Courts - Inherent and Plenary Powers
. 9383859 Canada Ltd. v. Saeed
In 9383859 Canada Ltd. v. Saeed (Ont CA, 2023) the Court of Appeal considers (but does not rule on) a costs argument that appeal courts, despite being creatures of statute, have "implicit powers that derive from [their] power to control [their] own process":
Costs. Donatelli-Venneri v. Stern Landesman Clark LLP
 The respondents make a novel argument in support of their submission that a costs award should be made against Mr. Singh personally. That submission is premised on the proposition that appellate courts, while creatures of statute, nevertheless have “implicit powers that derive from [their] power to control [their] own process”: Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 27. These powers include the ability “to make procedural orders to prevent an abuse of process and to ensure the just and efficient administration of justice”: Mukwa v. Farm Credit of Canada, 2022 ONCA 320, at para. 24.
 According to the respondents, 938’s litigation strategy, as implemented by Mr. Singh, amounts to an abuse of process. Therefore, to protect the court’s process, they submit that Mr. Singh should be ordered to pay costs personally, similar to orders made in the Superior Court against non-parties who are directors, shareholders, or principals of corporations, as described in 1318847 Ontario Limited v. Laval Tool & Mould Ltd., 2017 ONCA 184, 134 O.R. (3d) 641.
 It is unnecessary for me to determine whether this court has the power to make such an order because I am not satisfied that Mr. Singh’s litigation strategy amounts to an abuse of process. Instead, it appears that Mr. Singh has used every appeal process available to 938. While I can understand the frustration the respondents are feeling with the delays in this litigation, this conduct does not qualify as an abuse of process. In any event, if this court does have the power to make the order sought, it should, in my view, be reserved for the clearest of cases.
In Donatelli-Venneri v. Stern Landesman Clark LLP (Div Court, 2023) the Divisional Court considered an assessment officer's control of process, which they exercised by twice excluding the appellant from the hearing room for "unruly and disruptive behaviour". This case, which was a second appeal, also involved the first appeal judge muting the audio of the appellant at an electronic hearing:
 In his reasons on the merits, Myers J. details the circumstances that led to his muting Ms. Donatelli-Venneri. In essence, Myers J. gave Ms. Donatelli-Venneri repeated directions to focus on the allegations of error by the Assessment Officer. Instead of heeding these directions, Ms. Donatelli-Venneri continued to argue an issue that was clearly irrelevant to the appeal. Myers J. gave Ms. Donatelli-Venneri an explanation as to why he considered the issue irrelevant, and she became more aggressive and heated in her submissions on the irrelevant point. As a result, Myers J. instructed the Registrar to mute Ms. Donatelli-Venneri’s line and end her submissions. In doing so, he highlighted the court’s responsibility to control its own process.. Hutton v. Sayat
 In Hodder v. Lindhorst, 2016 ONCA 42, the Ontario Court of Appeal affirmed that where a litigant is disruptive, a judge is entitled to have them removed from the courtroom. Since the appeal was not held in person, Myers J. could not have her removed from the courtroom. The equivalent tool in a teleconference hearing is to mute the litigant’s line.
 While it is obviously not conducive to the appearance of justice to silence litigants in this manner, Myers J. was correct when he stated that a judge has an obligation to control their own process. If litigants refuse to abide by instructions from a judge concerning their submissions or their behaviour, court hearings can be hijacked in a way that can cause real harm to the administration of justice. In this case, Myers J. had been very clear with Ms. Donatelli-Venneri about why she should cease arguing the point she was arguing. Instead of heeding this direction, she continued to press the point in an aggressive and heated manner. In view of this, Myers J. was entitled to take the steps he needed to in order to end her oral submissions. As Myers J. noted, he had extensive written material from the Appellants setting out their position on the appeal.
