Wither the Divisional Court? Looking at the Past, Analyzing the Present, and Querying the Future of Ontario's Intermediary Appellate Court.

AuthorKennedy, Gerard J.

Canada's court system is simple, is it not? The superior courts of the provinces are courts of "inherent" jurisdiction. The provincial courts of appeal review their decisions. There is significant symmetry across Canada on this front.

However, Ontario is an outlier. Since 1971, Ontario has had an intermediary appellate court--the Divisional Court--which sits hierarchically between the Superior Court of Justice and the Court of Appeal for Ontario. (1) The Divisional Court was established in large part to be a specialist court in judicial review, adopted in an era of an expanding administrative state. While other courts from that era have disappeared, resulting in a well-received simplification of the court system, the Divisional Court has remained. Moreover, the Divisional Court's jurisdiction has expanded to include a host of matters not originally contemplated by the Court's establishment. This has resulted in dozens of cases each year (see Part II.C) where the dispute is whether a case should properly be before the Superior Court, Divisional Court, or Court of Appeal. The Divisional Court also frequently sits in panels of three judges for matters that other provinces would have considered by a single judge. In the face of these facts, as well as the trend towards simplifying and merging courts, it is time to reconsider the role of the Divisional Court. This article attempts that reconsideration, largely through the lens of access to justice. It is suggested that the Divisional Court be abolished, and its jurisdiction be divided between the Superior Court and Court of Appeal in accordance with the following six rules:

  1. All judicial reviews and statutory appeals of administrative decisions proceed before single judges of the Superior Court;

  2. All appeals of orders of associate judges, whether interlocutory or final, proceed before single judges of the Superior Court, with leave;

  3. All appeals of orders of Superior Court judges proceed to the Court of Appeal with leave in the case of interlocutory orders or as of right in the case of final orders;

  4. There be no distinctions as to appellate routes based on the monetary values of Superior Court judgments under appeal;

  5. Final decisions of the Small Claims Court can be appealed to a single judge of the Superior Court; and

  6. The foregoing can be amended by a specific legislative or regulatory provision to the contrary.

    All of this would accord with and advance the principle of access to justice.

    Part I of this article analyzes the past of the Divisional Court, from its founding as a specialist court for judicial review to its gradually expanding jurisdiction. The principle of access to justice is then introduced, and the potential of the Divisional Court to advance the principle is acknowledged. Part II turns to the present by looking at the types of cases that are prescribed to the Divisional Court's jurisdiction, comprehensively analyzing every Divisional Court decision from 2018 and 2019, looking at cases where it was disputed whether a matter was properly before the Divisional Court, and critically analyzing the status quo through the lens of access to justice. With that access to justice lens, Part III discusses what the future of the Divisional Court should be in light of the analysis in Parts I and II. It argues that the Divisional Court be abolished, with matters currently in its jurisdiction subsumed into the jurisdiction of either the Superior Court or Court of Appeal, as suggested above. To the extent that complete abolition is not pragmatic, this article argues that the Divisional Court's jurisdiction be confined to narrower and more predictable circumstances, and offers suggestions regarding how this could be achieved in light of the Divisional Court's purpose, history, and present docket. This would give Ontario a comparable procedure to other provinces, and reduce interlocutory wrangling that delays cases from being resolved on their merits. In an era of court reform and procedural reform in the aftermath of the COVID-19 pan-demic, (2) this is an additional reform that could facilitate access to justice.

