History of the Ontario Courts

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CHAPTER 3


...the history of the Ontario courts shows that, with the exception of only a few periods ... [it is] a history of constant change and adaptation. Resistance to change is also a hallmark of the history of the courts. Changes which were considered too radical ever to occur were adopted, almost without a murmur, a few years later. The Ontario courts have survived because they have always adapted themselves to the needs of the people.
The Hon. T.G. Zuber [2]

To serve the needs of the Ontario people, the province's courts have undergone a series of transformations over the past two hundred years. [3]

After the American Revolution in 1777 many United Empire Loyalists moved north to settle in what is now Ontario. These Loyalists were unfamiliar with the civil law system of France which was in effect in their territory and unhappy with the fact that all the courts were far away in the districts of Quebec and Montreal.

To appease the Loyalists, England divided the territories into the predominantly English-speaking district of Upper Canada and the predominantly French-speaking district of Lower Canada, in 1791. English Common Law was applied to all civil and criminal law matters in Upper Canada. The new court system which sprung up in Upper Canada was modeled after the English system, thereby creating the prototype from which Ontario's courts would evolve. Judges of the superior courts began circuiting around Upper Canada, thereby bringing superior court justice to the far reaches of the untamed terrain. In 1837 a court of equity was introduced. By this time, Upper Canada had a fully-functioning judicial system consisting of superior, county, and district courts, a court of equity (called the Court of Chancery), and a small claims court (called Division Court).

In 1867 the British North America Act was passed (now the Constitution Act, 1867), creating a federal system of government for Canada. Sections 96 to 101 of the constitution provided for the division of court powers between federal and provincial governments. Section 96 is of particular relevance to any discussion involving court restructure or the delegation of judicial powers. Section 96 provides that the federal government will appoint judges of the superior, county and district courts. The powers of these federally appointed judges cannot be reassigned to a provincial court. Over the years jurisdictional disputes between courts with federally appointed judges and those with provincially appointed judges have revolved around the interpretation of s.96, with the result that provincially appointed judges have often had their jurisdiction limited. The one notable instance of delegation in these early years following the Constitution Act, 1867 was the permitted delegation of powers by circuiting judges to Clerks of Crown and Pleas of the Court of Queen's Bench; this was the origin of the system of Masters in Ontario.

The common law and equity, and their respective courts, were merged in 1881 pursuant to the Ontario Judicature Act (1881). The new Supreme Court of Ontario was created with two branches: the High Court of Justice and the Court of Appeal. All County Court judges became local judges of the High Court and had jurisdiction to exercise certain of the High Court's powers, to ensure that litigants had access to justice in their own districts and did not have to travel to Toronto to be heard by the High Court. This Act also expanded the powers of Masters by merging the offices of the Clerk of Crown and Pleas, the Master in Ordinary, and the Referee in Chambers.

As early as 1867 it was recognized that a separate court was needed to deal with family law matters. In 1908 legislation was passed which gave discretion to local authorities to create juvenile courts. Finally, in 1954 legislation standardized juvenile courts by creating the Juvenile and Family Court, and by expanding its jurisdiction to include matters under the Training Schools Act, the Deserted Wives' and Children's Maintenance Act and the Child Welfare Act.

In the late 1960s the province assumed full responsibility for the financing of the administration of justice. This was followed by the reorganization of the provincial courts into the Provincial Courts (Criminal Division) and (Family Division), and the 1970 addition of the Divisional Court to the Supreme Court of Ontario. [4]

Significant changes occurred in the 1980s

In 1985 the Courts of Justice Act was passed. The Act sought to remove the confusion between the District/County Courts and the Court of General Sessions of the Peace by providing for one Ontario-wide court at that level, called the District Court of Ontario.

In 1989 the Courts of Justice Amendment Act, 1989 was enacted by the Government to create one large superior trial court for Ontario. This Act came into force in 1990 and resulted in the merger of the High Court, the District Court and the Surrogate Court into the Ontario Court of Justice (General Division). The Small Claims Court and the Divisional Court continue as branches of the General Division. The criminal and family divisions of the Provincial Court were merged to form the Ontario Court of Justice (Provincial Division). The Court of Appeal, and the Unified Family Court in Hamilton, continue as separate courts.

The new court structure is described in further detail in the next chapter.

Combined with regionalization -- the division of the Province into 8 juridical regions -- these changes have had a profound affect upon the way in which civil and criminal justice are delivered in Ontario.



Footnotes:

[2] Report of the Ontario Courts Inquiry, The Hon. T.G. Zuber, [hereinafter " Zuber Report"].

[3] For a detailed, thorough review of the history of Ontario courts, see the Zuber Report at pp. 8-29.

[4] See chapter 17.1 infra on Small Claims Court for an overview of the changes which occurred to it between 1970 and 1985.