 The Appellants submitted that Myers J. erred in failing to allow their appeal on the basis that the Assessment Officer excluded Ms. Donatelli-Venneri from the courtroom. Given Ms. Donatelli-Venneri’s disruptive behaviour before the Assessment Officer, Myers J. made no error when he found that the Assessment Officer’s actions were justified on the basis that she had the obligation to control her own process.
In Hutton v. Sayat (Fed CA, 2023) the Federal Court of Appeal cites the court's 'plenary authority':
 Apart from the powers that derive from subsection 50(1) of the Federal Courts Act, this Court and the Federal Court are also vested with the plenary authority to regulate their proceedings and control the integrity of their own processes. Indeed, as stated on numerous occasions both by the Supreme Court and this Court, the Federal Courts must have the powers necessary to manage their own proceedings just like the provincial superior courts: see, for example, Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC),  1 S.C.R. 626 at paras. 35-36; R v. Cunningham, 2010 SCC 10,  1 S.C.R. 331 at para. 19; Windsor (City) v. Canadian Transit Co., 2016 SCC 54,  2 S.C.R. 617 at para. 33 (footonote 1); Lee v. Canada (Correctional Service), 2017 FCA 228,  F.C.J. No. 1131 (QL) at paras. 7-9; Dugré v. Canada (Attorney General), 2021 FCA 8,  F.C.J. No. 50 (QL) at para. 20 [Dugré]; Coote v. Canada (Human Rights Commission), 2021 FCA 150 at para. 16; Fabrikant v. Canada, 2018 FCA 171 at para. 3. This entails the power to stay a proceeding when it is necessary to deal with problematic litigation conduct: ViiV Healthcare Company v. Gilead Sciences Canada, Inc., 2021 FCA 122 at para. 24; Dugré at para. 38; Coote v. Lawyers’ Professional Indemnity Company, 2013 FCA 143, 229 A.C.W.S. (3d) 935 at para. 4 [Coote]. . Murray v. Office of the Independent Police Review Director
In Murray v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court noted the limitations of the Divisional Court:
 The Divisional Court is a statutory appellate and review court. It is not a court of inherent jurisdiction. This is well-trod ground and the applicant’s submissions to the contrary are without merit.. Coote v. Canada (Human Rights Commission)
In Coote v. Canada (Human Rights Commission) (Fed CA, 2021) the Federal Court of Appeal considered it's 'plenary' (not 'inherent' pursuant to s.96 of the Constitution) authority to dismiss an appeal:
 In addition to the authority conferred by rule 74, the Court has jurisdiction to manage and regulate particular proceedings before it and, where appropriate, summarily dismiss an appeal by using its broad plenary powers. These powers have frequently been used, for example, to reject proceedings that are, among other things, frivolous or an abuse of the process of the Court (Fabrikant v. Canada, 2018 FCA 171, at para. 3). Recently, in Dugré v. Canada (Attorney General), 2021 FCA 8, the Court had this to say on the origin and underlying principles of its plenary powers:. Feeney v. Canada
 This Court has jurisdiction to summarily dismiss an appeal. Although the Federal Courts Rules, SOR/98-106 (the Rules) do not contain any specific provision allowing for the summary dismissal of an appeal, the Court has exercised this jurisdiction for decades (David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., 1994 CanLII 3529 (FCA),  1 F.C. 588 (C.A.), at page 600).
 This power stems from the Court’s plenary jurisdiction (Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50, 443 N.R. 378, at para. 36; Lee v. Canada (Correctional Service), 2017 FCA 228 [Lee], at para. 6). This Court has not only the powers conferred by statute but also the powers necessary for its effective functioning (Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 CanLII 818 (SCC),  1 S.C.R. 626, 224 N.R. 241; Lee, at paras. 2, 7-15; Fabrikant v. Canada, 2018 FCA 171, at para. 3 and the cases cited therein). As the Court explains in Lee, the Federal Courts, as part of the judicial branch of the government, must have the powers necessary to manage their own proceedings (Lee, at para. 8).
 This power also manifests itself in the Rules through the combined effect of Rule 74 (removal of proceedings brought without jurisdiction), Rule 4 (the gap rule) and Rule 55 (power to vary a rule, in this case Rule 74, in “special circumstances”).
In Feeney v. Canada (Fed CA, 2022) the Federal Court of Appeal, in the course upholding a dismissal of an action against the federal Crown for lack of jurisdiction, sets out the nature of the Federal Court system and it's judges. In this quote it explains the status of the Federal Courts as statutory, not constitutional. As such such courts lack inherent jurisdiction and their jurisdiction must be advanced by parties as a necessary aspect of their case presentation:
 As this Court said in Crowe v. Canada (Attorney General), 2008 FCA 298 at para. 16 (Crowe) – a case which similarly involved the striking of an action in damages filed in the Federal Court against a number of defendants, including federally appointed judges – the Federal Court "“is a statutory court and, as such, has only the jurisdiction conferred upon it by statute. It is not a court of inherent jurisdiction as are the provincial superior courts…” "(See also, Ordon Estate v. Grail, 1998 CanLII 771 (SCC),  3 S.C.R. 437 at para. 46.).. Appleyard v. Zealand
 In other words, jurisdiction in the Federal Court cannot be presumed. Rather, it must be positively demonstrated (Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62,  3 S.C.R. 585 at paras. 46-46). On the facts before me, such jurisdiction has not been demonstrated.
In Appleyard v. Zealand (Ont CA, 2022) the Court of Appeal considered the contrast between a statutory time limitation and orders made under the court's inherent jurisdiction to address abuse of process:
 Ms. Appleyard alleges that it was improper for the motion judge to order her to bring any claims within ninety days of October 1, 2019 because it shortened the six-month limitation period under s. 61(1) of the SLRA to bring a dependant support claim under s. 58.. Mukwa v. Farm Credit of Canada
 I would not accede to this argument. Whether or not any limitation period has or has not expired is not the issue in this case and is irrelevant because of Ms. Appleyard’s vexatious conduct that amounts to an abuse of process. Litigants cannot indefinitely hold the court process hostage. What is in issue here is the reasonableness of the exercise of the motion judge’s inherent power to control and foreclose Ms. Appleyard’s ongoing abuse of the court’s process to which considerable deference is owed on appeal, absent reversible error. I see none here.
 Ninety days was one last grace period by the court allowing Ms. Appleyard to bring her claims for dependant support and other relief in the requisite form so they could be properly adjudicated. To hold otherwise would ignore the belaboured procedural history of this proceeding beginning when she gave notice of her proposed claims to the estate trustee in July 2013. What has followed is an odyssey of court proceedings where, despite direction from the court as early as December 19, 2013, Ms. Appleyard has failed to bring her dependant support claim or any other claim in proper form or to support her proposed claims with any cogent evidence.
 Nor is this a case of form over substance, as Ms. Appleyard submits. It was necessary for Ms. Appleyard to bring her claims for dependant support and other relief in the requisite form so that it could be properly adjudicated. As is apparent from my earlier narrative of the proceedings, while loosely focussed on property and support issues, Ms. Appleyard’s various claims have shifted over the years, unsupported by any cogent evidentiary foundation. In the circumstances of this case, without the procedural rigour imposed by the form of an issued application, the estate trustee did not know the case the estate had to meet nor was she in a position to respond in any meaningful way. This has been tremendously unjust to the estate trustee and the beneficiaries and has resulted in egregious delay and expense. The fair and effective administration of justice required Ms. Appleyard to put forward her claims in a timely and coherent manner in accordance with the SLRA and the Rules of Civil Procedure.
 The motion judge made no error in requiring Ms. Appleyard to advance her application for dependant support including any other claim within ninety days following October 1, 2019, in order to comply with this court’s January 4, 2019 direction and prevent further abuse of the court’s process by the vexatious manner in which she has conducted herself in these proceedings.
