More on Inherent Jurisdiction

Scarola v. M.N.R., 2002 CanLII 741 (T.C.C.)

http://www.canlii.org/en/ca/tcc/doc/2002/2002canlii741/2002canlii741.html




[22] Subsection 16.2(2) of the Tax Court of Canada Act reads:


16.2(1) A party who instituted a proceeding in the Court may, at any time, discontinue that proceeding by written notice.


(2) Where a proceeding is discontinued under subsection (1), it is deemed to be dismissed as of the day on which the Court receives the written notice.


[23] It is now therefore unnecessary for the court to issue a formal judgment dismissing the appeal. This section was put in the act following the decision of the Federal Court of Appeal in McCambridge v. The Queen, 79 DTC 5412.


[24] In Baker v. R., reflex, [1999] 2 C.T.C. 2388, Bowie J. held that the court had no power to set aside a notice of discontinuance filed on behalf of a taxpayer by an agent. He based his decision upon the implied authority that the agent has to bind his client. He stated that the matter might be different if the agent was simply a friend, professing no particular skill, and assisting the appellant for no consideration. From this I take it that Bowie J. did not consider that there was an insuperable legal bar to the court's power to set aside a withdrawal of an appeal and its consequential deemed dismissal under subsection 16.2(2). Rather it seems clear that he was of the view that the court had the power under some circumstances to do so.


[25] In Bogie v. The Queen, 97 DTC 1079, Brulé J. said at page 1080


(3) The Court, as a statutory creation, does not have the inherent jurisdiction to set aside Notice of Discontinuance.


[26] With respect I disagree with this view. Of course this court, like the Federal Court of Canada, is created by a statute and derives its jurisdiction from the statutes that confer that jurisdiction. This has nothing to do with the court's power over its own processes. This is a power that inheres in every court. It need not be conferred specifically by a statute.


[27] In R. v. Unnamed Person, [1985] O.J. No. 189, Zuber J.A. said


The term "inherent jurisdiction" is one that is commonly and not always accurately used when arguments are made with respect to the jurisdictional basis upon which a court is asked to make a particular order. The inherent jurisdiction of a superior court is derived not from any statute or rule of law but from the very nature of the court as a superior court (see, generally, I.H. Jacob, The Inherent Jurisdiction of the Court, 1970, C. Leg. Probs. 23). Utilizing this power, superior courts, to maintain their authority and to prevent their processes from being obstructed or abused, have amongst other things punished for contempt of court, stayed matters that are frivolous and vexatious and regulated their own process. The limits of this power are difficult to define with precision but cannot extend to the creation of a new rule of substantive law.


[28] Zuber J.A. was talking about a superior court but I do not think it can be said that a court that does not happen to be called a superior court does not have similar powers to control and regulate it own processes. There is ample authority for the proposition that this court has an inherent jurisdiction (or power) to do all things necessary to carry out the jurisdiction conferred on it under the various statutes granting a right of appeal to it.


- Yacyshyn v. The Queen, 99 DTC 5133

- W. Lee v. M.N.R., reflex, [1991] 2 C.T.C. 344

- Tibbits v. The Queen, reflex, [1995] 1 C.T.C. 2706

- N.B. Electric Power Comm. v. Maritime Electric Co. Ltd., reflex, [1985] 2 F.C. 13

- See also Daniele v. Johnson, 45 D.R. (3d) 498 (Ont. Divisional Court)


[29] These are only a few of the cases that support the view that this court has an inherent jurisdiction to do all things necessary to exercise the jurisdiction specifically conferred. I am of course not talking about the "inherent common law jurisdiction" which Arnup J.A. discussed in Re Fraser and Pringle et al., [1971] 19 D.L.R. (3d) 129, and in which he adopted the dissenting judgment of O'Halloran J.A. of the British Columbia Court of Appeal in Nanaimo Community Hotel v. Board of Referees, [1945] 3 D.L.R. 225. Although the judgment of the Ontario Court of Appeal was reversed (1972 CanLII 14 (S.C.C.), [1972] S.C.R. 821), Justice Arnup's discussion and that of O'Halloran J.A. remain a valuable history of the inherent common law jurisdiction of superior courts of the province referred to in section 96 of the Constitution Act (formerly the British North America Act).


[30] It is important that we recognize that the expression "inherent jurisdiction" has different connotations in different contexts. Arnup J.A. was using it in the broad sense of the jurisdiction which the superior courts of the provinces in effect inherited from the courts of common law and equity in England and Ontario. Section 11 of the present Courts of Justice Act of Ontario reads


(1) The Ontario Court (General Division) is continued as a superior court of record under the name Superior Court of Justice in English and Cour supérieure de justice in French. 1996, c.25, s. 9(3).


(2) The Superior Court of Justice has all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario.


