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Civil Litigation Dicta - Jurisdiction. Integrity Home and Cottage Inc. v. Clegg
In Integrity Home and Cottage Inc. v. Clegg (Div Court, 2024) the Divisional Court comments in the infrequency of 'jurisdictional' errors, here when applying the appellate standard of review of correctness:[34] The Respondents argue that Sutherland J. exceeded his jurisdiction in awarding damages for Change Orders 6 and 7. As a jurisdictional error, this court must review it on a standard of correctness.
[35] I disagree. As courts have pointed out in a number of cases, true jurisdictional errors are rare and appellate courts should be wary of branding something as jurisdictional in order to apply less deference to a lower court’s findings: see for example Quebec (Procureure generale) v. Guerin, 2017 SCC 42, [2017] 2 S.C.R. 3, at para. 32.
[36] In making the finding he did, Sutherland J. had to decide both the scope of Salmers J.’s determinations and whether Change Orders 6 and 7 were covered by those determinations. He then had to decide whether, under the Contract, the invoices covered by those change orders should be paid. These findings are findings of mixed fact and law, which should only be set aside if Sutherland J. committed a palpable and overriding error. . 1819472 Ontario Corp. v. John Barrett General Contractors Limited
In 1819472 Ontario Corp. v. John Barrett General Contractors Limited (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal which challenged the dismissal of the defendant's summary judgment motion on limitation grounds.
Here the court notes that parties cannot confer jurisdiction on a court by their agreement:[21] ... Parties, of course, cannot confer jurisdiction if a court does not have it: J.N. v. Durham Regional Police Service, 2012 ONCA 428, 294 O.A.C. 56, at para. 25; 2650971 Ontario Inc. v. Shameti, 2022 ONCA 62, at para. 7. ... . Student A v. Toronto French School
In Student A v. Toronto French School (Ont CA, 2023) the Court of Appeal considered a CJA 7(5) panel set aside request, here where the original appellate motion (in part) denied stay pending appeal.
In this quote, the court noted that the Superior Court lacked civil jurisdiction to declare illegality (here under the CCC):[17] Moreover, the motion judge was correct that the case management judge did not have jurisdiction to grant the order requested in the Criminal Code motion. Civil courts have no authority to make binding declarations of illegality or criminal guilt, and there is no provision in the Criminal Code or the Courts of Justice Act that empowers them to do so on a civil motion: Bunker v. Veall, 2023 ONCA 501, 168 O.R. (3d) 356, at para. 14; London Health Science Centre v. R.K. (1997), 1997 CanLII 14487 (ON SC), 152 D.L.R. (4th) 724 (Ont. S.C.), at para. 18. Although superior court judges are ex officio justices of the peace, an applicant should not be permitted to “highjack” a civil action by forcing the judge to take jurisdiction over a criminal prosecution.
[18] In any event, a finding of criminal guilt in this context would be based only on the evidentiary record put forward by the parties, rather than based on more complete evidence that may be available to a prosecutor: Bunker, at paras. 18, 21 and 23. The availability of a more appropriate procedure, in this case before a justice of the peace, is an accepted reason to deny declaratory relief: Bryton Capital Corp. GP Ltd. v. CIM Bayview Creek Inc., 2023 ONCA 363, at para. 64.
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[26] As noted by the case management judge, the appellant has not been prevented from laying an information and thereby causing a criminal investigation. It just cannot be done the way the appellant has attempted to do it: as a motion for declaratory relief in a civil action. We see no error in the case management judge’s conclusion that the proper route, should the appellant decide to pursue this relief, was before a justice of the peace, and not in the civil proceedings.
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