Paying out of the Public Purse & the Power of a Statutory Court to Control its Own Process

Every court of law has the authority to control its own process.

Superior Courts

A superior court’s power to control its process is part of a superior court’s inherent jurisdiction: 

 

R. v. Cunningham, 2010 SCC 10, at para. 18;

Canada (Attorney General) v. Pacific International Securities Inc.,  2006 BCCA 3030, at para. 28.  

 

Pursuant to the power to control its own process, a superior court can, among many other things:

·         order parties to pay costs for frivolous or abusive proceedings or in cases involving misconduct: R. v. Chapman (2006), 2006 CanLII 1178 (ON CA);

·         remove counsel from a case when required to ensure a fair trial. MacDonald Estate v. Martin, 1990 CanLII 32 (SCC).

 

Statutory Courts

A statutory court’s ability to control its own process as largely parallel to a superior court’s ability to control its own process. However, the statutory court does not have inherent jurisdiction.

R. v. Fercan Developments Inc., 2016 ONCA 269 (CanLII), at para. 52.

It would be generally undesirable and inefficient if a superior court could issue an order under its power to control its process but, a statutory court confronted with the same set of circumstances could not, even though that court also possesses the power to control its process.

            See R. v. Fercan Developments Inc., at paras. 56-58.  

A statutory court’s power to control its own process is necessarily implied in a legislative grant of power to function as a court of law: 

R. v. Cunningham, 2010 SCC 10, at para. 51.

The power being conferred does not have to be absolutely necessary. It only needs to be practically necessary for the statutory court or tribunal to effectively and efficiently carry out its purpose: 

R. v. 974649 Ontario Inc., 2001 SCC 81 (CanLII), at para. 71 (sub nom R. v. Dunedin Construction).

Examples include the jurisdiction to

·         award costs in appropriate circumstances: see R. v. Fercan Developments Inc., 2016 ONCA 269 (CanLII), at para. 53. 

·          appoint amici curiae and set the terms to give effect to that appointment.  However, this does not include fixing rates of compensation for amici or ordering provinces to pay for appointed amici (see below).

 

Limits to the Authority of a Court to Control its Process

The provincial courts’ ability to control their process should be construed in a generous manner and with regard to their role as a court of first instance.

R. v. Felderhof (2003), 2003 CanLII 37346 (ON CA), at paras. 40-44, Rosenberg J.A.

The power of statutory courts to control their process cannot contravene explicit statutory provisions or constitutional principles like the separation of power.

Ontario v. Criminal Lawyers’ Association of Ontario, [2013] 3 S.C.R. 3.

 

Paying out of the Public Purse

In Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, the Supreme Court of Canada held that the power of superior and statutory courts to control their process cannot contravene explicit statutory provisions or constitutional principles like the separation of power.

While court decisions can have ancillary financial consequences, the allocation of resources between competing priorities remains a policy and economic question; it is a political decision and the legislature and the executive are accountable to the public for it. 

Making such an order absent authority flowing from a constitutional challenge or a statutory provision does not respect the institutional roles and capacities of the legislature, the executive (including the Attorney General), and the judiciary, or the principle that the legislature and the executive are accountable to the public for the spending of public funds. 

There is a real risk that such a disregard of the separation of powers and the constitutional role and institutional capacity of the different branches of government could undermine such things as the legal aid system and cause a lack of public confidence in judges and the courts. [FN]

 

                    Written by Stuart O’Connell (Barrister/Solicitor)

FN:  Accordingly, superior and statutory courts’ inherent or implied jurisdiction to appoint amici does not extend to setting rates of compensation for amici [FN] or ordering the provinces to pay: see paras. 60, 61, 64, 80, 81. An amicus (plural, amici) is a lawyer who is asked by the court to provide legal submissions regarding issues that would otherwise not be aired properly, often because one or both of the parties is not represented by counsel.


Location: Toronto, ON, Canada

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