18 March 2013

Why are there so Many Courts, and Which One Should I Turn to for Help?

Chart credit: Justice Canada

In a perfect world, we might have just one court, with one judge (or a panel of a few judges) to hear all of our legal disputes. We'd all know where to turn for help, and while we might never fully grasp all the byzantine intricacies of the rules of court, at least there would be only one set of rules to deal with.

But alas, we live in a world of reality, where courts are divided into parallel geographic jurisdictions, further divided by subject matter jurisdiction, and even further split up by levels of appellate jurisdiction. The rise of increasing government regulation has also led to a proliferation of boards and tribunals, which often act like courts, but whose hearing officers aren't judges and often aren't even lawyers.

So how many courts are there to choose from in Canada? Maybe some PHD student has tried to figure it out, but I honestly can't tell you. I would say on the low end, if you don't count boards and tribunals, and don't count sub-courts (like Drug Treatment Courts) that are really just specialized applications of larger jurisdiction courts, you would still get close to 100 courts in Canada. On the high end, with everything thrown in, you might get a number ranging up towards 1000! Justice Canada has produced a good guide to Canada's Court System, which goes into a lot more detail than is possible in this blog post.

How are you supposed to know which one to go to in order to resolve your problem? There are a few tricks:

1. figure out where you live, and ignore courts not covering your geographic area (that will get rid of about 80% of them) - although there are complex rules about in which jurisdiction you must initiate a proceeding, which could force you outside of your geographic area;

2. figure out whether you have a trial problem, or an appeal problem (that will further significantly reduce the number of courts to choose from);

3. consider what kind of legal subject you have to deal with - this is the trickiest part of the equation, as unfortunately most courts don't carry the name of areas of the law on their titles (like in Ontario, family law issues can go to the Ontario Court of Justice or Ontario Superior Court of Justice), but some do bear self-explanatory names like the Tax Court of Canada;

4. check whether the statute which created the court or articulated the court's procedure talks about its jurisdiction - like the Ontario Small Claims Court's legislation says it is limited to damages or the return of property not exceeding $25,000 in value - anything greater and you must go to the Superior Court of Justice.

You unfortunately can't even depend on a court to articulate its own jurisdiction, though court counter clerks and legal aid clinics might be able to provide you with some helpful tips. I once heard a story of two lawyers in Toronto who were always being told that their applications were in the wrong court, regardless of which court they applied to. In order to conduct the best test of jurisdiction possible, one day they brought two identical applications, returnable on the same day, in two different courts, with one lawyer of the firm appearing in one court, and the other lawyer from the firm appearing in the other court.

And what do you think they were each told by the judge sitting in each respective court? That they were each in the wrong court, and needed to apply to the other court where the other law partner was appearing on the very same day, attempting to obtain relief for the very same issue!