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Courts - Inherent Powers

. Canadian Broadcasting Corp. v. Manitoba

In Canadian Broadcasting Corp. v. Manitoba (SCC, 2021) the Supreme Court of Canada considered the inherent jurisdiction of appeal courts:
[62] It is best to note at the outset that appellate jurisdiction, such as that being exercised by the Court of Appeal in the proceeding below, must be grounded in legislation (R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, at para. 21). In addition to any explicit grant, statutory and appellate courts should be understood to have the implicit power to control their own process and exercise other powers that are practically necessary to accomplish the role the law assigns them (R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 19; Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 27 (CanLII)). I agree with the Attorney General of British Columbia that it may be unhelpful to describe this implicit authority as “inherent jurisdiction” given that appellate powers are, ultimately, rooted in statute (transcript, at pp. 100‑1).
. Canada v. MacDonald

In Canada v. MacDonald (Fed CA, 2021) the Federal Court of Appeal considers the inherent powers of itself (a non-constitutional court):
[29] In this case, the Court itself raised with the parties whether it should decline to consider issues that it has previously determined. The Crown rightly has not objected to this. This Court can act to promote, enforce and vindicate certain prized values of our litigation system such as efficiency, judicial economy and finality: Federal Courts Rules, Rule 3; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; see also Mazhero v. Fox, 2014 FCA 219 at para. 4, Fabrikant v. Canada, 2018 FCA 171 at para. 3 and many similar cases concerning the plenary powers of the Court to regulate and manage its files.

[30] It is true that issues of res judicata and finality are usually raised by a party and, indeed, particular legislation may require these issues to be pleaded if they are to be asserted as a defence: Cooper v. Molsons Bank (1896), 1896 CanLII 22 (SCC), 26 S.C.R. 611 at 620; BriDawn Holdings Inc. v. Wabana (Town), 2019 NLSC 106 at para. 75. But those authorities do not speak to whether the Court itself can raise the issue in a circumstance like this. It can.
. Canada v. BCS Group Business Services Inc.

In Canada v. BCS Group Business Services Inc. (Fed CA, 2020) the Federal Court of Appeal affirms that the Federal Court, though a statutory court, has "implicit power or discretion to control their own process" (akin to 'inherent' powers?):
[15] It is useful in such circumstances to put GP Rule 30(2) in context and to consider that it is not unique in its approach. Courts, including statutory courts like the Federal Courts, have an implicit power or discretion to control their own process, unless limited by specific legislation (see for example article 87 of Quebec’s CCP, which lists who must be represented by counsel). This is why for many years, many courts have adopted rules of procedure allowing them to grant leave to corporations to be represented by physical individuals other than counsel in special circumstances. This has become particularly important given the increase in the legal costs of litigation and the need to foster access to justice. This approach, based on a by leave process, enables the court to balance this need with the need for efficiency in the administration of justice. In none of those cases did a statute give a corporation a statutory right to appear "“in person”". The granting of leave is a privilege arising from the court’s discretion to control its own process. Therefore, this discretion can be taken away by an express clause in the legislation constituting the court when Parliament expressly deals with representation in the courtroom.
. 4352238 Canada Inc. v. SNC-Lavalin Group Inc.

In 4352238 Canada Inc. v. SNC-Lavalin Group Inc. (Ont CA, 2020) the Court of Appeal considered it's own jurisdictional range respecting it's own procedure. In this case a party objected to the Court ordering a written hearing during the COVID crisis, but was overriden:
[4] It is well settled that this court’s implicit or ancillary jurisdiction to manage its own process is broad. This court has the jurisdiction to make any procedural order to prevent an abuse of process or to ensure the just and efficient administration of justice: see R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 58; R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at paras. 18, 19; Marché D'Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, 87 O.R. (3d) 660, at para. 24. The court’s implicit powers include those that are reasonably necessary to accomplish the court’s mandate and perform its intended functions: see R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 70. They arise by necessary implication even in the absence of express statutory or common law authority: see Cunningham, at para. 19; see also Pierre v. McRae, 2011 ONCA 187, 104 O.R. (3d) 321, at paras. 30-42.

