Administration of the Laws of Canada” — i.e., to establish new courts to administer federal law (R. v. Thomas Fuller Construction Co. (1958) Ltd., 1979 CanLII 187 (SCC), [1980] 1 S.C.R. 695, at p. 707; Quebec North Shore Paper Co. v. Canadian Pacific Ltd., 1976 CanLII 10 (SCC), [1977] 2 S.C.R. 1054, at pp. 1065-66; Consolidated Distilleries, Ltd. v. The King, [1933] A.C. 508, at pp. 520-22 (P.C.)). Parliament exercised this power in 1875 when it enacted legislation creating the Exchequer Court of Canada, which ultimately became the Federal Court of Canada (see The Supreme and Exchequer Court Act, S.C. 1875, c. 11). The Federal Court plays an important role in the interpretation and development of federal law in matters over which it has been granted jurisdiction.
[32] The provincial superior courts recognized by s. 96 “have always occupied a position of prime importance in the constitutional pattern of this country” (Attorney General of Canada v. Law Society of British Columbia, 1982 CanLII 29 (SCC), [1982] 2 S.C.R. 307, at p. 327, per Estey J.). Provincially administered (s. 92(14)) and federally appointed (ss. 96 and 100), they weave together provincial and federal concerns and act as a strong unifying force within our federation. As courts of general jurisdiction, the superior courts have jurisdiction in all cases except where jurisdiction has been removed by statute (Québec Téléphone v. Bell Telephone Co. of Canada, 1971 CanLII 160 (SCC), [1972] S.C.R. 182, at p. 190). The inherent jurisdiction of the superior courts can be constrained by legislation, but s. 96 of the Constitution Act, 1867 protects the essential nature and powers of the provincial superior courts from legislative incursion (Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 (CanLII), [2013] 3 S.C.R. 3, at para. 18; MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725, at para. 15).
[33] The Federal Court, by contrast, has only the jurisdiction it has been conferred by statute.[1] It is a statutory court, created under the constitutional authority of s. 101, without inherent jurisdiction. While the Federal Court plays a critical role in our judicial system, its jurisdiction is not constitutionally protected in the same way as that of a s. 96 court. It can act only within the constitutional boundaries of s. 101 and the confines of its statutory powers.[2] As this Court noted in Roberts v. Canada, 1989 CanLII 122 (SCC), [1989] 1 S.C.R. 322, at p. 331, “[b]ecause the Federal Court is without any inherent jurisdiction such as that existing in provincial superior courts, the language of the [Federal Court Act] is completely determinative of the scope of the Court’s jurisdiction.” At paras 34-69 the court continues to extensively review the elements of the 'ITO' test for federal court jurisdiction, being drawn from the case of ITO-International Terminal Operators Ltd. v. Miida Electronics Inc. (SCC, 1986), which - roughly stated - requires that "(1) a statute grants jurisdiction to the court, (2) federal law nourishes the grant of jurisdiction and is essential to the disposition of the case, and (3) that federal law is constitutionally valid." [para 19].
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