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Appeal Court Dicta

Courts - Jurisdiction

. Turmel v. Canada (Attorney General)

In Turmel v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered (and dismissed) an appeal from a frivolous litigant declaration order [under s.40 FCA], here with supplementary terms regarding outstanding cost orders and "aiding or abetting others to initiate proceedings before that Court".

In this quote the court (here the Federal Court of Appeal) alludes to (but does not rule on) the jurisdiction issue of whether a trial level (here it would have been the Federal Court) could make a frivolous litigant order that applied to an appeal court (here it would have been the present Federal Court of Appeal):
[15] Finally, I note that the Application Judge declined to impose a further restriction on the appellant by extending his order, as sought by the respondent, to proceedings in this Court as he was left with some doubt whether he had that authority. Having said that, the Application Judge suggested that in the event of an appeal of the Decision, this Court “may wish to provide further guidance on this jurisdictional question” (Decision at para. 54). As the appellant has since been declared a vexatious litigant in this Court by order dated June 15, 2023 (reported at 2023 FCA 140), I am of the view that we should forgo that invitation because this is no longer a live issue in this case.
. Inuksuk I (Ship) v. Sealand Marine Electronics Sales and Services Ltd

In Inuksuk I (Ship) v. Sealand Marine Electronics Sales and Services Ltd (Fed CA, 2023) the Federal Court of Appeal considered a lawsuit in maritime law, where - amongst other interesting things - one 'arrests' ships, and once security is paid, they are released again. In this quote, the court considered whether parties can confer jurisdiction on a court by consent (they can't):
[38] In addition, as mentioned, the jurisdiction of the Federal Court to deal with the cross-claim of the appellants is a key preliminary issue. Parties cannot consent to the court having jurisdiction. It follows that their non-contestation on a question regarding the jurisdiction over a subject matter cannot confer jurisdiction on a court which it does not have. If the Federal Court did not have such jurisdiction, it does not matter whether it erred in the manner alleged by the appellants.
. Turmel v. Canada

In Turmel v. Canada (Fed CA, 2023) the Federal Court of Appeal considered a motion within an appeal where the appellant was held to a vexatious litigant under s.40 Federal Court Act (FCA). In the present motion, the Crown sought a similar order with respect to the present court, the Federal Court of Appeal.

In these quotes the court considers whether such a s.40 order may be made by the Federal Court, yet applicable to both the Federal Court and the Federal Court of Appeal:
[1] On November 9, 2022, the Federal Court (2022 FC 1526, Fothergill J.) made an order under section 40 of the Federal Courts Act, R.S.C. 1985, c. F-7, declaring the appellant, John Turmel, to be a vexatious litigant. The order also, among other things, prohibits Mr. Turmel from instituting new proceedings in the Federal Court, continuing any proceedings previously instituted by him in the Federal Court, except with leave of the Court, and preparing, distributing or disseminating court documents, including template documents, for use by others in Federal Court proceedings.

[2] The Attorney General of Canada sought to have the order framed so as to apply equally to proceedings in this Court. The Federal Court declined that request, on the basis that the case law left the motion judge “in some doubt” whether the jurisdiction of the Federal Court extends to matters before this Court (2022 FC 1526 at paras. 52-54). In doing so, the motion judge suggested that if the order he was granting was appealed, this Court might wish “to provide further guidance on this jurisdictional question”.


[12] Since the question whether a vexatious litigant order made by the Federal Court can extend to proceedings in the Federal Court of Appeal is not a live issue in this proceeding, I will offer only the following brief comment on the question. Since the coming into force of the Courts Administration Act, S.C. 2002, c. 8, the Federal Court of Appeal and the Federal Court are two separate and distinct superior courts: see Federal Courts Act, sections 3 and 4. It would be unusual if an order of one court could, absent express statutory language (such as language providing for appeals from one court to the other) bind the other. Subsection 40(1) of the Federal Courts Act appears to have been drafted, using expressions such as “that court” and “devant elle”, with a view to limiting the effect of a vexatious proceedings order to proceedings in the court that made it.
. 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.


(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.
. Feeney v. Canada

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 concurrent tort jurisdiction that the federal and the provincial superior courts share over claims against the federal Crown:
[13] As stated in Crowe, Parliament has not granted jurisdiction to the Federal Court over the alleged tortious conduct of judges (Crowe at para. 18). That the Federal Court has concurrent jurisdiction with the superior provincial courts to entertain claims in tort against the Federal Crown through the combined effect of subsection 17(1) of the Act and subsection 21(1) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 (CLPA), does not alter this.
. Canadian Merchant Service Guild v. Algoma Central Corporation

In Canadian Merchant Service Guild v. Algoma Central Corporation (Fed CA, 2022) the Federal Court of Appeal made the important point that parties may not impose jurisdiction on a tribunal (or a court) by their agreement:
[8] Fourth, the Guild argues that the Board unreasonably refused to grant the order sought on the consent of the parties, based on the submissions of the non-party interveners, the Seafarer’s International Union and Unifor. It is true that, as a matter of labour relations policy, effect will ordinarily be given to agreements negotiated between the parties, and parties are encouraged to resolve their differences amicably - a value that is reflected in the Code itself. That said, the Board must nevertheless satisfy itself that it has the statutory authority necessary to grant the relief sought, and jurisdiction cannot be conferred on judicial or quasi-judicial bodies by the agreement of the parties: see, for example, Hillier v. Canada (Attorney General), 2019 FCA 44 at para. 4; Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 218 at paras. 6-7.


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