 The court has a broad discretion to control its process and to make appropriate orders where, as is the case here, proceedings have been conducted in a vexatious manner that amounts to an abuse of process: Peoples Trust Company v. Atlas, 2019 ONCA 359, at paras. 5, 9. The court’s inherent and statutory powers to prevent an abuse of process are necessary to uphold the proper administration of the judicial system. As Blair J.A. stated (in dissent but not on this point), at para. 55, in Foy v. Foy (No. 2), 1979 CanLII 1631 (ON CA),  O.J. No. 4386, (1979) 26 O.R. (2d) 220 (C.A.), leave to appeal refused,  2 S.C.R. vii:
The concept of abuse of process protects the public interest in the integrity and fairness of the judicial system. It does so by preventing the employment of judicial proceedings for purposes which the law regards as improper. These improper purposes include harassment and oppression of other parties by multifarious proceedings which are brought for purposes other than the assertion or defence of a litigant’s legitimate rights. Such abuse of process interferes with the business of the Courts and tarnishes the image of the administration of justice. Acceding to Ms. Appleyard’s argument would permit her to endlessly re-litigate issues and delay these proceedings. Again, that, in my view, would amount to a clear abuse of process. As Lauwers J.A. said in Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671, at para. 22: “[T]here comes a time, in short, when enough is enough, and the civil justice system will no longer tolerate inordinate and inexplicable delay.” While this statement was made in the context of an appeal from a dismissal of an action for delay, its underlying rationale that the integrity of the civil justice system and trial fairness preclude a litigant from inordinately delaying her claim by failing to comply with procedure, directions and court orders applies here. This is particularly apposite in estate proceedings where the expeditious administration of an estate is in the interests of justice: Omiciuolo, at para. 25; Euring Estate v. Registrar of the Ontario Court (1997), 1997 CanLII 1080 (ON CA), 31 O.R. (3d) 777 (C.A.), at p. 792.
 As a result, there was nothing unfair or incorrect in the motion judge’s order that Ms. Appleyard bring any application for dependant support and other relief within ninety days of October 1, 2019. Ms. Appleyard’s claim for dependant support falls squarely within the provisions of s. 58(1) of the SLRA, which provides that “Where a deceased, whether testate or intestate, has not made adequate provision for the proper support of his dependants or any of them, the court, on application, may order that such provision as it considers adequate be made out of the estate of the deceased for the proper support of the dependants or any of them.” Moreover, Ms. Appleyard has known since 2013 that she must assert a claim for dependant support by way of an application under the SLRA. She has steadfastly and inexplicably refused to do so, notwithstanding the generous extensions of time and opportunities that have been granted to her.
In Mukwa v. Farm Credit of Canada (Ont CA, 2022) the Court of Appeal considered the court's inherent jurisdiction to address abuses of it's process:
 This court has implicit powers, that derive from the court’s authority to control its own process, to make procedural orders to prevent an abuse of process and to ensure the just and efficient administration of justice: Lochner, at para. 27; R. v. Cunningham, 2010 SCC 10,  1 S.C.R. 331, at para. 19; and R. v. Anderson, 2014 SCC 41,  2 S.C.R. 167, at para. 58.. Lawyers’ Professional Indemnity Company v. Mangat
In Lawyers’ Professional Indemnity Company v. Mangat (Div Ct, 2022) the Divisional Court noted simply the Superior Court's inherent jurisdiction:
 Superior courts of record have inherent jurisdiction to control their own processes and protect them from abuse. That jurisdiction is to be exercised sparingly and with caution: Laval, at paras. 65-68.. 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:
 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,  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,  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):
 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,  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.. Canada v. BCS Group Business Services Inc.
 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.
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?):
 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:
 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,  2 S.C.R. 167, at para. 58; R. v. Cunningham, 2010 SCC 10,  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,  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.. Lochner v. Ontario Civilian Police Commission
 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.”
 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.
 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.
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:
 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,  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,  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.
 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.
 One possible solution would be to require that Mr. Lochner access this court only through a lawyer.
 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.
 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.”
 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”. [Emphasis added.]