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Jurisdiction - 'True Questions'
EDIT NOTE
Sorting out 'true questions of jurisdiction' relates to /delegation-legislation/ultra- vires; here the court sometimes equates 'jurisdiction' with vires.
. 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. . Auer v. Auer
In Auer v. Auer (SCC, 2024) the Supreme Court of Canada dismissed an appeal of a JR, here challenging the Federal Child Support Guidelines as ultra vires their Governor-in-Counsel-delegated Divorce Act authority.
Here the court considers the role of past precedents, particularly in the context of determining issues of 'true jurisdiction':[31] In setting out Vavilov’s comprehensive framework for determining the applicable standard of review, our Court did not entirely discard prior jurisprudence. Rather, the Court explicitly stated that “past precedents will often continue to provide helpful guidance” (para. 143). This remains true even when considering cases involving “true questions of jurisdiction or vires”, though they “will necessarily have less precedential force” because Vavilov ceased to recognize such questions as a distinct category attracting correctness review (paras. 65 and 143). As Paul Daly explains, “past jurisprudence has not been ‘ousted’” by Vavilov ((2023), at pp. 148‑49, citing Terrigno v. Calgary (City), 2021 ABQB 41, 1 Admin. L.R. (7th) 134, at para. 62). Since Katz Group involved a true question of jurisdiction or vires, the Court must carefully examine the role of that case going forward. . Auer v. Auer
In Auer v. Auer (SCC, 2024) the Supreme Court of Canada dismissed an appeal of a JR, here challenging the Federal Child Support Guidelines as ultra vires their Governor-in-Counsel-delegated Divorce Act authority.
The court notes a JR SOR change re 'true' questions of jurisdiction in Vavilov:[22] In setting out Vavilov’s comprehensive framework, our Court expressly contemplated questions of vires. Specifically, this Court ceased to recognize jurisdictional questions — also referred to as “true questions of jurisdiction or vires” — as a distinct category of questions attracting correctness review (paras. 65‑67 and 200). In doing so, we expressly referred to cases involving challenges to the vires of subordinate legislation, including Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360, and West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 S.C.R. 635 (Vavilov, at para. 66). This Court explained that “it is often difficult to distinguish between exercises of delegated power that raise truly jurisdictional questions from those entailing an unremarkable application of an enabling statute”, especially where, as in Green and West Fraser Mills, “the legislature has delegated broad authority to an administrative decision maker that allows the latter to make regulations in pursuit of the objects of its enabling statute” (Vavilov, at para. 66, citing Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230, at para. 111, per Brown J., concurring).
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