[5] The exercise of the court’s jurisdiction to manage its own process by directing that some appeals proceed on the written record is not inconsistent with any provision of the Courts of Justice Act or the Rules of Civil Procedure, which, in any event, do not mandate the absolute right to an oral hearing of an appeal. The Courts of Justice Act prescribes the composition of the Court of Appeal, but not the mode of hearings. And, while oral hearings are contemplated, the Rules of Civil Procedure do not explicitly direct that appeals to the Court of Appeal require an oral hearing. Rather, r. 1.04(1) expresses the governing principle that the Rules “shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”

[6] It is also beyond controversy that the COVID-19 pandemic has created extraordinary circumstances to which we must all adapt as best we can. Since March 17, 2020, there have been no in person appeals heard at the Court of Appeal. More than 100 scheduled appeals had to be adjourned. Through a series of Practice Directions, this court has endeavoured to address the tremendous disruption caused by the pandemic. As a result, appeals are being heard in writing or remotely until in person appeals can resume. Case management conferences are being held to manage and schedule them.

[7] Accordingly, it is well within this Court’s jurisdiction to order that a civil appeal be heard in writing when the due administration of justice requires it. During these extraordinary times, judicial resources are strained. The ability to hear appeals remotely is not unlimited. Where appropriate, some appeals must be heard in writing in order to ensure that appeals continue to be heard in a timely and an orderly fashion.
. Lochner v. Ontario Civilian Police Commission

In Lochner v. Ontario Civilian Police Commission (Ont CA, 2020) the Court of Appeal, while extending the R2.1 'frivolous and vexatious' sanctions, discussed the inherent powers of the court and the importance of access to civil law:
[27] Although a statutory court, this court has implicit powers that derive from its power to control its own process: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 19; Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Limited, 2007 ONCA 695, 87 O.R. (3d) 660, at para 24; and R. v. Church of Scientology (1986), 1986 CanLII 4633 (ON CA), 25 C.C.C. (3d) 149 (Ont. C.A.), at pp. 150-151. The court’s powers extend to “all powers that are reasonably necessary to accomplish its mandate” or, stated differently, “the powers necessary to perform its intended functions”: R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 70. Thus, clearly this court may control its own process. The question here is the extent of this power.

[28] The challenge presented by this exceptional case is how to strike an effective balance between protecting our system of justice and its stakeholders from abuse and frivolous proceedings and allowing access to Mr. Lochner for any future arguable proceedings.

[29] One possible solution would be to require that Mr. Lochner access this court only through a lawyer.

[30] In Jonsson v. Lymer, 2020 ABCA 167, 7 Alta. L.R. (7th) 146, the Alberta Court of Appeal wrote that if the superior court’s power to control its own process authorizes requiring a litigant to access the courts only through a lawyer, it should exercise this power sparingly. Slatter J.A. concluded that the superior court had the power to prevent abuse of its processes but it should be used sparingly and only when statutory authority is inadequate: at paras. 29 – 33, and 42. In that case, the court concluded that a vexatious litigant order ought not to have been granted.

[31] Recently, in Uber Technologies Inc. v. Heller, 2020 SCC 16, 447 D.L.R. (4th) 179, albeit in a different context, Brown J. (concurring) cited Jonsson stating, at para. 111, that the rule of law requires that citizens have access to a venue where they can hold one another to account. He wrote: “Access to civil justice is paramount to the public legitimacy of the law and the legitimacy of the judiciary as the institution of the state that expounds and applies the law.”

[32] The ability to access justice is a foundational common law tradition. In recent decades, the mantra of “access to justice” has gained considerable traction as the costs associated with litigation have skyrocketed making litigation an unrealistic means of dispute resolution for many if not most Ontarians. This has evolved into a do-it-yourself litigation regime where guidance and instructions for self-represented parties have frequently been emphasized over the provision of legal advice and counsel for the self-represented party. Has the justice system placed too much emphasis on helping parties represent themselves rather than ensuring that parties are represented by counsel? Do-it-yourself manuals may give an impression of access to justice, but this guidance is an inadequate replacement for proper legal representation. In his 2020 Opening of the Courts speech, Strathy C.J.O. stated:
In order to be fair, and to avoid unreasonable delay, particularly but not exclusively where the state is a litigant, both parties must have competent legal representation. This speaks to the urgent need for a significant re-investment in legal aid, including duty counsel and legal clinics and support for pro bono services. It is, quite frankly, a false economy to think that cutting these vital services saves money. When litigants are unrepresented and unsupported, the justice system slows to a crawl, valuable resources are drained, and other cases are held back. More important, the most vulnerable members of our society, those whom our justice system purports to protect, are further victimized because their playing field is uneven: “Opening of the Courts of Ontario for 2020”.[3] [Emphasis added.]


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