[31] Predecessors to the Courts of Justice Act, such as the Judicature Act, defined the court's jurisdiction by reference to December 31, 1912 when an earlier version of the Judicature Act came into force which continued the court's previous jurisdiction by reference to a number of statutes such as


(a) The jurisdiction exercised by England's superior courts of common law (Queen's Bench, Common Pleas and Exchequer) on December 5, 1859: R.S.O. 1897, c. 51, s. 25; C.S.U.C. 1859, c. 10, s. 3.


(b) The jurisdiction exercised in certain enumerated matters by England's Court of Chancery on March 4, 1837: R.S.O. 1897, c. 51, s. 26; (1837) 7 Wm. IV, c. 2, s. 2.


(c) The jurisdiction exercised on June 10, 1857 by England's Court of Chancery as a court of equity to administer justice where no adequate remedy existed at law: R.S.O. 1897, c. 51, s. 28; (1857) 20 Vict., c. 56, s. 1.


(d) The jurisdiction in respect of settled estates and minors' estates exercised by England's Court of Chancery on March 18, 1865: R.S.O. 1897, c. 51, s. 37; (1865) 28 Vict., c. 17, s.1.


(e) The equitable jurisdiction in matters of revenue exercised by England's Court of Exchequer on March 18, 1865: R.S.O. 1897, c. 51, s. 29; (1865) 28 Vict., c. 17, s. 2.


(f) The jurisdiction exercised by Ontario's Courts of Queen's Bench, Common Pleas, Chancery, Assize, Oyer and Terminer, and Gaol Delivery on August 22, 1881: R.S.O. 1897, c. 51, s. 41; S.O. 1881, c. 5. s. 9.


[32] The above is the common law jurisdiction customarily exercised by the superior courts of the provinces. Although that jurisdiction is in a sense conferred by statute its genesis historically was independent of any statutory conferral.


[33] The failure to distinguish between the inherent common law jurisdiction of the superior courts of a province and the inherent jurisdiction that every court has to regulate and control its own processes -- whether it be a superior court or not or whether it be a section 96 or a section 101 court -- may have led to the above observation made by Brulé J. in Bogie or by Desjardins J.A. in Tignish Auto Parts Inc. v. Minister of National Revenue, 185 N.R. 73, where she said that the Tax Court of Canada has no inherent jurisdiction because it is not a superior court of record. Of course it does not have the substantive residual jurisdiction in such matters as mandamus, certiorari, prohibition and the other extraordinary powers that superior courts of the province have traditionally and inherently enjoyed and exercised. It is because it is a court created under section 101 of the Constitution Act and its substantive jurisdiction is defined by statute, as is that of the Federal Court of Canada. This is clear from the N.B. Electric Power Commission case which held that the Federal Court did not have the inherent jurisdiction enjoyed by superior courts of the province as discussed by Estey J. in A.G. Can. v. Law Society of B.C., 1982 CanLII 29 (S.C.C.), [1982] 2 S.C.R. 307.


[34] It does not follow that this court does not have an inherent jurisdiction to control its own processes, or within the context of the jurisdiction expressly conferred on it, to do what is necessary effectively to exercise that jurisdiction. It is not really necessary to use such expressions as "implied" jurisdiction. There is nothing wrong with saying the court has inherent jurisdiction provided we delineate just what the court has inherent jurisdiction to do. It obviously does not have an inherent jurisdiction to issue a writ of certiorari or mandamus. It has an express jurisdiction to do what the Income Tax Act or the Excise Tax Act says it can do and it has an inherent jurisdiction (or, if one prefers to restrict that expression to the residual common law jurisdiction of provincial superior courts, implied) to control its own processes in the context of the exercise of its express jurisdiction.


[35] The difficulty with the word "jurisdiction" is brought into relief in the decision of the English Court of Appeal and of the House of Lords in Anisminic, Ltd. v. The Foreign Compensation Commission and Another, [1967] 2 All E.R. 986 (C.A.) reversed [1969] 2 A.C. 147 (H.L.).


[36] In the Court of Appeal, Diplock L.J. stated at page 992


These cases abound with references to "error" and to "jurisdiction", to "error of fact" and to "error of law", to error "going to jurisdiction" and to "error within jurisdiction"; and these expressions are not always used in the same sense in one case as in another. We must, I think, go back to first principles and start by analysing and defining our terms.


[37] At page 994 he said


"Jurisdiction" is an expression which is used in a variety of senses and takes its colour form its context. In the present appeal, as in most of the authorities which have been cited, we are concerned only with statutory jurisdiction in the sense of an authority conferred by statute on a person to determine, after inquiry into a case of a kind described in the statute conferring that authority and submitted to him for decision, whether or not there exists a situation, of a kind described in the statute, the existence of which is a condition precedent to a right or liability of an individual who is party to the inquiry, to which effect will or may be given by the executive branch of government.


