Jillistlictional Issues

• Author: Roger McConchie; David Potts
• Profession: Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario
• Pages: 139-159

CHAP

T E R

i:

I

1,

II !

I

Jurisdictional

Issues

A. THE

CONSTITUTIONAL

AUTHORITY

OVER

DEFAMATION

Each provincial legislature

has

exclusive jurisdiction

to

make laws

in

rela-

tion

to

"Property

and

Civil Rights

in the

Province"

and

"Generally

all

Mat-

ters

of a

merely local

or

private Nature

in the

Province."

Constitution

Act,

1867,

(U.K.)

30 & 31

Viet.,

c. 3,

ss.92(13),

92(16).

Equivalent legislative

jurisdiction

has

been

delegated

to the

Yukon Territo-

ry

and the

Northwest Territories

by the

federal

Parliament

in

Ottawa.

Yukon

Act,

R.S.C.

1985,

c.

Y-2,

s.!7(h).

Northwest Territories

Act,

R.S.C.

1985,

c.

N-27,

s.!6(h).

Libel

and

slander

are

common

law

torts over which

the

federal

Parlia-

ment

has no

legislative competence.

Gracey

v.

Canadian Broadcasting Corporation,

[1991]

1 EC. 739

(T.D.).

Cardinal

v.

Calliou,

[1999]

AJ.

No. 791

(Q.B.).

The

common

law,

as

modified

by

provincial

and

territorial legislation,

therefore

defines civil liability

for

defamation

and

related torts

such

as

inju-

rious

falsehood.

B.

THE

COURT STRUCTURE

1)

General Overview

The

Supreme Court

of

Canada,

which

is at the

pinnacle

of the

Canadian

judicial system, will hear

an

appeal only

if

leave

is

obtained

from

that Court

139

140

CANADIAN LIBEL

AND

SLANDER

ACTIONS

or

from

the

appellate court whose decision

is

challenged.

The

Supreme

Court

of

Canada

is

entitled

to

overrule

its

previous decisions

but

this power

is

used

with

restraint.

Below

the

Supreme Court

of

Canada,

the

Canadian court structure

has

three branches:

the

Federal Court,

the

provincial courts,

and the

territorial

courts.

Each

of the

provinces

has

created

a

two-level superior court system

pur-

suant

to its

constitutional jurisdiction

to

legislate

for the

constitution, main-

tenance,

and

organization

of

provincial courts, both

of

civil

and

criminal

jurisdiction, including procedure

in

civil matters

in

those courts.

Constitution

Act, 1867,

above,

s.92(14).

One

level

consists

of the

superior trial court

which

has

original

and

inherent jurisdiction.

The

second level

is the

provincial appellate court.

Each

province

has

also created

an

inferior trial court with limited statu-

tory jurisdiction

in

civil matters.

Often

characterized

as

"small claims

courts," whether

or not

they

may

hear civil suits

for

defamation

depends

on

the

jurisdiction conferred

by the

relevant provincial statutes.

The

superior courts

of the

Northwest Territories

and the

Yukon

Territo-

ry

were established

by the

Parliament

of

Canada pursuant

to its

constitu-

tional jurisdiction over

those

two

northern territories. Each territory

has a

superior trial court

and a

superior appellate court.

Constitution

Act, 1867,

above,

s.4.

Yukon

Act,

R.S.C.

1985,

c.

Y-2.

Northwest

Territories

Act,

R.S.C.

1985,

c.

N-27,

Part

II.

2) The

Federal Court

The

Federal Court,

which

consists

of the

Federal Court

Trial

Division

and

the

Federal Court

of

Appeal,

was

created

by the

federal

Parliament

of

Cana-

da

pursuant

to its

constitutional jurisdiction

to

establish courts

for the

administration

of

federal

laws.

Constitution

Act,

1867,

above,

s.101.

The

Federal Court

has a

very limited jurisdiction

and

largely deals with

cases

against

the

federal

government

and its

agencies

or

reviews

of

federal

tribunal decisions.

Constitution

Act,

1867,

above,

ss.96-100.