    1. THE PAST

      1. Establishing the Divisional Court

        Pursuant to section 96 of the Constitution Act, 1867, (3) Canada's Superior Courts are courts of "inherent" jurisdiction, generally possessing jurisdiction similar to that of the High Court of England and Wales unless jurisdiction over a given matter has been removed by statute. (4) In Ontario, the Superior Court of Justice is the current incarnation of the superior court. Appellate courts, however, do not have inherent jurisdiction--rather, they are creatures of statute. (5) The Court of Appeal for Ontario is the successor court to the Court of Error and Appeal for Canada, which was created in 1850. (6) Prior to this, the Governor's Council acted as an appeal court in Upper Canada since 1792. Having an independent appellate court was considered preferable to this unpredictable practice. (7)

        It was more than a century after the Court of Appeal's establishment that the Divisional Court was established. In 1964, the Ontario government appointed James C. McRuer, recently retired Chief Justice of the High Court (a previous incarnation of the Superior Court), to chair the Law Reform Commission of Ontario as well as a public inquiry into civil rights in Ontario. (8) Among his many recommendations was creating a separate court to hear applications for judicial review. (9) Prior to this time, the procedure to bring an application for judicial review was complicated and depended on the particular remedies being sought, which could result in multiple judicial review applications arising from the same underlying administrative action. (10) Simplicity and clarity were, therefore, necessary to ensure better access to judicial review.

        McRuer's recommendations regarding judicial review, including his advocacy for a specialist court, were controversial. John Willis of the University of Toronto's Faculty of Law feared that McRuer's recommendations would entrench judicial review over civil servants' decisions (11) and criticized McRuer's report as being "ideological." (12) This reflects what Ryan Alford noted as Willis' faith in the administrative state--a faith that Alford describes as enduring even when the administrative state's actions conflict with the rule of law. (13) The rule of law, of course, is the constitutional principle that guarantees the right to judicial review of administrative action, even in the face of privative clauses that purport to restrict that right. (14) Despite Willis' criticisms, the Ontario government followed McRuer's recommendations and established the Divisional Court of the High Court of Justice. (15) The Divisional Court's decisions can generally be appealed to the Court of Appeal, with leave. (16)

        McRuer's recommendations were not only understandable but sensible, particularly in an era of an expanding administrative state. (17) The Divisional Court was established in tandem with other moves to codify the process of judicial review of administrative action. For instance, it would not appear coincidental that the Divisional Court was established at approximately the same time that the Exchequer Court was reorganized into the Federal Court, Trial Division, and the Federal Court, Appeal Division. (18) These two courts were later renamed the Federal Court and Federal Court of Appeal (19) and have, among other things, jurisdiction to hear judicial reviews of federal government action. (20)

        The name of the Divisional Court was inspired by the Divisional Court of the High Court of England and Wales: indeed, McRuer viewed it as the model for the Ontario Divisional Court, which was originally named the "Appellate Division of the High Court of Justice for Ontario." (21) The Divisional Court of the High Court of England and Wales is so named because it is comprised of, and sits in, "divisions" of multiple judges. (22) One of these--renamed the "Administrative Court" in 2000--has jurisdiction over judicial review similar to that of the Ontario Divisional Court. (23) McRuer viewed multiple judges as desirable on judicial reviews given the similarities between judicial reviews and appeals. (24) Willis argued that this overstated such similarities, noting that there is a significant difference between appellate judges reviewing trial judges' decisions and judges reviewing civil servants' decisions. (25)

        Many of the rationales behind McRuer's recommendations are just as, if not more, germane in the present as they were more than a half-century ago. This is largely because of his emphasis on specialist judging, particularly in the area of administrative law. Specialist judging can increase efficiency in the decision-making process. (26) This efficiency means that parties can spend less time and money on litigation, which increases access to justice for them. (27) It also allows the courts to hear more cases, meaning that other members of the public can access the courts. (28) In addition to this, specialist judging tends to reduce errors by increasing the likelihood that the first-instance judge understands the legal subject matter. (29) This furthers the principle of finality, as parties are more likely to accept the judge's opinion, leading to fewer appeals and even fewer successful appeals.

        To be sure, specialist judging in administrative law was never the only rationale behind the establishment of the Divisional Court. McRuer was also concerned about the large number of cases that were heard by the Court of Appeal, and he believed that it would be a better use of judicial resources to divert certain matters to the Divisional Court. (30) In this sense, though creation of a specialist court in judicial review was a primary rationale animating McRuer's recommendation to establish the Divisional Court, it must be acknowledged that it was not the only rationale.

      2. The Expansion of the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT