Inherent jurisdiction
Encyclopedia
Inherent jurisdiction is a doctrine of the English
common law
that a superior court
has the jurisdiction
to hear any matter that comes before it, unless a statute
or rule limits that authority or grants exclusive jurisdiction
to some other court or tribunal
. The term is also used when a governmental institution derives its jurisdiction from a fundamental governing instrument such as a constitution
. In the English case of Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corporation Ltd, Lord Diplock described the court's inherent jurisdiction as a general power to control its own procedure so as to prevent its being used to achieve injustice.
Inherent jurisdiction appears to apply to an almost limitless set of circumstances. There are four general categories for use of the court's inherent jurisdiction:
As such, the exercise of inherent jurisdiction is a broad doctrine allowing a court to control its own processes and to control the procedures before it. The power stems not from any particular statute or legislation, but rather from inherent powers invested in a court to control the proceedings brought before it.
in Canada
, the key restriction on the application of inherent jurisdiction is that the doctrine
cannot be used to override an existing statute
or rule
. The clearest articulation of such restriction is set out in the Supreme Court of Canada
decision in College Housing Co-operative Ltd. v Baxter Student Housing Ltd. (1976) which was a case dealing with whether a judge had exceeded jurisdiction in determining the mortgagee should have priority over other charges and encumbrances. The Supreme Court of Canada stated that a court cannot negate the unambiguous expression of legislative will and further held that:
Another restriction on the application of the doctrine of inherent jurisdiction appears to be that inherent jurisdiction cannot be used to create new rules of substantive law
.
The Rules of Civil Procedure in various provinces in Canada have varying relationships with the inherent jurisdiction of their courts. In Ontario
the Rules of Civil Procedure are considered to be regulations of the Courts of Justice Act, and thus an expression of legislative will. They are created and amended by a "Civil Rules Committee" which consists of fourteen judges and thirteen other persons involved in the legal community including the Attorney General or his representative. The rules are subject to the approval of the Lieutenant Governor in Council
. The judges of the Court obviously have a part in the making of the rules, but the rules are regulations under the Act. Inherent jurisdiction cannot be used to conflict with the unambiguous expression of the Rules.
In Nova Scotia
, on the other hand, the Rules of Civil Procedure are made by the judges of the Superior Court and the Court of Appeal
pursuant to s.46 of the Judicature Act
. The Attorney General does not have a hand in their creation, and they are not subject to approval by the Lieutenant Governor in Council
. The Court of Appeal for Nova Scotia has taken the position that a single judge of the court may use the inherent jurisdiction of the court to manage its own procedures.
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
that a superior court
Superior court
In common law systems, a superior court is a court of general competence which typically has unlimited jurisdiction with regard to civil and criminal legal cases...
has the jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
to hear any matter that comes before it, unless a statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
or rule limits that authority or grants exclusive jurisdiction
Exclusive jurisdiction
In civil procedure, exclusive jurisdiction exists where one court has the power to adjudicate a case to the exclusion of all other courts. It is the opposite situation from concurrent jurisdiction, in which more than one court may take jurisdiction over the case.Exclusive jurisdiction is typically...
to some other court or tribunal
Tribunal
A tribunal in the general sense is any person or institution with the authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title....
. The term is also used when a governmental institution derives its jurisdiction from a fundamental governing instrument such as a constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
. In the English case of Bremer Vulkan Schiffbau und Maschinenfabrik v. South India Shipping Corporation Ltd, Lord Diplock described the court's inherent jurisdiction as a general power to control its own procedure so as to prevent its being used to achieve injustice.
Inherent jurisdiction appears to apply to an almost limitless set of circumstances. There are four general categories for use of the court's inherent jurisdiction:
- to ensure convenience and fairness in legal proceedings;
- to prevent steps being taken that would render judicial proceedings inefficacious;
- to prevent abuses of process;
- to act in aid of superior courts and in aid or control of inferior courts and tribunals.