[38] At pages 995-996 he said


In the present appeal we are concerned with the "jurisdiction" not only of a particular inferior tribunal, the Foreign Compensation Commission, but also with that of the High Court itself. The High Court too is the creation of statute and its "jurisdiction" is statutory, although the principal statute, the Supreme Court of Judicature (Consolidation) Act, 1925, confers that jurisdiction in part by reference to the jurisdiction formerly exercised by the courts of common law before the Supreme Court of Judicature Act, 1875. In relation to determinations of inferior tribunals the former court of Queen's Bench exercised jurisdiction of two kinds. It was the person whose opinion, whether the conditions limiting the authority of the inferior tribunal to make a statement which purported to be a determination were fulfilled, would be given effect to: that is to say, it corrected "errors going to the jurisdiction" of the inferior tribunal. It was also the person to whose opinion about the legal consequences of particular facts found to exist by the inferior tribunal effect would be given in substitution for that of the inferior tribunal: that is to say, it corrected "errors within jurisdiction". In exercising its own jurisdiction to correct "errors going to jurisdiction" of an inferior tribunal, the court of Queen's Bench was making the first effective statement whether or not particular facts existed which had the legal consequences of fulfilling the conditions limiting the authority of the inferior tribunal. It could therefore make its own inquiry into the existence or non-existence of the particular facts. It could correct "errors of fact" as well as "errors of law" in the opinion formed by the inferior tribunal as to whether or not the conditions limiting its authority to make a determination were fulfilled. In exercising its own jurisdiction, however, to correct "errors within jurisdiction" of the inferior tribunal, the court of Queen's Bench could only correct "errors of law", because it was not the person to whose opinion about the existence or non-existence of particular facts effect would be given in substitution for that of the inferior tribunal. Consequently, where the particular facts which in the opinion of the inferior tribunal existed were not set out in the statement of their determination but only the legal consequences of those facts, the "errors of law", if any, could not be detected by the court of Queen's Bench. It was only where the particular facts were set out in the statement that that court could form an opinion as to the correctness of the statement of the inferior tribunal about the legal consequences of those facts. It could correct only "errors of law on the face of the record".


[39] In reversing the Court of Appeal, Lord Reid in the House of Lords said at page 171


It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word "jurisdiction" has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly. I understand that some confusion has been caused by my having said in Reg. v. Governor of Brixton Prison, Ex parte Armah [1968] A.C. 192, 234 that if a tribunal has jurisdiction to go right it has jurisdiction to go wrong. So it has, if one uses "jurisdiction" in the narrow original sense. If it is entitled to enter on the inquiry and does not do any of those things which I have mentioned in the course of the proceedings, then its decision is equally valid whether it is right or wrong subject only to the power of the court in certain circumstances to correct an error of law. I think that, if these views are correct, the only case cited which was plainly wrongly decided is Davies v. Price [1958] 1 W.L.R. 434. But in a number of other cases some of the grounds of judgment are questionable.


[40] I cite these passages not because they are particularly germane to the point I have to decide but because they illustrate the variety of meanings that the word "jurisdiction" has and consequently the extreme care that must be exercised when the word is used.


[41] On the appeal from Brulé J.'s judgment in Bogie, Robertson J.A. in the Federal Court of Appeal, 98 DTC 6679, said


[1] Assuming, without deciding, that the Tax Court of Canada possesses the inherent jurisdiction to set aside a notice of discontinuance or that the requisite jurisdiction arises under s. 172 of the Tax Court of Canada Rules, we are all of the view that this appeal cannot succeed on its merits.


[42] This is perhaps not the resounding support for what I have been saying that I might have hoped for, but it leaves the door rather widely ajar. It is of course consistent with what Lord Greene was saying in Minister of National Revenue v. Wrights' Canadian Ropes Ltd., 2 DTC 927 at page 933.


On consideration of the reasons for judgment of the Supreme Court their Lordships are of opinion that in allowing the appeal it was intended to decide that the disallowances complained of were to be set aside once and for all and that the reason for referring the matter back to the Minister was merely to enable him to adjust the assessments in accordance with this decision. That, in the opinion of their Lordships, was the correct order to make, but the reference back to the Minister for this purpose could and should have been made under the inherent jurisdiction of the Court and not under section 65(2). It cannot be doubted that when the Court has answered a question submitted to it in such a way as to necessitate a revision of the assessment it has inherent jurisdiction to send the assessment back for that purpose instead of being bound itself to make the consequential alterations.

(emphasis added)


[43] Finally, in Rutledge v. The Queen, 2001 DTC 65, Bell J. said


[14] This Court has the inherent jurisdiction to set aside a dismissal of an appeal on the basis of erroneous advice, such dismissal not have been created by a Judgment of this Court.


[44] I am in complete and respectful agreement. This court clearly has jurisdiction to set aside a notice of withdrawal.