As such, the exercise of inherent jurisdiction is a broad doctrine allowing a court to control its own processes and to control the procedures before it. The power stems not from any particular statute or legislation, but rather from inherent powers invested in a court to control the proceedings brought before it.
Inherent jurisdiction in Canada
According to the case lawCase law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
in Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, the key restriction on the application of inherent jurisdiction is that the doctrine
Doctrine
Doctrine is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the body of teachings in a branch of knowledge or belief system...
cannot be used to override an existing statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
or rule
Procedural law
Procedural law or adjective law comprises the rules by which a court hears and determines what happens in civil lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process or fundamental justice to all cases that come before...
. The clearest articulation of such restriction is set out in the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision in College Housing Co-operative Ltd. v Baxter Student Housing Ltd. (1976) which was a case dealing with whether a judge had exceeded jurisdiction in determining the mortgagee should have priority over other charges and encumbrances. The Supreme Court of Canada stated that a court cannot negate the unambiguous expression of legislative will and further held that:
Inherent jurisdiction cannot, of course, be exercised so as to conflict with statute or rule. Moreover, because it is a special and extraordinary power, it should be exercised only sparingly and in a clear case.
Another restriction on the application of the doctrine of inherent jurisdiction appears to be that inherent jurisdiction cannot be used to create new rules of substantive law
Substantive law
Substantive law is the statutory or written law that defines rights and duties, such as crimes and punishments , civil rights and responsibilities in civil law. It is codified in legislated statutes or can be enacted through the initiative process.Substantive law stands in contrast to procedural...
.
The Rules of Civil Procedure in various provinces in Canada have varying relationships with the inherent jurisdiction of their courts. In Ontario
Ontario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....
the Rules of Civil Procedure are considered to be regulations of the Courts of Justice Act, and thus an expression of legislative will. They are created and amended by a "Civil Rules Committee" which consists of fourteen judges and thirteen other persons involved in the legal community including the Attorney General or his representative. The rules are subject to the approval of the Lieutenant Governor in Council
Lieutenant Governor of Ontario
The Lieutenant Governor of Ontario is the viceregal representative in Ontario of the Canadian monarch, Queen Elizabeth II, who operates distinctly within the province but is also shared equally with the ten other jurisdictions of Canada and resides predominantly in her oldest realm, the United...
. The judges of the Court obviously have a part in the making of the rules, but the rules are regulations under the Act. Inherent jurisdiction cannot be used to conflict with the unambiguous expression of the Rules.
In Nova Scotia
Nova Scotia
Nova Scotia is one of Canada's three Maritime provinces and is the most populous province in Atlantic Canada. The name of the province is Latin for "New Scotland," but "Nova Scotia" is the recognized, English-language name of the province. The provincial capital is Halifax. Nova Scotia is the...
, on the other hand, the Rules of Civil Procedure are made by the judges of the Superior Court and the Court of Appeal
Nova Scotia Court of Appeal
The Court of Appeal for Nova Scotia is the highest appeal court in the province of Nova Scotia, Canada. There are currently seven Justices and one Chief Justice. The court sits in Halifax, which is the capital of Nova Scotia...
pursuant to s.46 of the Judicature Act
Judicature Act
Judicature Act is a term which was used in the United Kingdom for legislation which related to the Supreme Court of Judicature.-United Kingdom:...
. The Attorney General does not have a hand in their creation, and they are not subject to approval by the Lieutenant Governor in Council
Lieutenant Governor of Nova Scotia
The Lieutenant Governor of Nova Scotia is the viceregal representative in Nova Scotia of the Canadian monarch, Queen Elizabeth II, who operates distinctly within the province but is also shared equally with the ten other jurisdictions of Canada and resides predominantly in her oldest realm, the...
. The Court of Appeal for Nova Scotia has taken the position that a single judge of the court may use the inherent jurisdiction of the court to manage its own procedures.